!pip install pandas python-docx
!pip install pywin32 python-docx
!pip install openpyxl
Requirement already satisfied: pandas in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (1.5.3) Requirement already satisfied: python-docx in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (1.1.0) Requirement already satisfied: python-dateutil>=2.8.1 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from pandas) (2.8.2) Requirement already satisfied: numpy>=1.21.0 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from pandas) (1.26.4) Requirement already satisfied: pytz>=2020.1 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from pandas) (2022.7) Requirement already satisfied: typing-extensions in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from python-docx) (4.10.0) Requirement already satisfied: lxml>=3.1.0 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from python-docx) (4.9.1) Requirement already satisfied: six>=1.5 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from python-dateutil>=2.8.1->pandas) (1.16.0) Requirement already satisfied: pywin32 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (305.1) Requirement already satisfied: python-docx in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (1.1.0) Requirement already satisfied: typing-extensions in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from python-docx) (4.10.0) Requirement already satisfied: lxml>=3.1.0 in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from python-docx) (4.9.1) Requirement already satisfied: openpyxl in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (3.0.10) Requirement already satisfied: et_xmlfile in c:\users\muc574\appdata\local\anaconda3\lib\site-packages (from openpyxl) (1.1.0)
import os
import zipfile
import pandas as pd
from docx import Document
##33.zip others.zip ile ayni
# Define the path where the ZIP files are located
zip_files_path = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
unzip_folders_path = zip_files_path # Assuming you want to unzip in the same location
# Unzip each ZIP file into a different subfolder
for filename in os.listdir(zip_files_path):
if filename.endswith('.zip'):
# Create a subfolder for the contents of this ZIP file
subfolder_name = os.path.splitext(filename)[0]
subfolder_path = os.path.join(unzip_folders_path, subfolder_name)
os.makedirs(subfolder_path, exist_ok=True)
# Unzip the ZIP file into the subfolder
zip_file_path = os.path.join(zip_files_path, filename)
with zipfile.ZipFile(zip_file_path, 'r') as zip_ref:
zip_ref.extractall(subfolder_path)
print(f"Unzipped {filename} into {subfolder_path}")
Unzipped 1.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 Unzipped 10.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\10 Unzipped 11.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\11 Unzipped 12.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\12 Unzipped 13.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\13 Unzipped 14.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\14 Unzipped 15.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\15 Unzipped 16.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\16 Unzipped 17.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\17 Unzipped 18.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\18 Unzipped 19.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\19 Unzipped 2.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\2 Unzipped 20.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\20 Unzipped 21.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\21 Unzipped 22.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\22 Unzipped 23.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\23 Unzipped 24.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\24 Unzipped 25.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\25 Unzipped 26.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\26 Unzipped 27.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\27 Unzipped 28.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\28 Unzipped 29.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\29 Unzipped 3.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\3 Unzipped 30.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\30 Unzipped 31.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\31 Unzipped 32.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\32 Unzipped 33.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\33 Unzipped 4.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\4 Unzipped 5.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\5 Unzipped 6.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\6 Unzipped 7.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\7 Unzipped 8.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\8 Unzipped 9.zip into C:\Users\muc574\Bid Protest\WestLaw Data\Data\9
##export conclusion sections
import csv
import os
import re
def save_final_clean_text_to_csv(root_dir, csv_filename='final_clean_text.csv'):
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir', 'Filename', 'Final Clean Text'])
# Cleanup pattern to remove RTF control words, formatting characters, braces, and reduce all kinds of whitespace
cleanup_pattern = re.compile(r'(\\par|\\[a-z]+\d*|\{\}|\{|\}|\n|\r|\t|\f|\v|\s{2,})')
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if filename.endswith('.doc'): # Adjust as necessary for your file types
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read()
# Find all occurrences of "conclusion" and "All Citations"
conclusions = [(m.start(0), m.end(0)) for m in re.finditer('conclusion', content, re.IGNORECASE | re.DOTALL)]
all_citations = [(m.start(0), m.end(0)) for m in re.finditer('All Citations', content, re.IGNORECASE | re.DOTALL)]
# Determine the last "conclusion" before the last "All Citations", if "All Citations" exists
if all_citations:
last_citation_start, _ = all_citations[-1]
conclusions_before_last_citation = [end for start, end in conclusions if start < last_citation_start]
if conclusions_before_last_citation:
conclusion_end = conclusions_before_last_citation[-1]
all_citations_start = last_citation_start
text_after_conclusion_before_citations = content[conclusion_end:all_citations_start].strip()
else:
continue # Skip if no valid conclusion before last "All Citations"
else:
# If "All Citations" does not exist, use the last "conclusion"
if conclusions:
_, conclusion_end = conclusions[-1]
text_after_conclusion_before_citations = content[conclusion_end:].strip()
else:
continue # Skip if no "conclusion" at all
# Further cleanup of the text, including reducing excessive whitespace
clean_text = re.sub(cleanup_pattern, ' ', text_after_conclusion_before_citations).strip()
# Additional step to ensure the text is a coherent paragraph
coherent_paragraph = ' '.join(clean_text.split())
print(f"File: {filename}, Final Clean Text: {coherent_paragraph[:100]}...")
csvwriter.writerow([subdir, filename, coherent_paragraph])
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_final_clean_text_to_csv(root_directory)
File: 001 - PDS Consultants Inc v United States.doc, Final Clean Text: For all of these reasons, the court GRANTS IFB s motion for a stay pending appeal. The VA may contin... File: 002 - Veterans Contracting Group Inc v United States.doc, Final Clean Text: For the reasons stated, Veterans motion for a preliminary injunction is GRANTED IN PART and the gove... File: 003 - Q Integrated Companies LLC v United States.doc, Final Clean Text: For the foregoing reasons, Q Integrated is awarded bid preparation and proposal costs of $21,124.47 ... File: 004 - In re Global Computer Enterprises Inc.doc, Final Clean Text: For the foregoing reasons, the Court finds in favor of the Defendant on Count III (Legal Malpractice... File: 005 - AT And T Corp v United States.doc, Final Clean Text: For the foregoing reasons, the Court concludes that the decision to override the CICA stay of perfor... File: 006 - Automated Collection Services Inc v United States.doc, Final Clean Text: [.] \'3f). With respect to corrective action in particular, contracting officials have \'3fbroad dis... File: 009 - Veterans Technology LLC v United States.doc, Final Clean Text: . For these reasons, Plaintiffs December 21, 2016 Motion For Judgment On The Administrative Record i... File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Final Clean Text: For the reasons explained above, Sonoran s motion to amend the complaint is DENIED. The resolution o... File: 016 - Harkcon Inc v United States.doc, Final Clean Text: The court has considered all of the parties arguments. To the extent not discussed herein, they are ... File: 017 - A Squared Joint Venture v United States.doc, Final Clean Text: For the reasons stated above, A2JV s motion for preliminary relief is DENIED . The parties shall hav... File: 018 - American Sanitary Products Inc v United States.doc, Final Clean Text: . For these reasons, American Sanitary s April 24, 2017 Motion For Judgment On The Administrative Re... File: 019 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Final Clean Text: \* co_pp_sp_999_18_19 \* co_pp_sp_999_18_19 *18 For the foregoing reasons, the Court DENIES SourceAm... File: 020 - Schirripa v United States.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiff s motion for reconsideration. \'3f IT IS SO OR... File: 021 - Cotton And Company LLP v United States.doc, Final Clean Text: As set out in open court on July 19, 2017, Cotton s motion for a preliminary injunction is DENIED. E... File: 022 - Treadwell Corporation v United States.doc, Final Clean Text: In sum, the administrative record in this matter demonstrates that Treadwell has not met its heavy b... File: 023 - Remote Diagnostic Technologies LLC v United States.doc, Final Clean Text: For the reasons set forth above, defendant-intervenor s MOTION to Dismiss is GRANTED . The Clerk is ... File: 024 - Orbital ATK Inc v Walker.doc, Final Clean Text: For the reasons stated above, defendants Motion to Dismiss for Lack of Subject Matter Jurisdiction a... File: 025 - Cleveland Assets LLC v United States.doc, Final Clean Text: For the reasons set forth above, Cleveland Assets motion to stay pending appeal is DENIED . \'3f IT ... File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Final Clean Text: For the reasons explained above, Sonoran s motion to supplement the Administrative Record is GRANTED... File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Final Clean Text: For the reasons set forth above, plaintiff s MOTION for Judgment on the Administrative Record as to ... File: 029 - Q Integrated Companies LLC v United States.doc, Final Clean Text: For the reasons stated, plaintiff s application for bid preparation and proposal costs and motion fo... File: 031 - Dell Federal Systems LP v United States.doc, Final Clean Text: Plaintiffs and Plaintiff \'3fIntervenors cross-motions for judgment on the administrative record are... File: 032 - XPO Logistics Worldwide Government Services LLC v United States.doc, Final Clean Text: For the reasons set forth above, the government s motion to dismiss Crowley s complaint is DENIED . ... File: 033 - i3 Cable And Harness LLC v United States.doc, Final Clean Text: For the reasons described above, protestor s motion for judgment on the administrative record is DEN... File: 034 - Integrity National Corporation v DSS Services Inc.doc, Final Clean Text: DSS has failed to put forth any basis for disqualifying Davis under MLRPC 1.7, 1.9, or 3.7. I will t... File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Final Clean Text: For the reasons explained above, Sonoran s motion to supplement the Administrative Record is GRANTED... File: 036 - QTC Medical Services Inc v United States.doc, Final Clean Text: In sum, plaintiffs bid protest claims in this matter are either untimely, or unsupported by the reco... File: 038 - Storms v United States.doc, Final Clean Text: For the foregoing reasons, the Court grants Defendants motion for summary judgment in its entirety. ... File: 039 - SupplyCore Inc v United States.doc, Final Clean Text: Because plaintiff has not identified any irrationality or other illegality in the Air Force s solici... File: 040 - Novak Birch Inc v United States.doc, Final Clean Text: For the reasons stated above, protestor s motion for judgment on the administrative record is DENIED... File: 041 - Southern Atlantic Companies LLC v School Board of Orange County Florida.doc, Final Clean Text: in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003497144&pubNum=... File: 042 - Continental Service Group Inc v United States.doc, Final Clean Text: . For these reasons, the court denies the Government s May 23, 2017 Motion To Dismiss, pursuant to \... File: 043 - Schirripa v United States.doc, Final Clean Text: In sum, a plain reading of the amended complaint shows that this Court does not possess subject-matt... File: 044 - Iron Bow Technologies LLC v United States.doc, Final Clean Text: For the reasons stated above, Iron Bow s motion for a temporary restraining order and preliminary in... File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record is DENIED , ... File: 047 - Favor TechConsulting LLC v United States.doc, Final Clean Text: . For these reasons, Plaintiff s February 1, 2017 Motion For Attorneys Fees And Related Expenses is ... File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Final Clean Text: For the reasons stated above, protestor s motion for judgment on the administrative record is DENIED... File: 055 - PDS Consultants Inc v United States.doc, Final Clean Text: For the reasons stated above, IFB and the government s motions to dismiss under \* HYPERLINK "https:... File: 056 - Gerber Products Company v Perdue.doc, Final Clean Text: For the foregoing reasons, the court grants Defendants Motion to Dismiss and denies Plaintiff s Moti... File: 057 - Breen v Chao.doc, Final Clean Text: For the reasons set forth in this Opinion, the Court will grant defendants motion with respect to pl... File: 058 - Informatics Applications Group Inc v United States.doc, Final Clean Text: In sum, tiag s challenge to the DHA s decision to exclude its quote from consideration for award is ... File: 059 - Harmonia Holdings Group LLC v United States.doc, Final Clean Text: Defendant s motion to dismiss for lack of standing is DENIED . \'3f Plaintiff s motion for judgment ... File: 060 - Cleveland Assets LLC v United States.doc, Final Clean Text: For the reasons set forth above, Cleveland Assets motion to supplement the administrative record is ... File: 067 - Vintage Autoworks Inc v United States.doc, Final Clean Text: . For these reasons, Plaintiff s February 24, 2017 Motion For Judgment On The Administrative Record ... File: 068 - Clear Creek Community Services District v United States.doc, Final Clean Text: For the reasons stated above, the court finds that there are genuine issues of material fact as to: ... File: 075 - Idaho Stage LLC v United States.doc, Final Clean Text: For the reasons stated above, defendant s motion in limine is DENIED . The court will schedule a sta... File: 076 - Dellew Corporation v United States.doc, Final Clean Text: We have considered the parties \'3f remaining arguments and find them unpersuasive. Accordingly, the... File: 077 - Open Spirit LLC v United States.doc, Final Clean Text: Plaintiff s motion to supplement the AR is GRANTED in part, and Defendant s motion to supplement the... File: 078 - IT Enterprise Solutions JV LLC v United States.doc, Final Clean Text: For the reasons set forth above, the government s and Valdez s motions to dismiss are DENIED . Addit... File: 079 - Enhanced Veterans Solutions Inc v United States.doc, Final Clean Text: For the foregoing reasons, defendant s and defendant-intervenor s motions for judgment on the admini... File: 080 - Eagle v United States.doc, Final Clean Text: that the Department had unreasonably and unlawfully delayed that statutorily mandated accounting. \*... File: 081 - Concourse Group LLC v United States.doc, Final Clean Text: In sum, the Court finds that Concourse has not shown that the Army s technical evaluation lacked a r... File: 086 - Eco Tour Adventures Inc v Zinke.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for summary judgment is granted insofar as the pla... File: 087 - Gallup Inc v United States.doc, Final Clean Text: The integrity of the administrative record, upon which nearly every bid protest is resolved, is foun... File: 088 - Diaz v United States.doc, Final Clean Text: We have considered Mr. Diaz s remaining arguments and find them unpersuasive. Accordingly, the final... File: 090 - United States v Government of Guam.doc, Final Clean Text: Based on the above analysis, the court hereby DENIES the Motion for Stay since Morrico has not met i... File: 091 - Alpha Painting And Construction Co Inc v Delaware River Port Authority of .doc, Final Clean Text: For the foregoing reasons, we affirm in part, vacate in part, and remand to the District Court. \'3f... File: 092 - Greenland Contractors IS v United States.doc, Final Clean Text: For the reasons stated, Greenland Contractors motion for judgment on the administrative record is DE... File: 093 - Starry Associates Inc v United States.doc, Final Clean Text: Plaintiff is entitled to an award of fees and costs under EAJA. Because of the unique circumstances ... File: 094 - Jacobs Technology Inc v United States.doc, Final Clean Text: For the reasons stated, Jacobs motion for judgment on the administrative record is DENIED, and the g... File: 095 - Tiare Enterprises Inc v United States Department of Transportation.doc, Final Clean Text: For the foregoing reasons, Defendants Motion to Dismiss in Part and for Summary Judgment is GRANTED ... File: 096 - Agility Public Warehousing Company KSCP v US Department of Defense.doc, Final Clean Text: For the foregoing reasons, it is hereby \'3f ORDERED that [21] the government s motion for summary j... File: 097 - Government Services Corp v United States.doc, Final Clean Text: . For the aforementioned reasons, Plaintiff s September 15, 2016 Motion For Summary Judgment is deni... File: 098 - Tidewater Contractors Inc v United States.doc, Final Clean Text: The court has considered all of the parties arguments. To the extent not discussed herein, they are ... File: 100 - Q Integrated Companies LLC v United States.doc, Final Clean Text: For the reasons stated, the government s motion for relief from judgment is DENIED. The court s judg... File: 001 - US ex rel Jones v Collegiate Funding Services Inc.doc, Final Clean Text: . Defendants point to a March 2007 article in U.S. News & World Report which disclosed that loan com... File: 002 - Resource Conservation Group LLC v US.doc, Final Clean Text: . For the aforementioned reasons, the Government s December 23, 2008 Motion To Dismiss is granted. T... File: 003 - Acrow Corp of America v US.doc, Final Clean Text: Accordingly, based on the foregoing: \'3f 1. Plaintiff s motion for judgment on the administrative r... File: 004 - Google Inc v US.doc, Final Clean Text: . For the reasons set forth herein, it is hereby ordered that: the United States of America, the Dep... File: 005 - Bannum Inc v US.doc, Final Clean Text: . For these reasons, Plaintiff s August 24, 2010 Motion For Judgment Upon The Administrative Record ... File: 006 - Toon v US.doc, Final Clean Text: For the reasons set forth above, it is hereby ordered: 1. Plaintiff s application to proceed in form... File: 007 - Acrow Corp of America v US.doc, Final Clean Text: The court has evaluated the record on the basis of what the contracting officer at the time of her r... File: 008 - YRC Inc v US.doc, Final Clean Text: . For the above reasons, the Government s May 21, 2010 Motion For Summary Judgment is granted. The C... File: 009 - Terry v US.doc, Final Clean Text: For the reasons discussed above, defendant s motion to dismiss is GRANTED IN PART and DENIED IN PART... File: 010 - Terry v US.doc, Final Clean Text: For the reasons stated above, plaintiff s motion to supplement is DENIED. The court has filed this d... File: 011 - Wallace v US.doc, Final Clean Text: \* co_pp_sp_999_10_11 \* co_pp_sp_999_10_11 *10 Defendant s motion is GRANTED. The Clerk of Court is... File: 012 - Pyramid Real Estate Services LLC v US.doc, Final Clean Text: Counsel for Matt Martin argues on a number of grounds that he should not have been barred from pursu... File: 013 - PlanetSpace Inc v US.doc, Final Clean Text: For the foregoing reasons, the court holds in favor of defendant on counts (1) \'3f(2). Having previ... File: 014 - Matt Martin Real Estate Management LLC v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES Matt Martin s Motion, GRANTS the government s motion, GR... File: 016 - Harris Patriot Healthcare Solutions LLC v US.doc, Final Clean Text: For the foregoing reasons, defendant and defendant-intervenor s motions to dismiss \* co_pp_sp_613_5... File: 017 - Del Valle Group v Puerto Rico Ports Authority.doc, Final Clean Text: Based on the foregoing analysis, the court GRANTS Plaintiff s motion for preliminary injunction (Doc... File: 018 - Bilfinger Berger AG Sede Secondaria Italiana v US.doc, Final Clean Text: For the reasons discussed above, defendant s motion to dismiss is DENIED IN PART and plaintiff s mot... File: 019 - Morrell v Alfortish.doc, Final Clean Text: The Court s holding is narrow: these Plaintiffs lack standing to assert these civil RICO claims. The... File: 020 - Sheridan Corp v US.doc, Final Clean Text: For the foregoing reasons, the Court finds that Plaintiff has standing and Defendant s motion to dis... File: 021 - Baldwin v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Defendant s motion is g... File: 022 - K-Mar Industries Inc v US Dept of Defense.doc, Final Clean Text: is consistent with the Tenth Circuit s statement in Normandy that only contract claims come within t... File: 023 - Kesler Enterprises Inc v US Dept of Agriculture.doc, Final Clean Text: S A Bivens action may not be maintained against a federal entity or agency. Such a claim may not be ... File: 024 - Linc Government Services LLC v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion to supplement the administrative record is DENIED. \'3... File: 025 - EREH Phase I LLC v US.doc, Final Clean Text: For the reasons stated above, Plaintiff s Motion for Judgment on the Administrative Record is DENIED... File: 026 - Rothe Development Inc v US Dept of Defense.doc, Final Clean Text: The Court finds that it lacks jurisdiction over RDI s challenges to the Defendants insourcing decisi... File: 027 - Planners Collaborative Inc v US.doc, Final Clean Text: \* co_pp_sp_999_13_27 \* co_pp_sp_999_13_27 *13 For the reasons set out above, we deny plaintiff s m... File: 028 - Pyramid Real Estate Services LLC v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES Pyramid s Motion, GRANTS the government s motion, GRANTS... File: 029 - Angelica Textile Services Inc v US.doc, Final Clean Text: Angelica s Motion for Permanent Injunction and Cross \'3fMotion for Judgment on the Administrative R... File: 030 - Weston Solutions Inc v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for judgment on the administrative record is GRANT... File: 031 - Linc Government Services LLC v US.doc, Final Clean Text: For the foregoing reasons: (1) defendant s motion for judgment on the administrative record is GRANT... File: 032 - CRAssociates Inc v US.doc, Final Clean Text: Based on the foregoing: 1. Plaintiff s motion for judgment on the administrative record is GRANTED, ... File: 033 - PMTech Inc v US.doc, Final Clean Text: Plaintiff has not shown that DOE s decision to override the automatic stay of performance was arbitr... File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Final Clean Text: For the reasons discussed above, this Court holds that Defendant, NJ Transit, has not violated the F... File: 035 - PowerComm LLC v Holyoke Gas And Elec Dept.doc, Final Clean Text: For the foregoing reasons, Defendant s Motion for Summary Judgment (Dkt. No. 28) is hereby ALLOWED. ... File: 036 - Harris Enterprises Inc v US Dept of Defense.doc, Final Clean Text: For the foregoing reasons, IT IS HEREBY ORDERED that defendants Motion to Dismiss for Lack of Jurisd... File: 037 - Marquardt Co v US.doc, Final Clean Text: For the reasons stated above, the court GRANTS defendant s Motion to Dismiss. \'3f IT IS SO ORDERED.... File: 038 - Vero Technical Support Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss is GRANTED. Plaintiff s motion for a tempor... File: 040 - DCS Corp v US.doc, Final Clean Text: The decision to award the SEMATS contract to SURVICE may be set aside if it lacked a rational basis ... File: 041 - Turner Const Co Inc v US.doc, Final Clean Text: OCI decisions frequently present fact-intensive inquiries that require a large amount of good judgme... File: 042 - Northern Air Cargo v US Postal Service.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART plaintiffs motion for summary... File: 043 - US ex rel Jones v Collegiate Funding Services Inc.doc, Final Clean Text: s accepted and adopted by the District Judge except upon grounds of plain error. \'3f \* co_allCitat... File: 044 - Infiniti Information Solutions LLC v US.doc, Final Clean Text: For the reasons set forth, Infiniti s application for attorneys fees and expenses under EAJA is GRAN... File: 045 - CS-360 LLC v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant s motion to dismiss for lack of subject matte... File: 046 - Chenega Management LLC v US.doc, Final Clean Text: . For reasons discussed herein, Plaintiff s May 21, 2010 Motion For Judgment On The Administrative R... File: 047 - Madison Services Inc v US.doc, Final Clean Text: For the reasons stated above, plaintiff s \* HYPERLINK "https://www.westlaw.com/Link/Document/FullTe... File: 048 - Chicago United Industries Ltd v City of Chicago.doc, Final Clean Text: For the foregoing reasons, CUI s motion to reconsider [323] is denied and CUI s motion for leave to ... File: 049 - Moore v US.doc, Final Clean Text: Upon review of plaintiff s complaint, the plaintiff has alleged no claims within the jurisdiction of... File: 050 - Sheridan Corp v US.doc, Final Clean Text: For the foregoing reasons, the Court finds that the prerequisites for entering a preliminary injunct... File: 051 - Uzamere v US.doc, Final Clean Text: Because the court does not have subject matter jurisdiction over any of the claims in this consolida... File: 052 - Tri-State Contractors Inc v Fagnant.doc, Final Clean Text: Therefore, we AFFIRM the district court s denial of Appellants motion for summary judgment on the gr... File: 053 - Mobile Medical Intern Corp v US.doc, Final Clean Text: For the foregoing reasons, plaintiff does not have standing to bring the claims alleged against the ... File: 054 - Ceres Gulf Inc v US.doc, Final Clean Text: For the foregoing reasons, Defendant s motion to dismiss Plaintiff s complaint for lack of subject m... File: 055 - Office Depot Inc v US.doc, Final Clean Text: Office Depot has failed to demonstrate that the FDIC s decision to award the contract to Staples was... File: 056 - Office Depot Inc v US.doc, Final Clean Text: The court denies plaintiff s motion to supplement the administrative record with the deposition of M... File: 057 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: Defendant s motion to dismiss is DENIED. \'3f \* co_allCitations_57 \* co_allCitations_57... File: 059 - Pitney Bowes Government Solutions Inc v US.doc, Final Clean Text: For the reasons stated, Pitney Bowes motion for judgment on the administrative record \* co_pp_sp_61... File: 060 - Jackson v Cerpa.doc, Final Clean Text: Defendants motion for summary judgment is denied as to Count I against Cerpa and Villegas, Count II ... File: 061 - Vero Technical Support Inc v US Dept of Defense.doc, Final Clean Text: In its attempt to secure district court APA jurisdiction, the Plaintiff limits its claim to just the... File: 062 - Navarro Research and Engineering Inc v US.doc, Final Clean Text: For the reasons set out above, we denied defendant s motion to dismiss as well as plaintiff s motion... File: 063 - BLR Group of America Inc v US.doc, Final Clean Text: For the reasons set forth above, the court DENIES defendant s motion to dismiss on mootness grounds,... File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Final Clean Text: Every case stands on its own facts. \'3f[L]egislatures make law wholesale, judges retail. \'3f Josep... File: 065 - DGR Associates Inc v US.doc, Final Clean Text: By this decision, the Court enters a permanent injunction requiring the Air Force and the Small Busi... File: 066 - HomeSource Real Estate Asset Services Inc v US.doc, Final Clean Text: For the foregoing reasons the court DENIES plaintiff s Motion, GRANTS defendant s Motion, GRANTS BLB... File: 067 - Impresa Construzioni Geom v US.doc, Final Clean Text: Although it is not obligated to do so, the court provides plaintiff the opportunity to supplement it... File: 069 - PAI Corp v US.doc, Final Clean Text: s in a memorandum entitled \'3fOrganization Conflict of Interest Analysis, \'3f issued on June 8, 20... File: 070 - FAS Support Services LLC v US.doc, Final Clean Text: As no error has been established in the suspension of FAS and FAS has not demonstrated lack of reaso... File: 072 - K-Lak Corp v US.doc, Final Clean Text: Based on the reasons set forth above, the government s Motion to Dismiss for Lack of Subject Matter ... File: 073 - Gonzalez-McCaulley Inv Group Inc v US.doc, Final Clean Text: For the reasons set forth above, the Government s instant motion to dismiss pursuant to \* HYPERLINK... File: 074 - Todd Construction LP v US.doc, Final Clean Text: For the reasons stated above, the plaintiff s amended complaint is DISMISSED in its entirety. The al... File: 075 - Infiniti Information Solutions LLC v US.doc, Final Clean Text: For the reasons stated, the government s motion for relief from judgment is DENIED. \'3f It is so OR... File: 076 - Diversified Maintenance Systems Inc v US.doc, Final Clean Text: 1. The Court DENIES Plaintiff s motion to supplement the administrative record with the affidavits o... File: 077 - Jay DeeMole Joint Venture v Mayor and City Council of Baltimore.doc, Final Clean Text: s the MWBOO reached were primarily based on communications with R & R, who Corey \'3fthe head of the... File: 078 - HB Rowe Co Inc v Tippett.doc, Final Clean Text: that the North Carolina Minority Business Enterprise Program, \* HYPERLINK "https://www.westlaw.com/... File: 079 - Turner Const Co Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F152022549411_79" [15] \* co_anchor_B152022549411_79 \* co_anchor_B15202254... File: 080 - Coastal Intern Sec Inc v US.doc, Final Clean Text: . For these reasons, Plaintiff s Motion For Judgment On The Administrative Record On Counts III \'3f... File: 081 - Magnum Opus Technologies Inc v US.doc, Final Clean Text: For the reasons stated above, plaintiffs motions to alter or amend the judgment are DENIED. \* co_fn... File: 082 - Riser v US.doc, Final Clean Text: Plaintiff s motion to supplement the record is DENIED, and the government s motion to remand is GRAN... File: 083 - Cheeks v Fort Myer Const Co.doc, Final Clean Text: For the foregoing reasons, the Court finds that Cheeks lacks standing to bring the claims asserted i... File: 085 - DHT Transp Inc v Bobb.doc, Final Clean Text: Plaintiff may have some likelihood of success on its federal equal protection claims. Balancing this... File: 086 - Log Creek LLC v Kessler.doc, Final Clean Text: For these reasons, \'3f IT IS ORDERED: \'3f 1. The motions to dismiss (documents 1 \'3f4 and 7) are ... File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s Motion for Preliminary and Permanent Injunct... File: 088 - Allied Technology Group Inc v US.doc, Final Clean Text: For the foregoing reasons, Defendant s motion to dismiss Plaintiff s complaint for lack of subject m... File: 089 - Magnum Opus Technologies Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant and defendant-intervenor s motions to dismiss are DENIED. Magnu... File: 090 - Pitney Bowes Government Solutions Inc v US.doc, Final Clean Text: The motions to supplement the administrative record of the procurement at issue are GRANTED IN PART ... File: 091 - Fireman's Fund Ins Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, the Clerk of the Court shall enter judgment, as follows: \'3f 1... File: 092 - USfalcon Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiff s motions for judgment on the administrative r... File: 093 - Mac Const and Excavating Inc v City of Warsaw Ky.doc, Final Clean Text: Mac failed to show that Warsaw adopted the necessary provisions of the KMPC, and thus, Mac cannot ha... File: 095 - Benefits Consulting Associates LLC v US.doc, Final Clean Text: . For the reasons discussed herein, Plaintiff s December 30, 2009 Motion For Judgment On The Adminis... File: 097 - Grayton v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s claims must be dismissed. Accordingly, it is hereby ORDERED t... File: 098 - PlanetSpace Inc v US.doc, Final Clean Text: For the above reasons, counts (3)-(6) are DISMISSED with prejudice. The court withholds judgment on ... File: 099 - Electronic Data Systems LLC v US.doc, Final Clean Text: This court need go no further. Measured by the appropriate standard of review, Treasury s conduct, t... File: 100 - Shamrock Foods Co v US.doc, Final Clean Text: Shamrock lacks standing to bring this post-award bid protest, and waived its rights to protest the t... File: 001 - Jones Automation Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s application for a temporary restraining order is DENIED. On o... File: 003 - Davis v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss the plaintiff s complaint for lack of ... File: 004 - Hyperion Inc v US.doc, Final Clean Text: Hyperion has not shown that the agency acted in an arbitrary way in its technical evaluation or its ... File: 005 - ROK Bros Inc v Baltimore County Md.doc, Final Clean Text: that the laws compelling competitive bidding do not support the finding of a property interest for t... File: 006 - In re Valley Health System.doc, Final Clean Text: For the reasons stated above, the court concludes that VHS is entitled to an order overruling the pe... File: 007 - Infiniti Information Solutions LLC v US.doc, Final Clean Text: For the reasons stated, Infiniti s motion for judgment on the administrative record is GRANTED. The ... File: 008 - Thompson Bldg Wrecking Co Inc v Augusta Ga.doc, Final Clean Text: Upon the foregoing, Plaintiffs motion for summary judgment (doc. no. 133) is DENIED, and Defendants ... File: 009 - Bleccs Inc v Augusta Ga.doc, Final Clean Text: \* co_pp_sp_999_6_9 \* co_pp_sp_999_6_9 *6 Upon the foregoing, Defendant s motion for summary judgme... File: 010 - Metropolitan Van and Storage Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record is granted, ... File: 011 - LTMCDragonfly Inc v Metropolitan Washington Airports Authority.doc, Final Clean Text: For the foregoing reasons, the Court shall GRANT \'3fIN \'3fPART Defendant s [7] Motion to Dismiss w... File: 012 - Eskridge Research Corp v US.doc, Final Clean Text: For all of the above-stated reasons, the government s motion to dismiss for lack of jurisdiction is ... File: 014 - Allied Technology Group Inc v US.doc, Final Clean Text: Based upon the forgoing, Allied s motion to supplement the administrative record is GRANTED in part ... File: 015 - Creation Upgrades Inc v US.doc, Final Clean Text: \* co_pp_sp_999_5_15 \* co_pp_sp_999_5_15 *5 For the reasons set forth above, those elements of plai... File: 016 - Lowell Housing Authority v PSC Intern Inc.doc, Final Clean Text: For the foregoing reasons, Plaintiff s Motion for Summary Judgment [# 14] is DENIED. \'3f AN ORDER H... File: 017 - DataMill Inc v US.doc, Final Clean Text: Supplementation of the administrative record, while warranted in some circumstances, is not necessar... File: 018 - DataMill Inc v US.doc, Final Clean Text: For the reasons discussed above, it is hereby ordered: 1. Defendant s motion to dismiss for lack of ... File: 019 - Resource Conservation Group LLC v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F82021442944_19" [8] \* co_anchor_B82021442944_19 \* co_anchor_B82021442944... File: 020 - Mission Critical Solutions v US.doc, Final Clean Text: . See Int l Program Group, Inc., Comp. Gen. B \'3f400278, B \'3f400308, 2008 CPD \'3f 172, 2008 WL 4... File: 021 - White Hawk Group Inc v US.doc, Final Clean Text: We conclude that White Hawk/Todd lacks standing to pursue its bid protest. Accordingly, the Clerk of... File: 023 - Red River Holdings LLC v US.doc, Final Clean Text: There are costs which result when government procurement actions are found to be lacking. If injunct... File: 024 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: 1. Consistent with the discussion above, Plaintiff s Renewed Motion to Supplement the Administrative... File: 025 - Madison Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the court holds that FEMA s cancellation of the solicitation does not vio... File: 026 - Esterhill Boat Service Corp v US.doc, Final Clean Text: Esterhill had standing to sue in this court because it might have submitted a more favorable proposa... File: 027 - DMS All-Star Joint Venture v US.doc, Final Clean Text: DMS has failed to demonstrate that defendant s decision to award the contract to He & I was arbitrar... File: 028 - Chicago United Industries Ltd v City of Chicago.doc, Final Clean Text: For the foregoing reasons, Defendants motion for summary judgment [269] is granted and Defendants De... File: 029 - IAP-Leopardo Const Inc v US.doc, Final Clean Text: Plaintiff cannot prevail on the merits. The National Guard s actions were in accordance with the law... File: 030 - Montana Fish Wildlife and Parks Foundation Inc v US.doc, Final Clean Text: For the reasons stated, the government s motion to defer filing of its answer is DENIED. The governm... File: 031 - Fisher Sand And Gravel Co v Clark County Nevada.doc, Final Clean Text: IT IS HEREBY ORDERED that the Motion (# 74) is granted in part and denied in part. The Board did not... File: 032 - K-Mar Industries Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court hereby GRANTS Defendant s Cross \'3fMotion for Judgment o... File: 033 - Government Technical Services LLC v US.doc, Final Clean Text: The court lacks jurisdiction to hear plaintiff s claim under the ADRA. Instead, plaintiff must pursu... File: 034 - Madison Services Inc v US.doc, Final Clean Text: For the forgoing reasons, the court: (1) grants plaintiff s motion to amend, deems the proposed amen... File: 035 - GCC Enterprises Inc v US.doc, Final Clean Text: For the foregoing reasons, the government motion for judgment on the administrative record is GRANTE... File: 036 - Unisys Corp v US.doc, Final Clean Text: For the reasons enumerated above, plaintiff s motion for declaratory judgment is GRANTED, while defe... File: 037 - International Salt Co LLC v City of Boston.doc, Final Clean Text: that \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000042&cite=MAS... File: 038 - Brown v Mills.doc, Final Clean Text: For the foregoing reasons, the Court grants defendant s motion for summary judgment. A separate Orde... File: 039 - Bannum Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for judgment on the Administrative Record is DENIED, a... File: 041 - Smith v James C Hormel School of Virginia Institute of Autism.doc, Final Clean Text: s reached by the undersigned may be construed by any reviewing court as a waiver of such objection. ... File: 042 - Digital Technologies Inc v US.doc, Final Clean Text: For the foregoing reasons, the court has jurisdiction to review the plaintiff s breach of contract c... File: 043 - Structural Associates IncComfort Systems USA (Syracuse) Joint Venture v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motion for injunctive relief is denied and \* co_pp_sp_... File: 044 - Alatech Healthcare LLC v US.doc, Final Clean Text: The Government acted through USAID to consider whether to use a prime contractor for procurement, to... File: 045 - Pica-Hernandez v Irizarry-Pagan.doc, Final Clean Text: There remains no genuine issue of material fact as to Pica s Fourteenth Amendment or First Amendment... File: 046 - Medical Development Intern Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED and defendant s Motion is GRANTED. Because d... File: 047 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Final Clean Text: For the reasons discussed, the judgment of the trial court is reversed. The injunction against proce... File: 048 - Corey Airport Services Inc v Decosta.doc, Final Clean Text: For the reasons stated in this opinion, we reverse the district court s denial of the individual Def... File: 049 - PlanetSpace Inc v US.doc, Final Clean Text: For the foregoing reasons, (1) defendant s motion to correct the administrative record is granted, a... File: 050 - Ozdemir v US.doc, Final Clean Text: Defendant s Motion to Dismiss for lack of subject matter jurisdiction is denied. \'3f \* co_allCitat... File: 051 - The Analysis Group LLC v US.doc, Final Clean Text: . The reason for this is that the CICA s command is for \'3freasonable alternatives \'3f to exist, n... File: 052 - Afghan American Army Services Corp v US.doc, Final Clean Text: For the foregoing reasons, the motions of the intervenor, NCL Holdings, LLC, and the Government for ... File: 054 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: concerning the net worths [sic] of Mr. Domenico Garufi (28 June 1999) and the compilation of the sai... File: 055 - Red River Holdings LLC v US.doc, Final Clean Text: of the case. Had Sealift intervened at the inception of this litigation the present circumstances wo... File: 056 - TotoloKing Joint Venture v US.doc, Final Clean Text: Plaintiff s motion for reconsideration must be denied. Were the court to find that any of plaintiff ... File: 057 - Camden Shipping Corp v US.doc, Final Clean Text: For the reasons set forth above, Camden s first and second claims fail as a matter of law and the Go... File: 058 - Kerr Contractors Inc v US.doc, Final Clean Text: Kerr has not shown that the decision to award the contract to Kiewit was arbitrary or capricious, an... File: 059 - Ash Grove Texas LP v City of Dallas.doc, Final Clean Text: Arlington s Motion for More Definite Statement (Doc. # 30) is GRANTED insofar as it pertains to Plai... File: 060 - Storm Reconstruction Services v City of Blytheville.doc, Final Clean Text: Plaintiff s \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&c... File: 061 - Hutchens v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion to strike is granted regarding the unreprese... File: 063 - Taylor Consultants Inc v US.doc, Final Clean Text: . For the reasons discussed herein, the Government s May 19, 2009 Motion To Dismiss is granted in pa... File: 064 - Advanced Software Design Corp v Federal Reserve Bank of St Louis.doc, Final Clean Text: of the district court. In moving to participate in oral argument in this appeal, the government stat... File: 065 - Bannum Inc v US.doc, Final Clean Text: Based upon the forgoing, Plaintiff s Motion to Supplement the Administrative Record is GRANTED. On o... File: 066 - Walls v US.doc, Final Clean Text: No statute or precedent has disturbed the holding of \* HYPERLINK "https://www.westlaw.com/Link/Docu... File: 067 - Klinge Corp v US.doc, Final Clean Text: The government s overall litigation position was substantially justified. Plaintiff has not demonstr... File: 068 - Searles v US.doc, Final Clean Text: For all of the foregoing reasons, the plaintiff s action against the United States must be dismissed... File: 069 - Hickey v Chadick.doc, Final Clean Text: \* co_pp_sp_999_11_69 \* co_pp_sp_999_11_69 *11 For the foregoing reasons, plaintiffs request for di... File: 070 - Unisys Corp v US.doc, Final Clean Text: For the foregoing reasons, Lockheed s motion to dismiss the price-related portions of Unisys s compl... File: 071 - PAI Corp v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motion for injunctive relief is denied and defendant s ... File: 072 - Information Sciences Corp v US.doc, Final Clean Text: . For the reasons stated herein, the Government s April 20, 2009 Motion For Reconsideration is denie... File: 073 - Chamber of Commerce of US v Napolitano.doc, Final Clean Text: For the foregoing reasons, the Court will grant Defendants Cross Motion for Summary Judgment and den... File: 074 - Labatt Food Service Inc v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is reversed. \'3f REVERSED \'... File: 075 - GEOD Corp v New Jersey Transit Corp.doc, Final Clean Text: For the reasons stated above, Plaintiffs Summary Judgment motion is DENIED; Defendants Summary Judgm... File: 076 - Hickey v Chadick.doc, Final Clean Text: Because plaintiffs have met their burden of alleging the components of standing necessary to seek de... File: 077 - NEQ LLC v US.doc, Final Clean Text: The court need go no further. Measured by the appropriate standard of review, the EPA s award decisi... File: 078 - Weeks Marine Inc v US.doc, Final Clean Text: . \'3f \* co_allCitations_78 \* co_allCitations_78... File: 079 - Texas Bio- And Agro-Defense Consortium v US.doc, Final Clean Text: 1. This action is not ripe. The Clerk of Court is directed to DISMISS this action without prejudice.... File: 080 - Global Computer Enterprises Inc v US.doc, Final Clean Text: In light of the foregoing, the government s motion is GRANTED IN PART and DENIED IN PART. Although t... File: 082 - Global Computer Enterprises Inc v US.doc, Final Clean Text: For the reasons stated above, it is hereby ORDERED: 1. GCE s cross-motion for judgment on the admini... File: 083 - Todd Const LP v US.doc, Final Clean Text: Ordinarily, for the reasons enumerated above, the Court would grant defendant s motion to dismiss pl... File: 085 - Red River Holdings LLC v US.doc, Final Clean Text: . \'3f \* HYPERLINK "#co_anchor_F262019439656_85" [26] \* co_anchor_B262019439656_85 \* co_anchor_B2... File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Final Clean Text: For these reasons, the Court will grant in part and deny in part Plaintiff GTSI Corp. s motion to di... File: 087 - APM And Associates Inc v North Tex Tollway Authority.doc, Final Clean Text: \* co_pp_sp_999_7_87 \* co_pp_sp_999_7_87 *7 Based on the foregoing, the court finds that the follow... File: 088 - L-3 Communications EOTech Inc v US.doc, Final Clean Text: L \'3f3 has not shown that the Army s decision to eliminate L \'3f3 from this competition was arbitr... File: 089 - AshBritt Inc v US.doc, Final Clean Text: that \'3f[d]iscussions are needed to improve understanding of the ADMS requirements.... \'3f Compare... File: 090 - Tyler Const Group v US.doc, Final Clean Text: The judgment of the Court of Federal Claims is \'3f AFFIRMED. \'3f \* co_allCitations_90 \* co_allCi... File: 091 - Del Rio v US.doc, Final Clean Text: For the reasons stated above, the government s motion to dismiss is GRANTED, and \* co_pp_sp_613_541... File: 092 - Gear Wizzard Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s Motion for ... File: 093 - TotoloKing v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion for judgment on the administrative record is... File: 094 - Phang v US.doc, Final Clean Text: For the foregoing reasons, defendant s Motion to Dismiss is GRANTED. Other pending motions are there... File: 095 - Akal Security Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion, insofar as it requests a preliminary injunction, is D... File: 096 - ViroMed Laboratories Inc v US.doc, Final Clean Text: Accordingly, plaintiff s application for a preliminary injunction is DENIED. Plaintiff s motion for ... File: 097 - Academy Facilities Management v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motions for judgment on the administrative record and for pre... File: 098 - California Human Development Corp v US.doc, Final Clean Text: Plaintiff has not demonstrated that the Government breached its contract. The Clerk of Court is dire... File: 099 - In re ASARCO LLC.doc, Final Clean Text: 271. The Settlement Agreements represent a significant milestone in the nearly four-year history of ... File: 100 - RhinoCorps Ltd Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Defendant s cross-motio... File: 002 - Global Computer Enterprises Inc v US.doc, Final Clean Text: The court has carefully reviewed the agency-filed administrative record in this case and GCE s proff... File: 004 - Valor Healthcare Inc v Pinkerton.doc, Final Clean Text: For the reasons stated in this Order, Valor s motion (doc. 98) is GRANTED IN PART AND DENIED IN PART... File: 005 - Tasby v US.doc, Final Clean Text: For the reasons set forth above, this Court lacks jurisdiction to hear Plaintiff s claims and grants... File: 007 - RhinoCorps Ltd Co v US.doc, Final Clean Text: Based on the foregoing, defendant s motion to dismiss for lack of subject matter jurisdiction is gra... File: 008 - RhinoCorps Ltd Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s Amendment t... File: 009 - Holloway And Co PLLC v US.doc, Final Clean Text: For the reasons stated above, Holloway s motion for judgment on the administrative record is DENIED.... File: 010 - Karawia v US Dept of Labor.doc, Final Clean Text: ISI does not meet its burden to establish that \'3funusual circumstances \'3f warrant relief from de... File: 011 - Axiom Resource Management Inc v US.doc, Final Clean Text: For the foregoing reasons, we reverse the Court of Federal Claims decision setting aside the United ... File: 012 - Tip Top Const Inc v US.doc, Final Clean Text: , the court relied in part on our decision in \* HYPERLINK "https://www.westlaw.com/Link/Document/Fu... File: 013 - Klinge Corp v US.doc, Final Clean Text: For the reasons stated above, both parties motions for reconsideration are denied. The parties have ... File: 014 - Savantage Financial Services Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff s Motion To Enforce The Court s Order, Dated March 17, 2009, is... File: 015 - Blackwater Lodge And Training Center Inc v US.doc, Final Clean Text: For the foregoing reasons, Defendant s and Defendant \'3fIntervenor s motions for judgment on the Ad... File: 016 - Planetspace Inc v US.doc, Final Clean Text: s are reasonable. \'3f Plaintiff s motions for a temporary restraining order, a preliminary injuncti... File: 017 - Resource Conservation Group LLC v US Dept of Navy.doc, Final Clean Text: . For these reasons, the Government s December 23, 2008 Motion To Dismiss is granted and the October... File: 018 - Information Sciences Corp v US.doc, Final Clean Text: . For the reasons stated herein, ISC s June 18, 2008 Application For Fees, pursuant to the Equal Acc... File: 019 - Muldrow v Davis.doc, Final Clean Text: s, and a formulaic recitation of the elements of a cause of action will not do .... Factual allegati... File: 021 - Chaklos v Stevens.doc, Final Clean Text: The judgment of the district court is Affirmed . \'3f \* co_allCitations_21 \* co_allCitations_21... File: 025 - Protect Lake Pleasant LLC v McDonald.doc, Final Clean Text: For the reasons set forth above, the court hereby ORDERS that: (1) \'3fPlaintiff s Motion to Supplem... File: 026 - Annuity Transfers Ltd v US.doc, Final Clean Text: In this case, plaintiffs seek relief from this court that is outside of the court s jurisdiction. In... File: 027 - Al Andalus General Contracts Co v US.doc, Final Clean Text: For the foregoing reasons, the government s motion for judgment on the administrative record is GRAN... File: 029 - FFTF Restoration Co LLC v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss is DENIED, but the government s motion... File: 030 - Fields v Chao.doc, Final Clean Text: s of law are not arbitrary or capricious. Plaintiffs appeal is denied. \'3f IT IS SO ORDERED. \'3f \... File: 031 - L-3 Communications EOTech Inc v US.doc, Final Clean Text: EOTech has not shown that a clear violation of statute or regulation occurred in this sole source pr... File: 032 - SP Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, the motions of ARTS and the Government for judgment on the administrative... File: 033 - Software Engineering Services Corp v US.doc, Final Clean Text: For the foregoing reasons, Defendant s motion for judgment on the Administrative Record is GRANTED, ... File: 034 - Centech Group Inc v US.doc, Final Clean Text: For the foregoing reasons, we affirm the decision of the Court of Federal Claims denying Centech s r... File: 035 - Leer Elec Inc v Pennsylvania Dept of Labor and Industry.doc, Final Clean Text: For the foregoing reasons, the Court will grant, in part, Defendants Motion to Dismiss Plaintiffs Co... File: 036 - American Infrastructure-MD Inc v Maryland.doc, Final Clean Text: s, and a formulaic recitation of the elements of a cause of action will not do. \'3f \* HYPERLINK "h... File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Final Clean Text: For the foregoing reasons, Alabama Aircraft is entitled to receive bid preparation \* co_pp_sp_613_5... File: 038 - RhinoCorps Ltd Co v US.doc, Final Clean Text: Based on the foregoing, defendant s motion to dismiss for lack of subject matter jurisdiction is gra... File: 039 - Slater and Zeien LLP v Ocean Technical Services Inc.doc, Final Clean Text: of discovery. See Rec. Doc. 18. The discovery period in this case ended on December 22, 2008. Therea... File: 040 - Anderson v US.doc, Final Clean Text: For the foregoing reasons, plaintiff has not established that this court has jurisdiction to hear an... File: 041 - Carahsoft Technology Corp v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record is DENIED an... File: 042 - Arko Executive Services Inc v US.doc, Final Clean Text: For the foregoing reasons, we AFFIRM. \'3f \* co_pp_sp_506_1382_42 \* co_pp_sp_506_1382_42 *1382 AFF... File: 043 - North Star Alaska Housing Corp v US.doc, Final Clean Text: that investigation had been sought in bad faith, or that investigation itself was in bad faith, in o... File: 044 - Information Sciences Corp v US.doc, Final Clean Text: . For these reasons, the Government s July 23, 2008 Motion To Dismiss is granted and Plaintiff s Apr... File: 045 - CHE Consulting Inc v US.doc, Final Clean Text: .... \'3f) (quotation marks and citations omitted). \'3f \* co_anchor_I7596d32299e511eabea3f0dc9fb69... File: 048 - WRS Infrastructure And Environment Inc v US.doc, Final Clean Text: The Court finds that the agency s decision that LOI is an agreement in principle and given its prese... File: 049 - Wackenhut Services Inc v US.doc, Final Clean Text: . For the reasons discussed herein, the court has determined that the SEB and SSA violated FAR regul... File: 050 - Todd Const LP v US.doc, Final Clean Text: In view of the foregoing, defendant s motion to dismiss plaintiff s complaint pursuant to \* HYPERLI... File: 051 - HB Rowe Inc v Tippett.doc, Final Clean Text: This Court finds that \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum... File: 052 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: 1. Defendant s Motion to Dismiss is DENIED. \'3f 2. The parties shall propose redactions to this Opi... File: 053 - Hallwood Plaza Inc v US.doc, Final Clean Text: Plaintiff likely will not recover attorneys fees under the Equal Access to Justice Act, \* HYPERLINK... File: 054 - BLR Group of America Inc v US.doc, Final Clean Text: For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART defendant s motion to d... File: 055 - Solid Waste Services Inc v Morris County Municipal Utilities Authority.doc, Final Clean Text: For the foregoing reasons, it is recommended that the United States District Judge grant the defenda... File: 056 - Lumetra v US.doc, Final Clean Text: For the reasons stated above, Lumetra s motion for judgment on the administrative \* co_pp_sp_613_56... File: 057 - DCMS-ISA Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s motion for judgment on the administrative record is GRAN... File: 058 - Rothe Development Corp v Department of Defense.doc, Final Clean Text: For the foregoing reasons, we hold that Section 1207, on its face, as reenacted in 2006, violates th... File: 059 - Labatt Food Service Inc v US.doc, Final Clean Text: The court issued its ruling in this case on September 17, 2008, effective on the same date, as refle... File: 061 - Nortel Government Solutions Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff s Complaint For Declaratory And Injunctive Relief is ALLOWED as... File: 062 - E-Management Consultants Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion, to the extent it seeks declaratory judgment, is GRANT... File: 063 - Watts-Healy Tibbitts A JV v US.doc, Final Clean Text: For the reasons set forth above, the Court hereby lifts the Modified Preliminary Injunction. The Cle... File: 064 - Access Systems Inc v US.doc, Final Clean Text: of the hearing, the court announced its finding that the bridge contract between defendant and Avine... File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Final Clean Text: For the reasons stated, Alabama Aircraft s motion for judgment upon the administrative record is GRA... File: 066 - M Maropakis Carpentry Inc v US.doc, Final Clean Text: The plaintiff has failed to establish that jurisdiction to consider its claims is proper under the C... File: 067 - Femme Comp Inc v US.doc, Final Clean Text: In sum, the court finds that injunctive relief is appropriate in this case. Accordingly, it is ORDER... File: 068 - Klinge Corp v US.doc, Final Clean Text: For the reasons explained above, plaintiff s request for permanent injunctive relief is denied. Plai... File: 069 - Corey Airport Services Inc v City of Atlanta.doc, Final Clean Text: For the foregoing reasons, the court: (1) GRANTS IN PART AND DENIES IN PART Barbara Fouch s motion f... File: 070 - Savantage Financial Services Inc v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s motion for attorney fees and expenses is hereby GRANTED. P... File: 071 - Precision Lift Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court must defer to the agency at this time. Therefore, the Cou... File: 072 - L-3 Communications EOTech Inc v US.doc, Final Clean Text: Plaintiff has proved that the competitive range determination for Solicitation W15QKN \'3f07 \'3fR \... File: 073 - The Grove Inc v US Dept of Transp.doc, Final Clean Text: For the foregoing reasons, an accompanying order grants Defendants Motion for Summary Judgment and d... File: 074 - Dyonyx LP v US.doc, Final Clean Text: Defendant s cross-motion for judgment on the Administrative Record is granted, and its motion to dis... File: 075 - Tip Top Const Inc v US.doc, Final Clean Text: Tip Top bore the burden to show: \'3f \'3f(1) that an intervening change in the controlling law has ... File: 077 - Precision Pine And Timber Inc v US.doc, Final Clean Text: Precision s application for attorneys fees and expenses pursuant to the EAJA, \* HYPERLINK "https://... File: 078 - Douglas Asphalt Co v Qore Inc.doc, Final Clean Text: Because we hold that Douglas failed to establish a legally cognizable \'3fclass of one \'3f claim, a... File: 079 - Distributed Solutions Inc v US.doc, Final Clean Text: that jurisdiction was not present, the trial court declined to consider the contractors motion to su... File: 080 - Career Training Concepts Inc v US.doc, Final Clean Text: Based on the above discussion, plaintiff s motion for judgment upon the administrative record and re... File: 081 - American Defense Systems Inc v Southern California Gold Products Inc.doc, Final Clean Text: In accordance with the foregoing, the Court DENIES defendants motion for summary judgment. \'3f IT I... File: 082 - L-3 Global Communications Solutions Inc v US.doc, Final Clean Text: Plaintiff has not shown that the award of contract number HSCG23 \'3f08 \'3fA \'3fTMM001 to ADCI was... File: 083 - Tyler Constr Group v US.doc, Final Clean Text: For the reasons set forth above, defendant s motion for judgment on the administrative record is gra... File: 084 - SJ Louis Const Inc v Lewis And Clark Regional Water System.doc, Final Clean Text: the court stated, \'3fAlthough it is engaged in constructing a public work and receives substantial ... File: 086 - CNA Corp v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion to strike plaintiff s application for bid preparation ... File: 087 - Tip Top Const Inc v US.doc, Final Clean Text: \* co_pp_sp_999_27_87 \* co_pp_sp_999_27_87 *27 Plaintiff has not shown that the award of the contra... File: 088 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Final Clean Text: Alabama Aircraft s Motion to Supplement the Administrative Record is GRANTED IN PART and DENIED IN P... File: 089 - Evers v Astrue.doc, Final Clean Text: We Affirm the dismissals by the district court. \'3f \* co_allCitations_89 \* co_allCitations_89... File: 090 - Appleton v Intergraph Corp.doc, Final Clean Text: The Complaint in this case fails to state a claim upon which relief could be granted, even though Pl... File: 091 - Watts-Healy Tibbitts A JV v US.doc, Final Clean Text: Whether TOA is legally eligible for this contract is doubtful to the Court on the facts currently be... File: 092 - Tin Mills Properties LLC v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F52016612296_92" [5] \* co_anchor_B52016612296_92 \* co_anchor_B52016612296... File: 093 - Sealift Inc v US.doc, Final Clean Text: . For the aforementioned reasons, the court has determined that Plaintiff has not demonstrated that ... File: 094 - Axiom Resource Management Inc v US.doc, Final Clean Text: . For the aforementioned reasons, the Government s June 16, 2008 Motion To Stay The Court s Order Of... File: 095 - AlohaCare v Hawaii Dept of Human Services.doc, Final Clean Text: . For the foregoing reasons, the court grants Defendants motion to dismiss. The Clerk of Court is di... File: 097 - All Florida Network Corp v US.doc, Final Clean Text: We recognize that an examination of the merits of this bid protest might reveal that Plaintiff was w... File: 098 - Omega World Travel Inc v US.doc, Final Clean Text: For all of the foregoing reasons, the government s motion to dismiss, or in the alternative, for jud... File: 099 - OSG Product Tankers LLC v US.doc, Final Clean Text: s; they were fully substantiated by the record. \'3f Plaintiff s Motion for Judgment on the Administ... File: 100 - Feinerman v Bernardi.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F192016295166_100" [19] \* co_anchor_B192016295166_100 \* co_anchor_B192016... File: 001 - Klinge Corp v US.doc, Final Clean Text: For the reasons expressed above and as stated on the record on May 29, 2008, plaintiff s motion for ... File: 002 - NCLN20 Inc v US.doc, Final Clean Text: . For these reasons, the Government s October 26, 2007 Motion For Partial Dismissal is denied. The c... File: 006 - EOD Technology Inc v US.doc, Final Clean Text: For the reasons stated, the court DENIES EODT s motion for a preliminary injunction to nullify the A... File: 007 - Watts-Healy Tibbitts A JV v US.doc, Final Clean Text: For the reasons set forth above, the Court must defer to the agency at this time. Therefore, the Cou... File: 008 - CNA Corp v US.doc, Final Clean Text: For the foregoing reasons, the HHS contracting officer s decision to exclude plaintiff, based on the... File: 009 - Stanton-Negley Drug Co v Pennsylvania Dept of Public Welfare.doc, Final Clean Text: Based on the foregoing, the Court finds that venue is improper in the Western District of Pennsylvan... File: 010 - Stephanatos v US.doc, Final Clean Text: For the reasons stated herein, the Government s motion to dismiss is GRANTED. The Clerk of the Court... File: 011 - International Salt Co LLC v City of Boston.doc, Final Clean Text: S OF FACT AND LAW 1. ISCO fully satisfied its obligations to the City by supplying 75,000 tons of sa... File: 012 - Allied Materials And Equipment Co Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED and defendant s and defendant-intervenor s M... File: 014 - Savantage Financial Services Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff s Motion To Supplement The Administrative Record is ALLOWED. In... File: 015 - Chapman Law Firm Co v US.doc, Final Clean Text: For the foregoing reasons, Defendant s motion for judgment on the administrative record is GRANTED. ... File: 016 - Uzelmeier v US Dept of Health and Human Services.doc, Final Clean Text: s when they are arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with t... File: 018 - ACE Const Inc v US.doc, Final Clean Text: For the reasons set forth, ACE s motion for attorneys fees and costs under EAJA is GRANTED. ACE is a... File: 019 - Bristol Bay Area Health Corp v US.doc, Final Clean Text: Plaintiff s motion requesting an order requiring defendant to provide the administrative record is D... File: 020 - Information Sciences Corp v US.doc, Final Clean Text: . For the aforementioned reasons, ISC s Motion For Judgment On The Administrative Record and DEVIS s... File: 021 - Infrastructure Defense Technologies LLC v US.doc, Final Clean Text: For the foregoing reasons, the court determines that IDT has not established that the government s a... File: 023 - California Industrial Facilities Resources Inc v US.doc, Final Clean Text: For the reasons stated herein, the Government s and Intervenor s Motions for Judgment Upon the Admin... File: 024 - Serco Inc v US.doc, Final Clean Text: In closing, the court must note that the presentations made by the many counsel involved in this cas... File: 025 - Monument Realty LLC v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: A party seeking a preliminary injunction assumes the burden of demonstrating either a combination of... File: 026 - Monument Realty LLC v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: Based on the foregoing, WMATA s motion to dismiss is GRANTED with respect to Count 6 (breach of fidu... File: 027 - Shafer v US.doc, Final Clean Text: Plaintiff s Motion for Leave to Proceed In Forma Pauperis is GRANTED. However, plaintiff s complaint... File: 028 - Axiom Resource Management Inc v US.doc, Final Clean Text: . For the aforementioned reasons, Plaintiff s July 25, 2007 Motion for Judgment on the Administrativ... File: 029 - OSG Product Tankers LLC v US.doc, Final Clean Text: A plaintiff must have standing to question the responsibility determination of the winning bidder. T... File: 030 - South Florida Chapter of Associated General Contractors v Broward County F.doc, Final Clean Text: After much consideration of the relevant case law, and the arguments made by the parties, this Court... File: 031 - Biltmore Forest Broadcasting FM Inc v US.doc, Final Clean Text: that direction of \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=100... File: 032 - Ezenia! Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court hereby GRANTS Defendant s and Defendant \'3fIntervenor s ... File: 033 - Voisin v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that: (1) Defendant s Motion to Dismiss and Memorand... File: 034 - International Management Services Inc v US.doc, Final Clean Text: For the reasons set forth above, the court GRANTS Defendant s Motion to Dismiss pursuant to \* HYPER... File: 035 - Precision Images LLC v US.doc, Final Clean Text: For the foregoing reasons: 1. Defendant s motion for judgment on the administrative record is GRANTE... File: 036 - Forest Glen Properties LLC v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss for lack of subject matter jurisdictio... File: 037 - Centech Group Inc v US.doc, Final Clean Text: 1. Defendant s and Intervenor s Motions for Judgment on the Administrative \* co_pp_sp_613_578_37 \*... File: 038 - Thomas v City of St Paul.doc, Final Clean Text: For the foregoing reasons, defendant s motion is granted. \'3f IT IS SO ORDERED. \'3f LET JUDGMENT B... File: 039 - Knowledge Connections Inc v US.doc, Final Clean Text: For the reasons stated, KCI s motion for judgment is DENIED. The government s cross-motion for judgm... File: 040 - Medical Matrix LLP v US.doc, Final Clean Text: \* co_pp_sp_999_11_40 \* co_pp_sp_999_11_40 *11 This court need go no further. Measured by the appro... File: 042 - Benchmade Knife Co Inc v US.doc, Final Clean Text: For the foregoing reasons, Defendant s motion for judgment on the Administrative Record is GRANTED, ... File: 043 - Masai Technologies Corp v US.doc, Final Clean Text: For the reasons stated above, the Court concludes as follows. The Army properly evaluated MTC s tech... File: 044 - GASA Inc v US.doc, Final Clean Text: Because the court has found that there exist genuine issues of material fact for trial with respect ... File: 045 - Emerald Coast Finest Produce Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the Clerk of the Court shall enter judgment DISMISSING plaintiff s bid pr... File: 046 - Eracent Inc v US.doc, Final Clean Text: Eracent has not demonstrated that the Navy improperly used a FSS delivery order to purchase items no... File: 047 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: 1. Defendant s and Intervenor s motions to dismiss pursuant to \* HYPERLINK "https://www.westlaw.com... File: 048 - City of Cleveland v Ohio.doc, Final Clean Text: that the Lewis Law s bond penalty violated \* HYPERLINK "https://www.westlaw.com/Link/Document/FullT... File: 049 - Aeroplate Corp v Arch Ins Co.doc, Final Clean Text: AND ORDER For the reasons discussed above, this Court GRANTS Arch summary judgment on Aeroplate s in... File: 050 - Uni-Bell PVC Pipe Ass'n v City of Phoenix Ariz.doc, Final Clean Text: s, they suffice to provide a rational \* co_pp_sp_6538_673_50 \* co_pp_sp_6538_673_50 *673 basis for... File: 051 - Forest City Military Communities LLC v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED and defendant s and defendant-intervenor s m... File: 052 - Frazier v US.doc, Final Clean Text: Because the court s consideration of the merits of plaintiffs bid protest has not shown that the pro... File: 053 - Weeks Marine Inc v US.doc, Final Clean Text: The Court finds that the criteria for issuing injunctive relief have been satisfied. In consideratio... File: 054 - America Cargo Transport Inc v US.doc, Final Clean Text: For the reasons stated, the court GRANTS the Government s motion for summary judgment (Dkt.# 73) and... File: 055 - Industrial Door Contractors Inc v US.doc, Final Clean Text: We find as a matter of law that the settlement agreement entered into between the parties was breach... File: 056 - County of Hudson v Janiszewski.doc, Final Clean Text: , the Court grants the motions by Janiszewski, Fallon and Fallon, LLP, Sandoval, Sandoval P.C., and ... File: 057 - Trans World Technologies Inc v Raytheon Co.doc, Final Clean Text: For the above reasons, Defendants Raytheon s and Lockheed s motion to dismiss is granted as to Count... File: 058 - Aeolus Systems LLC v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Plaintiff s Motion for Judgment on the Administrative Rec... File: 059 - Geo-Seis Helicopters Inc v US.doc, Final Clean Text: For the foregoing reasons, Geo \'3fSeis is awarded attorneys fees under the EAJA of $39,960.80 and b... File: 060 - The Ravens Group Inc v US.doc, Final Clean Text: We decline to impose sanctions on Ravens or its attorney. In doing so, we do not express our approva... File: 061 - Humana Ins Co v LeBlanc.doc, Final Clean Text: For the foregoing reasons, \'3f IT IS ORDERED that there be judgment herein in favor of plaintiffs, ... File: 062 - America Cargo Transport Inc v US.doc, Final Clean Text: \* co_pp_sp_999_6_62 \* co_pp_sp_999_6_62 *6 For the reasons stated above, the court GRANTS the Gove... File: 063 - Information Sciences Corp v US.doc, Final Clean Text: . For these reasons, DEVIS Application for fees and expenses, pursuant to the Equal Access to Justic... File: 064 - Westech Intern Inc v US.doc, Final Clean Text: For the foregoing reasons, it is ORDERED that: 1. Plaintiff s Motion for Judgment on the Administrat... File: 065 - Manson Const Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant and intervenor s cross-motions are granted, a... File: 066 - HWA Inc v US.doc, Final Clean Text: For the reasons stated above, the Court concludes as follows. First, the evidence in the administrat... File: 067 - McKing Consulting Corp v US.doc, Final Clean Text: For the forgoing reasons, defendant s cross-motion for judgment on the administrative record is GRAN... File: 068 - CWTAlexander Travel Ltd v US.doc, Final Clean Text: For all of the foregoing reasons, the plaintiffs motion for judgment upon the Administrative Record ... File: 069 - The Centech Group Inc v US.doc, Final Clean Text: 1. Plaintiff s motion for leave to file its proposed amended complaint is GRANTED. \'3f 2. Plaintiff... File: 070 - Axiom Resource Management Inc v US.doc, Final Clean Text: . For the reasons discussed herein, Plaintiff s July 25, 2007 Motion for Summary Judgment On The Adm... File: 071 - The Centech Group Inc v US.doc, Final Clean Text: 1. Defendant s and Intervenor s Motions to Dismiss are granted in part insofar as this Court lacks j... File: 072 - IroncladEEI v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED as follows: \'3f (1) Plaintiff s Motion for Judgment... File: 073 - Professional Services Group Inc v Town of Rockland.doc, Final Clean Text: s of Law # 137 (Docket 178) (emphasis added).) \'3f Here, the primary theory of liability under Chap... File: 075 - Data Management Services Joint Venture v US.doc, Final Clean Text: In light of the broad discretion we afford the contracting officer in a best value procurement, see ... File: 077 - Chaklos v Stevens.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS Defendants s Motion for Summary Judgment (Doc. 31). The ... File: 078 - Erinys Iraq Ltd v US.doc, Final Clean Text: Based on the foregoing, defendant s and Aegis s cross-motions for judgment on the administrative rec... File: 079 - Save Sandy Hook Corp v US Dept of Interior.doc, Final Clean Text: \* co_pp_sp_999_23_79 \* co_pp_sp_999_23_79 *23 The Court, for the reasons stated supra, will (1) gr... File: 080 - R And D Dynamics Corp v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the record is DENIED and defendant s m... File: 081 - Arko Executive Services Inc v US.doc, Final Clean Text: This court need not paint the lily. Having considered and rejected the remainder of plaintiff s argu... File: 082 - CHE Consulting Inc v US.doc, Final Clean Text: Based upon the foregoing, Plaintiff has not prevailed on the merits of its action, and therefore is ... File: 083 - Superior Helicopter LLC v US.doc, Final Clean Text: For the reasons set forth, plaintiffs motions for judgment on the administrative record are GRANTED.... File: 084 - Scott v US.doc, Final Clean Text: Accordingly, based on the foregoing, the Clerk of the Court shall dismiss the complaint without prej... File: 086 - Grunley Walsh Intern LLC v US.doc, Final Clean Text: Because the GAO failed to properly read the business volume requirement contained in \* HYPERLINK "h... File: 087 - Rothe Development Corp v US Dept of Defense.doc, Final Clean Text: Defendants joint motion for summary judgment is GRANTED, and Plaintiff s motion for summary judgment... File: 088 - Shirlington Limousine And Transp Inc v US.doc, Final Clean Text: . For the aforementioned reasons, Plaintiff s July 6, 2007 Motion for Partial Reconsideration is den... File: 090 - Wright v Foreign Service Grievance Bd.doc, Final Clean Text: For the aforementioned reasons, defendants motion for summary judgment on Count II is granted. Defen... File: 091 - The Ravens Group Inc v US.doc, Final Clean Text: For the reasons discussed above, we find that all of Ravens claims are without merit. We DISMISS for... File: 092 - Geo-Seis Helicopters Inc v US.doc, Final Clean Text: For the reasons set forth, Geo \'3fSeis s motion for judgment on the administrative record is GRANTE... File: 093 - Saguaro Chevrolet Inc v US.doc, Final Clean Text: Plaintiff has failed to demonstrate that there is privity of contract between itself and the United ... File: 094 - Moore's Cafeteria Services v US.doc, Final Clean Text: For all of the foregoing reasons, the plaintiff s motion for a temporary restraining order and a pre... File: 095 - Walbridge Aldinger Co v City Of Detroit.doc, Final Clean Text: Plaintiffs fail to demonstrate that they have standing to bring this complaint before this Court. Th... File: 097 - Shirlington Limousine And Transp Inc v US.doc, Final Clean Text: . For the aforementioned reasons, the court hereby grants the Government s May 15, 2007 Motion to Di... File: 098 - Blue And Gold Fleet LP v US.doc, Final Clean Text: that Hornblower s proposal satisfied the requirements of the proposal by including sufficient trips ... File: 099 - Southern Foods Inc v US.doc, Final Clean Text: For the reasons set out above, we deny defendant s motion to dismiss for lack of jurisdiction, grant... File: 100 - Fisherman's Harvest Inc v PBS And J.doc, Final Clean Text: Accordingly, we reverse the district court s order transferring the oyster growers claims to the Cou... File: 001 - Marco Outdoor Advertising Inc v Regional Transit Authority.doc, Final Clean Text: As I see it, the panel majority skirts the sole issue that controlled this case in the district cour... File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Final Clean Text: We affirm the Court of Federal Claims denial of the Government s motion to dismiss in light of its f... File: 004 - Heritage of America LLC v US.doc, Final Clean Text: that, taken as a whole, the record establishes that defendant s conduct constituted a clear and prej... File: 005 - ARINC Engineering Services LLC v US.doc, Final Clean Text: This court need go no farther. Measured by the appropriate standard of review, the Army s determinat... File: 006 - Barr Inc v Town of Falmouth.doc, Final Clean Text: Although Plaintiff s claim for injunctive relief is now moot, Plaintiff may amend its claim to seek ... File: 007 - Heritage of America LLC v US.doc, Final Clean Text: Having determined that CCE \'3fACA s determination not to consider plaintiff s proposal for alleged ... File: 008 - Knowledge Connections Inc v US.doc, Final Clean Text: For the reasons set forth, KCI s motion for attorneys fees pursuant to the EAJA is DENIED without pr... File: 009 - DynCorp Intern LLC v US.doc, Final Clean Text: DI has not met its burden to show that the contract award to M 1 was \'3f \'3farbitrary, capricious,... File: 011 - Emerald Coast Finest Produce Co Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion to amend and motion to supplement are DENIED. The cour... File: 012 - Public Warehousing Co KSC v Defense Supply Center Philadelphia.doc, Final Clean Text: For the foregoing reasons, the Court will grant defendants motion to dismiss and deny plaintiff s mo... File: 014 - Scarborough v Harvey.doc, Final Clean Text: For the reasons set forth above, the Court concludes that the CAN and the letters to First Bank and ... File: 017 - Wolfchild v US.doc, Final Clean Text: For the reasons stated, the Objecting Communities motion to quash [302] is GRANTED. \'3f The motions... File: 018 - Precision Standard Inc v US.doc, Final Clean Text: that an offeror could not and would not comply with the subcontracting limitation. \'3f \'3f \* HYPE... File: 019 - US v Thompson.doc, Final Clean Text: that the predecessor has not implemented statutes and regulations correctly. But has anyone committe... File: 020 - Knowledge Connections Inc v US.doc, Final Clean Text: For the reasons set forth, KCI s motion for judgment on the administrative record is GRANTED IN PART... File: 021 - Protection Strategies Inc v US.doc, Final Clean Text: Plaintiff has not shown that it is likely to succeed on the merits, that the balance of hardships we... File: 022 - Management Solutions And Systems Inc v US.doc, Final Clean Text: . For the aforementioned reasons, the Government s Motion on the Administrative Record is hereby gra... File: 023 - Swanson Group Inc v US.doc, Final Clean Text: After review, the Court finds that the contracting officer was on notice of the application of the R... File: 024 - Information Sciences Corp v US.doc, Final Clean Text: . For the above stated reasons, the Government s October 3, 2006 Motion for Reconsideration is grant... File: 025 - McNeil v US.doc, Final Clean Text: \* co_pp_sp_999_3_25 \* co_pp_sp_999_3_25 *3 For the reasons set forth above, plaintiff s Motion for... File: 026 - Emerald Coast Finest Produce Co Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s Motion is GRANTED \'3fIN \'3fPART and otherwise DENIED. The c... File: 027 - Hamilton Sundstrand Power Systems v US.doc, Final Clean Text: There was a fundamental difference between Hamilton s proposal and the other proposals in the amount... File: 028 - EBI-Detroit Inc v City of Detroit.doc, Final Clean Text: As a disappointed bidder, Plaintiff fails to demonstrate the necessary interest to have standing to ... File: 031 - Ryan v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s application for attorneys fees is DENIED. \'3f IT IS SO ORDER... File: 033 - Beta Analytics Intern Inc v US.doc, Final Clean Text: \'3f For the foregoing reasons, the Court has determined that plaintiff has proven bid preparation a... File: 034 - Brown And Pipkins LLC v US.doc, Final Clean Text: \* co_pp_sp_999_14_34 \* co_pp_sp_999_14_34 *14 For the reasons stated, we reject each of Plaintiff ... File: 035 - Bannum Inc v US.doc, Final Clean Text: The judgment of the Court of Federal Claims dismissing Bannum s complaint is \'3f AFFIRMED. \'3f \* ... File: 036 - Pacific Helicopter Tours Inc v US.doc, Final Clean Text: \* co_pp_sp_999_38_36 \* co_pp_sp_999_38_36 *38 For the foregoing reasons, it is hereby ORDERED as f... File: 037 - Chant Engineering Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the court concludes that the plaintiff lacks standing to protest the awar... File: 038 - Northern Contracting Inc v Illinois.doc, Final Clean Text: The judgment of the district court is Affirmed . \'3f \* co_allCitations_38 \* co_allCitations_38... File: 039 - Jackson-Shaw Co v Jacksonville Aviation Authority.doc, Final Clean Text: s of law, it is hereby \'3f ORDERED: \'3f The Clerk is directed to enter judgment in favor of defend... File: 040 - Maden Tech Consulting Inc v US.doc, Final Clean Text: . Based on the foregoing reasons, the court has determined that DARPA s August 1, 2006 Determination... File: 041 - Aeroplate Corp v US.doc, Final Clean Text: s on the merits, and dismissal for lack of jurisdiction is without prejudice. \'3f \* HYPERLINK "htt... File: 042 - CHE Consulting Inc v US.doc, Final Clean Text: After review, the Court finds that DISA s decision to amend the solicitation with the new requiremen... File: 043 - Management Ass'n for Private Photogrammetric Surveyors v US.doc, Final Clean Text: , it appears that the plaintiffs have alleged sufficient facts to establish both constitutional and ... File: 044 - Advanced Systems Technology Inc v US.doc, Final Clean Text: Plaintiff s application for attorney s fees is denied. \'3f \* co_allCitations_44 \* co_allCitations... File: 045 - Diversified Maintenance Systems Inc v US.doc, Final Clean Text: For the reasons set forth, the government s motion for remand is GRANTED. Diversified s bid protest ... File: 046 - Idea Intern Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court hereby orders as follows: \'3f 1. Defendant s motion to d... File: 047 - Colorado Dept of Human Services v US.doc, Final Clean Text: Congress has prescribed a specific and comprehensive scheme for the administrative and judicial revi... File: 048 - Club Italia Soccer And Sports Organization Inc v Charter Tp of Shelby Mich.doc, Final Clean Text: For the foregoing reasons, we AFFIRM the order of the district court. \'3f \* co_allCitations_48 \* ... File: 049 - Night Vision Corp v US.doc, Final Clean Text: The judgment of the Court of Federal Claims dismissing Night Vision s complaint is \'3f AFFIRMED. \'... File: 051 - 210 Earll LLC v US.doc, Final Clean Text: 210 Earll is an interested party with standing to challenge GSA s award of the lease to 4041 Central... File: 052 - Highway Equipment Co Inc v FECO Ltd.doc, Final Clean Text: For the above reasons, the final judgment is affirmed-in-part, vacated-in-part, and the case is rema... File: 053 - Data Monitor Systems Inc v US.doc, Final Clean Text: For the reasons stated at the oral argument held on October 19, 2006, and as further explained above... File: 054 - Galen Medical Associates Inc v US.doc, Final Clean Text: Accordingly, it is ORDERED : \'3f (1) That the Complaint in this matter shall be DISMISSED, without ... File: 055 - Textron Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s and Marinette s cross-motions for judgment on the administrative... File: 056 - RJB Properties Inc v Board of Educ of City of Chicago.doc, Final Clean Text: For the foregoing reasons, we Affirm the district court s ruling. \'3f \* co_allCitations_56 \* co_a... File: 058 - OTI America Inc v US.doc, Final Clean Text: For the reasons set forth, the government s motion for judgment on the administrative record is GRAN... File: 059 - Northrop Grumman Information Technology Inc v US.doc, Final Clean Text: Lockheed has demonstrated that it has an interest in this action, that the ability to protect that i... File: 061 - Information Intern Associates Inc v US.doc, Final Clean Text: . For the above stated reasons, the court hereby grants Plaintiff s March 1, 2006 Motion for Judgmen... File: 063 - Reilly's Wholesale Produce v US.doc, Final Clean Text: The court finds that the prerequisites for issuing a preliminary injunction have been satisfied here... File: 064 - Alion Science and Technology Corp v US.doc, Final Clean Text: For the reasons herein and those stated on the record at the October 6 hearing, injunctive relief is... File: 065 - NVT Technologies Inc v US.doc, Final Clean Text: This court need go no further. Measured by the appropriate standard of review, the Air Force s condu... File: 066 - Daewoo Engineering and Const Co Ltd v US.doc, Final Clean Text: Daewoo violated the False Claims Act by knowingly submitting false or fraudulent claims; it violated... File: 067 - Tecom Inc v US.doc, Final Clean Text: Defendant s misrepresentation, in violation of \* HYPERLINK "https://www.westlaw.com/Link/Document/F... File: 068 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: Because plaintiff s original EAJA application was untimely filed, plaintiff s Filing Motion to file ... File: 069 - SecureNet Co Ltd v US.doc, Final Clean Text: For the reasons set out above, we grant defendant s motion for judgment on the administrative record... File: 070 - Interspiro Inc v US.doc, Final Clean Text: For the reasons stated above, Plaintiff \'3fInterspiro s and Plaintiff \'3fScott s motions for judgm... File: 071 - Microdyne Outsourcing Inc v US.doc, Final Clean Text: This court granted defendant s and intervenors motions for judgment on the Administrative Record and... File: 072 - Magic Brite Janitorial v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiff s motion for judgment on the administrative re... File: 073 - Industrial Door Contractors Inc v US.doc, Final Clean Text: that IDC was qualified. Nor does the final sentence in the first paragraph limit the qualification s... File: 075 - Information Sciences Corp v US.doc, Final Clean Text: . For the aforementioned reasons, Plaintiff s Motion for Judgment on the Administrative Record and D... File: 076 - US v David Boland Inc.doc, Final Clean Text: Based on the foregoing, the Motion for Summary Final Judgment and Incorporated Memorandum of Law, fi... File: 077 - Oscar Renda Contracting Inc v City of Lubbock Tex.doc, Final Clean Text: that the contractor \'3flike the individual job applicant \'3fis protected by the First Amendment if... File: 078 - La Gloria Oil and Gas Co v US.doc, Final Clean Text: The court GRANTS defendant s Motion to Dismiss plaintiff s claims of illegality under FAR \'3f 16.20... File: 079 - KSD Inc v US.doc, Final Clean Text: For the reasons discussed above, the court DENIES the plaintiff s motion for judgment upon the admin... File: 081 - Microdyne Outsourcing Inc v US.doc, Final Clean Text: Plaintiff s request for leave to file its supplemental reply brief is GRANTED. Intervenors Motion to... File: 082 - A And D Fire Protection Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s complaint must be dismissed for lack of jurisdiction. Accordi... File: 083 - Gayden v HQ Fort Dix.doc, Final Clean Text: I find that Plaintiff lacks the statutorily required employment relationship with any of the named o... File: 085 - Canadian Commercial Corp v Department of Air Force.doc, Final Clean Text: For the reasons stated herein, the Air Force s administrative decision reflected in its July 19, 200... File: 086 - Wilson v Moreau.doc, Final Clean Text: For the reasons stated above, the Court rules as follows on the Motion for Summary Judgment filed by... File: 087 - Lear Siegler Services Inc v Rumsfeld.doc, Final Clean Text: . \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1990054538&pubNum=0... File: 088 - Agee v US.doc, Final Clean Text: Defendant s Motion to Dismiss is granted. \'3f The Clerk is directed to dismiss this action. No cost... File: 089 - Matthews v US.doc, Final Clean Text: Plaintiff s application to proceed in forma pauperis is GRANTED for the limited purpose of permittin... File: 090 - Fort Carson Support Services v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiffs motions for judgment on the administrative re... File: 091 - Rotech Healthcare Inc v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED as follows: (1) Defendant s Motion for Judgment on t... File: 092 - Guam Industrial Services Inc v Rumsfeld.doc, Final Clean Text: For the foregoing reasons the court, this 24th day of July, 2006, grants the defendants motion for s... File: 093 - Advanced Systems Development Inc v US.doc, Final Clean Text: Based on the foregoing reasons, we conclude that the determination to override the automatic stay im... File: 094 - Kola Nut Travel Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court hereby: \'3f DENIES the Defendant s Motion for a Hearing ... File: 095 - Cygnus Corp Inc v US.doc, Final Clean Text: AHRQ s decision cancelling the AHRQ RFP in favor of following the Department-wide strategic sourcing... File: 096 - US v Shasta Services Inc.doc, Final Clean Text: Based on the foregoing, both the State of California and the United States have demonstrated valid j... File: 097 - Six v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES defendant s motion for summary judgment and DENIES defen... File: 099 - Allied Painting Inc v Delaware River Port Authority of Pennsylvania and Ne.doc, Final Clean Text: \* co_pp_sp_6538_152_99 \* co_pp_sp_6538_152_99 *152 rejecting Allied s bid, and the district court ... File: 100 - Ryan v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s complaint is deemed MOOT by the court, defendant s Motion to ... File: 002 - Aeroplate Corp v US.doc, Final Clean Text: of trial, plaintiff s counsel waived his right to closing argument. The court asked several question... File: 004 - Chapman Law Firm Co v US.doc, Final Clean Text: Based upon the foregoing, the Court finds that HUD s proposed corrective action of \* co_pp_sp_613_1... File: 006 - TransAtlantic Lines LLC v US.doc, Final Clean Text: Department of Justice attorneys are expected to raise the best defenses possible on behalf of the Un... File: 008 - Comprehensive Health Services Inc v US.doc, Final Clean Text: For the reasons discussed herein, the Government s December 22, 2005 Motion to Supplement the Admini... File: 009 - Chevron USA Inc v US.doc, Final Clean Text: . For the foregoing reasons, the Government s Motions to Dismiss are DENIED . \'3f IT IS SO ORDERED.... File: 010 - PHT Supply Corp v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED as follows: (1) Plaintiff s Motion for Judgment on t... File: 011 - International Organization of Masters Mates and Pilots Pacific Maritime Re.doc, Final Clean Text: For the foregoing reasons, during the pendency of this litigation, Defendants are enjoined from awar... File: 012 - Hassell v US.doc, Final Clean Text: . The only proper course of action is for the court to dismiss the complaint for lack of subject mat... File: 013 - Department of Parks and Recreation for State of California v Bazaar Del Mu.doc, Final Clean Text: The State has not demonstrated a likelihood of success in establishing a protectible ownership inter... File: 014 - Space Exploration Technologies Corp v Boeing Co.doc, Final Clean Text: The Court grants the Motions to Dismiss. The Second Amended Complaint is dismissed with prejudice. \... File: 015 - Rex Service Corp v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is affirmed. \'3f \* co_ancho... File: 016 - Zuberi v Nicholson.doc, Final Clean Text: Upon consideration of the foregoing analysis, the appellant s May 2005 EAJA application is GRANTED i... File: 017 - Unico Services Inc v US.doc, Final Clean Text: For the foregoing reasons the Court hereby DENIES Plaintiff s Motion to Enjoin Collection Proceeding... File: 018 - Blue Dot Energy Co Inc v US.doc, Final Clean Text: s in that order. \'3f \* co_anchor_Iceb91ac68fb511ea80afece799150 \* co_anchor_Iceb91ac68fb511ea80af... File: 020 - American Cargo Transport Inc v Natsios.doc, Final Clean Text: Based on the foregoing, the defendants did not violate the APA either when they invoked \* HYPERLINK... File: 021 - Rig Masters Inc v US.doc, Final Clean Text: The Corps of Engineers actions were not arbitrary or capricious, and plaintiff has not identified a ... File: 022 - Doron Precision Systems Inc v FAAC Inc.doc, Final Clean Text: For the foregoing reasons, Defendants motions to dismiss for failure to state a claim are GRANTED an... File: 023 - Blue And Gold Fleet LP v US.doc, Final Clean Text: Based on the foregoing, defendant s and intervenor s cross-motions for judgment on the administrativ... File: 024 - United Enterprise And Associates v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion for Judgment on the Administrative Record is DENIED an... File: 025 - Avtel Services Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s bid protest and request for permanent injunctive relief are D... File: 026 - Universal Fidelity LP v US.doc, Final Clean Text: Plaintiff s application for fees and expenses under the EAJA is GRANTED IN PART. The Clerk of Court ... File: 027 - CIGNA Government Services LLC v US.doc, Final Clean Text: 1. The Court grants Plaintiff s request for a declaratory judgment. 2. The override decision issued ... File: 028 - Disability Rights Council of Greater Washington v Washington Metropolitan .doc, Final Clean Text: For the foregoing reasons, plaintiffs motion for expedited discovery is denied. \'3f SO ORDERED. \'3... File: 029 - Systems Plus Inc v US.doc, Final Clean Text: For the reasons stated, the court vacates and sets aside the DOL Contracting Officer s Determination... File: 030 - Adair v US.doc, Final Clean Text: The court concludes that neither \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findTy... File: 031 - Precision Standard Inc v US.doc, Final Clean Text: For the foregoing reasons, the court concludes that defendant s decision to award the contract for a... File: 032 - RISC Management Joint Venture v US.doc, Final Clean Text: For the reasons set forth above, the government s and HSS s motions for judgment on the administrati... File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Final Clean Text: For the reasons set forth above, the Court concludes that the default termination of M/P was justifi... File: 034 - Jana-Rock Const Inc v New York State Dept of Economic Development.doc, Final Clean Text: For the foregoing reasons, the judgment of the district court is affirmed. \'3f \* co_allCitations_3... File: 035 - Armour of America v US.doc, Final Clean Text: Defendant s Motion to Dismiss Counts I and II for lack of subject matter jurisdiction pursuant to \*... File: 036 - Pure Power! Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion to dismiss is granted, and the Clerk of the ... File: 037 - Mills v US.doc, Final Clean Text: For the aforementioned reasons, the Government s Motion for Summary Judgment is GRANTED . The Clerk ... File: 038 - Sartaine v Pennington.doc, Final Clean Text: The Court concludes that Plaintiffs have failed to carry their burden under the summary judgment sta... File: 039 - Advanced Systems Technology Inc v US.doc, Final Clean Text: s of law, as well as reasons for such determinations and for any relief ordered. On the other hand, ... File: 040 - CC Distributors Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s motion for judgment upon the Administrative Record is GR... File: 041 - Magic Brite Janitorial v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIED plaintiff s motion for a preliminary injunction on Decem... File: 042 - Bannum Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff has failed to prove that the violation of the applica... File: 043 - Advanced Systems Technology Inc v US.doc, Final Clean Text: Alatec s motion for leave to file a brief amicus curiae is DENIED . \'3f \* co_allCitations_43 \* co... File: 045 - Maleki v Los Angeles Unified School Dist.doc, Final Clean Text: that the defendant has presented no evidence to support a defamation-plus claim. (While appellant ar... File: 046 - Crone v US.doc, Final Clean Text: The Court of Federal Claims does not have jurisdiction over the claims presented in this lawsuit. Th... File: 047 - Guam Industrial Services Inc v Rumsfeld.doc, Final Clean Text: For the foregoing reasons the court, this 19th of December, 2005, grants in part and defers ruling i... File: 048 - Lion Raisins Inc v US.doc, Final Clean Text: The Court holds that it lacks jurisdiction over all of Plaintiff s claims, as Plaintiff s claims hav... File: 049 - HDM Corp v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s Motion for Partial Summary Judgment on the Administrati... File: 051 - KSEND v US.doc, Final Clean Text: The court finds that the solicitation at issue was not ambiguous and required all offerors to submit... File: 052 - LB And B Associates Inc v US.doc, Final Clean Text: For the foregoing reasons, the court holds that it has jurisdiction. Thus, the government s and Sytr... File: 053 - OTI America Inc v US.doc, Final Clean Text: For the reasons set forth above, OTI s motion for judgment on the administrative record is GRANTED I... File: 054 - Jenkins v US.doc, Final Clean Text: The only proper course of action is for the court to sua sponte dismiss the complaint, without preju... File: 055 - Long Lane Ltd Partnership v Bibb.doc, Final Clean Text: \* co_pp_sp_999_5_55 \* co_pp_sp_999_5_55 **5 For the foregoing reasons, we affirm the Board s decis... File: 057 - Alion Science and Technology Corp v US.doc, Final Clean Text: Accordingly, for the reasons indicated above, and as noted at the October 21, 2005 hearing, the plai... File: 058 - International Outsourcing Services LLC v US.doc, Final Clean Text: In the interests of rendering a prompt decision, this court need go no further. Measured by the appr... File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Final Clean Text: For the reasons set forth above, the Court concludes that the default termination of M/P was justifi... File: 062 - Liggins v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that: \'3f (1) Defendant s Motion To Dismiss, filed ... File: 063 - Nova Technology Inc v US.doc, Final Clean Text: In short, we conclude that the FCC was not arbitrary and capricious in requiring a full, qualified P... File: 064 - Night Vision Corp v US.doc, Final Clean Text: For all of the foregoing reasons, plaintiff s motion for partial summary judgment on counts I, II an... File: 065 - Advanced Systems Technology Inc v Barrito.doc, Final Clean Text: \* co_pp_sp_999_7_65 \* co_pp_sp_999_7_65 *7 For the foregoing reasons, defendants Motion to Dismiss... File: 066 - Tchakarski v US.doc, Final Clean Text: For the foregoing reasons, Polet Dotchev Tchakarski s Motion for Granting Emergency Temporary Restra... File: 067 - Space Exploration Technologies Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED , as follows: \'3f 1. Defendant and interven... File: 068 - Systems Plus Inc v US.doc, Final Clean Text: For the reasons set out above, plaintiff s request for injunctive relief and for a declaratory judgm... File: 069 - Kola Nut Travel Inc v US.doc, Final Clean Text: For the reasons set forth above, Plaintiffs have failed to establish by clear and convincing evidenc... File: 070 - Asia Pacific Airlines v US.doc, Final Clean Text: For the reasons set forth above, the government s motion to dismiss is DENIED, Asia Pacific s motion... File: 071 - Argencord Mach And Equip Inc v US.doc, Final Clean Text: 1. Plaintiff s motion for permanent injunction is DENIED . \'3f 2. Defendant s motion for judgment o... File: 072 - Fire-Trol Holdings LLC v US.doc, Final Clean Text: The Court hereby DENIES Plaintiff s Motion for Reconsideration in the related case, Case No. 05 \'3f... File: 073 - Transatlantic Lines LLC v US.doc, Final Clean Text: The contracting officer s apparent willingness to relax contract requirements for the winning offero... File: 074 - OTI America Inc v US.doc, Final Clean Text: For the reasons set forth above, the government s motion to dismiss is DENIED, and OTI s motion for ... File: 075 - Group Seven Associates LLC v US.doc, Final Clean Text: For the reasons set out above, plaintiff s motion is denied and defendant s is granted. The Clerk is... File: 076 - Kentucky Educ Cabinet Dept for the Blind v US.doc, Final Clean Text: that arbitration is mandatory for claims arising from the RSA. \'3f Only one court appears to have f... File: 077 - IAP World Services Inc v US.doc, Final Clean Text: of the hearing, the Court issued a bench ruling granting the TRO, which was memorialized in a writte... File: 078 - B And S Transport Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F32007295682_78" [3] \* co_anchor_B32007295682_78 \* co_anchor_B32007295682... File: 079 - Park Tower Management Ltd v US.doc, Final Clean Text: For the reasons discussed herein, Park Tower s March 29, 2005 Motion for a Permanent Injunction and ... File: 080 - Greenleaf Const Co Inc v US.doc, Final Clean Text: For the foregoing reasons, we grant defendant s motion to dismiss Counts IV and V for lack of standi... File: 081 - Al Ghanim Combined Group Co Gen Trad And Cont WLL v US.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff s application is dismissed for failure to qualify und... File: 082 - SAI Industries Corp v US.doc, Final Clean Text: The order of the Court of Federal Claims dismissing SAI s application under the Equal Access to Just... File: 083 - Redondo-Borges v US Dept of Housing and Urban Development.doc, Final Clean Text: We need go no further. If the plaintiffs have alleged any valid claim, it is a breach of contract cl... File: 084 - Guam Indus Services Inc v Rumsfeld.doc, Final Clean Text: For the foregoing reasons the court, this 24th day of August, 2005, denies the plaintiff s motion fo... File: 085 - Jaynes v US.doc, Final Clean Text: Plaintiffs have failed to satisfy the prerequisite to class certification set forth in \* HYPERLINK ... File: 086 - SKJ And Associates Inc v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that: (1) Defendant s Motion to Dismiss for Lack of Subject Matter... File: 087 - Chapman Law Firm Co v US.doc, Final Clean Text: In this case the plaintiff petitioned the court for preliminary injunctive relief to prevent the gov... File: 088 - Aeroplate Corp v US.doc, Final Clean Text: \* co_fnRef_B00772007093232_ID0E22BG_88 \* co_fnRef_B00772007093232_ID0E22BG_88 \* HYPERLINK "#co_fo... File: 089 - Beta Analytics Intern Inc v US.doc, Final Clean Text: The Navy acted arbitrarily and capriciously in its evaluation of proposals submitted in response to ... File: 090 - Goodwill Industrial Services Corp v Committee for Purchase from People who.doc, Final Clean Text: , the circuit court focused on the language of the ADRA, \* HYPERLINK "https://www.westlaw.com/Link/... File: 091 - Renda Marine Inc v US.doc, Final Clean Text: Plaintiff has failed to prove by a preponderance of the credible evidence that it is entitled to rec... File: 092 - Strates Shows Inc v Amusements of America Inc.doc, Final Clean Text: Based on the foregoing, defendants motions to dismiss or for judgment on the pleadings pursuant to \... File: 094 - Aeroplate Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED , as follows: \'3f 1. Defendant, through the... File: 095 - Four Points By Sheraton v US.doc, Final Clean Text: 1. Defendant and Intervenor s cross-motions for judgment on the administrative record are GRANTED . ... File: 096 - Orion Intern Technologies v US.doc, Final Clean Text: Following a review of the parties papers, the administrative record, and the transcript, the Court i... File: 097 - Asia Pacific Airlines v US.doc, Final Clean Text: For good cause shown, Defendant s Unopposed Motion for Leave to File a Status Report, filed on July ... File: 098 - Gould Inc v US.doc, Final Clean Text: that Gould may not avail itself of any alleged violation of \* HYPERLINK "https://www.westlaw.com/Li... File: 100 - Figueroa v US.doc, Final Clean Text: Congress is entitled to great deference under the Necessary and Proper Clause when it legislates und... File: 001 - Tecom Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for summary judgment as to liability on its second cau... File: 002 - Evers v Barnhart.doc, Final Clean Text: \* co_pp_sp_999_11_2 \* co_pp_sp_999_11_2 *11 For the reasons stated above, Defendants Motion to Dis... File: 003 - CC Distributors Inc v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s application for a temporary restraining order is DENIED .... File: 004 - Virdi v DeKalb County School Dist.doc, Final Clean Text: For the foregoing reasons, we AFFIRM the district court s order granting the District s and Hallford... File: 006 - HDM Corp v US.doc, Final Clean Text: \* co_pp_sp_999_5_6 \* co_pp_sp_999_5_6 *5 For the reasons set forth above, defendant s motion to di... File: 007 - Conner Brothers Const Co Inc v US.doc, Final Clean Text: For the following reasons, it is hereby ORDERED that: (1) Defendant s Motion for Summary Judgment, f... File: 008 - MTB Group Inc v US.doc, Final Clean Text: Ultimately, plaintiff has not shown that HUD s reverse auction procedure violates statute or an appl... File: 009 - Block v US.doc, Final Clean Text: Based on the foregoing reasons, the plaintiff s conversion and misappropriation claims shall be tran... File: 010 - Dorsett-Felicelli Inc v County of Clinton.doc, Final Clean Text: Based on the foregoing discussion, it is hereby \'3f ORDERED, that the Court will stay federal actio... File: 012 - Hospital Klean of Tex Inc v US.doc, Final Clean Text: that Integrity, through its agent Federal Express, had \'3fdone all it could and should to fulfill i... File: 013 - Patriot Contract Services v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES Plaintiff s motion for preliminary injunction. \'3f IT I... File: 014 - University Research Co LLC v US.doc, Final Clean Text: For the foregoing reasons, on May 6, 2005, the plaintiff s motion for a preliminary injunction was G... File: 015 - Chaz Const LLC v Codell.doc, Final Clean Text: For the reasons stated above, we REVERSE the district court s denial of the plaintiffs motion to ame... File: 017 - Autofrigo Europe SRL v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s Motion For Judgment On The Administrative Record is hereby... File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Final Clean Text: . In \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2003677711&pubNu... File: 019 - Orca Northwest Real Estate Services v US.doc, Final Clean Text: , that \'3fthis Court would have concluded that ORCA could have improved both its technical and its ... File: 020 - Rice Services Ltd v US.doc, Final Clean Text: We hold that Rice is not a \'3fprevailing party \'3f under the EAJA. The Court of Federal Claims con... File: 021 - LABAT-Anderson Inc v US.doc, Final Clean Text: Plaintiff asked that we declare the Government to be in violation of a federal statute and various p... File: 023 - CEMS Inc v US.doc, Final Clean Text: For the foregoing reasons, the court finds that the plaintiff is entitled to EAJA attorney fees. Bas... File: 024 - Watts v Day.doc, Final Clean Text: For the reasons set out above, we conclude that the district judge correctly resolved the issues pre... File: 025 - Bannum Inc v US.doc, Final Clean Text: that no conduct violated the APA. \'3f This court s opinion in JWK II likewise provided a cursory di... File: 026 - Centro Medico del Turabo Inc v Feliciano de Melecio.doc, Final Clean Text: We need go no further. Concluding, as we do, that the complaint fails to state a cause of action upo... File: 027 - Orca Northwest Real Estate Services v US.doc, Final Clean Text: There were material defects in the agency s decision to reinstate the award to HMBI. We conclude, ho... File: 028 - Patriot Contract Services LLC v US.doc, Final Clean Text: \* co_pp_sp_999_5_28 \* co_pp_sp_999_5_28 *5 For the foregoing reasons, the Court DENIES Defendant s... File: 029 - US v Fletcher.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for summary judgment is GRANTED in the amount of $... File: 030 - Client Network Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES Defendant s 12(b)(1) Motion to Dismiss and also DENIES D... File: 031 - Fire-Trol Holdings LLC v US.doc, Final Clean Text: For the foregoing reasons, the Court hereby GRANTS defendant s motion for judgment on the administra... File: 032 - Naplesyachtcom Inc v US.doc, Final Clean Text: The court grants plaintiff s motion to include additional documentation to support the July 8, 2004 ... File: 033 - Consolidated Engineering Services Inc v US.doc, Final Clean Text: For all of the foregoing reasons, plaintiff s motion for judgment on the administrative record is he... File: 034 - Blackstone Consulting Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s July 9, 2004 motion for summary judgment is GRANTED . Th... File: 035 - Ruttenburg v US.doc, Final Clean Text: 1. Defendant s Motion for Summary Judgment as to Plaintiff s claim for breach of contract is GRANTED... File: 036 - Fluor Enterprises Inc v US.doc, Final Clean Text: For the reasons stated above, the court concludes that the portion of Fluor s contract that called f... File: 037 - Arch Chemicals Inc v US.doc, Final Clean Text: For the foregoing reasons the plaintiff s motion for judgment on the administrative record is DENIED... File: 039 - Manson Const Co v US.doc, Final Clean Text: This court need go no further. Measured by the appropriate standard of review, the \* co_pp_sp_613_7... File: 040 - Fire-Trol Holdings LLC v US.doc, Final Clean Text: As set out above an examination of a fairness of the pre-bid solicitation falls squarely within the ... File: 041 - Mark Dunning Industries Inc v US.doc, Final Clean Text: For the foregoing reason, plaintiff s motion for judgment on the administrative record is DENIED, an... File: 044 - Portfolio Disposition Management Group LLC v US.doc, Final Clean Text: We reject Plaintiff s claims that HUD has erred in its selection process, changed the solicitation s... File: 045 - International Resource Recovery Inc v US.doc, Final Clean Text: 1. Plaintiff s motion for a permanent injunction is DENIED . 2. Plaintiff s request for bid preparat... File: 046 - Filtration Development Co LLC v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s motion for attorney fees and expenses in connection with i... File: 047 - Pride Intern LLC v US.doc, Final Clean Text: Because plaintiff failed to carry its burden of showing that it had a substantial chance of obtainin... File: 048 - Kropp Holdings Inc v US.doc, Final Clean Text: For the reasons set forth herein, the Clerk of Court will enter a final judgment that: Plaintiff s N... File: 049 - Chapman Law Firm v US.doc, Final Clean Text: Because plaintiff has failed to demonstrate either significant errors in the procurement or that it ... File: 050 - Puglia Engineering v US Coast Guard.doc, Final Clean Text: For all of the reasons stated above, Plaintiff s motion for a temporary restraining order is DENIED.... File: 051 - CW Government Travel Inc v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motion for reconsideration is DENIED. The Clerk is dire... File: 052 - US ex rel Bettis v Odebrecht Contractors of Cal Inc.doc, Final Clean Text: that Odebrecht fraudulently induced the Corps to award it the contract, we affirm the judgment of th... File: 053 - Four Points by Sheraton v US.doc, Final Clean Text: 1. Plaintiff s motion to supplement administrative record to probe bias is DENIED . 2. Defendant sha... File: 054 - Filtration Development Co LLC v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s Motion To Enforce The Court s Prior Order Or, In The Alter... File: 055 - EP Productions Inc v US.doc, Final Clean Text: In the interests of rendering a prompt decision, this court need go no further. Measured by the appr... File: 056 - CW Government Travel Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss pursuant to \* HYPERLINK "https://www.westl... File: 058 - Innovative Resources v US.doc, Final Clean Text: Based upon all of the foregoing, the court hereby GRANTS the defendant s motion to dismiss, pursuant... File: 059 - Blue Dot Energy Co Inc v US.doc, Final Clean Text: For the afore going reasons, Blue Dot s April 12, 2004 Motion for Injunctive Relief and September 27... File: 060 - Blackhawk Industries Products Group Unlimited LLC v US General Services Ad.doc, Final Clean Text: GSA s Motion to Dismiss is Denied . This Court does have jurisdiction pursuant \* co_pp_sp_4637_673_... File: 062 - Chapman Law Firm v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s protest is DISMISSED with prejudice. The Clerk of the Court s... File: 063 - Labat-Anderson Inc v US.doc, Final Clean Text: Defendants motion to dismiss for lack of subject matter jurisdiction is granted. Plaintiff s motion ... File: 064 - PGBA LLC v US.doc, Final Clean Text: In sum, we decide the issues before us as follows: \'3f (1) Because \* HYPERLINK "https://www.westla... File: 065 - Cardinal Maintenance Service Inc v US.doc, Final Clean Text: For the above-stated reasons, and on those bases alone, Cardinal s cross-motion for judgment upon th... File: 066 - Aptus Co v US.doc, Final Clean Text: Based upon all of the foregoing, plaintiff s September 9, 2004 Motion for Reconsideration of Judgmen... File: 067 - SAI Industries Corp v US.doc, Final Clean Text: Based on all of the foregoing, we GRANT defendant s motion to dismiss plaintiff s EAJA claim as unti... File: 068 - Wit Associates Inc v US.doc, Final Clean Text: This court need go no further. Measured by the appropriate standard of review, the Army s conduct he... File: 069 - State Contracting And Engineering Corp v Condotte America Inc.doc, Final Clean Text: s of Law that have been issued on this date, the undersigned Magistrate Judge RECOMMENDS that the Di... File: 070 - Spherix Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Plaintiff s motion for a preliminary injunction and its... File: 071 - Kentucky v US.doc, Final Clean Text: For the foregoing reasons, this court GRANTS the defendant s motion to dismiss for lack of jurisdict... File: 072 - Chapman Law Firm Co v US.doc, Final Clean Text: Given the ability and willingness of the incumbent contractor to continue to perform M & M services ... File: 073 - Fire-Trol Holdings LLC v US.doc, Final Clean Text: For the reasons set forth above, this Court holds that Fire \'3fTrol is not an \'3finterested party ... File: 074 - Conscoop-Consorzia Fra Coop Di Prod E Lavoro v US.doc, Final Clean Text: Conscoop s price proposal was received at the designated e-mail address after the 2:00 p.m. Naples, ... File: 075 - Malapanis v Regan.doc, Final Clean Text: For the foregoing reasons, the motion to dismiss by defendants Regan, Bannon, Miller \'3fSullivan an... File: 076 - Forest Service Employees For Environmental Ethics v US Forest Service.doc, Final Clean Text: Although this Court has jurisdiction, the Plaintiff lacks standing to bring claims under \'3f 340(e)... File: 077 - Keeton Corrections Inc v US.doc, Final Clean Text: Accordingly, it is ORDERED: \'3f (1) Plaintiff s Motion for an Award of Attorneys Fees and Costs Pur... File: 078 - Celta Const v US Dept of Housing and Urban Development.doc, Final Clean Text: For the foregoing reasons, the Court MODIFIES and ADOPTS the Magistrate \'3fJudge s Report and Recom... File: 079 - Marketing and Management Information Inc v US.doc, Final Clean Text: For the reasons set out above, plaintiff s motion in limine is granted in part and \* co_pp_sp_613_1... File: 080 - Yankee Atomic Elec Co v US.doc, Final Clean Text: s and recommendations therein were authorized positions of DOE under agency principles, or \'3fonly ... File: 081 - Eagle Design And Management Inc v US.doc, Final Clean Text: Defendant and Intervenor s Motions to Dismiss this action for lack of standing are GRANTED. No costs... File: 082 - Dwen v US.doc, Final Clean Text: For the above-stated reasons, the Clerk of the Court is hereby directed to DISMISS the complaint. No... File: 083 - Alpha Energy Savers Inc v Hansen.doc, Final Clean Text: For the foregoing reasons, we REVERSE the district court s summary judgment order with respect to th... File: 084 - ViroMed Laboratories Inc v US.doc, Final Clean Text: Neither ViroMed nor CDD accompanied their proficiency panel test results with a certification, signe... File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Final Clean Text: that discrimination is occurring in the architectural and engineering services market in Dade County... File: 086 - Blue Dot Energy Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the Government s May 3, 2004 motion to dismiss, pursuant to \* HYPERLINK ... File: 087 - Fire-Trol Holdings LLC v US Dept of Agriculture Forest Service.doc, Final Clean Text: IT IS THEREFORE ORDERED that Defendant U.S. Department of Agriculture Forest Service s Motion to Dis... File: 088 - Kirkpatrick v White.doc, Final Clean Text: Premised on the foregoing, the court finds that the plaintiffs motion for additional relief (doc. 89... File: 089 - CW Government Travel Inc v US.doc, Final Clean Text: For the reasons discussed above, the Court ORDERS that plaintiff s motion for summary judgment shall... File: 090 - Gulf Group Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS defendant s motion for judgment on the administrative re... File: 091 - City Of Albuquerque v US Dept Of Interior.doc, Final Clean Text: Based on the preceding analysis we REVERSE and REMAND for further proceedings consistent with this o... File: 092 - Federal Management Systems Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f Defendant s cross-motion for judgment upon the administrat... File: 093 - Hunt Building Co Ltd v US.doc, Final Clean Text: as to whether the related provision will be revised; and (d) other information requested by Hunt. 2.... File: 094 - Norfolk Dredging Co Inc v US.doc, Final Clean Text: Because the Court of Federal Claims erred in its construction of the statutory exception to \* HYPER... File: 095 - Rothe Development Corp v US Dept of Defense.doc, Final Clean Text: Rothe s only remaining remedy for its as-applied challenge concerning the 1998 contract disposition ... File: 097 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion to strike is DENIED. All portions of plaintiff s claim... File: 098 - First Enterprise v US.doc, Final Clean Text: For the foregoing reasons, the court GRANTS defendant s motion for summary judgment on the administr... File: 099 - International Resource Recovery Inc v US.doc, Final Clean Text: 1. Defendant s Motion to Strike is DENIED , and Plaintiff s Motion to Supplement the Administrative ... File: 100 - Dismas Charities Inc v US.doc, Final Clean Text: Having determined that BOP s decision to award the contract to Bannum was neither arbitrary nor capr... File: 001 - Altos Federal Group Inc v US.doc, Final Clean Text: For the above-stated reasons, the VA s decision to override the automatic stay mandated by \* HYPERL... File: 002 - Gentex Corp v US.doc, Final Clean Text: Plaintiff has not established entitlement to its teammates B & P costs or profit on its own B & P co... File: 003 - Mexican Intermodal Equipment SA de CV v US.doc, Final Clean Text: Based on the documents in the record, the court finds that, in the above captioned case, the jurisdi... File: 004 - Bannum Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Defendant s and interve... File: 005 - Dethlefs v US.doc, Final Clean Text: The Court hereby grants the Defendant s Motion to Dismiss and denies both the plaintiff s Motion for... File: 006 - Mississippi Dept of Rehabilitation Services v US.doc, Final Clean Text: Having found for MDRS on the merits, we now address the matter of relief. We have found that the Nav... File: 007 - NVT Technologies Inc v US.doc, Final Clean Text: , the majority abandons the reasons why it concluded an ambiguity existed in the first place. In par... File: 008 - Mark Dunning Industries Inc v US.doc, Final Clean Text: Plaintiff has established that SBA s dismissal of its protest as unspecific was arbitrary and capric... File: 009 - SAI Industries Corp v US.doc, Final Clean Text: Based upon all of the foregoing, the court hereby \'3f \'3f (i) DENIES defendant s motion for judgme... File: 010 - Brickwood Contractors Inc v Datanet Engineering Inc.doc, Final Clean Text: of the case (or judicial rejection of the offending contention). \'3f). In this dispute, the \* HYPE... File: 011 - Galen Medical Associates Inc v US.doc, Final Clean Text: Accordingly, in all respects, we affirm the Court of Federal Claims grant of judgment on the adminis... File: 012 - PGBA LLC v US.doc, Final Clean Text: Plaintiff s Expedited Motion for Rehearing, Reconsideration or, in the Alternative, Final Judgment, ... File: 013 - Red River Service Corp v US.doc, Final Clean Text: For the aforegoing reasons, Red River s January 6, 2004 Motion for Judgment on the Administrative Re... File: 014 - Filtration Development Co LLC v US.doc, Final Clean Text: For the above-stated reasons, plaintiff has shown that the Army violated OCI regulations and exceede... File: 015 - Admerasia Inc v US Postal Service.doc, Final Clean Text: \* co_pp_sp_999_8_15 \* co_pp_sp_999_8_15 *8 For the foregoing reasons, Defendants motion is GRANTED... File: 016 - North Carolina Motorcoach Ass'n v Guilford County Bd of Educ.doc, Final Clean Text: For the foregoing reasons, therefore, Defendant s \* HYPERLINK "https://www.westlaw.com/Link/Documen... File: 017 - Banknote Corp of America Inc v US.doc, Final Clean Text: For the foregoing reasons, the judgment of the Court of Federal Claims is \'3f AFFIRMED. \'3f \* co_... File: 018 - Naplesyachtcom Inc v US.doc, Final Clean Text: For the aforegoing reasons, the Government s April 27, 2004 Motion for Partial Reconsideration of th... File: 019 - JCN Const Co Inc v US.doc, Final Clean Text: Because there is no significant error in the procurement at issue that would provide a ground for re... File: 020 - International Resource Recovery Inc v US.doc, Final Clean Text: 1. Plaintiff s second Motion to Supplement the Administrative Record is DENIED. \'3f 2. The parties ... File: 021 - PGBA LLC v US.doc, Final Clean Text: For the reasons set forth above, PGBA s motion for judgment upon the administrative record is denied... File: 022 - Orion Intern Technologies v US.doc, Final Clean Text: The Court has determined that discovery concerning the availability and willingness of Mr. Zucconi t... File: 023 - Great Lakes Dredge And Dock Co v US.doc, Final Clean Text: For the reasons set forth above, defendant s motion for judgment on the administrative record is DEN... File: 024 - US v Government of Virgin Islands.doc, Final Clean Text: For the foregoing reasons, the order of the District Court will be affirmed, except to the extent th... File: 025 - Keeton Corrections Inc v US.doc, Final Clean Text: Accordingly, as no valid basis for reconsideration has been shown it is ORDERED that Dismas Motion f... File: 026 - B And B Trucking Inc v USPS.doc, Final Clean Text: In summary, the \'3fessentially contractual \'3f standard requires analysis of both the source of ri... File: 027 - Blue Water Environmental Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss is GRANTED. Judgment shall be entered ... File: 028 - AmerisourceBergen Drug Corp v US.doc, Final Clean Text: This Court finds that plaintiff has failed to establish that the VA s award to McKesson was irration... File: 029 - Keeton Corrections Inc v US.doc, Final Clean Text: Accordingly, as the January 21, 2004 override decision lacks a rational basis it is ORDERED that Fin... File: 030 - International Resource Recovery Inc v US.doc, Final Clean Text: IT IS HEREBY ORDERED THAT: 1. Plaintiff s motion for a preliminary injunction is DENIED . 2. The Cou... File: 031 - Metro Machine Corp v US Small Business Admin.doc, Final Clean Text: For the reasons set forth, defendants motion for summary judgment is GRANTED . Plaintiff s motion fo... File: 032 - Walsh Healthcare Solutions Inc v AmeriSource Corp.doc, Final Clean Text: Because the settlement agreement entered into by Walsh and AmeriSource covers the period of time beg... File: 033 - International Resource Recovery Inc v US.doc, Final Clean Text: IT IS HEREBY ORDERED THAT: 1. Plaintiff s oral motion to supplement the Administrative Record made o... File: 035 - West Tennessee Chapter of Associated Builders and Contractors Inc v City o.doc, Final Clean Text: As genuine issues of material fact exist, the Court DENIES both Plaintiffs and Defendant s motions f... File: 036 - Lan-Dale Co v US.doc, Final Clean Text: The Clerk of the Court shall hereby dismiss this matter, without prejudice, pursuant to \* HYPERLINK... File: 037 - Florida AGC Council Inc v Florida.doc, Final Clean Text: The United States of America has a brutal racial legacy. This is not to suggest that racial discrimi... File: 038 - Filtration Development Co LLC v US.doc, Final Clean Text: For the above-stated reasons, Defendant s Motion To Dismiss For Failure To State A Claim Upon Which ... File: 039 - Wickwire Gavin PC v US Postal Service.doc, Final Clean Text: s that place a document within a FOIA exemption under a clearly erroneous standard. Id. Whether a do... File: 040 - US ex rel Bettis v Odebrecht Contractors of California Inc.doc, Final Clean Text: For the reasons given above, defendant s motion for summary judgment as to all counts is granted, an... File: 041 - Bernard v US.doc, Final Clean Text: Because the court did not have subject matter jurisdiction over paragraphs 1 \'3f3, 6 \'3f10, 20, an... File: 042 - McSheffrey v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss plaintiff s claims for suspended funds, wro... File: 043 - Industrial Property Management Inc v US.doc, Final Clean Text: Based on the reasoning set forth above, the court GRANTS the government s November 10, 2003 motion f... File: 045 - Hawaiian Dredging Const Co Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s motion for summary judgment is granted, and defendant s and inte... File: 046 - Siemens Bldg Technologies Inc v Jefferson Parish.doc, Final Clean Text: s will not suffice to prevent a motion to dismiss. \* HYPERLINK "https://www.westlaw.com/Link/Docume... File: 047 - Builders Ass'n of Greater Chicago v City of Chicago.doc, Final Clean Text: s respecting denials were subject to vigorous attack, although his findings respecting higher intere... File: 048 - Overstreet Elec Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the court GRANTS defendant s motion for summary judgment on the administr... File: 049 - Washington State Dept of Services for the Blind v US.doc, Final Clean Text: For the foregoing reasons, Plaintiffs Motion for Referral of Issues is DENIED, and, based on the unl... File: 050 - Gentex Corp v US.doc, Final Clean Text: Plaintiff has demonstrated that the Air Force s conduct of this procurement violated \* HYPERLINK "h... File: 051 - Palm Beach Isles Associates v US.doc, Final Clean Text: The United States Court of Appeals for the Federal Circuit previously, in its first remand opinion, ... File: 052 - Norfolk Dredging Co Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s cross-motion for summary judgment is granted, and defendant s an... File: 053 - Sierra Military Health Services Inc v US.doc, Final Clean Text: Accordingly, it is ORDERED : \'3f (1) Plaintiff s Motion for Preliminary Injunction shall be DENIED ... File: 054 - Contract Management Inc v Rumsfeld.doc, Final Clean Text: In accordance with the foregoing, the Court (1) DENIES Plaintiff s Motion for Summary Judgment and (... File: 055 - Software Testing Solutions Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s application for temporary restraining order is DENIED . On or... File: 056 - Mississippi Dept of Rehabilitation Services v US.doc, Final Clean Text: , for the aforementioned reasons, the Government s Motion to Dismiss is denied . \'3f IT IS SO ORDER... File: 057 - Spherix Inc v US.doc, Final Clean Text: The court finds that the United States Secretary of Agriculture s determination that a sole source m... File: 059 - DynCorp Information Systems LLC v US.doc, Final Clean Text: Accordingly, based on the forgoing, \'3f IT IS ORDERED , as follows: \'3f 1. Plaintiff s motion for ... File: 060 - Integrated Business Solutions Inc v US.doc, Final Clean Text: Plaintiff has not demonstrated that NSF s refusal to consider its initial proposal was irrational or... File: 061 - Suchitra Groves v Bank of America NA.doc, Final Clean Text: \* co_pp_sp_999_6_61 \* co_pp_sp_999_6_61 *6 The Court concludes that, for the reasons stated above,... File: 062 - Spherix Inc v US.doc, Final Clean Text: For the above-stated reasons, the court holds that it has jurisdiction to decide whether the Secreta... File: 063 - Hermes Consolidated Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion for partial summary judgment is hereby GRANTED. Corres... File: 064 - Kohl Partners LLC v City of Manchester.doc, Final Clean Text: \* co_pp_sp_999_10_64 \* co_pp_sp_999_10_64 *10 For the reasons given above, defendant s motion to d... File: 065 - LeBoeuf Lamb Greene And MacRae LLP v Abraham.doc, Final Clean Text: s subject to NRC quality assurance review. GAO did not reach LeBoeuf s arguments alleging violation ... File: 066 - LOCKHEED MARTIN CORPORATION Plaintiff v THE BOEING COMPANY William Erskine.doc, Final Clean Text: The PIA contains no express grant of a private right of action for the benefit of government contrac... File: 067 - Antilles Cement Corp v Calderon.doc, Final Clean Text: The Court GRANTS Plaintiff s motion for summary judgment (docket No. 7), DENIES Defendants motion to... File: 068 - Stephenson v US.doc, Final Clean Text: Based upon all of the foregoing, this court finds that it lacks the requisite statutory jurisdiction... File: 069 - Norfolk Dredging Co Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s cross-motion for summary judgment is granted, and defendant s an... File: 070 - Conti Enterprises Inc v Southeastern Pennsylvania Transp Authority.doc, Final Clean Text: S OF LAW A. Subject Matter Jurisdiction 1. Diversity Jurisdiction This court has diversity jurisdict... File: 071 - Williams Alaska Petroleum Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F62003719982_71" [6] \* co_anchor_B62003719982_71 \* co_anchor_B62003719982... File: 072 - PGBA LLC v US.doc, Final Clean Text: The court finds that the prerequisites for issuing a preliminary injunction have been satisfied here... File: 073 - Colorado Construction Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f Defendant s motion for judgment upon the administrative re... File: 074 - CSE Const Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the court finds that the defendant acted improperly during the procuremen... File: 075 - Marketing and Management Information Inc v US.doc, Final Clean Text: For the reasons set out above, plaintiff s motion for partial summary judgment is granted. Defendant... File: 076 - Lion Raisins Inc v US.doc, Final Clean Text: Because plaintiff has failed to qualify for an EAJA award, its application is denied. \'3f No costs ... File: 077 - Information Handling Services Inc v Defense Automated Printing Services.doc, Final Clean Text: with respect to DAPS repeated suggestion that IHS is incapable of providing the same services that A... File: 078 - Vantage Associates Inc v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for judgment on the administrative record and for ... File: 079 - Fru-Con Const Co Inc v US.doc, Final Clean Text: We do not question plaintiff s ability or experience. The issue is whether defendant acted reasonabl... File: 080 - R And W Flammann GmbH v US.doc, Final Clean Text: Accordingly, the judgment of the Court of Federal Claims is reversed. \'3f REVERSED. \'3f \* co_allC... File: 081 - Hermes Consol Inc v US.doc, Final Clean Text: Consequently, this court must at this time deny the parties cross-motions for summary judgment as pr... File: 082 - US ex rel Campbell v Lockheed Martin Corp.doc, Final Clean Text: In accordance with the foregoing, it is ORDERED and ADJUDGED as follows: \'3f 1. The United States M... File: 083 - Mark Dunning Industries Inc v US.doc, Final Clean Text: 1. This matter is remanded to the SBA for its determination, consistent with this opinion, as to whe... File: 084 - SD Myers Inc v City and County of San Francisco.doc, Final Clean Text: We hold that \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1003409&... File: 085 - Former Employees of Motorola Ceramic Products v US.doc, Final Clean Text: , or entering a judgment. Remandees, therefore, did not prevail in a civil litigation. \'3f Although... File: 086 - Brickwood Contractors Inc v Datanet Engineering Inc.doc, Final Clean Text: of the case (or judicial rejection of the offending contention). \'3f \* HYPERLINK "https://www.west... File: 087 - HG Properties A LP v US.doc, Final Clean Text: , the majority points to evidence that it says suggests that HGP would not have been awarded the lea... File: 088 - Nicon Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F142003418396_88" [14] \* co_anchor_B142003418396_88 \* co_anchor_B14200341... File: 089 - Nutech Laundry And Textile Inc v US.doc, Final Clean Text: The matter is hereby REMANDED to NIH in order for NIH to undertake a new IGE that reflects the metho... File: 091 - EDP Enterprises Inc v US.doc, Final Clean Text: Given plaintiff s failure to demonstrate a likelihood of success on the merits or irreparable harm, ... File: 092 - Al Ghanim Combined Group Co Gen Trad And Cont WLL v US.doc, Final Clean Text: The court concludes that the Corps did not evaluate the offerors CLIN prices as required by \* HYPER... File: 094 - Bell BCI Co v US.doc, Final Clean Text: The term \'3fFederal agency \'3f as used in the Tucker Act does not have a meaning different from th... File: 095 - Banknote Corp of America Inc v US.doc, Final Clean Text: in Actus Corp, supra, noting that while the RFP specified the relative weights of technical factors,... File: 096 - Bannum Inc v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s motion for a temporary restraining order or ... File: 097 - Mannarino v Morgan Tp.doc, Final Clean Text: After carefully considering the arguments discussed above and all other arguments advanced by appell... File: 098 - USA ex rel Barrett v Johnson Controls Inc.doc, Final Clean Text: As to Relator s claims under the FCA, the Court DENIES Johnson Controls \* HYPERLINK "https://www.we... File: 099 - Tel-Instrument Electronics Corp v US.doc, Final Clean Text: Tel \'3fInstrument conditioned its bid on the use of equipment not included in the Solicitation, req... File: 100 - Razorcom Teleph And Net LLC v US.doc, Final Clean Text: In sum, plaintiff has not proved a violation of procurement regulations, much less arbitrary or capr... File: 001 - Halter Marine Inc v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for permanent injunctive relief is DENIED. The def... File: 002 - Walsh Const Co of Illinois v City of Detroit.doc, Final Clean Text: For the reasons above, Walsh has failed to state a claim upon which relief can be granted. Therefore... File: 003 - Galen Medical Associates Inc v US.doc, Final Clean Text: Plaintiff s motion for judgment on the administrative record is denied. Defendant s and intervenor s... File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Final Clean Text: For the foregoing reasons, we affirm the judgment of the district court in its entirety. \'3f \* co_... File: 005 - Schmidt v Lincoln County State of Wisconsin.doc, Final Clean Text: that few individuals will enter public service if such service entails the risk of personal liabilit... File: 006 - Resource Recycling Corp Inc v US.doc, Final Clean Text: For the foregoing reasons, the defendant s motion to dismiss is granted, with judgment being entered... File: 007 - Seaborn Health Care Inc v US.doc, Final Clean Text: Because, for the foregoing reasons, plaintiff has not demonstrated that it is likely to succeed on t... File: 008 - US v Government of Virgin Islands.doc, Final Clean Text: s set forth above, I will enjoin the defendant, the Government of the Virgin Islands, from proceedin... File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Final Clean Text: For the reasons stated above the Court GRANTS defendant s Motion to Dismiss for Failure to State a C... File: 010 - United Payors And United Providers Health Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court finds that HHS s contract award to CRA was arbitrary and capric... File: 011 - ABF Freight System Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion is GRANTED. Plaintiffs motion is DENIED. The Clerk of ... File: 012 - Concrete Works of Colorado Inc v City and County of Denver.doc, Final Clean Text: The City has demonstrated a compelling interest in remediating racial discrimination in the Denver c... File: 013 - SDS Intern Inc v US.doc, Final Clean Text: For the above-stated reasons, the temporary restraining order is hereby DENIED. \'3f IT IS SO ORDERE... File: 014 - City Solutions Inc v Clear Channel Communications Inc.doc, Final Clean Text: For the foregoing reasons, judgment must be entered for Eller Media Company on the fraud claim. The ... File: 015 - Rupert ex rel Rupert v Secretary of Dept of Health and Human Services.doc, Final Clean Text: s in this case beyond their competency, such that this decision on review be used as a benchmark, to... File: 016 - All Seasons Const Inc v US.doc, Final Clean Text: The Court finds that plaintiff s claims of prejudicial error in the procurement process are not supp... File: 017 - Gulf Group Inc v US.doc, Final Clean Text: That ends this matter. Based on the foregoing discussion, this court concludes that the injunctive r... File: 019 - Information Technology And Applications Corp v US.doc, Final Clean Text: For the foregoing reasons, the decision of the United States Court of Federal Claims is \'3f AFFIRME... File: 020 - A Esteban And Co Inc v Metropolitan Transp Authority.doc, Final Clean Text: This case is stayed pending resolution of Est \'3fban s complaint before the DOT and/or the Federal ... File: 021 - Manuel Bros Inc v US.doc, Final Clean Text: The court finds for the defendant on the plaintiff s claims of superior knowledge regarding the soil... File: 022 - Eagle Design and Mgmt Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s cross motion for summary judgment is GRANTED and Eagle s... File: 023 - McNabb v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion for summary judgment on count one of the amended compl... File: 024 - Hydro Engineering v Landa Inc.doc, Final Clean Text: Based upon the above reasoning, Defendants Motion to Dismiss and Motion to Strike are GRANTED and th... File: 025 - Omega World Travel Inc v US.doc, Final Clean Text: Plaintiff s motion for judgment on the administrative record is denied. Defendant s cross-motion for... File: 026 - CW Over And Sons Inc v US.doc, Final Clean Text: It is not common that a contracting officer s mistake \'3fespecially one as striking as \* co_pp_sp_... File: 027 - CAndE Services Inc of Washington v District of Columbia Water and Sewer Au.doc, Final Clean Text: that C&E lacks a sufficient property interest to maintain its due process claim does not deprive the... File: 028 - Will H Hall and Son Inc v US.doc, Final Clean Text: Correction of a bid may be granted only where the request is supported by clear and convincing evide... File: 029 - NVT Technologies Inc v US.doc, Final Clean Text: For the above-referenced reasons, plaintiff s motion for summary judgment on the administrative reco... File: 030 - Schickler v US.doc, Final Clean Text: All of the claims asserted on behalf of TMD are dismissed without prejudice for failure to comply wi... File: 031 - Prisma Zona Exploratoria de Puerto Rico Inc v Calderon.doc, Final Clean Text: that Prisma Zona has failed to state a claim under \* HYPERLINK "https://www.westlaw.com/Link/Docume... File: 032 - American Tel and Tel Co v US.doc, Final Clean Text: that none of these grounds could apply. Instead, the Court of Federal Claims limited its considerati... File: 033 - Shearin Const Inc v Mineta.doc, Final Clean Text: on the issue of control, it must affirm the Defendant s decisions regarding the issues of contributi... File: 034 - Metcalf Const Co Inc v US.doc, Final Clean Text: The court finds on each of the six counts as follows: \'3f (I) Section 1A.7 is patently ambiguous re... File: 035 - R And W Flammann GmbH v US.doc, Final Clean Text: Based upon all of the foregoing, the court hereby: \'3f (1) GRANTS plaintiff s motion for summary ju... File: 036 - CW Government Travel Inc v US.doc, Final Clean Text: . Accordingly, the government s motion for summary judgment on the administrative record is GRANTED,... File: 038 - Flamingo Industries (USA) Ltd v US Postal Service.doc, Final Clean Text: We reverse the district court s dismissal of Flamingo s antitrust claims and Procurement Manual clai... File: 039 - McRae Industries Inc v US.doc, Final Clean Text: For the foregoing reasons, it is ORDERED that Defendant s and Intervenors Motion to Dismiss is GRANT... File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED : (1) Defendant s Motion for Judgment Upon the Admin... File: 041 - North Carolina Div of Services For Blind v US.doc, Final Clean Text: For the above-stated reasons, it is ORDERED that: (1) Plaintiffs Motion for Summary Judgment on the ... File: 042 - Tabers Marketing Corp Inc v Hopper.doc, Final Clean Text: The order of the District Court granting summary judgment in favor of the EOC with respect to Tabers... File: 044 - LeBoeuf Lamb Greene And MacRae LLP v Abraham.doc, Final Clean Text: For all these reasons, the court denies the plaintiff s motion for summary judgment and grants the d... File: 045 - Bender Shipbuilding And Repair Co Inc v US.doc, Final Clean Text: The judgment of the Court of Federal Claims is \'3f AFFIRMED. \'3f \* co_allCitations_45 \* co_allCi... File: 046 - Courtney v Smith.doc, Final Clean Text: For all of the reasons set forth above, we AFFIRM the judgment of the district court. \'3f \* co_dis... File: 047 - Building and Const Trades Dept AFL-CIO v Allbaugh.doc, Final Clean Text: For the foregoing reasons, we conclude that the President acted within his constitutional authority ... File: 049 - Lion Raisins Inc v US.doc, Final Clean Text: 1. Accordingly, based on the foregoing, and consistent with the December 14, 2001 opinion on liabili... File: 051 - Aerojet Solid Propulsion Company v White.doc, Final Clean Text: . Finally, the parties agree that the bids on nitroethane were \'3fprice in effect \'3f bids, i.e., ... File: 052 - JWK Intern Corp v US.doc, Final Clean Text: Prevailing in a bid protest entails more than the frenzied brandishing of a cardboard sword. Many of... File: 053 - Glazer Const Co Inc v US.doc, Final Clean Text: s of this opinion. \'3f IT IS SO ORDERED. \* co_allCitations_53 \* co_allCitations_53... File: 054 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: Accordingly, based on the foregoing, it is ORDERED, as follows: 1. Plaintiff s protest is SUSTAINED.... File: 055 - Brickwood Contractors Inc v US.doc, Final Clean Text: For the foregoing reasons, we reverse the decision of the Court of Federal Claims. \'3f REVERSED. \'... File: 056 - Michigan Paytel Joint Venture v City of Detroit.doc, Final Clean Text: For the foregoing reasons, we AFFIRM the judgment of the district court. \'3f \* co_allCitations_56 ... File: 057 - CESC Plaza Ltd Partnership v US.doc, Final Clean Text: Plaintiffs consolidated motion for injunctive and declaratory relief is denied and defendant s motio... File: 058 - American Federation of Government Employees (AFL-CIO) v US.doc, Final Clean Text: For the foregoing reasons, the court grants the defendants motion for summary judgment and grants th... File: 059 - Lion Raisins Inc v US.doc, Final Clean Text: Accordingly, based on the forgoing, \'3f IT IS ORDERED , as follows: \'3f 1. Defendant s Partial Mot... File: 061 - Ceres Environmental Services Inc v US.doc, Final Clean Text: is not rational. See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=... File: 063 - Hunt Const Group Inc v US.doc, Final Clean Text: For the foregoing reasons, the decision of the Court of Federal Claims is affirmed. \'3f \* co_ancho... File: 064 - Amfac Resorts LLC v US Dept of the Interior.doc, Final Clean Text: that this aspect of the case is not ripe differs from that of the district court, which ruled agains... File: 066 - Pair-A-Dice Acquisition Partners Inc v Board of Trustees of Galveston Whar.doc, Final Clean Text: s). The tasks of determining credibility, weighing evidence, and drawing reasonable inferences are r... File: 067 - Xerxe Group Inc v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is affirmed. \'3f \* co_ancho... File: 068 - Kucinich v Defense Finance and Accounting Service.doc, Final Clean Text: For these reasons, the Court dismisses this case sua sponte for lack of jurisdiction. \'3f This orde... File: 069 - JWK Intern Corp v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is affirmed. \'3f AFFIRMED. \... File: 070 - Interior Contractors Inc v Board of Trustees of Newman Memorial County Hos.doc, Final Clean Text: The court finds that the plaintiff can prove no set of facts in support of his \* HYPERLINK "https:/... File: 071 - Computer Sciences Corp v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s motion for judgment on the administrative record is hereby... File: 072 - High Plains Wireless LP v FCC.doc, Final Clean Text: For the foregoing reasons, the decision of the Commission to award to Mercury the F block license fo... File: 075 - Information Technology And Applications Corp v US.doc, Final Clean Text: The court finds that plaintiff s claims of prejudicial errors in the procurement process are not sup... File: 076 - Nicon Inc v US.doc, Final Clean Text: For the aforementioned reasons, the government s cross-motion for partial summary judgment is GRANTE... File: 077 - Lion Raisins Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Defendant s motion file... File: 079 - Alaska Cent Express Inc v US.doc, Final Clean Text: that continued tender of mainline mail to plaintiff would prevent the USPS from exploiting the econo... File: 080 - L Tarango Trucking v County of Contra Costa.doc, Final Clean Text: s of law (Docket No. 599, filed Oct. 29, 2001). Accordingly, those findings are incorporated into th... File: 081 - Building and Const Trades Dept AFL-CIO v Allbaugh.doc, Final Clean Text: For the foregoing reasons, the Court is persuaded that all plaintiffs in this case \* co_pp_sp_4637_... File: 082 - Medgar Evers Houses Associates LP v Carro.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for a preliminary injunction is denied. \'3f \* co_all... File: 083 - Alaska Cent Exp Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion to dismiss pursuant to \* HYPERLINK "https:/... File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. The September 28, 2001 Declarations of Mary E. Saint Lo... File: 085 - Maintenance Engineers v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for permanent injunctive relief is DENIED . The de... File: 086 - DavisHRGM Joint Venture v US.doc, Final Clean Text: Because the Court lacks jurisdiction over the termination for convenience claim and because the Corp... File: 087 - Northrop Grumman Corp v US.doc, Final Clean Text: For the above-stated reasons, the solicitation in this case contained no mandatory requirement for d... File: 088 - XTRA Lease Inc v US.doc, Final Clean Text: For the above-stated reasons, plaintiff s motion for judgment on the administrative record is hereby... File: 089 - VMC Behavioral Healthcare Services Div of Vasquez Group Inc v US.doc, Final Clean Text: We grant defendant s motion for summary judgment with respect to VMC s challenge to the Magellan con... File: 090 - Corel Corp v US.doc, Final Clean Text: This Court has subject matter jurisdiction over Corel s claims, but those claims fail on the merits ... File: 091 - Interstate Rock Products Inc v US.doc, Final Clean Text: that \'3f[a]bsent insertion of the top limit of the penal bond in the bid the contractor is bound to... File: 092 - Prisma Zona Exploratoria de Puerto Rico Inc v Calderon.doc, Final Clean Text: : plaintiff was an applicant or bidder for a government contract. In following the Supreme Court s l... File: 093 - MCI Worldcom Inc v General Services Admin.doc, Final Clean Text: For all the foregoing reasons, the Court finds that GSA s decision to disclose the pricing data cont... File: 094 - Emery Worldwide Airlines Inc v US.doc, Final Clean Text: Because the contract between the USPS and FedEx was rational, and statutory and procedural violation... File: 096 - TLT Const Corp v US.doc, Final Clean Text: Plaintiff s Motion for Judgment on the Administrative Record in which it sought injunctive relief an... File: 097 - LaBat-Anderson Inc v US.doc, Final Clean Text: Government officials are presumed to act in good faith. For the court to proceed further in this pro... File: 098 - Tech Systems Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. The judgment entered pursuant to the opinion issued on ... File: 099 - American Federation of Government Employees v Rumsfeld.doc, Final Clean Text: The district court did not err in determining that the decisions to produce the DATP gun mounts and ... File: 100 - Rothe Development Corp v US Dept of Defense.doc, Final Clean Text: Because the district court failed to analyze the constitutionality of the 1207 program under the str... File: 001 - Griffy's Landscape Maintenance LLC v US.doc, Final Clean Text: For the foregoing reasons, we conclude that plaintiff has failed to establish by a preponderance of ... File: 002 - Labat-Anderson Inc v US.doc, Final Clean Text: For the reasons discussed above, the intervenor s motion to dismiss for lack of subject matter juris... File: 003 - Catholic University of America v US.doc, Final Clean Text: of oral argument and the rationale contained herein, the court holds that the solicitation is lawful... File: 004 - American Federation of Government Employees AFL-CIO v US.doc, Final Clean Text: For the foregoing reasons, the order of the Court of Federal Claims dismissing Appellants claim for ... File: 005 - First Health Group Corp v National Prescription Adm'rs Inc.doc, Final Clean Text: First Health has not met its significant burden of demonstrating irreparable harm in the absence of ... File: 006 - Hass Const Co v Thomas.doc, Final Clean Text: For the reasons set forth above, it is therefore, ORDERED , that Defendant s Motion for Summary Judg... File: 008 - Bighorn Lumber Co Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s cross-motion for summary judgment is granted and pl... File: 010 - Brickwood Contractors Inc v US.doc, Final Clean Text: For the foregoing reasons, the court finds that this court may properly consider an \* HYPERLINK "ht... File: 011 - Amfac Resorts LLC v US Dept of Interior.doc, Final Clean Text: For the foregoing reasons, \'3f \* co_anchor_I782178a1b53f11eda076bd7102a63 \* co_anchor_I782178a1b5... File: 012 - Automated Communication Systems Inc v US.doc, Final Clean Text: Based on the foregoing, the court concludes that the Air Force s procurement decisions made thus far... File: 016 - Rust Constructors Inc v US.doc, Final Clean Text: For the aforementioned reasons, the court hereby DENIES plaintiff s Motion for Summary Judgment, and... File: 017 - Amfac Resorts LLC v US Dept of the Interior.doc, Final Clean Text: For the foregoing reasons, the Court DENIES the plaintiffs \* HYPERLINK "https://www.westlaw.com/Lin... File: 018 - WorldTravelService v US.doc, Final Clean Text: Based on the foregoing, the court concludes that NIH s procurement decision was not arbitrary, capri... File: 019 - LeBoeuf Lamb Greene And MacRae LLP v Abraham.doc, Final Clean Text: For the reasons stated above, the court will deny the State of Nevada s motion to intervene of right... File: 020 - JWK International Corp v US.doc, Final Clean Text: (1) Defendant s Motion to Dismiss Count VI of the Complaint for lack of standing is GRANTED; \'3f (2... File: 021 - JWK Intern Corp v US.doc, Final Clean Text: It is considered that balancing all four factors, the scale tips heavily in favor of denial of JWK s... File: 022 - OAO Corp v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s motion for a temporary restraining order or ... File: 023 - Amfac Resorts LLC v US Dept of the Interior.doc, Final Clean Text: In summary, the Court today holds (1) that the plaintiffs are not entitled to any discovery from the... File: 024 - Mathiowetz Const Co v Minnesota Dept of Transp.doc, Final Clean Text: While the Court finds the Union s maintenance of the MRP to be suspect, at this juncture the Court c... File: 025 - Dantran Inc v US Dept of Labor.doc, Final Clean Text: that aggravating circumstances prevented relief from debarment. See \* HYPERLINK "https://www.westla... File: 027 - Brickwood Contractors Inc v US.doc, Final Clean Text: The court finds that the plaintiff has satisfied all four elements required to succeed on an EAJA cl... File: 028 - American Federation of Government Employees AFL-CIO v Babbitt.doc, Final Clean Text: Based on the reasoning and citation of authority set forth above, the Defendants Motion to Dismiss (... File: 029 - Emery Worldwide Airlines Inc v US.doc, Final Clean Text: 1. Defendant s motion to dismiss for lack of jurisdiction is denied. Plaintiff s cross-motion for su... File: 030 - Baltimore Gas and Elec Co v US.doc, Final Clean Text: For the foregoing reasons, I shall grant the defendants motions for summary judgment, deny the motio... File: 031 - Schweiger Const Co Inc v US.doc, Final Clean Text: It is hereby ORDERED that: (1) Defendant s 12(b)(4) motion to dismiss counts I \'3fIII is DENIED. (2... File: 032 - American Federation of Government Employees AFL-CIO Local 1367 v US.doc, Final Clean Text: Based on the foregoing, I have determined that this court lacks subject-matter jurisdiction to reach... File: 033 - Marlys Bear Medicine v US ex rel Secretary of Dept of Interior.doc, Final Clean Text: . \'3f We have held that \'3f[a] general statutory duty to promote safety ... would not be sufficien... File: 034 - SDS Intern v US.doc, Final Clean Text: The court finds that plaintiff s claims of prejudicial errors in the procurement process are not sup... File: 035 - Barton v District of Columbia.doc, Final Clean Text: For all of these reasons, the court denies the plaintiffs motion for a preliminary injunction. An or... File: 036 - SDS Intern v US.doc, Final Clean Text: The court finds that plaintiff s claims of prejudicial errors in the procurement process are not sup... File: 037 - Dynacs Engineering Co Inc v US.doc, Final Clean Text: Further to the foregoing, the court orders the following: A. The court awards bid preparation costs ... File: 039 - ManTech Telecommunications and Information Systems Corp v US.doc, Final Clean Text: Let there be no mistake that if this court, rather than the Army, were constructing the corrective a... File: 040 - Cybertech Group Inc v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that: (1) Plaintiff s motion for declaratory and inj... File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Final Clean Text: . The Court finds, for the reasons expressed above, that the Oklahoma Minority Business Enterprise A... File: 042 - Hunt Const Group Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Plaintiff s motion for summary judgment is denied, and ... File: 044 - MCS Management Inc v US.doc, Final Clean Text: The Court concludes that the contracting officer s determination not to set aside the \* co_pp_sp_61... File: 045 - Burke v US EPA.doc, Final Clean Text: After reviewing the EPA Decision and administrative record, the court cannot \* co_pp_sp_4637_243_45... File: 047 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: For the reasons stated above, we affirm the Court of Federal Claims decision in part, and reverse an... File: 048 - Ryder Move Management Inc v US.doc, Final Clean Text: Based on the foregoing, this court finds that the contracting officer s decision was not unlawful or... File: 049 - Bean Stuyvesant LLC v US.doc, Final Clean Text: For the above-stated reasons, it is ORDERED that: (1) Plaintiff s Motion for Summary Judgment on the... File: 050 - Multimax Inc v FAA.doc, Final Clean Text: that the IPT abandoned the \'3fbest value \'3f analysis to which it was required to adhere. Thus, an... File: 051 - US AirWaves Inc v FCC.doc, Final Clean Text: In summary, we hold that the changes to the Commission s C \'3fblock auction rules are neither arbit... File: 053 - Frontier Traylor Shea LLC v Metropolitan Airports Com'n.doc, Final Clean Text: Based upon the foregoing, and all of the files, records and proceedings herein, IT IS HEREBY ORDERED... File: 054 - Sloan v Department of Housing And Urban Development.doc, Final Clean Text: For the foregoing reasons, the judgment of the District Court is affirmed in part and reversed in pa... File: 055 - Giesler v US.doc, Final Clean Text: We hold that Central Park s failure to obtain and read the nut mix specification referenced in the s... File: 056 - Builders Ass'n of Greater Chicago v County of Cook.doc, Final Clean Text: The court holds that the minority and women preferences required by Cook County Ordinance No. 93 \'3... File: 057 - Dynacs Engineering Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the court sustains plaintiff s protest. Plaintiff s Motion for Judgment o... File: 058 - CCL Service Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant s and intervenor s motions for judgment on th... File: 059 - T And S Products Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Intervenor s September 29, 2000 motion to supplement th... File: 060 - Vanalco Inc v US.doc, Final Clean Text: of which are as follows: (a) In 1998, BPA announced its intention to base power allocations for the ... File: 061 - Biospherics Inc v US.doc, Final Clean Text: Based on the foregoing, the court concludes that GSA s procurement decision was not arbitrary, capri... File: 062 - Overstreet Elec Co Inc v US.doc, Final Clean Text: The court finds that the Corps acted in an arbitrary and capricious fashion in constructing the esti... File: 063 - JA Jones Management Services v FAA.doc, Final Clean Text: that \'3f[t]he August 12 meeting, which was the last meeting of the Board on the subject, ended in a... File: 064 - Adarand Constructors Inc v Slater.doc, Final Clean Text: that the \'3fSultan of Brunei, \'3f should he have the temerity to apply, could qualify for DBE stat... File: 065 - PCL Const Services Inc v US.doc, Final Clean Text: PCL alleges that there has been a complete breach of the contract by USBR and that USBR executed an ... File: 066 - Legal Aid Society v City of New York.doc, Final Clean Text: For the reasons set forth above, defendants motions should be granted in part and denied in part. Wi... File: 067 - Myers Investigative and Security Services Inc v US.doc, Final Clean Text: For the above-stated reasons, the court holds that defendant violated procurement law in awarding th... File: 068 - Freightliner Corp v Caldera.doc, Final Clean Text: Because we hold that \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 069 - Beverly Enterprises Inc v Herman.doc, Final Clean Text: For the foregoing reasons, the court will grant the defendants motion and deny the plaintiff s motio... File: 070 - MVM Inc v US.doc, Final Clean Text: Bid proposal and preparation costs are a permissible remedy in a bid protest action under \* HYPERLI... File: 071 - Associated Builders And Contractors of Rhode Island Inc v City of Providen.doc, Final Clean Text: For the preceding reasons, plaintiffs motion for summary judgment is granted. The City s and interve... File: 072 - Alfa Laval Separation Inc v US.doc, Final Clean Text: The Federal Circuit s prejudice finding requires the granting of an injunction foreclosing \* co_pp_... File: 073 - CHE Consulting Inc v US.doc, Final Clean Text: Based on the foregoing, the court concludes that CHE has failed to demonstrate that it is an interes... File: 074 - Myers Investigative and Sec Services Inc v US.doc, Final Clean Text: Based upon the forgoing, the court denies defendant s motion to exclude Tabs A through E, Tabs two t... File: 075 - SJ Thomas Co Inc v US.doc, Final Clean Text: The Court concludes that plaintiff was not the prevailing party in this action. Plaintiff, therefore... File: 076 - Future-Tec Management Systems Inc v Danzig.doc, Final Clean Text: \* co_pp_sp_999_3_76 \* co_pp_sp_999_3_76 *3 For the foregoing reasons, defendants motion to dismiss... File: 077 - Novell Inc v US.doc, Final Clean Text: Accordingly, for the reasons stated, this Court is without subject matter jurisdiction to resolve th... File: 078 - OMV Medical Inc v US.doc, Final Clean Text: that it is irrelevant whether Ms. Puleo followed a rational mode of analysis in comparing the offero... File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Final Clean Text: For the reasons set forth above, the court denies the plaintiff s application for a preliminary inju... File: 080 - Interstate Traffic Control v Beverage.doc, Final Clean Text: Plaintiff s motion for supplemental briefing is GRANTED; however, after consideration of the attache... File: 081 - Northrop Grumman Corp v US.doc, Final Clean Text: 1. Based on the foregoing, plaintiff is entitled to recover $1,757,244.00 for ECP1, \* co_fnRef_B032... File: 083 - Boyanowski v Capital Area Intermediate Unit.doc, Final Clean Text: that banning coach from city ice rink and publishing to third parties false statements that coach wa... File: 084 - Advanced Data Concepts Inc v US.doc, Final Clean Text: s found to be \'3f (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance... File: 085 - News Printing Co Inc v US.doc, Final Clean Text: Plaintiff s cross-motion for summary judgment is denied. Defendant s motion for summary judgment is ... File: 086 - Associated General Contractors of Ohio Inc v Drabik.doc, Final Clean Text: of specific historical discrimination calling for remediation, such as might justify the MBEA. More ... File: 087 - Young v General Services Admin.doc, Final Clean Text: The Court is persuaded that the case law supports the government s position with respect to Smith Re... File: 088 - Mangi Environmental Group Inc v US.doc, Final Clean Text: For the reasons stated, the Forest Service s award of the contract to SRI was arbitrary and capricio... File: 089 - Stratos Mobile Networks USA LLC v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is reversed, and the injuncti... File: 090 - ReconOptical Inc v Lockheed Martin Corp.doc, Final Clean Text: . \'3f To place Captain Harendza s testimony in context, one should begin with the testimony of Capt... File: 091 - Petchem Inc v US.doc, Final Clean Text: Therefore, for the reasons stated, the Court finds that there has been no clear and prejudicial viol... File: 093 - American Federation of Government Employees AFL-CIO v US.doc, Final Clean Text: Based on the forgoing, this court GRANTS defendant s motion to dismiss. In addition, this court DENI... File: 095 - Novell Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing: \'3f 1. Defendant s and intervenors motions are granted. The Cl... File: 096 - Hawpe Const Inc v US.doc, Final Clean Text: For the above-stated reasons, the court finds that it has subject matter jurisdiction over plaintiff... File: 097 - CW Government Travel Inc v US.doc, Final Clean Text: Defendant s motion to dismiss for mootness is granted, without prejudice, and plaintiff s motion for... File: 098 - Storage Technology Corp v CCL Service Corp.doc, Final Clean Text: For the foregoing reasons, the court finds that Defendants were in breach of the Teaming Agreement f... File: 099 - DSD Laboratories Inc v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s request for a temporary restraining order and motion for ... File: 100 - John Gil Const Inc v Riverso.doc, Final Clean Text: For the foregoing reasons, defendants motion to dismiss is granted in its entirety without leave to ... File: 001 - Progressive Industries Inc v United States.doc, Final Clean Text: Plaintiff s motion to alter or amend the judgment pursuant to \* HYPERLINK "https://www.westlaw.com/... File: 002 - Rivada Mercury LLC v United States.doc, Final Clean Text: For the reasons discussed above, Rivada s motion for judgment on the administrative record is DENIED... File: 003 - Level 3 Communications LLC v United States.doc, Final Clean Text: . For the aforesaid reasons, the court has determined that the Government did not violate \* HYPERLI... File: 004 - Tetra Tech Inc v United States.doc, Final Clean Text: Plaintiff has failed to show success on the merits. Thus we need not consider the other factors requ... File: 005 - Mercom Inc v United States.doc, Final Clean Text: For the reasons stated, Mercom s motion for judgment on the administrative record is DENIED and the ... File: 006 - By Light Professional IT Services Inc v United States.doc, Final Clean Text: In sum, the administrative record in this case demonstrates that the USACE conducted a reasonable ev... File: 007 - Alabama Aircraft Industries Inc v Boeing Company.doc, Final Clean Text: For the foregoing reasons, Alabama Aircraft Industries, Inc. s Motion for Sanctions is due to be gra... File: 008 - Sigmatech Inc v United States.doc, Final Clean Text: s might help the parties to narrow the issues in this case. Gov t Mot. at 2. The claims alleged in t... File: 010 - Every v Department of Veterans Affairs.doc, Final Clean Text: For the reasons stated above, the government s motion to dismiss (doc. no. 23) is granted without pr... File: 011 - Concourse Group LLC v United States.doc, Final Clean Text: The Court finds that Plaintiff has waived its OCI claims. Therefore, Defendant \'3fIntervenor s moti... File: 013 - System Dynamics International Inc v United States.doc, Final Clean Text: . For these reasons, SDI s August 8, 2016 Motion For Judgment On The Administrative Record is denied... File: 014 - Active Network LLC v United States.doc, Final Clean Text: For the reasons stated above, this Court GRANTS IN PART Active s motion for judgment on the administ... File: 015 - Limco Airepair Inc v United States.doc, Final Clean Text: In sum, the record evidence in this post-award bid protest matter shows that the Air Force conducted... File: 016 - Munilla Construction Management LLC v United States.doc, Final Clean Text: Based on the foregoing, Munilla s motion for judgment on the administrative record is DENIED and the... File: 017 - Ecosystem Investment Partners v United States.doc, Final Clean Text: For the reasons stated above, we grant defendant s motion to dismiss for lack of jurisdiction. The c... File: 018 - Lee v United States.doc, Final Clean Text: For the reasons stated, plaintiffs motions for reconsideration and for leave to file a second amende... File: 019 - York Telecom Corporation v United States.doc, Final Clean Text: In sum, while the Court may generally consider this matter under its bid protest jurisdiction under ... File: 020 - Health Republic Insurance Company v United States.doc, Final Clean Text: In sum, the court possesses subject matter jurisdiction to entertain plaintiff s claim that HHS, by ... File: 021 - Munilla Construction Management LLC v United States.doc, Final Clean Text: For the reasons set forth above, Munilla s motion for a temporary restraining order is DENIED . \'3f... File: 022 - King v Board of County Commissioners.doc, Final Clean Text: King and OHC have stated plausible claims under Florida s public employee whistleblower statute. Thu... File: 025 - National Star Route Mail Contractors Association Inc v United States Posta.doc, Final Clean Text: Accordingly, the Court shall not reach the merits of Plaintiff s claims. See \* HYPERLINK "https://w... File: 026 - It Shows Inc v United States.doc, Final Clean Text: Plaintiff has failed to show success on the merits. Thus we need not consider the other factors for ... File: 027 - Global Dynamics LLC v United States.doc, Final Clean Text: Not being able to show success on the merits, plaintiff cannot establish an entitlement to injunctiv... File: 029 - Autotech Collision Inc v The Incorporated Village of Rockville Centre.doc, Final Clean Text: We have considered plaintiffs \'3f remaining arguments and conclude that they are without merit. Acc... File: 030 - Leonie Industries LLC v United States.doc, Final Clean Text: of oral argument, the court issued bench rulings denying plaintiff s motion for judgment on the admi... File: 031 - Energizer Battery Inc v United States.doc, Final Clean Text: For the foregoing reasons, Plaintiff s Motion for Summary Judgment is denied, and Defendant s Motion... File: 032 - Progressive Industries Inc v United States.doc, Final Clean Text: For the reasons discussed fully above, plaintiff s motion for judgment on the administrative record ... File: 033 - Level 3 Communications LLC v United States.doc, Final Clean Text: . It is also permissible, at the Government s discretion, to indicate to all offerors the cost or pr... File: 034 - Telos Corporation v United States.doc, Final Clean Text: s, \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2022191069&pu... File: 035 - Frankel v United States.doc, Final Clean Text: For the foregoing reasons, the judgment of the Court of Federal Claims is affirmed. \'3f AFFIRMED \'... File: 036 - Parcel 49C Limited Partnership v United States.doc, Final Clean Text: In sum, the administrative record in this case demonstrates that the GSA conducted a reasonable eval... File: 037 - Sallyport Global Holdings Inc v United States.doc, Final Clean Text: For the reasons stated above, the Sallyport s motion for judgment on the administrative record is DE... File: 038 - General Electric Company v West Feliciana Parish Hospital Service District.doc, Final Clean Text: \* co_pp_sp_999_19_38 \* co_pp_sp_999_19_38 *19 Accordingly, based on the foregoing, \'3f IT IS ORDE... File: 039 - Strategic Business Solutions Inc v United States.doc, Final Clean Text: For the reasons discussed above, the government s motion for judgment on the administrative record i... File: 040 - CSC Government Solutions LLC v United States.doc, Final Clean Text: For the reasons stated, CSC s motion for judgment on the administrative record is DENIED. The govern... File: 041 - Tiber Creek Consulting Inc v United States.doc, Final Clean Text: We considered plaintiff s concerns with this procurement carefully, and compared its arguments and c... File: 042 - Caddell Construction Company v United States.doc, Final Clean Text: Plaintiff s motion for judgment on the Administrative Record is DENIED . \'3f Defendant and Interven... File: 043 - Level 3 Communications LLC v United States.doc, Final Clean Text: . Accordingly, for the reasons set forth herein, it is hereby ordered that: the United States of Ame... File: 044 - Boarhog LLC v United States.doc, Final Clean Text: For the reasons stated above, Defendant s motion to dismiss is GRANTED, and Plaintiff s complaint is... File: 045 - Land of Lincoln Mutual Health Insurance Company v United States.doc, Final Clean Text: For the reasons stated above, the government s motion for judgment on the administrative record is G... File: 047 - Palantir USG Inc v United States.doc, Final Clean Text: Accordingly, because Palantir has demonstrated success on the merits, and because the equitable fact... File: 048 - Favor Techconsulting LLC v United States.doc, Final Clean Text: . For these reasons, the court has determined that DIA s denial of the automatic stay, authorized by... File: 049 - Professional Service Industries Inc v United States.doc, Final Clean Text: For the foregoing reasons, PSI s motion for judgment on the administrative record is GRANTED and the... File: 050 - Bannum Inc v Samuels.doc, Final Clean Text: Pursuant to the Westfall Act, the United States government will be substituted as the sole defendant... File: 052 - Great Southern Engineering Inc v United States.doc, Final Clean Text: Given the significant deference to agency decisions during the evaluation process, the Court is limi... File: 054 - Veterans Electric LLC v United States.doc, Final Clean Text: This Court does not come to this decision lightly. It is clear that the Agency was comfortable with ... File: 056 - Tikigaq Construction LLC v United States.doc, Final Clean Text: In sum, the administrative record in this matter clearly demonstrates that the CBP s proposed correc... File: 057 - Proxtronics Dosimetry LLC v United States.doc, Final Clean Text: Because plaintiff failed to respond to the SSS or the NOI to award a sole-source contract and thus d... File: 058 - Dorado Services Inc v United States.doc, Final Clean Text: For the reasons discussed above, Dorado s motion for judgment on the administrative record and its m... File: 059 - Allied Construction Industries v City of Cincinnati.doc, Final Clean Text: Consistent with the foregoing, it is hereby ORDERED : 3. The City and Local 265 s Motions to Strike ... File: 060 - Aegis Technologies Group Inc v United States.doc, Final Clean Text: For the reasons above, AEgis s motion for judgment on the administrative record is DENIED . \* co_fn... File: 061 - Baldi Bros Inc v United States.doc, Final Clean Text: For the reasons set forth more fully above, the government s motion for a protective order is GRANTE... File: 062 - Alpha Painting And Construction Company Inc v Delaware River Port Authorit.doc, Final Clean Text: DRPA s chief engineer, senior engineer, the acting manager of contract administration, and the direc... File: 064 - American Innotek Inc v United States.doc, Final Clean Text: As the Court determined that Claims 1, 2, 3, 4, and 17 of the \* HYPERLINK "https://www.westlaw.com/... File: 065 - Loch Harbour Group Inc v United States.doc, Final Clean Text: In sum, LHG has not met its heavy burden to show that it is entitled to emergency injunctive relief.... File: 066 - Integrity Collision Center v City of Fulshear.doc, Final Clean Text: logically applies as well to a local government s discretionary decision to include or not include a... File: 067 - Alluviam LLC v United States.doc, Final Clean Text: Plaintiff seeks in this protest to overturn CTTSO s approach to development of hazardous material re... File: 068 - Omran Holding Group v United States.doc, Final Clean Text: For the foregoing reasons, the court finds that plaintiff lacks standing to bring this bid protest. ... File: 069 - United States ex rel Cody v Mantech International Corporation.doc, Final Clean Text: For the above reasons, the Court finds and concludes that, as a matter of law, plaintiffs did not en... File: 070 - Tender Years Learning Corp v United States.doc, Final Clean Text: In sum, the Court finds that Tender Years proposed amendments would not be futile. Further, permitti... File: 071 - Rothe Development Inc v United States Department of Defense.doc, Final Clean Text: in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1997115860&pubNum=... File: 072 - McConnell Jones Lanier And Murphy LLP v United States.doc, Final Clean Text: For the reasons discussed above, the government s Cross-Motion for Judgment on the Administrative Re... File: 074 - TAT Technologies Ltd v United States.doc, Final Clean Text: For the reasons set forth above, plaintiff s MOTION for Injunctive and Declaratory Relief is DENIED.... File: 075 - Dellew Corporation v United States.doc, Final Clean Text: For the reasons set forth above, plaintiff s MOTION for Injunctive and Declaratory Relief is DENIED.... File: 076 - Agustawestland North America Inc v United States.doc, Final Clean Text: . For reasons discussed herein, the Government s March 29, 2016 Motion To Dismiss, is granted, in pa... File: 077 - Palantir Technologies Inc v United States.doc, Final Clean Text: The timely protest filed at GAO does not cause Palantir USG s claims to become subject to waiver in ... File: 078 - Guardian Moving and Storage Company Inc v United States.doc, Final Clean Text: For the foregoing reasons, we affirm the final judgment of the United States Court of Federal Claims... File: 079 - National Air Cargo Group Inc v United States.doc, Final Clean Text: National s motion for judgment on the administrative record is DENIED. The government s and United s... File: 080 - Algese 2 scarl v United States.doc, Final Clean Text: Under the current circumstances, injunctive relief is not proper in this case. Algese fails to demon... File: 081 - TW Laquay Marine LLC v United States.doc, Final Clean Text: . For reasons discussed herein, Plaintiff s May 3, 2016 Motion For Permanent Injunction and May 31, ... File: 082 - Precision Asset Management Corp v United States.doc, Final Clean Text: The court DENIES both the government s motion to dismiss, see Doc. 36, and Alpine s motion to dismis... File: 083 - Lawson Environmental Services LLC v United States.doc, Final Clean Text: This protest does not involve any novel or close legal questions. Plaintiff has failed to show a lik... File: 084 - Bona Fide Conglomerate Inc v Sourceamerica.doc, Final Clean Text: AND ORDER For the foregoing reasons, the Court hereby ADOPTS IN PART and DECLINES TO ADOPT IN PART t... File: 085 - Tetra Tech Amt v Dell Services Federal Government Inc.doc, Final Clean Text: For the reasons discussed above, Tetra Tech s motion for judgment on the administrative record is DE... File: 086 - FlightSafety International Inc v United States.doc, Final Clean Text: In order to succeed on a protest, a protestor \'3fmust show that there was a \'3fsubstantial chance ... File: 087 - Inspace 21 LLC v United States.doc, Final Clean Text: For the foregoing reasons, the Court finds that the Air Force s decision to award the LISC OMS contr... File: 088 - Diaz v United States.doc, Final Clean Text: For the reasons discussed above, defendant s motion to dismiss is GRANTED and plaintiff s complaint ... File: 089 - Johnson v United States.doc, Final Clean Text: As set forth above, the court GRANTS plaintiff s IFP application, and GRANTS defendant s motion to d... File: 090 - ALGESE 2 scarl v United States.doc, Final Clean Text: Although the Court s inquiry into the facts supporting the Navy s decision is to be searching and ca... File: 091 - SOS International LLC v United States.doc, Final Clean Text: In sum, the administrative record in this matter clearly demonstrates that SOSi lacks standing to pu... File: 092 - Parcel 49C Limited Partnership v United States.doc, Final Clean Text: In sum, Parcel 49C has demonstrated that supplementation of the administrative record with respect t... File: 093 - Starry Associates Inc v United States.doc, Final Clean Text: Because the agency acted arbitrarily and capriciously in cancelling the solicitation, that decision ... File: 094 - Southern Atlantic Companies LLC v School Board of Orange County.doc, Final Clean Text: In consideration of the foregoing, it is hereby \'3f ORDERED that the Motion for Summary Judgment (D... File: 095 - Nesselrode v United States.doc, Final Clean Text: As set forth above, the court GRANTS plaintiff s IFP application, DENIES as moot plaintiff s motion ... File: 096 - Coast Professional Inc v United States Financial Management Systems Inc.doc, Final Clean Text: Because we conclude that the Court of Federal Claims erred in concluding that the award-term Task Or... File: 098 - Alarm Detection Systems Inc v Orland Fire Protection District.doc, Final Clean Text: For the foregoing reasons, Alarm Detection s motion for summary judgment on Counts XIII, XIV, XV, an... File: 099 - Dynamic Systems Technology Inc v United States.doc, Final Clean Text: For the reasons discussed above, the government s and the Intervenor s cross-motions for judgment on... File: 100 - Phoenix Management Inc v United States.doc, Final Clean Text: For the above stated reasons, the following is hereby ordered: 1. With respect to plaintiff s reques... File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Final Clean Text: in the study that while these proposals may be helpful, they would not, in themselves be adequate to... File: 003 - Griffy's Landscape Maintenance LLC v US.doc, Final Clean Text: For these reasons, we grant plaintiff s motion for summary judgment and deny the government s motion... File: 004 - Miller-Holzwarth Inc v US.doc, Final Clean Text: The decision sanctioning MHI and Mr. Hazelton, therefore, is reversed. \'3f \* co_allCitations_4 \* ... File: 006 - Cube Corp v US.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for permanent injunctive relief is, hereby, DENIED... File: 007 - MVM Inc v US.doc, Final Clean Text: The Court rules, as a matter of law, that the agency violated \* HYPERLINK "https://www.westlaw.com/... File: 008 - MVM Inc v US.doc, Final Clean Text: on Injunction Besides prevailing on the merits, MVM has established unquestionably that two of the o... File: 009 - Phoenix Air Group Inc v US.doc, Final Clean Text: After thoroughly reviewing the record and carefully considering the arguments, the court holds that ... File: 010 - Associated Utility Contractors of Maryland Inc v Mayor and City Council of.doc, Final Clean Text: that there has been prior discrimination. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/F... File: 011 - Antarctic Support Associates v US.doc, Final Clean Text: ASA and Raytheon received extremely close scores from the technical evaluation panel. This was clear... File: 012 - Unified Architecture And Engineering Inc v US.doc, Final Clean Text: As a result of the court s analysis above, the court finds that judgment upon the record is appropri... File: 013 - Seattle Sec Services Inc v US.doc, Final Clean Text: For the reasons stated above, the court concludes that plaintiff has demonstrated, by clear and conv... File: 014 - Iceland SS Co Ltd-Eimskip v US Dept of Army.doc, Final Clean Text: which judges are presumably adept at making. Moreover, the solicitation provides that an \'3firrevoc... File: 015 - ReSource NE of Long Island Inc v Town of Babylon.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that the Defendants motions \* co_pp_sp_4637_65_15 \... File: 016 - J And D Maintenance and Services v US.doc, Final Clean Text: J & D has failed to show by even a preponderance of the evidence that the Navy breached an implied-i... File: 017 - American Competitiveness Institute v Caldera.doc, Final Clean Text: The record shows that the Army did not act arbitrarily or capriciously in awarding its contract to I... File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Final Clean Text: that remedial action was necessary, \'3f \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/Fu... File: 019 - Cubic Defense Systems Inc v US.doc, Final Clean Text: Plaintiff s allegations of error are without merit, and do not support plaintiff s claim for relief.... File: 020 - Area Transp Inc v Ettinger.doc, Final Clean Text: For the reasons set forth above, we grant the Administration s motion to dismiss with prejudice. The... File: 021 - Ellsworth Associates Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant s and intervenor s motions for judgment on th... File: 023 - Housing Works Inc v City of New York.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion is GRANTED and defendants cross-motion is DENIED. \'3f... File: 024 - Space Mark Inc v US.doc, Final Clean Text: For all of the above-noted reasons, the court concludes that the Air Force s procurement decision wa... File: 025 - X-Men Sec Inc v Pataki.doc, Final Clean Text: We have considered all of X \'3fMen s arguments in support of the district court s denial of the leg... File: 026 - ITT Federal Services Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, it is ORDERED as follows: 1. Plaintiff s Motion for Summary Jud... File: 029 - Synetics Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the Administrative Record is DENIED; d... File: 030 - Stratos Mobile Networks USA LLC v US.doc, Final Clean Text: Based on the foregoing concerns, the court concludes that the Navy s solicitation of Contract No. N0... File: 032 - Cubic Defense Systems Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F101999220478_32" [10] \* co_anchor_B101999220478_32 \* co_anchor_B10199922... File: 033 - Marshall v Cuomo.doc, Final Clean Text: s of law, \'3f 24 C.F.R. \'3f 24.314(b)(2)(i) (emphasis added). Unlike a hearing official, the regul... File: 034 - WG Yates And Sons Const Co Inc v Caldera.doc, Final Clean Text: that the Army did not violate \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=... File: 035 - John Gil Const Inc v Riverso.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for preliminary injunctive relief is denied. A status ... File: 036 - County Council of Northampton County v SHL Systemhouse Corp.doc, Final Clean Text: An appropriate Order follows. \* co_fnRef_B00091999220452_ID0EEQAI_36 \* co_fnRef_B00091999220452_ID... File: 037 - Safeco Ins Co of America v City of White House Tenn.doc, Final Clean Text: The judgments of the district court are VACATED and the case is REMANDED for further proceedings con... File: 038 - Giesler v US.doc, Final Clean Text: In this battle of blunders, both parties have urged theories which focus on the fault of the other. ... File: 039 - Merck-Medco Managed Care LLC v Rite Aid Corp.doc, Final Clean Text: For the reasons stated above, we conclude that the district court properly ruled that no genuine iss... File: 040 - CTA Inc v US.doc, Final Clean Text: Because plaintiff has failed to establish the requisite elements for any of its claims, the court ho... File: 041 - American Science and Engineering Inc v Kelly.doc, Final Clean Text: For the reasons set forth above, AS & E s motion for a preliminary injunction is DENIED. \'3f It is ... File: 042 - Forestry Surveys and Data v US.doc, Final Clean Text: For all of the foregoing reasons, FSD s motion for summary judgment seeking bid preparation costs is... File: 043 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: Accordingly, based on the foregoing, it is ORDERED, as follows: \'3f 1. Garufi s Motion for Summary ... File: 044 - FN Manufacturing Inc v US.doc, Final Clean Text: s \'3fthe M4 Addendum. \'3f \* co_anchor_If00a08019b7811eabea3f0dc9fb69 \* co_anchor_If00a08019b7811... File: 045 - Dubinsky v US.doc, Final Clean Text: of oral argument, the court finds that the Daktronics proposal did not fully comply with all the mat... File: 046 - ES-KO Inc v US.doc, Final Clean Text: of oral argument, and as further explained above, we grant plaintiff s request for a preliminary inj... File: 049 - T And M Distributors Inc v US.doc, Final Clean Text: For the foregoing reasons, the judgment of the Court of Federal Claims is affirmed. \'3f \* co_ancho... File: 051 - Acra Inc v US.doc, Final Clean Text: For all of the above-noted reasons, the court concludes that the Agency s procurement decision was n... File: 052 - Forestry Surveys and Data v US.doc, Final Clean Text: The government s motion requesting dismissal of Forestry s claim for an injunction barring the Depar... File: 053 - Dubinsky v US.doc, Final Clean Text: Plaintiff s application for costs is granted in full. His application for EAJA fees and expenses is ... File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Final Clean Text: that preliminary injunctive relief was inappropriate. \'3f \* HYPERLINK "#co_anchor_F61999150595_54"... File: 055 - Hanten v School Dist of Riverview Gardens.doc, Final Clean Text: The judgment of the district court, granting the defendants motion to dismiss the complaint and the ... File: 056 - Beta Analytics Intern Inc v US.doc, Final Clean Text: Defendant s motion for judgment upon the administrative record is denied; plaintiff s cross-motion f... File: 057 - Envirocare of Utah Inc v US.doc, Final Clean Text: Defendant s motions to dismiss, in part, and for judgment on the administrative record, are granted.... File: 058 - InputOutput Technology Inc v US.doc, Final Clean Text: The court concludes that the Army s procurement decision was not arbitrary, capricious, or otherwise... File: 059 - Webster v Fulton County Ga.doc, Final Clean Text: In summary, Fulton County has operated a minority and female preference program for most of the past... File: 060 - West Tennessee Chapter of Associated Builders and Contractors Inc v Board .doc, Final Clean Text: For the foregoing reasons, the court holds that post-enactment evidence may not be used to demonstra... File: 061 - American Tel And Tel Co v US.doc, Final Clean Text: , see maj. op. at 1375, fail to support the court s view. The Report states that \'3fthis section [n... File: 062 - Glazer Const Co Inc v US.doc, Final Clean Text: For all of the foregoing reasons, I recommend that summary judgment enter in favor of Defendant. \'3... File: 063 - Wetsel-Oviatt Lumber Co v US.doc, Final Clean Text: Defendant s original cancellation of the Bald Mountain timber sale was arbitrary, capricious, and wi... File: 064 - Ryan Co v US.doc, Final Clean Text: For the foregoing reasons, the defendant s motion for summary judgment on the administrative record ... File: 065 - Associated General Contractors of Ohio Inc v Drabik.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F191999130448_65" [19] \* co_anchor_B191999130448_65 \* co_anchor_B19199913... File: 066 - CW Over And Sons Inc v US.doc, Final Clean Text: that [plaintiff] had made a mistake. \'3f 7. My understanding of the UPB was that it represented a c... File: 067 - American Airlines Inc v Herman.doc, Final Clean Text: of the administrative proceedings. Accordingly, we reverse the district court s judgment, and dismis... File: 068 - California Marine Cleaning Inc v US.doc, Final Clean Text: Plaintiff is entitled to recover appropriate attorney fees and expenses. It was the prevailing party... File: 069 - Charles H Tompkins Co v US.doc, Final Clean Text: Since there are no genuine issues of material fact, further proceedings in this matter are unnecessa... File: 070 - CCL Service Corp v US.doc, Final Clean Text: Defendant s actions have rendered moot the proposal evaluations, contract awards, and questions rega... File: 072 - Alfa Laval Separation Inc v US.doc, Final Clean Text: Accordingly, the judgment of the Court of Federal Claims is reversed, and the case is remanded for f... File: 073 - Miller-Holzwarth Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Intervenor s motion for... File: 074 - Rothe Development Corp v US Dept of Defense.doc, Final Clean Text: The Court agrees with the Ohio Supreme Court s reasoning in Ritchey Produce \* co_pp_sp_4637_954_74 ... File: 075 - Marine Hydraulics Intern Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, it is ORDERED, as follows: \'3f 1. The Cross \'3fMotion of MHI ... File: 076 - Medina Const Ltd v US.doc, Final Clean Text: Accordingly, based upon the foregoing, as jurisdiction is lacking over all pleaded claims and counte... File: 077 - Bayship Management Inc v US.doc, Final Clean Text: This court concludes it lacks subject matter jurisdiction over this maritime pre-award bid protest a... File: 078 - Anderson Columbia Environmental Inc v US.doc, Final Clean Text: Because the court finds plaintiff s bid to be non-responsive based on its bid for CLIN 0001, it is u... File: 079 - Advanced Data Concepts Inc v US.doc, Final Clean Text: Plaintiff s motion for summary judgment is denied and defendant s cross-motion for summary judgment ... File: 080 - Trinity Industries Inc v Herman.doc, Final Clean Text: does not subject Trinity to any inequitable consequences. Trinity can show no negligence on the part... File: 081 - Empire Transit Mix Inc v Giuliani.doc, Final Clean Text: s of law. \'3f As the case is before the undersigned as the Part I judge in the absence of the judge... File: 082 - Nationsbank Corp v Herman.doc, Final Clean Text: Since NationsBank must exhaust administrative remedies before bringing suit against the OFCCP, the g... File: 083 - Dubinsky v US.doc, Final Clean Text: For the reasons stated, the Academy s award of the contract to Daktronics was arbitrary and capricio... File: 084 - Dantran Inc v US Dept of Labor.doc, Final Clean Text: that [the appellants] should be barred from bidding on government contracts. \'3f). The Eleventh Cir... File: 085 - McClintock v Eichelberger.doc, Final Clean Text: that independent contractors, like government employees, may not be disfavored by state actors in th... File: 087 - American Federation of Government Employees Local 2119 v Cohen.doc, Final Clean Text: While we agree with the district court that the plaintiffs have failed to satisfy the prudential sta... File: 088 - DSE Inc v US.doc, Final Clean Text: For the foregoing reasons, we uphold the Small Business Administration s Third Size Determination an... File: 089 - Keefe Co v Americable Intern Inc.doc, Final Clean Text: , \'3f \'3f summary judgment would be warranted. Id . (quoting \* HYPERLINK "https://www.westlaw.com... File: 090 - DGS Contract Service Inc v US.doc, Final Clean Text: The court concludes that defendant s act of disclosing limited price range information did not viola... File: 091 - National Airmotive Corp v Cohen.doc, Final Clean Text: \* co_pp_sp_999_7_91 \* co_pp_sp_999_7_91 *7 Based on the foregoing analysis, the Court ORDERS the f... File: 092 - Anderson Columbia Environmental Inc v US.doc, Final Clean Text: Tanner s motion to intervene is denied. Tanner is allowed to participate as amicus curiae under the ... File: 093 - ANADAC Inc v US Dept of Justice INS.doc, Final Clean Text: Having considered the plaintiff s motion, and oppositions thereto, as well as the administrative rec... File: 094 - Webster v Fulton County GA.doc, Final Clean Text: For the foregoing reasons, the Plaintiffs Motion for Summary Judgment [Doc. No. 103] is DENIED. The ... File: 095 - US ex rel Barajas v Northrop Corp.doc, Final Clean Text: For all the above reasons, and good cause appearing therefor, the Court DENIES qui tam relator s mot... File: 096 - Labat-Anderson Inc v US.doc, Final Clean Text: For the reasons set out above, defendant s cross-motion for summary judgment on count II is granted ... File: 097 - China Trade Center LLC v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: , at the close of his investigation, was that no inappropriate conduct occurred. \'3f China Trade ch... File: 098 - Miller-Holzwarth Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s motion for ... File: 099 - Modern Technologies Corp v US.doc, Final Clean Text: From the foregoing it is clear that the question of making the entire case file on MTC s claim avail... File: 100 - Green Management Corp v US.doc, Final Clean Text: After careful review of the record before this court and of the applicable law, the court concludes ... File: 001 - Southern Disposal Inc v Texas Waste Management a Div of Waste Management o.doc, Final Clean Text: Southern Disposal fails to state a claim for violation of federal antitrust laws or Fourteenth Amend... File: 002 - Montauk Bus Co Inc v Utica City School Dist.doc, Final Clean Text: For the reasons stated, I find that Montauk fails to state a federal claim upon which relief can be ... File: 003 - KI Morgan Co Inc v Chicago Transit Authority.doc, Final Clean Text: For the reasons set forth above, defendant s motion for summary judgment is granted. \'3f \* co_allC... File: 004 - Metric Systems Corp v US.doc, Final Clean Text: For the above stated reasons, the court determines that defendant adequately explained its justifica... File: 005 - US v Chromalloy American Corp.doc, Final Clean Text: For the reasons stated herein, we AFFIRM the judgment of the district court. \'3f \* co_allCitations... File: 006 - California Marine Cleaning Inc v US.doc, Final Clean Text: For the reasons stated, the Navy s decision to cancel the solicitation was arbitrary and capricious ... File: 007 - United Intern Investigative Services v US.doc, Final Clean Text: The court concludes that none of the \'3ffundamental errors \'3f raised by plaintiff violate the fou... File: 008 - F Buddie Contracting Ltd v Cuyahoga Community College Dist.doc, Final Clean Text: s by Defendants expert, as \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&p... File: 009 - Summitt Investigative Service Inc v Herman.doc, Final Clean Text: For the foregoing reasons, the Court grants the Defendant s Motion for Summary Judgment and denies t... File: 010 - Maryland Minority Contractor's Ass'n Inc v Maryland Stadium Authority.doc, Final Clean Text: As to counts 1 and 4, the three individual plaintiffs but not MMCA have standing to seek damages, an... File: 012 - Brem-Air Disposal v Cohen.doc, Final Clean Text: . In \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1984120088&pubNu... File: 013 - WinStar Communications Inc v US.doc, Final Clean Text: For the reasons stated above, it is determined that there are no genuine issues of material fact and... File: 014 - Firearms Training Systems Inc v US.doc, Final Clean Text: For the reasons set forth above, the court concludes that the Navy was not obligated to enter into d... File: 015 - In re Sherbrooke Sodding Co.doc, Final Clean Text: For the reasons stated herein, IT IS ORDERED that: \'3f 1. Plaintiffs motion for summary judgment is... File: 016 - HB Mac Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court of Federal Claims erred in concluding that Mac was entitled to ... File: 017 - Merck-Medco Managed Care Inc v Rite Aid Corp.doc, Final Clean Text: For the reasons stated, the Court, by separate Order, shall grant the defendants motion for summary ... File: 018 - Systems Contractors Corp v Orleans Parish School Bd.doc, Final Clean Text: we have considered the treatment of individuals in analogous positions, and we have balanced the int... File: 019 - US v Electrodyne Systems Corp.doc, Final Clean Text: The Individual Defendants admitted to fraud, a more serious offense, during their plea hearings and,... File: 020 - Lawrence Aviation Industries Inc v Reich.doc, Final Clean Text: For the foregoing reasons, petitioner s motion for summary judgment is denied, respondent s cross-mo... File: 021 - Munitions Carriers Conference Inc v US.doc, Final Clean Text: We reverse the judgment of the district court in Munitions I and hold that the MTMC policy at issue ... File: 022 - Concept Automation Inc v US.doc, Final Clean Text: Defendant s Motion to Dismiss is denied, as are its Motions for Summary Judgment and Judgment on the... File: 023 - Jack Wood Const Co Inc v US Dept of Transp.doc, Final Clean Text: was that Marye Wood lacked the necessary technical expertise. Id. Although Ms. Wood is extensively i... File: 024 - Johnson v US.doc, Final Clean Text: It is concluded that there is no subject matter jurisdiction over this case because plaintiff, Carme... File: 025 - United Intern Investigative Services Inc v US.doc, Final Clean Text: For the above-stated reasons, the court concludes that plaintiff has demonstrated, by clear and conv... File: 027 - Sameena Inc v US Air Force.doc, Final Clean Text: For the foregoing reasons, we AFFIRM the district court s dismissal of the appellants claims against... File: 028 - Wackenhut Services Inc v National Union Fire Ins Co of Pittsburgh Pennsylv.doc, Final Clean Text: The Court finds that National Union did not have a duty to defend Wackenhut against the Essex suit b... File: 029 - FN Mfg Inc v US.doc, Final Clean Text: Because this court holds that the 45 \'3fday period set forth in Note 22 begins with the publication... File: 030 - Church And Tower Inc v Miami-Dade County Fla.doc, Final Clean Text: Accordingly, the Court finds that the lack of a formal debarment is fatal to C & T s \* co_pp_sp_463... File: 031 - Houlton Citizens' Coalition v Town of Houlton.doc, Final Clean Text: Defendant s Motion for Partial Summary Judgment is GRANTED and Plaintiffs Motion for Partial Summary... File: 032 - Ramcor Services Group Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff s application for attorneys fees and expenses pursuan... File: 033 - PCL Const Services Inc v US.doc, Final Clean Text: For the foregoing reasons, defendant s cross-motion for summary judgment on Count X is GRANTED and p... File: 035 - Westinghouse Elec Corp v US.doc, Final Clean Text: s unsupported by facts. \'3f Defendant s motion to dismiss plaintiff s complaint for failure to stat... File: 036 - Hanten v School Dist of Riverview Gardens.doc, Final Clean Text: in the Supreme Court s unanimous decision in \* HYPERLINK "https://www.westlaw.com/Link/Document/Ful... File: 037 - Hewlett-Packard Co v US.doc, Final Clean Text: For the above-stated reasons, the court denies Sun s Motion to Dismiss for Failure to State a Claim ... File: 038 - CRC Marine Services Inc v US.doc, Final Clean Text: Plaintiff seeks a permanent injunction and a declaratory judgment instructing MTMC not to de facto d... File: 040 - INSLAW Inc v US.doc, Final Clean Text: After careful consideration of plaintiffs exceptions, the hearing officer s report, and the record i... File: 041 - DSE Inc v US.doc, Final Clean Text: about this issue. In order for the SBA to make its determination, it must have all of the pertinent ... File: 042 - Phillips And Jordan Inc v Watts.doc, Final Clean Text: that remedial action was necessary. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullTex... File: 043 - Southfork Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, the trial court s dismissal of Counts I \'3fV and its grant of summary ju... File: 044 - Pikes Peak Family Housing LLC v US.doc, Final Clean Text: For all of the foregoing reasons, we hold that plaintiff and defendant-intervenor are entitled to li... File: 045 - Candle Corp v US.doc, Final Clean Text: For the reasons stated above, it is determined that the government violated procurement statutes and... File: 046 - Informatics Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff s cross-motion for summary judgment is granted, and d... File: 048 - US v Joint Meeting of Essex And Union Counties.doc, Final Clean Text: For reasons detailed above, plaintiffs motion for summary judgment is DENIED and defendants motion i... File: 050 - Brothers Cleaning Service Inc v Chair Committee for Purchase from People W.doc, Final Clean Text: For all the reasons stated above, the Court concludes that plaintiff has failed to state a claim upo... File: 051 - Wetsel-Oviatt Lumber Co Inc v US.doc, Final Clean Text: For the reasons stated, the Court holds that Forest Service s cancellation of the Bald Mountain timb... File: 053 - RR Donnelley And Sons Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, the Clerk of the Court shall enter judgment for defendant. \'3f... File: 054 - ECDC Environmental LC v US.doc, Final Clean Text: Based upon the foregoing discussion, this court concludes that plaintiff has demonstrated, by clear ... File: 055 - Health Systems Architects Inc v Shalala.doc, Final Clean Text: For the reasons stated above, the Court finds that HCFA s actions did not violate either CICA or the... File: 056 - Alfa Laval Separation Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, the Clerk of the Court shall enter judgment for defendant and i... File: 057 - Commercial Drapery Contractors Inc v US.doc, Final Clean Text: that suspended contractors are not constitutionally entitled to a formal hearing if providing one wo... File: 058 - Wackenhut Intern Inc v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motions for a temporary restraining order, a preliminar... File: 060 - CCL Inc v US.doc, Final Clean Text: The court holds that modification P00039 exceeded the scope of the original BDM contract. As ordered... File: 063 - W And D Ships Deck Works Inc v US.doc, Final Clean Text: If the government were required to give further consideration to proposals like that submitted by pl... File: 064 - Landers v US.doc, Final Clean Text: For the reasons stated, the Court concludes that plaintiffs claims are beyond the scope of this Cour... File: 065 - Ray Angelini Inc v City of Philadelphia.doc, Final Clean Text: S OF LAW 1. This Court has jurisdiction over this matter pursuant to \* HYPERLINK "https://www.westl... File: 066 - US ex rel Made in the USA Foundation v Billington.doc, Final Clean Text: Because there exists no genuine dispute of any material fact, summary judgment is therefore an appro... File: 067 - Lamminen v City of Cloquet.doc, Final Clean Text: that the decorations funds were a donation or contribution from the City to the Chamber. The transcr... File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Final Clean Text: is wrong. To correct an injury to a historic black by a historic white, the program allows Metro to ... File: 070 - Redland Genstar Inc v US.doc, Final Clean Text: Since there are no genuine issues of material fact, further proceedings in this matter are unnecessa... File: 071 - Tri-State Motor Transit Co v US.doc, Final Clean Text: 1. Defendant s cross-motion for summary judgment is allowed; plaintiff s motion for summary judgment... File: 072 - Reservation Ranch v US.doc, Final Clean Text: Since the early 1970s when the Forest Service first recognized that the harvesting of national fores... File: 073 - Pomory v US.doc, Final Clean Text: s on remand are arbitrary, capricious, not in accordance with the law, or not supported by substanti... File: 074 - Elam Const Inc v Regional Transp Dist.doc, Final Clean Text: thereof I issued an injunction and a mandatory injunction. I denied RTD s request for a stay of the ... File: 075 - Delbert Wheeler Const Inc v US.doc, Final Clean Text: As a result of the court s analysis above, the court finds that judgment upon the record is appropri... File: 076 - IMS PC v Alvarez.doc, Final Clean Text: For the foregoing reasons, we hold that IMS has failed to establish that the SBA s acceptance of IMS... File: 077 - Mike Hooks Inc v US.doc, Final Clean Text: Defendant has met its burden of demonstrating the absence of genuine issues of fact regarding the re... File: 078 - Lyons Sec Services Inc v US.doc, Final Clean Text: The contracting officer s decision to adopt the GAO recommendation to terminate Lyon s contract was ... File: 079 - Whittaker Electronic Systems v Dalton.doc, Final Clean Text: We have considered WES s other arguments and find them either unpersuasive or unnecessary to the res... File: 080 - Allied Technology Group Inc v US.doc, Final Clean Text: In order to prevail in the above-captioned case, plaintiff must succeed on both the overtime and the... File: 082 - Monterey Mechanical Co v Wilson.doc, Final Clean Text: All persons, of either sex and any ethnicity, are entitled to equal protection of the law. That prin... File: 083 - CC Distributors Inc v US.doc, Final Clean Text: For the foregoing reasons, the defendant s motion to dismiss the complaint is, hereby, \* co_pp_sp_6... File: 084 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Final Clean Text: Sitting as the trier of fact, the district court found that the County lacked a strong basis in evid... File: 085 - Ericsson GE Mobile Communications Inc v Motorola Communications And Electr.doc, Final Clean Text: , the Duderwicz court stated that \'3f[d]ismissal of a diversity action for want of jurisdiction is ... File: 086 - Aero Corp SA v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion for summary judgment is granted and plaintiff s motion... File: 087 - Analytical And Research Technology Inc v US.doc, Final Clean Text: For the foregoing reasons, this Court grants the defendant s Motion for Summary Judgment upon the Ad... File: 088 - Dyntel Corp v Ebner.doc, Final Clean Text: , arguing that under Virginia law it is clear that a lawyer owes his or her client a fiduciary duty.... File: 091 - RR Donnelley And Sons Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED , as follows: \'3f 1. Defendant s motion is ... File: 092 - Ferencz v Hairston.doc, Final Clean Text: that the judgment dismissing this claim was correct. \'3f The judgment of the district court is AFFI... File: 093 - Best Foam Fabricators Inc v US.doc, Final Clean Text: Based on the foregoing, it is concluded that a valid and binding contract was formed between Best Fo... File: 094 - Day And Zimmermann Services a Div of Day And Zimmermann Inc v US.doc, Final Clean Text: Wherefore, consistent with the above, it is hereby ordered that the plaintiff s motion for permanent... File: 095 - Aero Corp SA v US.doc, Final Clean Text: Based upon the foregoing, plaintiff s motion to compel discovery is granted in part and denied in pa... File: 096 - Digital Equipment Corp v Barram.doc, Final Clean Text: of law. Id. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000... File: 097 - GDE Systems Inc v General Services Admin.doc, Final Clean Text: of law. Id. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000... File: 098 - ATA Defense Industries Inc v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motion for a permanent injunction is granted. Defendant... File: 099 - Palmer v US.doc, Final Clean Text: On the basis of the facts and applicable law, plaintiff s transfer to the IRR effective November 18,... File: 001 - Information Systems And Networks Corp v US Dept of Health and Human Servic.doc, Final Clean Text: For the reasons stated above, counts I and II of plaintiff s complaint in Civil Action No. 96 \'3f28... File: 002 - Rutigliano Paper Stock Inc v US General Services Admin.doc, Final Clean Text: For the foregoing reasons, plaintiffs motion for a preliminary injunction against all defendants is ... File: 003 - Adarand Constructors Inc v Pena.doc, Final Clean Text: . For the aforesaid reasons, I conclude the SCC program at issue does not survive strict scrutiny. I... File: 005 - Minor Metals Inc v US.doc, Final Clean Text: For the above-stated reasons, this court concludes that defendant is entitled to summary \* co_pp_sp... File: 006 - PCIRCI v US.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff s motion for fees and expenses is granted to the exte... File: 007 - GraphicData LLC v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F101997109289_7" [10] \* co_anchor_B101997109289_7 \* co_anchor_B1019971092... File: 008 - American Recycling Co Inc v County of Manatee.doc, Final Clean Text: Accordingly, it is ADJUDGED AND ORDERED that Defendant s Motion for Summary Judgment (Doc. No. 16, f... File: 009 - DIRECTV Inc v FCC.doc, Final Clean Text: In summary, we hold that the Commission s decision to assign DBS channels by auction is not retroact... File: 010 - Cincom Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for summary judgment is denied, defendant s motion to ... File: 011 - Veda Inc v US Dept of the Air Force.doc, Final Clean Text: that it lacked subject matter jurisdiction under the Tucker Act, \* HYPERLINK "https://www.westlaw.c... File: 012 - City-Wide Asphalt Paving Inc v Alamance County.doc, Final Clean Text: Defendant s motion for summary judgment will be granted as to Plaintiff s federal claims. Plaintiff ... File: 013 - ATAndT Corp v US Postal Service.doc, Final Clean Text: it had reached in prior cases, that \'3fthe breadth of the zone of interests varies according to the... File: 014 - Hydro Engineering Inc v US.doc, Final Clean Text: After careful consideration of the parties pleadings, the administrative record, and the applicable ... File: 015 - Marinette Marine v US Coast Guard.doc, Final Clean Text: Defendant s motion for summary judgment is GRANTED . Plaintiff s motion for summary judgment is DENI... File: 016 - Giles v Secretary of the Dept of Health and Human Services.doc, Final Clean Text: After a careful review of the record before this court and the applicable law, the court finds that ... File: 018 - Cubic Applications Inc v US.doc, Final Clean Text: For the reasons stated above, no grounds exist for enjoining the award. Cubic s motion for summary j... File: 019 - Ervin and Associates Inc v Dunlap.doc, Final Clean Text: The Court will grant the government s Motion to Dismiss Ervin s Fifth Amendment due process claims w... File: 021 - Cincom Systems Inc v US.doc, Final Clean Text: For the above-stated reasons, the court determines that plaintiff has not demonstrated, by clear and... File: 023 - Cubic Applications Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F161997042195_23" [16] \* co_anchor_B161997042195_23 \* co_anchor_B16199704... File: 024 - Contact Intern Inc v Widnall.doc, Final Clean Text: s of law are not final or conclusive and are reviewed de novo. See \* HYPERLINK "https://www.westlaw... File: 025 - Independent Enterprises Inc v Pittsburgh Water and Sewer Authority.doc, Final Clean Text: We will reverse the judgment of the district court and remand for further proceedings consistent wit... File: 026 - Statistica Inc v Christopher.doc, Final Clean Text: Accordingly, the decision of the General Services Administration Board of Contract Appeals is affirm... File: 027 - Hill Intern Inc v National RR Passenger Corp.doc, Final Clean Text: In summary, Amtrak has given careful, prolonged consideration to Hill s financial picture as it emer... File: 028 - Hellenic American Neighborhood Action Committee v City of New York.doc, Final Clean Text: The order of the district court is REVERSED and REMANDED with instructions, consistent with this opi... File: 029 - Garchik v US.doc, Final Clean Text: For the reasons set forth above, defendant s motion for summary judgment is granted. Plaintiffs subm... File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Final Clean Text: The Court finds that plaintiff has standing to bring this action. Furthermore, the Court finds that ... File: 031 - PCIRCI v U S.doc, Final Clean Text: Based on the foregoing, plaintiff s cross-motion for summary judgment is granted, and defendant s mo... File: 033 - H And F Enterprises LTD v US.doc, Final Clean Text: Defendant s motion for summary judgment is GRANTED . Plaintiff s motion for summary judgment is DENI... File: 034 - Hudson County Bldg and Const Trades Council AFL-CIO v City of Jersey City.doc, Final Clean Text: For the foregoing reasons, the Trades Council s motion for summary judgment is denied. An appropriat... File: 035 - Clark Pacific v Krump Const Inc.doc, Final Clean Text: The court determines that justice in this matter will best be served by granting a preliminary injun... File: 036 - IMCO Inc v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is affirmed. \'3f AFFIRMED. \... File: 037 - Neal And Co Inc v US.doc, Final Clean Text: s above, the court sustains only those portions of NCI s claim accepted herein. The Government s cou... File: 038 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Final Clean Text: s of Law. The Court has concluded that defendants have violated, and continue to violate, the Fourte... File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Final Clean Text: in the first instance. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNu... File: 040 - Associated General Contractors of America v City of Columbus.doc, Final Clean Text: s were based upon conversations with black and white contractors in the Mechanical Contractors Assoc... File: 041 - Training Institute Inc v City of Chicago.doc, Final Clean Text: For the reasons discussed above, the Court finds that TTI s \* HYPERLINK "https://www.westlaw.com/Li... File: 042 - Transactive Corp v US.doc, Final Clean Text: An agency must endure judgment on the \'3fgrounds upon which [its] administrative order ... was base... File: 043 - Browning-Ferris Inc v Manchester Borough.doc, Final Clean Text: For all of these reasons, we find that BFI does not have a property interest in the award of the con... File: 044 - Krygoski Const Co Inc v US.doc, Final Clean Text: because this increase exceeds 33% of the total contract cost. For a change of this magnitude, the Co... File: 045 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Final Clean Text: that [the] remedial action was necessary. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/F... File: 046 - QualMed Inc v Office of Civilian Health and Medical Program of Uniformed S.doc, Final Clean Text: , I find that the GAO did not exceed its authority in reviewing the conflict of interest issue, incl... File: 047 - Firth Const Co Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s request for a permanent injunction is hereby granted. The Clerk ... File: 049 - GFI Genfare v Regional Transp Authority.doc, Final Clean Text: For the reasons discussed above, we dismiss the federal claim as to all defendants. It is so ordered... File: 050 - Varicon Intern v Office of Personnel Management.doc, Final Clean Text: that USIS appears to be a private corporation which was awarded a government contract, and not a cor... File: 052 - Janowsky v US.doc, Final Clean Text: that a party has agreed to be bound. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullTe... File: 053 - Grumman Data Systems Corp v Dalton.doc, Final Clean Text: For the foregoing reasons, the decision of the Board denying Grumman s protest of the Navy s award o... File: 054 - Hellenic American Neighborhood Action Committee v City of New York.doc, Final Clean Text: s based upon the record so made. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findTy... File: 055 - Ali v US.doc, Final Clean Text: Mirza Ali asks the Court to issue a mandatory injunction against his DHHS debarment two years after ... File: 056 - KMS Fusion Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, the court finds and concludes that plaintiff has failed to prov... File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Final Clean Text: Plaintiff seeks additional payment under its contract with the VA, claiming it was underpaid its cos... File: 058 - Munitions Carriers Conference Inc v US.doc, Final Clean Text: MTMC s Notice was not subject to the notice-and-comment provisions of the APA, but it was subject to... File: 059 - McKnight Const Co Inc v Department of Defense.doc, Final Clean Text: was based on the gross disparity that would have resulted on line 2, where the next highest bid esti... File: 061 - Ellsworth Associates Inc v US.doc, Final Clean Text: Upon careful consideration of the parties pleadings, the entire record herein, and the law applicabl... File: 062 - Jet Inv Inc v Department of Army.doc, Final Clean Text: We conclude that the Small Business Administration acted arbitrarily and capriciously \* co_pp_sp_50... File: 063 - Davies Precision Machining Inc v US.doc, Final Clean Text: For the reasons stated above, plaintiff s motion for summary judgment on each of these procurements ... File: 065 - Epstein v Secretary of Dept of Health and Human Services.doc, Final Clean Text: After careful review of the record before this court and the applicable law, the court finds that th... File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Final Clean Text: For the reasons discussed above, the defendants are entitled to summary judgment. The Court shall is... File: 067 - Clark Const Co Inc v Pena.doc, Final Clean Text: For the foregoing reasons, the ADOT and the FHWA are enjoined from concurring in or approving the aw... File: 068 - JGB Enterprises Inc v US.doc, Final Clean Text: For the foregoing reasons, JGB s motion for summary judgment is denied. The government s motion for ... File: 069 - George And Benjamin General Contractors v Government of Virgin Islands Dep.doc, Final Clean Text: . \'3f \* co_allCitations_69 \* co_allCitations_69... File: 070 - Cabot LNG Corp v Puerto Rico Elec Power Authority.doc, Final Clean Text: For the reasons stated above, the Court hereby GRANTS the motion for summary judgment filed by Defen... File: 072 - Thornton v Secretary of Dept of Health and Human Services.doc, Final Clean Text: After careful review of the entire record in this case, this court finds that the decision of the sp... File: 073 - Data General Corp v Johnson.doc, Final Clean Text: The decision of the Board of Contract of Appeals denying Data General s protest is \'3f AFFIRMED. \'... File: 074 - EW Bliss Co v US.doc, Final Clean Text: The judgment of the Court of Federal Claims is \'3f AFFIRMED. \'3f \* co_allCitations_74 \* co_allCi... File: 075 - Delta Dental Plan of California v Perry.doc, Final Clean Text: \* co_pp_sp_999_19_75 \* co_pp_sp_999_19_75 *19 For all the foregoing reasons, the Court denies the ... File: 076 - Widnall v B3H Corp.doc, Final Clean Text: that EDS offer was more efficient. The Board noted that the SSA had failed to document a reasoned co... File: 077 - Chamber of Commerce of US v Reich.doc, Final Clean Text: that a \'3flabor dispute \'3f \* co_pp_sp_506_1339_77 \* co_pp_sp_506_1339_77 *1339 \* co_pp_sp_781_... File: 078 - Murphy v Cuomo.doc, Final Clean Text: Defendant Zarc s motion for summary judgment is hereby GRANTED because no genuine issues of material... File: 079 - Krueger Intern Inc v Nightingale Inc.doc, Final Clean Text: In summary, the plaintiff has shown sufficiently serious questions going to the but has not shown a ... File: 080 - City and County of San Francisco v US.doc, Final Clean Text: that federal courts must always proceed with dispatch to dispose of cases brought under exclusive fe... File: 081 - Barker Bros Waste Inc v Dyer County Legislative Body.doc, Final Clean Text: S OF LAW \* HYPERLINK "#co_anchor_F11996088188_81" [1] \* co_anchor_B11996088188_81 \* co_anchor_B11... File: 082 - AL Blades And Sons Inc v Yerusalim.doc, Final Clean Text: We conclude that Pennsylvania has a substantial reason for discrimination against out-of-state worke... File: 083 - Advanced Distribution System Inc v US.doc, Final Clean Text: The court concludes, as a matter of law, that defendant was not justified in denying \* co_pp_sp_613... File: 084 - Dakota Tribal Industries v US.doc, Final Clean Text: Plaintiff incurred unexpected costs on its contract because of a mistake in its bid. It must bear th... File: 086 - Mid Atlantic Storage Systems Inc v City of Milton.doc, Final Clean Text: In summary, the Court GRANTS the motions of the Water and Wastewater Equipment Manufacturers Associa... File: 087 - Transworld Products Co Inc v Canteen Corp.doc, Final Clean Text: The Court holds that the federal DBE statutes allegedly violated by WMATA are not applicable to the ... File: 088 - CMI Inc v Intoximeters Inc.doc, Final Clean Text: that Intoximeters had no basis for stating that the extruded aluminum cell did not cause unreliable ... File: 089 - United Prison Equipment Co Inc v Board of County Com'rs of Caroline County.doc, Final Clean Text: For the reasons set forth in this opinion, summary judgment will be granted in favor of defendant in... File: 090 - Flint Elec Membership Corp v Whitworth.doc, Final Clean Text: In accordance with the foregoing, we AFFIRM the district court s finding that the EMCs were vested w... File: 091 - Smith v US.doc, Final Clean Text: s, and Recommendations. 116A(d) On May 3, 1990, DPSC s internal counsel advised the General Counsel,... File: 092 - 24 Hour Fuel Oil Corp v Long Island R Co.doc, Final Clean Text: Because there is no private right of action under \* HYPERLINK "https://www.westlaw.com/Link/Documen... File: 093 - Central Arkansas Maintenance Inc v US.doc, Final Clean Text: Accordingly, the judgment of the United States Court of Federal Claims is affirmed in part, and the ... File: 095 - Stapp Towing Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion for summary judgment is granted, and plainti... File: 096 - 126 Northpoint Plaza Ltd Partnership v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F71995182747_96" [7] \* co_anchor_B71995182747_96 \* co_anchor_B71995182747... File: 098 - Turor-Saliba Corp v US Army Corps of Engineers.doc, Final Clean Text: S For the forgoing reasons, the Court finds that the agency did not act in an arbitrary or capriciou... File: 099 - PRC Inc v Widnall.doc, Final Clean Text: For the foregoing reasons, the decision of the Board dismissing PRC s claim for protest and proposal... File: 002 - Frank v Secretary of Dept of Health and Human Services.doc, Final Clean Text: After careful review of the special master s decision, the court finds that the decision of the spec... File: 003 - Chamber of Commerce v Reich.doc, Final Clean Text: , because Plaintiffs allege they will suffer permanent, irreparable, uncompensable harm to their col... File: 004 - Compubahn Inc v US.doc, Final Clean Text: The court denies plaintiff s motion for summary judgment and grants defendant s cross motion for sum... File: 005 - SRS Technologies v US.doc, Final Clean Text: Mohindar Sandhu is the primary owner of SRS Technologies. Mr. Sandhu s salary during each of the pas... File: 006 - Westinghouse Elec Corp v US Dept of Navy.doc, Final Clean Text: For the foregoing reasons, the court grants defendant s and intervenor s motions for summary judgmen... File: 007 - Clark Const Co Inc v Pena.doc, Final Clean Text: Accordingly and for the foregoing reasons, the court finds that the plaintiff s motion for a prelimi... File: 011 - Mark Dunning Industries Inc v Perry.doc, Final Clean Text: Accordingly and for the foregoing reasons, the court finds that the plaintiff s motion for a prelimi... File: 012 - Pressman v US.doc, Final Clean Text: The undisputed facts demonstrate that no contract was formed. Defendant s motion for summary judgmen... File: 013 - Buffalo Cent Terminal v US.doc, Final Clean Text: Based on the discussion above, Plaintiff s motion for summary judgment should be DENIED, and Defenda... File: 014 - IMCO Inc v US.doc, Final Clean Text: The decision to debar IMCO was not arbitrary and capricious or in violation of applicable law. It wa... File: 016 - EW Bliss Co v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s cross-motion for summary judgment is granted, and p... File: 017 - Dalton v Sherwood Van Lines Inc.doc, Final Clean Text: that the \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=1000546&cite... File: 018 - State of Fla Dept of Ins v US.doc, Final Clean Text: Plaintiff breached material provisions in its contract with the Postal Service. By its actions and i... File: 020 - OAO Corp v Johnson.doc, Final Clean Text: Because the Board exceeded its statutory jurisdiction, this court vacates the Board s decision on th... File: 021 - IMS Services Inc v US.doc, Final Clean Text: After careful review of the record before this court, including the joint stipulations of uncontrove... File: 022 - TEAC America Inc v US Dept of Navy.doc, Final Clean Text: The Court has concluded that plaintiff is unlikely to succeed on the merits of demonstrating that th... File: 023 - 60 Key Centre Inc v Administrator of General Services Admin (GSA).doc, Final Clean Text: The judgment of the district court is affirmed. \'3f \* co_allCitations_23 \* co_allCitations_23... File: 024 - Mark Dunning Industries Inc v Perry.doc, Final Clean Text: The Court finds that it has properly exercised its equitable powers in ordering the United States Na... File: 025 - LaBarge Products Inc v West.doc, Final Clean Text: LaBarge s claim for reformation of the coupling contract is supported by a valid legal theory based ... File: 026 - Central Arkansas Maintenance Inc v US.doc, Final Clean Text: \* co_pp_sp_999_26_26 \* co_pp_sp_999_26_26 *26 For all of the above-discussed reasons, this Court h... File: 027 - Centmehaiey v Secretary of Dept of Health and Human Services.doc, Final Clean Text: s which allowed her to award compensation to this petitioner were arbitrary, capricious and not in a... File: 028 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Final Clean Text: that remedial action was necessary, \'3f the court finds that the City has failed to demonstrate tha... File: 029 - Advanced Seal Technology Inc v Perry.doc, Final Clean Text: The court finds that it has subject matter jurisdiction over this case because it is a post-award cl... File: 030 - Control Data Systems Inc v US.doc, Final Clean Text: The parties having provided no evidence of a new solicitation or of any new bids to perform the cont... File: 031 - McKnight Const Co Inc v Perry.doc, Final Clean Text: Plaintiff s Motion for Temporary Restraining Order and Preliminary Injunction is GRANTED. Having det... File: 032 - Waterhouse v US.doc, Final Clean Text: that plaintiff says was arbitrary and capricious. He requests the Court to deny the government s mot... File: 033 - Cleveland Telecommunications Corp v Goldin.doc, Final Clean Text: of discussions. \'3f However, because we find that NASA complied with the more stringent FAR 15.611,... File: 035 - Scheduled Airlines Traffic Offices Inc v Department of Defense.doc, Final Clean Text: For the reasons set forth above, defendant s motion for summary judgment is GRANTED and plaintiff s ... File: 036 - Ralvin Pacific Properties Inc v US.doc, Final Clean Text: S OF LAW Plaintiffs who attempt to overturn a government procurement decision: bear a heavy burden o... File: 037 - Kanemoto v Reno.doc, Final Clean Text: , the district court imported the \'3fmoney damages \'3f limitation in \* HYPERLINK "https://www.wes... File: 038 - Grigsby Brandford And Co Inc v US.doc, Final Clean Text: For the reasons stated above, Plaintiffs Motions for Preliminary Injunction and for Summary Judgment... File: 039 - Waste Conversion Inc v Sims.doc, Final Clean Text: In sum, we hold that defendants did not deny plaintiffs due process right to an opportunity for a he... File: 040 - C And G Excavating Inc v US.doc, Final Clean Text: The SBA in conducting a COC review may review all elements of responsibility and is not limited to t... File: 041 - Prism Const Co v Montgomery County Md.doc, Final Clean Text: s of law. This is insufficient to confer a liberty interest, as \'3f[t]here is neither a \'3fliberty... File: 042 - Buxkemper v Secretary of Dept of Health and Human Services.doc, Final Clean Text: s, which allowed her to award compensation to petitioners for pain and suffering based on an alleged... File: 043 - Marwais Steel Co v Department of Air Force.doc, Final Clean Text: For the foregoing reasons, the defendants request for summary judgment is granted and the plaintiff ... File: 044 - Hechinger v Metropolitan Washington Airports Authority.doc, Final Clean Text: that the provisions of the amended Transfer Act, taken together, indicate that the Board of Review r... File: 045 - Concrete Works of Colorado Inc v City and County of Denver.doc, Final Clean Text: Accordingly, we REVERSE and REMAND for further proceedings. \* co_fnRef_B00251994191960_ID0EZBDI_45 ... File: 046 - Delta Chemical Corp v West.doc, Final Clean Text: The judgment of the district court is affirmed. \'3f AFFIRMED. \'3f \* co_allCitations_46 \* co_allC... File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Final Clean Text: The judgment of the district court is REVERSED, and the case is REMANDED for entry of summary judgme... File: 050 - Finley v US.doc, Final Clean Text: While the court finds that Crux Computer is a correct statement of the law with respect to bid prote... File: 051 - Croman Corp v US.doc, Final Clean Text: As it has been determined that the 1994 reoffer by BLM of the substantially modified Hoxie Griffin s... File: 052 - Guardian Moving And Storage Co Inc v US.doc, Final Clean Text: For the reasons set forth above, the court finds that the contracting officer did not act in an arbi... File: 053 - Parcel 49C Ltd Partnership v US.doc, Final Clean Text: The trial court found that the Government s cancellation of SFO 88 \'3f100 lacked proper legal basis... File: 054 - Intercommunity Relations Council of Rockland County Inc v US Dept of Healt.doc, Final Clean Text: s, would not if believed be sufficient to warrant a preliminary injunction. See \* HYPERLINK "https:... File: 056 - Orbas And Associates v Secretary of Navy.doc, Final Clean Text: s of law pursuant to \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 059 - Superior Services Inc v Dalton.doc, Final Clean Text: appears questionable. If this was true, an unsuccessful bidder could more easily obtain a TRO by fil... File: 060 - McGregor Printing Corp v Kemp.doc, Final Clean Text: \'3fthat the nonprofit agencies which will produce the item have the necessary industrial and financ... File: 061 - Saratoga Development Corp v US.doc, Final Clean Text: was reached, or what factors influenced its decision. The staff evaluations cannot supply the missin... File: 062 - Latecoere Intern Inc v US Dept of Navy.doc, Final Clean Text: The district court s judgment affirming the award to ETC is REVERSED, and the case is REMANDED to th... File: 064 - Halifax Technical Services Inc v US.doc, Final Clean Text: that upward adjustments to capped costs are improper is a sound rule of bid evaluation, and this Cou... File: 065 - Cone Corp v Hillsborough County.doc, Final Clean Text: that remedial action ... is necessary. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/Full... File: 066 - VMS Hotel Partners v US.doc, Final Clean Text: For the reasons set forth above, the court finds that the contracting officer acted reasonably and o... File: 067 - Corner Const Corp v Rapid City School Dist No 51-4.doc, Final Clean Text: The Court concludes that plaintiff has not demonstrated that defendant deprived plaintiff of a const... File: 068 - YSK Const Co Inc v US.doc, Final Clean Text: The court finds that SBA s interpretation of the relevant statutes was incorrect. Congress entrusted... File: 069 - Adarand Constructors Inc v Pena.doc, Final Clean Text: that the CFLHD is acting within the bounds of the statutory authority of the Small Business Act is i... File: 070 - Aerolease Long Beach v US.doc, Final Clean Text: evidently constitutes a form of presumption, this Court made neither reference nor inference of such... File: 071 - Kim Const Co Inc v Board of Trustees of Village of Mundelein.doc, Final Clean Text: is further supported by the state administrative regulations which govern the award of public contra... File: 072 - Sterling Federal Systems Inc v Goldin.doc, Final Clean Text: The decision of the GSBCA is vacated, and the case is remanded for a redetermination consistent with... File: 074 - Grumman Data Systems Corp v Widnall.doc, Final Clean Text: The board s use of its own best value analysis was permissible under the de novo standard of review.... File: 077 - Enplanar Inc v Marsh.doc, Final Clean Text: Based on the foregoing, the district court s orders are \'3f AFFIRMED. \'3f \* co_allCitations_77 \*... File: 078 - DRT Mechanical Corp v Collin County Tex.doc, Final Clean Text: After considering all of the summary judgment evidence and the applicable law, the Court has conclud... File: 079 - In re American Export Group Intern Services Inc.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F121994110895_79" [12] \* co_anchor_B121994110895_79 \* co_anchor_B12199411... File: 080 - Umbehr v McClure.doc, Final Clean Text: For the above-stated reasons, defendants motion for summary judgment is granted. \'3f IT IS SO ORDER... File: 081 - Chem Service Inc v Environmental Monitoring Systems Laboratory-Cincinnati .doc, Final Clean Text: , we find this case much more analogous to Clarke than to Air Courier Conference. In Clarke, the sta... File: 082 - Interstate General Government Contractors Inc v West.doc, Final Clean Text: that IGGC is not entitled to an equitable adjustment pursuant to the Eichleay formula because IGGC s... File: 083 - Domagala v US.doc, Final Clean Text: The court dismisses the plaintiff s complaint for lack of subject matter jurisdiction because the pl... File: 084 - Alliant Techsystems Inc v US Dept of Navy.doc, Final Clean Text: , the PCO considered various factors and made technical judgments appropriately entitled to deferent... File: 085 - Cox v Secretary of Dept of Health and Human Services.doc, Final Clean Text: For the reasons stated above, the court finds that petitioner failed to demonstrate that the special... File: 086 - Dairy Maid Dairy Inc v US.doc, Final Clean Text: s found to be ... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with... File: 088 - Gualtier v US.doc, Final Clean Text: The weight of the evidence shows that plaintiffs had sufficient knowledge of the cause of decedent s... File: 089 - Durable Metal Products Inc v US.doc, Final Clean Text: s [,] * * * insufficient to cast doubt on defendant s evidence \'3f). Furthermore, the Court of Fede... File: 090 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Final Clean Text: s respecting that data obviously were apparent to City Council at that time. \'3f Contractors Br. at... File: 091 - Continental Collection And Disposal Inc v US.doc, Final Clean Text: The court concludes that, as a matter of contract interpretation, the government was under no obliga... File: 093 - US for Use and Ben of Spight v Marshall.doc, Final Clean Text: S OF LAW \'3f1 \'3f This Court has jurisdiction over this matter pursuant to the Miller Act, \* HYPE... File: 094 - Foundation Health Federal Services v US.doc, Final Clean Text: s were based on factual errors and that McDavid himself lacked authority to issue the override, the ... File: 095 - Piper v Secretary of Health and Human Services.doc, Final Clean Text: s of law and findings of fact to be arbitrary, capricious, an abuse of discretion, or otherwise not ... File: 096 - Southern Dredging Co Inc v US.doc, Final Clean Text: Accordingly, given that there exist no genuine issues of material fact which would preclude the gran... File: 097 - PG Const Co Inc v George And Lynch Inc.doc, Final Clean Text: The Court determines preliminarily that the County s decision to accept G & L s bid on the project d... File: 098 - Birch And Davis Intern Inc v Christopher.doc, Final Clean Text: The decision of the Board is vacated. The matter is remanded to the Board for such proceedings as ma... File: 099 - Lockheed Missiles And Space Co Inc v Bentsen.doc, Final Clean Text: Government agencies are accorded a good deal of deference in awarding contracts. \* HYPERLINK "https... File: 100 - Grumman Data Systems Corp v US.doc, Final Clean Text: For the reasons stated above, the court denies plaintiff s motion for summary judgment, and grants d... File: 001 - Tonya Inc v US.doc, Final Clean Text: Based upon the facts and law set forth above, the court finds that plaintiff did not provide adequat... File: 002 - DTH Management Group v Kelso.doc, Final Clean Text: The court finds that the likelihood of irreparable injury to plaintiff in not granting the injunctio... File: 003 - ATAndT Communications Inc v Wiltel Inc.doc, Final Clean Text: In sum, the Board erred by focusing on the differences between T1 and T3, rather than on the modific... File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Final Clean Text: s of law, it is the Court s judgment and it is accordingly \'3f ORDERED, that the decision, dated Ma... File: 005 - Trinity Industries Inc v Reich.doc, Final Clean Text: s of law, and a recommended decision to the Secretary of Labor for a final Administrative order. \* ... File: 006 - Lewis v Babbitt.doc, Final Clean Text: s and affirm for substantially the reasons set forth in the district court s Order on Motions for Su... File: 009 - Minnesota Chapter of Associated Builders and Contractors Inc v County of S.doc, Final Clean Text: that the prehire agreement is not preempted finds support in \* HYPERLINK "https://www.westlaw.com/L... File: 010 - Nicholson v US.doc, Final Clean Text: s recited above regarding assent to contractual terms and breach of contract, likewise finds entitle... File: 011 - Davies Precision Machining Inc v Defense Logistics Agency.doc, Final Clean Text: For the reasons stated in this memorandum, the above-captioned case is dismissed pursuant to \* HYPE... File: 012 - City of Tacoma Dept of Public Utilities v US.doc, Final Clean Text: that the PPA is inapplicable to this case. \'3f Plaintiff also argues that it has an implied-in-fact... File: 013 - Wells v Secretary of Dept of Health and Human Services.doc, Final Clean Text: After careful review of the special master s decision, the court finds that the decision of the spec... File: 015 - Shields Enterprises Inc v US.doc, Final Clean Text: After careful review of the filings and the relevant law, the court concludes that plaintiff has fai... File: 016 - YRT Services Corp v US.doc, Final Clean Text: s appear reasonable and well founded. In comparison to the proposal submitted by Delaware North, it ... File: 017 - TRW Inc v US.doc, Final Clean Text: Defendant has not demonstrated that it has paid $2.1 million of plaintiff s CHEXS B & P costs. In ad... File: 018 - Silverman v US Dept of Defense.doc, Final Clean Text: that plaintiffs were not presently responsible in May 1992. The term of the debarment is thus inexpl... File: 020 - Motorola Inc v US.doc, Final Clean Text: of the argument, the court announced its decision in defendant s favor. We repeat here the substance... File: 021 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Final Clean Text: We are satisfied that the Ordinance is narrowly tailored; indeed, if it were not, then \* co_pp_sp_3... File: 023 - Durable Metals Products Inc v US.doc, Final Clean Text: For the reasons stated above, the court concludes that the complaint should be dismissed, in part, f... File: 024 - Reeve Aleutian Airways Inc v US.doc, Final Clean Text: Under the utilitarian balance prescribed by the Supreme Court in Mathews v. Eldridge, Reeve has rece... File: 025 - Best Power Technology Sales Corp v Austin.doc, Final Clean Text: For the foregoing reasons, we reverse the decision of the GSBCA and hold that the GSBCA had no juris... File: 027 - Magellan Corp v US.doc, Final Clean Text: . \'3f \* co_allCitations_27 \* co_allCitations_27... File: 028 - US v Data Translation Inc.doc, Final Clean Text: on the basis of the evidence presented at trial. \'3f \* co_anchor_I9135fe01649a11ee8139f41aee652 \*... File: 030 - Express One Intern Inc v US Postal Service.doc, Final Clean Text: . For the reasons stated above, USPS s motion to modify the court s memorandum opinion is GRANTED. P... File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Final Clean Text: For the reasons above stated, the judgments of the district court are accordingly affirmed. \'3f \* ... File: 035 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: The District Court correctly found that WMATA s decision to award the important and sizeable escalat... File: 036 - Washington Tour Guides Ass'n v National Park Service.doc, Final Clean Text: Accepting the facts alleged by the plaintiffs, the Court must nonetheless conclude that plaintiffs a... File: 037 - Security Sav and Loan Ass'n v US.doc, Final Clean Text: . Under the All Writs Act, \'3fthe Supreme Court and all Courts established by Act of Congress may i... File: 038 - Magnavox Electronic Systems Co v US.doc, Final Clean Text: The Government urges the court to judge the decision of the contracting officer based on what was do... File: 039 - HK Porter Co Inc v Metropolitan Dade County.doc, Final Clean Text: that no evidence of discrimination exists because minorities never attempted to enter the industry i... File: 040 - Health Systems Marketing And Development Corp v US.doc, Final Clean Text: The motion for summary judgment is denied. The parties are directed to meet to discuss a proposed sc... File: 041 - McGregor Printing Corp v Kemp.doc, Final Clean Text: Nothing in the record leads us to believe that the Committee acted either arbitrarily or capriciousl... File: 042 - Northern Management Services Inc v US.doc, Final Clean Text: For the reasons stated above, judgment will be entered on the accompanying Judgment page in favor of... File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Final Clean Text: For all the foregoing reasons, we REVERSE the district court s decision. The permanent injunction ba... File: 044 - 441 4th Street Ltd Partnership v US.doc, Final Clean Text: that the Comptroller General s motion may not be granted. Our reasons follow. \'3f \* co_anchor_I431... File: 045 - Guam Paradise Co v Mitsubishi Corp Ltd.doc, Final Clean Text: \* co_pp_sp_999_5_45 \* co_pp_sp_999_5_45 *5 Mitsubishi was entitled to summary judgment on all issu... File: 046 - Security Sav and Loan Ass'n v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s Motion for a Temporary Restraining Order and Motion for... File: 047 - Hunt Paving Co Inc v City of Indianapolis.doc, Final Clean Text: Hunt Paving s Motion for Summary Judgment on the Issue of Liability is DENIED. Defendants Motion for... File: 049 - Godley v US.doc, Final Clean Text: For the foregoing reasons, plaintiffs motion for summary judgment on Count I of the complaint, and o... File: 050 - Alaska Airlines v Austin.doc, Final Clean Text: In accordance with the foregoing opinion, the Court will grant summary judgment in favor of the plai... File: 051 - A And S Council Oil Co Inc v Saiki.doc, Final Clean Text: By negotiating and implementing the Interagency Agreement with its formulaic and inflexible pricing ... File: 052 - Planning Research Corp v US.doc, Final Clean Text: to uphold EDS s protest, it went beyond its protest jurisdiction in ordering the contract terminated... File: 053 - County of Suffolk NY v US.doc, Final Clean Text: that plaintiff s management of Hendrickson s bid was reasonable, much less that the EPA s determinat... File: 055 - Action Service Corp v Garrett.doc, Final Clean Text: Defendants motion for reconsideration is DENIED. \'3f IT IS SO ORDERED. \'3f \* co_allCitations_55 \... File: 056 - Harvard Interiors Mfg Co v US.doc, Final Clean Text: that Gross decision was not arbitrary and capricious either. Plaintiff has failed to meet its burden... File: 057 - Seneca Mineral Co Inc v County of Chautauqua.doc, Final Clean Text: , the court need not reach the second ground given by the County in rejecting plaintiff s bid, viz.,... File: 059 - Bradley v US.doc, Final Clean Text: that ASTM was required to reach. In fact, one of the plaintiffs experts testified that making job co... File: 060 - Genisco Technology Corp v Stone.doc, Final Clean Text: , the Court notes that the decision to make this procurement available for general bidding in no way... File: 061 - Phoenix Engineering Inc v MK-Ferguson of Oak Ridge Co.doc, Final Clean Text: . The governing regulation states specifically that CICA does not apply to M & O contractors, provid... File: 063 - Skytech Aero Inc v US.doc, Final Clean Text: Following a careful examination of defendant s motion, and giving the proper presumptions and prefer... File: 066 - Service And Training Inc v Data General Corp.doc, Final Clean Text: For the reasons stated herein, the judgment of the district court is affirmed. \'3f AFFIRMED. \'3f \... File: 067 - O'Donnell Const Co v District of Columbia.doc, Final Clean Text: that \'3fthese statistics indicat[e] a continuing practice of discrimination in the local constructi... File: 068 - Associated General Contractors of Connecticut v City of New Haven.doc, Final Clean Text: Defendant has not offered sufficient evidence of actual, present or likely future continuation of di... File: 069 - Joseph L DeClerk and Associates Inc v US.doc, Final Clean Text: The court has examined all the documents entered into the record during the trial. In addition, the ... File: 071 - Coflexip And Services Inc v US.doc, Final Clean Text: The court erred in determining that post-submission costs of preparing a prototype were not recovera... File: 072 - Reeve Aleutian Airways Inc v Rice.doc, Final Clean Text: by construing Reeve s insistence on preserving its leasehold interests as meaning that it reserved a... File: 073 - Ellis v Skinner.doc, Final Clean Text: , the Court distinguished the city s program from the PWEA, which was upheld in Fullilove. In a plur... File: 074 - Action Service Corp v Garrett.doc, Final Clean Text: The Navy is ordered to reverse its award of the contract for guard services at Vieques Island U.S. N... File: 076 - In re ARE Mfg Co Inc.doc, Final Clean Text: S OF LAW \* HYPERLINK "#co_anchor_F11992073248_76" [1] \* co_anchor_B11992073248_76 \* co_anchor_B11... File: 077 - GE Government Services Inc v US.doc, Final Clean Text: For the reasons stated above, judgment will be entered on the accompanying Judgment page in favor of... File: 081 - Andersen Consulting v US.doc, Final Clean Text: Accordingly, the decision of the board is affirmed. \'3f AFFIRMED. \'3f \* co_allCitations_81 \* co_... File: 082 - Newport News Shipbuilding and Dry Dock Co v General Dynamics Corp.doc, Final Clean Text: was reached after considered and rational debate. \'3f Even if the law, in requiring that an award b... File: 083 - Kollsman a Div of Sequa Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f Pursuant to RUSCC 56(e), t... File: 084 - DAE Corp v Engeleiter.doc, Final Clean Text: For the reasons discussed above, the judgment of the District Court is hereby \'3f Affirmed. \'3f \*... File: 085 - Sea Air Shuttle Corp v Virgin Islands Port Authority.doc, Final Clean Text: For the reasons stated above, I shall grant defendant VIPA s motion for summary judgment and deny pl... File: 086 - Rice Services Ltd v US.doc, Final Clean Text: For the foregoing reasons, the summary judgment motion of defendant is granted and that of plaintiff... File: 087 - Professional Bldg Concepts Inc v City of Cent Falls Housing Authority.doc, Final Clean Text: s found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... File: 088 - Stellacom Inc v US.doc, Final Clean Text: of the SSO that evinces taint or gratuity. As such, Stellacom s assertion of taint cannot overcome t... File: 089 - Isratex Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F71992037186_89" [7] \* co_anchor_B71992037186_89 \* co_anchor_B71992037186... File: 090 - Technology for Communications Intern Inc v Garrett.doc, Final Clean Text: Upon consideration of the arguments of the parties at the Hearing on the Merits, the record herein a... File: 091 - US v City of New York.doc, Final Clean Text: It is not this court s function to determine whether the City negotiated well, or whether the price ... File: 092 - Pataula Elec Membership Corp v Whitworth.doc, Final Clean Text: For the reasons set forth above, we REVERSE the district court s order to dismiss for failure to sta... File: 093 - TGS Technology Inc v US Dept of Air Force.doc, Final Clean Text: \* co_pp_sp_999_5_93 \* co_pp_sp_999_5_93 *5 Accordingly, for the reasons expressed above, it is her... File: 095 - Northeast Mississippi Community College Dist v Vanderheyden Const Co.doc, Final Clean Text: S OF LAW The major issue presently before the court is whether the Board of Trustees for Northeast M... File: 096 - Rust Const Co Inc v Martin.doc, Final Clean Text: s were in error. The Secretary s submitted caselaw shows that inadvertence, mistake, or lack of inte... File: 097 - Big Country Foods Inc v Board of Educ of Anchorage School Dist Anchorage A.doc, Final Clean Text: Big Country lacks standing to contest the State of Alaska s alleged failure to follow federal procur... File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Final Clean Text: Agreeing with the parties that Amdahl sets forth the correct criteria for determining whether a disa... File: 100 - Unified Industries Inc v US.doc, Final Clean Text: is borne out by a reading of \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L... File: 002 - Concrete General Inc v Washington Suburban Sanitary Com'n.doc, Final Clean Text: For the foregoing reasons, the Court holds that: 1. There is no genuine issue of material fact neces... File: 003 - Inhabitants of City of Saco v General Elec Co.doc, Final Clean Text: by this record. Summary judgment for GE is, therefore, appropriate on this count. \'3f \* co_anchor_... File: 004 - Solano Garbage Co v Cheney.doc, Final Clean Text: does not mischaracterize the defendants interpretation. If defendants interpretation prevailed, Trav... File: 005 - Cone Corp v Hillsborough County.doc, Final Clean Text: that the difference is not sufficient to confer standing on that plaintiff. \'3f Accordingly, it is ... File: 006 - Car-Mar Const Corp v Skinner.doc, Final Clean Text: had it reviewed Car \'3fMar s application in the first instance, such is irrelevant. This is because... File: 007 - American Maritime Officers Service v STC Submarine Systems Inc.doc, Final Clean Text: can be found in the extensive legislative history surrounding the Act. \'3f The commander further co... File: 008 - Saratoga Development Corp v US.doc, Final Clean Text: For the reasons stated above, plaintiff s motion for partial summary judgment is denied, and defenda... File: 009 - American Nat Bank and Trust Co of Chicago v Secretary of Housing and Urban.doc, Final Clean Text: that it lacked jurisdiction to consider these counts. In its decision two years earlier on April 16,... File: 010 - Capeletti Bros Inc v Metropolitan Dade County.doc, Final Clean Text: Accordingly, it is hereby: \'3f ORDERED AND ADJUDGED that Defendants motions for summary judgment on... File: 011 - Sulzer Bingham Pumps Inc v Lockheed Missiles And Space Co Inc.doc, Final Clean Text: is consistent with the understanding that contracting entities should live up to their contractual o... File: 012 - Diebold v US.doc, Final Clean Text: that plaintiffs cannot claim the status of a disappointed bidder nor that of a statutory interested ... File: 013 - Hoagy Wrecker Service Inc v City of Fort Wayne.doc, Final Clean Text: For the foregoing reasons, all of the defendants motions to dismiss are hereby GRANTED. Furthermore,... File: 015 - Information Systems And Networks Corp v US.doc, Final Clean Text: The Board correctly determined that the intrusion detection systems are critical to the direct fulfi... File: 016 - Praxis Properties Inc v Colonial Sav Bank SLA.doc, Final Clean Text: In sum, we hold that \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 017 - Celtech Inc v US.doc, Final Clean Text: The law recognizes a claim for the government s breach of a duty to fairly and honestly consider a p... File: 018 - Board of Trustees of Leland Stanford Jr University v Sullivan.doc, Final Clean Text: \'3fmight threaten public health or safety, \'3f \* co_fnRef_B016161991163992_ID0ET3AG_18 \* co_fnRe... File: 019 - F Buddie Contracting Co v City of Elyria Ohio.doc, Final Clean Text: and upon which to base its legislation. Based on Croson, governmental agencies know, or should know,... File: 020 - Fridge Const Co Inc v Federal Emergency Management Agency.doc, Final Clean Text: The plaintiff has failed to show that the United States was negligent or that the Cities breached th... File: 021 - Dynalantic Corp v US.doc, Final Clean Text: that is not supported by substantial evidence. It is our view that if the amount of a bidder s propo... File: 022 - Stay Inc v Cheney.doc, Final Clean Text: that this technical defect could be remedied after acceptance of the bid was reasonable, and did not... File: 023 - Blackwell v US.doc, Final Clean Text: This court has jurisdiction over the plaintiff s complaint, and the plaintiff has standing to sue. T... File: 024 - Tennessee Asphalt Co v Farris.doc, Final Clean Text: We have not discussed every argument made by the plaintiffs because some of them do not address the ... File: 025 - Coggeshall Development Corp v US.doc, Final Clean Text: For the foregoing reasons, the court denies defendant s motion to dismiss. Defendant is directed to ... File: 026 - Coral Const Co v King County.doc, Final Clean Text: if and when the WBE preferences are challenged as applied to an industry where women are not disadva... File: 027 - McMaster Const Inc v US.doc, Final Clean Text: Plaintiff s motion for summary judgment is denied. Defendant s cross motion for summary judgment is ... File: 028 - Newport News Shipbuilding and Dry Dock Co v US Dept of Navy.doc, Final Clean Text: that Newport News could not win a competition on price alone. \'3f Edward Campbell, chief executive ... File: 030 - Hines on Behalf of Sevier v Secretary of Dept of Health and Human Services.doc, Final Clean Text: We review a decision of the Claims Court upholding a special master s denial of compensation under t... File: 031 - SMS Data Products Group Inc v Austin.doc, Final Clean Text: Accordingly, the decisions of the board are affirmed. \'3f AFFIRMED. \'3f \* co_allCitations_31 \* c... File: 032 - US West Communications Services Inc v US.doc, Final Clean Text: that the board does not have jurisdiction over subcontractor procurements, even though the equipment... File: 033 - Crux Computer Corp v US.doc, Final Clean Text: Based on the above discussion, the court holds that the plaintiff is not entitled to legal relief as... File: 034 - Vigilantes Inc v Administrator Wage and Hour Div US Dept of Labor.doc, Final Clean Text: s of law are not arbitrary or capricious. \'3f We therefore GRANT respondents motion for summary jud... File: 035 - Port Arthur Towing Co v Department of Defense.doc, Final Clean Text: s of law under the Contracts Dispute Act). \'3f \* co_anchor_I6d220a8d093d11e598db8b09b4f04 \* co_an... File: 036 - Seal and Co Inc v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: The Court concludes that WMATA s rejection of plaintiff s bid as nonresponsive was in accordance wit... File: 039 - Wellham v Cheney.doc, Final Clean Text: For the forgoing reasons we AFFIRM the memorandum and order of the district court below. \'3f \* co_... File: 042 - Goldberger Foods Inc v US.doc, Final Clean Text: For all of the reasons expressed above, we find that GFI failed to establish by the requisite quantu... File: 043 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Final Clean Text: of the further investigation, the staff concluded that Elcon was competent to perform the contract. ... File: 044 - Baggett Transp Co v US.doc, Final Clean Text: For the reasons stated above, the court holds that the prior consent statement standing alone and th... File: 045 - Leitman v McAusland.doc, Final Clean Text: on the third charge of collusive bidding. \'3f Appellants complain that, regarding the third charge,... File: 046 - Associated Builders and Contractors of MassachusettsRhode Island Inc v Mas.doc, Final Clean Text: s. For one thing, the Machinists case itself makes clear that the Act does not forbid all state acti... File: 047 - Coflexip And Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the court grants defendant s motion for summary judgment and denies plain... File: 048 - Hartle v US.doc, Final Clean Text: For the foregoing reasons, the court finds plaintiffs are not entitled to rescind the contract of sa... File: 049 - Robert E Derecktor of Rhode Island Inc v US.doc, Final Clean Text: to the Contract Award Review Panel as follows: [T]he offeror makes reference to the parent craft and... File: 050 - Girard v Klopfenstein.doc, Final Clean Text: that ASCS debarment hearings must be conducted by an ALJ. Wong Yang Sung is inapplicable to the matt... File: 051 - Arthur Forman Enterprises Inc v US.doc, Final Clean Text: Based on the foregoing defendant s motion for summary judgment is denied. \* co_pp_sp_852_831_51 \* ... File: 052 - City of Las Vegas v Kitchell Contractors Inc of Arizona.doc, Final Clean Text: . In \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1976113535&pubNu... File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Final Clean Text: s of law; \'3f IT IS HEREBY ORDERED that defendants Department of Transportation of the State of Mic... File: 055 - Commercial Energies Inc v US.doc, Final Clean Text: Based on the above analysis, we conclude that the Claims Court did not err in its construction of th... File: 056 - Overall Roofing And Const Inc v US.doc, Final Clean Text: Accordingly, the judgment of the Claims Court is affirmed. \'3f AFFIRMED. \'3f \* co_allCitations_56... File: 057 - Logicon Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion for summary judgment is granted; defendant s... File: 058 - Young-Robinson Associates Inc v US.doc, Final Clean Text: does not follow. A small business in the warehousing trade has $3.5 million or less in assets; a sma... File: 059 - Howard Cooper Corp v US.doc, Final Clean Text: Howard Cooper has not carried the heavy burden placed on a disappointed offeror attempting to upset ... File: 060 - O'Donnell Const Co v District of Columbia.doc, Final Clean Text: that remedial action was necessary. The statistical disparities uncovered by the Committee, combined... File: 061 - Thomas Creek Lumber and Log Co v US.doc, Final Clean Text: . See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1939122571&pubN... File: 063 - Bean Dredging Corp v US.doc, Final Clean Text: The plaintiffs have not demonstrated their right to injunctive relief by clear and convincing eviden... File: 064 - Hamilton Stores Inc v Hodel.doc, Final Clean Text: that the NPS correctly followed \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findTyp... File: 066 - Textor v Cheney.doc, Final Clean Text: For the reasons set forth above, the Court holds that there was sufficient evidence to find that Mr.... File: 067 - Pro-Mark Inc v Kemp.doc, Final Clean Text: Based on the foregoing, it is ordered that plaintiff s motion for summary judgment is denied; defend... File: 068 - Daley's Dump Truck Service Inc v Kiewit Pacific Co.doc, Final Clean Text: The court recognizes the dilemma faced by plaintiffs who feel that the alleged scheme has frustrated... File: 070 - Cone Corp v Florida Dept of Transp.doc, Final Clean Text: s. The plaintiffs allegations of future injury suffered the same infirmity; the plaintiffs merely co... File: 071 - SJ Groves And Sons Co v Fulton County.doc, Final Clean Text: We VACATE the district court s order and judgment granting relief on Counts VI through VIII and REMA... File: 072 - Manning Elec And Repair Co Inc v US.doc, Final Clean Text: The motions to dismiss and for summary judgment are denied. The parties are directed to file a joint... File: 073 - Blount Inc v US.doc, Final Clean Text: For the foregoing reasons, the court finds that the Bureau of Prison s decision to reject Blount, In... File: 074 - Compliance Corp v US.doc, Final Clean Text: For the foregoing reasons, the court finds the contracting officer s decision to disqualify Complian... File: 076 - Girling Health Systems Inc v US.doc, Final Clean Text: For the reasons discussed herein, the defendant s motion to dismiss for lack of jurisdiction is gran... File: 077 - West River Elec Ass'n Inc v Black Hills Power and Light Co.doc, Final Clean Text: , however, the majority opinion disregards the introductory material to 28 U.S.C. \'3f 2304, which s... File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Final Clean Text: . For the forgoing reasons, we affirm the district court s grant of summary judgment in favor of the... File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Final Clean Text: that UNC \'3fis, by definition, one state agency, not sixteen separate, independent agencies. \'3f T... File: 082 - Applications Research Corp v Naval Air Development Center.doc, Final Clean Text: Therefore, having made a searching inquiry into the summary judgment record, drawing all reasonable ... File: 083 - Trojan Technologies Inc v Com of Pa.doc, Final Clean Text: For the foregoing reasons, the judgment of the District Court will be affirmed. \'3f \* co_allCitati... File: 084 - Sellers v Kemp.doc, Final Clean Text: s found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law... File: 087 - Data General Corp v US.doc, Final Clean Text: Accordingly, the decision of the board is reversed and the award to Data General is reinstated. \'3f... File: 089 - Howard v US.doc, Final Clean Text: For the reasons set forth above, defendant s motion to dismiss is granted. Plaintiff s complaint, am... File: 091 - Cubic Corp v Cheney.doc, Final Clean Text: We reverse the judgment of the district court and remand the case in order for that court to allow t... File: 092 - Advance Tank and Const Co Inc v Arab Works.doc, Final Clean Text: The decision of the district court is REVERSED. \'3f \* co_allCitations_92 \* co_allCitations_92... File: 093 - Fahnestock And Co Inc v Waltman.doc, Final Clean Text: For the reasons set forth above, petitioner s motion to vacate the arbitrator s award for defamation... File: 095 - Diverco Inc v Cheney.doc, Final Clean Text: for several reasons. Diverco contends that because of defendant s actions it has been deprived of th... File: 096 - Federal Data Corp v US.doc, Final Clean Text: s of law, but the legal interpretation of a tribunal having expertise is helpful to us, even if not ... File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Final Clean Text: Plaintiff, Harrison and Burrowes Bridge Constructors, Inc., has satisfied the requirements for the i... File: 098 - Kinne v US.doc, Final Clean Text: The plain language of \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum... File: 099 - Troise v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted in part and denied in par... File: 100 - Pacificorp Capital Inc v City of New York.doc, Final Clean Text: s of law pursuant to \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 001 - Novicki v Cook.doc, Final Clean Text: is well supported by the evidence in the record, and the debarment will therefore be sustained. \'3f... File: 003 - Vion Corp v US.doc, Final Clean Text: ViON alleges violations of the Competition in Contracting Act of 1984, \* HYPERLINK "https://www.wes... File: 004 - Cimpi v Dole.doc, Final Clean Text: Based on the foregoing, we hold that plaintiffs have failed to demonstrate \'3fa substantial case on... File: 005 - Coflexip And Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the court denies both parties motions for summary judgment on the questio... File: 006 - Romala Corp v US.doc, Final Clean Text: The Clerk is ordered to dismiss the complaint. No costs. \'3f \* co_allCitations_6 \* co_allCitation... File: 008 - Commercial Energies Inc v US.doc, Final Clean Text: The GAO s recommendation that the Air Force could apply the 10% evaluation preference to two line it... File: 009 - Capeletti Bros Inc v Metropolitan Dade County.doc, Final Clean Text: For the reasons stated above, it is ORDERED AND ADJUDGED as follows: \'3f 1. Plaintiffs are not prec... File: 010 - SMS Data Products Group Inc v US.doc, Final Clean Text: that FDC s bid represented the lowest ultimate cost to the government. The Board properly stated tha... File: 012 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Final Clean Text: The Supreme Court s decisions on affirmative action during the last decade have left the lower court... File: 013 - Vanguard Sec Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s and Burns cross-motions for summary judgment are granted as to C... File: 014 - Ohio Contractors Ass'n v City of Columbus Ohio.doc, Final Clean Text: that plaintiffs First and Fourteenth Amendment public access claims should be dismissed without furt... File: 016 - Monchamp Corp v US.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion to dismiss is denied without prejudice to it... File: 017 - Fordice Const Co v Marsh.doc, Final Clean Text: The court finds from the evidence and the authority presented that relegating all of the small-busin... File: 018 - Milwaukee County Pavers Ass'n v Fiedler.doc, Final Clean Text: s would not apply if the monies were not primarily federal and were not counted toward the 10% goal.... File: 020 - SMS Data Products Group Inc v US.doc, Final Clean Text: This court lacks jurisdiction over plaintiff s lost profits claim. Plaintiff did not properly file a... File: 021 - Bean Dredging Corp v US.doc, Final Clean Text: Consistent with the foregoing analysis, we conclude that the Corps has breached its implied obligati... File: 022 - Electronic Systems Associates Inc v US.doc, Final Clean Text: Accordingly, the decision of the board is affirmed. \'3f AFFIRMED \'3f \* co_allCitations_22 \* co_a... File: 023 - Leslie and Elliott Co Inc v Garrett.doc, Final Clean Text: that Court does not address the merits of any debarment action against the plaintiff. It may be that... File: 024 - Servidone Const Corp v US.doc, Final Clean Text: The Clerk is directed to enter judgment for plaintiff in the amount of $14,703,211.43, plus interest... File: 027 - Triad Associates Inc v Chicago Housing Authority.doc, Final Clean Text: With regard to the substantive issues in Counts I through V of Triad s Amended Complaint, we affirm ... File: 028 - Phoenix Baptist Hosp and Medical Center v US.doc, Final Clean Text: For the foregoing reasons, the court holds that the actions of HHS in regulating the AHCCCS demonstr... File: 029 - US v International Business Machines Corp.doc, Final Clean Text: Accordingly, the decision of the board is affirmed to the extent that it found jurisdiction \* co_pp... File: 031 - Medical Devices of Fall River Inc v US.doc, Final Clean Text: The undisputed facts show that plaintiff s offer on Solicitation DLA 120 \'3f88 \'3fR \'3f0496 was f... File: 032 - Coral Const Co v King County.doc, Final Clean Text: The Supreme Court has held that race-based government programs must remain a last resort in attempts... File: 034 - Carothers Const Inc v US.doc, Final Clean Text: For all the above reasons, the court finds that the Comptroller General s decision that Barron s bid... File: 035 - Main Line Paving Co Inc v Board of Educ School Dist of Philadelphia.doc, Final Clean Text: , we find that the plaintiffs have standing to bring this lawsuit, that the question presented is no... File: 036 - Reeve Aleutian Airways Inc v US.doc, Final Clean Text: For the reasons set forth above, we vacate the order of the District Court and remand to that Court ... File: 037 - Mark Dunning Industries Inc v Cheney.doc, Final Clean Text: does not, however, necessarily mandate that the Army award the contract only on a new solicitation o... File: 039 - Jowett Inc v Department of Navy.doc, Final Clean Text: The Navy has met its two-fold burden of showing that the audit reports requested by Jowett \'3fexcep... File: 040 - AT And T Technologies Inc v US.doc, Final Clean Text: The court concludes that the plaintiff may recover only its proposal preparation costs, and that suc... File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Final Clean Text: s found to be \'3f (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance... File: 043 - National Federation of Federal Employees v Cheney.doc, Final Clean Text: . The only people affected when contracting out decisions are made are the federal employees, the ag... File: 044 - TRW Environmental Safety Systems Inc v US.doc, Final Clean Text: Wherefore, consistent with the above, plaintiff s motion for a permanent injunction is hereby GRANTE... File: 045 - CC Distributors Inc v US.doc, Final Clean Text: We conclude that plaintiffs have standing to challenge the Air Force s decision to convert COCESS in... File: 046 - Survival Technology Inc v Marsh.doc, Final Clean Text: . See Econ, Inc., B \'3f223923, October 29, 1986, \* HYPERLINK "https://www.westlaw.com/Link/Documen... File: 052 - Blue Cross and Blue Shield of Maryland Inc v US Dept of Health and Human S.doc, Final Clean Text: For the reasons set forth above, it is hereby \'3f ORDERED that plaintiff s motion for summary judgm... File: 053 - Lear Siegler Inc Energy Products Div v Lehman.doc, Final Clean Text: that Lear Siegler is a prevailing party, but the court appears to assume that Lear Siegler prevailed... File: 054 - Shoals American Industries Inc v US.doc, Final Clean Text: , which rests upon a slightly different policy emphasis, also is eminently reasonable. \'3f The dist... File: 056 - MCI Telecommunications Corp v US.doc, Final Clean Text: s. Id. \'3f \* HYPERLINK "#co_anchor_F11989090485_56" [1] \* co_anchor_B11989090485_56 \* co_anchor_... File: 057 - Ransom v US.doc, Final Clean Text: For the foregoing reasons, plaintiffs cross-motion for summary judgment as to Count I and for partia... File: 058 - OAO Corp v US.doc, Final Clean Text: Although the parties did not reach an express or implied contract for the entire $13.7 million CPP p... File: 059 - Robinson v Cheney.doc, Final Clean Text: For the foregoing reasons, the judgment of the district court is \'3f Affirmed. \'3f \* co_allCitati... File: 060 - Lichtefeld-Massaro Inc v US.doc, Final Clean Text: that the test for constructive notice has been satisfied. \'3f \* HYPERLINK "https://www.westlaw.com... File: 061 - Mil-Com Electronics Corp v Aldridge.doc, Final Clean Text: For the foregoing reasons, the Court finds that the defendant s decision to award the TEMS contract ... File: 062 - Lundblad v Celeste.doc, Final Clean Text: that plaintiff does not state a claim for violation of his rights under the due process clause. The ... File: 063 - A to Z Maintenance Corp v Dole.doc, Final Clean Text: (as affirmed by the Deputy Secretary of Labor) that A to Z violated the SCA in several respects, and... File: 064 - Apex Const Co Inc v US.doc, Final Clean Text: that the circumstantial evidence is inadequate to put the SBA s good faith genuinely in dispute is r... File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Final Clean Text: s of law. The creation of national rules for the governance of our society simply does not entail th... File: 066 - Honeywell Inc v US.doc, Final Clean Text: The order of the Claims Court enjoining the Army from awarding the contract to Haz \'3fTad, Inc., is... File: 068 - TRW Environmental Safety Systems Inc v US.doc, Final Clean Text: The foregoing approach, we believe, \'3fis entirely consistent with the purpose of granting interim ... File: 069 - TRW Environmental Safety Systems Inc v US.doc, Final Clean Text: The court is, therefore, unwilling to place such an onerous and additional burden on the existing pa... File: 070 - Coleman American Moving Services Inc v Weinberger.doc, Final Clean Text: Summary judgment is appropriate in this case. The party seeking summary judgment bears the initial b... File: 072 - Westech Gear Corp v Department of Navy.doc, Final Clean Text: Even assuming that Westech has exclusive rights to the ram tensioner, the Navy has satisfied the req... File: 073 - Federal Elec Corp v Carlucci.doc, Final Clean Text: The district court correctly found, on the basis of substantial evidence, that the Navy had successf... File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Final Clean Text: For all of these reasons, the Court concludes that TSSI has failed to meet its burden of showing tha... File: 076 - City of Richmond v JA Croson Co.doc, Final Clean Text: reached by the District Court, see Civ. Action No. 84 \'3f0021 (ED Va.1984) (reprinted in Supp.App. ... File: 077 - Honeywell Inc v US.doc, Final Clean Text: For the reasons stated hereinabove, IT IS HEREBY ORDERED: 1. Plaintiff s application for a TRO is mo... File: 078 - Crowell And Moring v Department of Defense.doc, Final Clean Text: . \'3fAlthough an assurance may not be as readily inferred when the information is volunteered, the ... File: 079 - Reel-O-Matic Systems Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff has shown no right to relief, and defendant is entitled to a grant... File: 080 - Vulcan Engineering Co v US.doc, Final Clean Text: Although, the plaintiff has standing to seek recovery of its bid preparation costs, it has failed to... File: 081 - National Gateway Telecom Inc v Aldridge.doc, Final Clean Text: : For the reasons set forth above, (i), National Gateway s motion for preliminary injunction will be... File: 082 - Waste Management of North America Inc v Weinberger.doc, Final Clean Text: The decision of the district court is AFFIRMED. \'3f \* co_allCitations_82 \* co_allCitations_82... File: 084 - Baranowski v EPA.doc, Final Clean Text: S OF LAW 1. EPA has met its burden of establishing (1) that the subpoena is within the agency s stat... File: 087 - Avedon Corp v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F131988149138_87" [13] \* co_anchor_B131988149138_87 \* co_anchor_B13198814... File: 088 - Honeywell Federal Systems Inc v US.doc, Final Clean Text: Plaintiff has stated a concern, which the Court shares, that the brief contract delivery period of s... File: 089 - Burnside-Ott Aviation Training Center Inc v Department of Navy.doc, Final Clean Text: For the above reasons, the Court has denied the motion for preliminary injunction in accordance with... File: 090 - Fadeley v US.doc, Final Clean Text: Considering all aspects of this case on the stipulated record as presented by the parties, recovery ... File: 092 - Facchiano v US Dept of Labor.doc, Final Clean Text: is generally no less when the tribunal is an administrative tribunal than when it is a court. Hence,... File: 093 - Prineville Sawmill Co Inc v US.doc, Final Clean Text: Accordingly, the decision of the Claims Court granting summary judgment to the government is reverse... File: 094 - Professional Medical Products Inc v US.doc, Final Clean Text: , the Court gives significant weight to the determination of the independent testing company in asse... File: 095 - Capital Engineering And Mfg Co Inc v Weinberger.doc, Final Clean Text: For the foregoing reasons, this case presents an actionable case or controversy over which this cour... File: 096 - BMY A Div of HARSCO Corp v US.doc, Final Clean Text: of Law shall be, and hereby is, denied; and it is \'3f FURTHER ORDERED that the Court hereby enters ... File: 097 - Sanders-Midwest Inc v US.doc, Final Clean Text: It is concluded that defendant s motion for summary judgment as to counts 1 and 3 of plaintiff s ame... File: 098 - CACI Field Services Inc v US.doc, Final Clean Text: The judgment of the Claims Court dismissing CACI s complaint is affirmed. \'3f AFFIRMED. \'3f \* co_... File: 099 - Hoke Co Inc v Tennessee Valley Authority.doc, Final Clean Text: , the Court reasoned \* co_pp_sp_350_828_99 \* co_pp_sp_350_828_99 *828 that the \'3fgovernment may ... File: 100 - SMS Data Products Group Inc v US.doc, Final Clean Text: is found in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=196911957... File: 02 - Abel Converting Inc v US.doc, Final Clean Text: As a prevailing party with corporate assets and employees below the maximum specified in the EAJA, p... File: 03 - Municipal Leasing Corp v Fulton County Ga.doc, Final Clean Text: , the district court held that \'3f[t]here is no evidence that the County did not evaluate all bids ... File: 04 - Bellevue Bus Service Inc v US.doc, Final Clean Text: Defendant s motion for summary judgment is granted. The Clerk is directed to dismiss the complaint. ... File: 05 - Caiola v Carroll.doc, Final Clean Text: If the court were to direct the district court to remand the case, the DLA would face the formidable... File: 06 - Continental Heller Corp v Secretary of Navy.doc, Final Clean Text: as to the proper administration and applicability of procurement regulations. \'3f \* HYPERLINK "htt... File: 07 - Parola v Weinberger.doc, Final Clean Text: . We agree with the district court on this point. \'3fSolid waste \'3f is defined in RCRA, \* HYPERL... File: 08 - Nationwide Roofing and Sheet Metal Co Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s motion for partial summary judgment, with respect to the... File: 09 - Information Systems And Networks Corp v Abdnor.doc, Final Clean Text: s of Law issued this 21st day of April 1988, it is \'3f ORDERED that this case be dismissed with pre... File: 10 - Paxson Elec Co Inc v US.doc, Final Clean Text: For the foregoing reasons defendant s motion for summary judgment is granted, and the Clerk of the C... File: 11 - International Logistics Group Ltd v Chrysler Corp.doc, Final Clean Text: is reinforced by the fact that Chrysler s share of the government market is very stable, and may eve... File: 12 - Niro Atomizer Inc v US EPA Region IV.doc, Final Clean Text: is derived. When discussing the sand consumption issue the Administrator merely states that \'3fZimp... File: 15 - Lear Siegler Inc Energy Products Div v Lehman.doc, Final Clean Text: We find that the challenged stay provisions of CICA are constitutional; that Lear Siegler s bid prot... File: 17 - Adamson v Radosevic.doc, Final Clean Text: : that the primary objective of plaintiff s action is to obtain declaratory and injunctive relief ra... File: 19 - Abel Converting Inc v US.doc, Final Clean Text: Because of GSA s unquestionable failure to follow procurement regulations requiring solicitation of ... File: 20 - Speakman Co v Weinberger.doc, Final Clean Text: The language of \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=10171... File: 21 - Prineville Sawmill Co Inc v US.doc, Final Clean Text: Summary judgment is appropriate where there are no disputed issues of material facts and the moving ... File: 22 - Municipal Leasing Corp v Fulton County Ga.doc, Final Clean Text: s. \'3f \* co_cipdip_opinion_22 \* co_cipdip_opinion_22 \* co_anchor_I155b2789dbc911e18b05fdf15589d ... File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Final Clean Text: to be drawn from Congress explicit enforcement scheme is that its procurement needs take precedence ... File: 24 - Rogers Truck Line Inc v US.doc, Final Clean Text: For reasons discussed above, defendant s motion for summary judgment is granted. The clerk is direct... File: 25 - Peerless Ins Co v US.doc, Final Clean Text: S OF LAW \* co_anchor_Ie841fef8321c11e598dc8b09b4f04 \* co_anchor_Ie841fef8321c11e598dc8b09b4f04 A. ... File: 26 - Dod Contracts Inc.doc, Final Clean Text: s reflected the isolated nature of the base, problems of recruiting outside labor, and the deteriora... File: 27 - PNM Const Inc v US.doc, Final Clean Text: For the reasons stated hereinabove, plaintiff is not entitled to the equitable relief sought in the ... File: 28 - Ulstein Maritime Ltd v US.doc, Final Clean Text: s implicit in this determination are unchallenged and the findings of fact are not clearly erroneous... File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Final Clean Text: that the evidence in this case at best suggested \'3fthat societal discrimination had afforded the o... File: 30 - CACI Field Services Inc v US.doc, Final Clean Text: For the reasons expressed above, the court concludes that the CO s determination that CACI s bid was... File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Final Clean Text: The defendants motion for summary judgment will be granted. The applicability of SBA and Air Force r... File: 32 - Alliance Oil And Refining Co v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted, and the Clerk of the Cou... File: 33 - Janik Paving And Const Inc v Brock.doc, Final Clean Text: rested on uncorroborated, albeit consistent, past recollection. We believe that he appropriately com... File: 34 - Information Resources Inc v US.doc, Final Clean Text: . IRI recognizes that Potter sought appointment to the panel. Thus, prior to selection of the panel,... File: 35 - John J Kirlin Inc v US.doc, Final Clean Text: on the language of the VEI clause as it has been applied by the boards and the Court of Claims. Para... File: 36 - Data Transformation Corp v US.doc, Final Clean Text: For reasons set forth above, plaintiff s motion for injunctive relief is denied. Defendant s motion ... File: 37 - Three S Constructors Inc v US.doc, Final Clean Text: As the final SBA decision on plaintiff s size status remains valid and as the decision is applicable... File: 38 - National Maritime Union of America v Commander Military Sealift Command.doc, Final Clean Text: \'3fthat the injury to the Unions members is causally speculative. See \* HYPERLINK "https://www.wes... File: 39 - JA Croson Co v City of Richmond.doc, Final Clean Text: that the ordinance is not narrowly tailored to achieve its remedial goal. \* co_fnRef_B0131319870856... File: 41 - Howell Const Inc v US.doc, Final Clean Text: For the reasons stated herein, plaintiff s motion for preliminary and permanent injunction and, ther... File: 42 - Sterling-Kates v US.doc, Final Clean Text: OF LAW Based on the foregoing, it is found that there was no misrepresentation or other breach by th... File: 43 - Quality Transport Services Inc v US.doc, Final Clean Text: Based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s application for a tempor... File: 44 - Federal Data Corp v SMS Data Products Group Inc.doc, Final Clean Text: We conclude that the Board abused its discretion in not dismissing its December 3, 1986 decision in ... File: 45 - La Strada Inn Inc v US.doc, Final Clean Text: For the reasons stated, the court grants defendant s motion for summary judgment on the issue of inj... File: 46 - SJ Groves And Sons Co v Fulton County.doc, Final Clean Text: that remedial action was necessary because the \'3ffindings \'3f it relied on in developing the regu... File: 47 - Cristiano v Courts of Justices of the Peace In and For New Castle County.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F131987044229_47" [13] \* co_anchor_B131987044229_47 \* co_anchor_B13198704... File: 48 - Refine Const Co Inc v US.doc, Final Clean Text: Based upon the facts and law set forth above, this court finds that the Veterans Administration did ... File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Final Clean Text: We hold as follows: \'3f (1) With respect to contracts over $50,000, all of the ordinance s preferen... File: 50 - Sterlingwear of Boston Inc v US.doc, Final Clean Text: It is axiomatic that the ultimate decision, as to the propriety to debar, is a discretionary decisio... File: 51 - Gottlieb v Tulane University of Louisiana.doc, Final Clean Text: that Tulane did not intentionally discriminate against Dr. Gottlieb. \* co_fnRef_B00441987010566_ID0... File: 52 - Solon Automated Services Inc v US.doc, Final Clean Text: as to the proper administration and application of the procurement regulations. Id. The disappointed... File: 53 - Grey v Gruntal And Co Inc.doc, Final Clean Text: \* co_pp_sp_999_18_53 \* co_pp_sp_999_18_53 *18 For the aforementioned reasons, Gruntal s and Synes ... File: 56 - US v City of Twin Falls Idaho.doc, Final Clean Text: We conclude that ancillary and pendent jurisdiction supported the City s third-party claims in the d... File: 57 - US v Thorson Co.doc, Final Clean Text: The decision of the General Services Administration Board of Contract Appeals is affirmed. \'3f AFFI... File: 59 - NKF Engineering Inc v US.doc, Final Clean Text: : From the representation of facts presented it appears that NKF obtained information not in the pos... File: 60 - Chemung County v Dole.doc, Final Clean Text: with the fact that the FAA projected future costs for telecommunications without accounting for futu... File: 61 - Ulstein Maritime Ltd v US.doc, Final Clean Text: on the SCP-clause compliance issue and the Walsh-Healey compliance issue, the COC issued by the SBA ... File: 62 - Certified Grocers Midwest Inc v Illinois Dept of Public Aid.doc, Final Clean Text: that the cause of action arises under federal law or the Constitution. \* HYPERLINK "https://www.wes... File: 63 - Shane Meat Co Inc v US Dept of Defense.doc, Final Clean Text: that leniency should be accorded in this case. Those decisions are factually distinguishable from th... File: 64 - Spectrum Analysis and Frequency Engineering Inc v Fowler.doc, Final Clean Text: of the merits phase of this case, and is not sufficiently damaging to allow for injunctive relief. P... File: 65 - Sterlingwear of Boston Inc v US.doc, Final Clean Text: Defendant s motion to dismiss, only on the basis of the discussion supra, i.e., relative to the due ... File: 66 - Action Mfg Co v US.doc, Final Clean Text: OF LAW For the foregoing reasons, we conclude that the relevant actions of defendant s procurement o... File: 68 - Bowsher v Synar.doc, Final Clean Text: rests on the rigid dogma that, outside of the impeachment process, any \'3fdirect congressional role... File: 69 - Bromley Contracting Co Inc v US.doc, Final Clean Text: The board found that the contracting officer had no actual or constructive knowledge of Bromley s un... File: 70 - Mideast Systems and China Civil Const Saipan Joint Venture Inc v Hodel.doc, Final Clean Text: Mideast has earnestly argued that it was unfairly deprived of valuable construction contracts; unfor... File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Final Clean Text: reached by the Sixth Circuit in Fillinger is a sound one. \'3f) . But see \* HYPERLINK "https://www.... File: 73 - McQuiston v Marsh.doc, Final Clean Text: Because the district court did not clearly err by finding that McQuiston was not a prevailing party ... File: 74 - MW Kellogg CoSiciliana Appalti Costruzioni SpA v US.doc, Final Clean Text: Throughout the pendency of the instant action, plaintiff has sought relief that would cause the Comi... File: 75 - Thomas P Carney Inc v School Dist of Philadelphia.doc, Final Clean Text: s of law (Docket Entry No. 32), defendants post-argument memorandum of law (Docket Entry No. 34), pl... File: 76 - Sowell's Meats and Services Inc v McSwain.doc, Final Clean Text: , the court explained that procurement statutes are for the benefit of the government \'3fnot prospe... File: 77 - Gottlieb v Tulane University of Louisiana.doc, Final Clean Text: s were not conducted at all. Data used was faulty in several respects. The data did not use part tim... File: 78 - National Maritime Union of America AFL-CIO v Commander Military Sealift Com.doc, Final Clean Text: Plaintiffs several challenges to the procurement at issue in this case do not survive judicial scrut... File: 79 - International Verbatim Reporters Inc v US.doc, Final Clean Text: Following an extensive analysis of the transcript of the trial and all other evidence, pleadings and... File: 80 - Omega World Travel Inc v US.doc, Final Clean Text: Based on the foregoing, the court hereby grants plaintiffs motion for transfer to the United States ... File: 81 - Caddell Const Co IncISE Construzioni SpA v United States.doc, Final Clean Text: Having concluded that Caddell lacks standing to question the procurement action at issue, it is ORDE... File: 82 - US v Amdahl Corp.doc, Final Clean Text: that the goods had not been delivered and accepted prior to the date GSBCA revoked Treasury s DPA wa... File: 83 - NKF Engineering Inc v US.doc, Final Clean Text: Consistent with the foregoing, IT IS ORDERED that NAVSEA is permanently enjoined from awarding the c... File: 85 - SACO Defense Systems Div v Weinberger.doc, Final Clean Text: to be reached on this record is that adequate competition took place. The field was narrowed from ei... File: 01 - Ingersoll-Rand Co v US.doc, Final Clean Text: The District Court correctly applied the Megapulse framework in determining that I \'3fR s complaint... File: 03 - JA Croson Co v City of Richmond.doc, Final Clean Text: was further bolstered by \'3fnumerous independent studies. \'3f See id. at 889. No such evidence was... File: 04 - Marine Transport Lines Inc v Lehman.doc, Final Clean Text: that Marine Transport has failed to meet its burden and that the government is entitled to a final j... File: 05 - Eagle Aviation Inc v US.doc, Final Clean Text: On the basis of the above discussion, and without oral argument, it is concluded that there was a bi... File: 06 - General Engineering Corp v Virgin Islands Water and Power Authority.doc, Final Clean Text: Having upheld the contract between Caribbean and WAPA, we will grant a permanent injunction against ... File: 08 - Rockwell Intern Corp v US.doc, Final Clean Text: of further proceedings; \'3f (3) Except as so granted by (1) and (2), the Rule 56 motions on file ar... File: 11 - Busby School of Northern Cheyenne Tribe v US.doc, Final Clean Text: Defendant s motion to dismiss plaintiffs complaint is granted in part and denied in part as discusse... File: 12 - Busby School of Northern Cheyenne Tribe v US.doc, Final Clean Text: , in any situation in which a contractor had entered into a continuous series of similar contracts w... File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Final Clean Text: , dismissing the cited considerations as \'3fspeculative. \'3f We find greater merit in the analysis... File: 14 - Northern Telecom Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F71985133307_14" [7] \* co_anchor_B71985133307_14 \* co_anchor_B71985133307... File: 15 - Leath McCarthy And Maynard Inc v Army and Air Force Exchange Service.doc, Final Clean Text: that any alleged misrepresentation as to the quality of the Chic specifications did not cause LM & M... File: 17 - Western Pioneer Inc v US.doc, Final Clean Text: As the court lacks jurisdiction to grant equitable relief under \* HYPERLINK "https://www.westlaw.co... File: 20 - Research Analysis And Development Inc v US.doc, Final Clean Text: that such a contract existed. The actions of the parties, \* co_pp_sp_852_59_20 \* co_pp_sp_852_59_2... File: 21 - Electro-Methods Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s motions for injunctive relief and declaratory judgment are denie... File: 22 - Aviation Enterprises Inc v US.doc, Final Clean Text: Based on the above discussion, the court concludes that plaintiff is not entitled to \* co_pp_sp_852... File: 23 - Saco Defense System Div Maremont Corp v Weinberger.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F201985120529_23" [20] \* co_anchor_B201985120529_23 \* co_anchor_B20198512... File: 24 - Hayes Intern Corp v US.doc, Final Clean Text: Hayes has failed to establish that the Navy breached its duty to fairly and honestly consider Hayes ... File: 27 - Ameron Inc v US Army Corps of Engineers.doc, Final Clean Text: that the authority to vary the length of the stay was inseverable from the stay provision itself, th... File: 28 - National Forge Co v U S.doc, Final Clean Text: \* co_pp_sp_999_2_28 \* co_pp_sp_999_2_28 *2 The motion for an injunction pending appeal is denied. ... File: 29 - National Forge Co v US.doc, Final Clean Text: Defendant s motion to dismiss is denied. \'3f \* co_allCitations_29 \* co_allCitations_29... File: 30 - Connelly Containers Inc v US.doc, Final Clean Text: s. \* co_fnRef_B013131985109096_ID0EATAG_30 \* co_fnRef_B013131985109096_ID0EATAG_30 \* HYPERLINK "#... File: 31 - Udis v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted in part and denied in par... File: 32 - Grade-Way Const v US.doc, Final Clean Text: It is concluded that intervenor s failure to acknowledge amendment 6, both with respect to dates of ... File: 33 - Caddell Const Co v US.doc, Final Clean Text: that unacceptably high prices were present because plaintiff s bid was 13.87 percent and the only ot... File: 34 - Drexel Heritage Furnishings Inc v US.doc, Final Clean Text: It is, therefore, ordered that plaintiff s request for declaratory and permanent injunctive relief i... File: 35 - Dan Caputo Co v Russian River County Sanitation Dist.doc, Final Clean Text: There is no merit to any of Caputo/Wagner s contentions. The judgment of the district court is affir... File: 36 - Standard Mfg Co Inc v US.doc, Final Clean Text: that a contract implied-in-fact was intended, and created, here. \* co_fnRef_B013131984159661_ID0EMR... File: 37 - Rogers v US.doc, Final Clean Text: For the foregoing reasons, the Clerk shall dismiss the plaintiff s complaint. \'3f IT IS SO ORDERED.... File: 38 - Contract Custom Drapery Service Inc v US.doc, Final Clean Text: . See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1972112576&pubN... File: 39 - C And L Const Co v US.doc, Final Clean Text: Based on the above discussion, the court concludes that no material issue of fact exists and that de... File: 40 - International Mailing Systems Div of Better Packages Inc v US.doc, Final Clean Text: For the reasons given, the Court grants the defendant s motion for summary judgment and denies the p... File: 41 - Olympia USA Inc v US.doc, Final Clean Text: For the foregoing reasons, we find that Olympia s bid is responsive, and that GSA s Life Cycle Cost ... File: 43 - Shermco Industries Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted. The Clerk of the Court w... File: 44 - LG Lefler Inc v US.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F81984151316_44" [8] \* co_anchor_B81984151316_44 \* co_anchor_B81984151316... File: 45 - Gracon Corp v US.doc, Final Clean Text: In the above circumstance, as plaintiff has not established a valid basis for the relief sought, it ... File: 46 - Tibshraeny Bros Const Inc v US.doc, Final Clean Text: The court finds for plaintiff on the issue of liability and holds that plaintiff is entitled to reco... File: 47 - Descon System Ltd v US.doc, Final Clean Text: For the above-stated reasons, defendant s motion for summary judgment is granted. IT IS ORDERED that... File: 48 - Rubber Millers Inc v US.doc, Final Clean Text: . \'3f The new Federal Acquisition Regulation System (FAR) discussed by the plaintiff does not chang... File: 49 - Kinetic Structures Corp v US.doc, Final Clean Text: Therefore, this Court concludes that the plaintiff has failed to establish the requisite arbitrary o... File: 50 - Coastal Corp v US.doc, Final Clean Text: Plaintiffs motion for summary judgment is denied; defendant s motion for summary judgment is granted... File: 51 - Dyn Logistics Services Inc v US.doc, Final Clean Text: For the foregoing reasons, IT IS HEREBY ORDERED that: \'3f 1. SEACOR s motion to dismiss the complai... File: 52 - Delta Data Systems Corp v Webster.doc, Final Clean Text: that Delta Data was not entitled to the contract would not be altered even if the invalidity of the ... File: 53 - DLM And A Inc v US.doc, Final Clean Text: Based on the foregoing, an order entered on September 19, 1984, denying DLM & A s motion for a preli... File: 55 - Mack Trucks Inc v US.doc, Final Clean Text: that its designation of a permissible shipping length qualifies its promise to comply with the in-se... File: 57 - F Buddie Contracting Inc v Seawright.doc, Final Clean Text: Pursuant to the foregoing analysis, and subject to the limitations noted in the opinion, the motion ... File: 58 - Carrier Corp v US.doc, Final Clean Text: ary pleadings that genuine issues of fact exist. \* co_fnRef_B00221984140015_ID0E3GBG_58 \* co_fnRef... File: 59 - Mil-Tech Systems Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted, and plaintiff s motions ... File: 61 - Reasor v City of Norfolk Va.doc, Final Clean Text: This Court, having dismissed all of the federal antitrust claims, invites counsel to brief the issue... File: 63 - Scherr Const Co Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s motion for summary judgment is granted. \* co_fnRef_B00331984128... File: 64 - Cedar Lumber Inc v US.doc, Final Clean Text: Based on the foregoing considerations, it is concluded that plaintiff has established defendant s li... File: 65 - ATL Inc v US.doc, Final Clean Text: , since we have not examined in camera this evidence. In our view, given that ATL made requests for ... File: 66 - Mastercraft Flooring Inc v Donovan.doc, Final Clean Text: based on the record. \'3f Under the regulations, the Administrator had the authority to set aside th... File: 67 - Harris Systems Intern Inc v US.doc, Final Clean Text: that the SBA and the Air Force were involved in preliminary dealings with no intention of creating a... File: 68 - Keene Corp v US.doc, Final Clean Text: . First of all, the post-award request is subject to the approval of the DGSC. ( See D.I. 8 at 19.) ... File: 69 - International Graphics Div of Moore Business Forms Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s first and second motions in limine are denied. Accordingly, a... File: 70 - Eastern Marine Inc v US.doc, Final Clean Text: Based on the foregoing considerations, plaintiff has not shown that the Coast Guard failed to fairly... File: 71 - Laboratory Supply Corp of America v US.doc, Final Clean Text: that under Clause L9 of the solicitation the effect of plaintiff s ambiguity in failing to make clea... File: 73 - Space Age Engineering Inc v US.doc, Final Clean Text: Accordingly, plaintiff s motion for summary judgment is denied and defendant s cross-motion for summ... File: 74 - Ralph Const Inc v US.doc, Final Clean Text: Accordingly, defendant s motion for summary judgment is granted in part, and plaintiff s cross-motio... File: 75 - WCM Window Co Inc v Bernardi.doc, Final Clean Text: , but against it can be set the modern view that an association has standing to complain of injuries... File: 76 - Electro-Methods Inc v US.doc, Final Clean Text: after a thorough review of the factual record before us, and hence reverse: The content of the due p... File: 77 - Minnesota Min and Mfg Co v Shultz.doc, Final Clean Text: of the meeting, 3M requested the Department to terminate the contract with GBC and to award \* co_pp... File: 79 - Dynalectron Corp v US.doc, Final Clean Text: Accordingly, plaintiff s motion for partial summary judgment is denied and defendant s cross-motion ... File: 80 - Alabama Metal Products Inc v US.doc, Final Clean Text: For the reasons expressed herein, defendant s motion to dismiss is granted and the complaint, as ame... File: 81 - International Graphics Div of Moore Business Forms Inc v US.doc, Final Clean Text: other than that the bid expiration period has been \'3ftolled \'3f by the affirmative actions of pla... File: 82 - Acme of Precision Surgical Co Inc v Weinberger.doc, Final Clean Text: . \'3f Beginning in 1941 and continuing to the present, the annual defense appropriation acts have c... File: 83 - Southern Packaging and Storage Co Inc v US.doc, Final Clean Text: s could be drawn from the failure of Congress to adopt an amendment. See \* HYPERLINK "https://www.w... File: 84 - F Alderete General Contractors Inc v US.doc, Final Clean Text: also necessarily removes any basis for the recovery of Alderete s proposal preparation expenses in t... File: 85 - South Florida Chapter of Associated General Contractors of America Inc v Me.doc, Final Clean Text: s of the June 1982 report of the United States Commission on Civil Rights entitled, \'3fConfronting ... File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Final Clean Text: : that the contracts in question should not be awarded to Shermco. \'3f \* HYPERLINK "#co_anchor_F33... File: 88 - Eagle Const Corp v US.doc, Final Clean Text: Accordingly, defendant s motion for summary judgment and intervenor s motions for summary judgment a... File: 89 - Essex Electro Engineers Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s application for attorneys fees and expenses under the Equal Acce... File: 90 - Southwest Marine Inc v US.doc, Final Clean Text: OF LAW On the foregoing opinion and the facts, as found by the court and stated in the opinion, the ... File: 91 - James Luterbach Const Co Inc v Adamkus.doc, Final Clean Text: I conclude that the Regional Administrator had a reasonable basis for taking the action which he did... File: 92 - ATL Inc v US.doc, Final Clean Text: it is clear that the request for a stay of the order of this court insofar as it enjoins the Navy De... File: 93 - Planning Research Corp v US.doc, Final Clean Text: After a careful review of the motions, the other briefs filed by the parties, the affidavits, the Ad... File: 94 - International Graphics Div of Moore Business Forms Inc v US.doc, Final Clean Text: Plaintiff has set forth sufficient creditable facts to convince this court that there exists a genui... File: 95 - Drexel Heritage Furnishings Inc v US.doc, Final Clean Text: It is therefore ordered that Defendant s Motion for Summary Judgment is denied and the parties are d... File: 97 - Alchemy Inc v US.doc, Final Clean Text: Defendant s motion to dismiss is denied and plaintiff has to and including December 6, 1983, in whic... File: 01 - Laboratory Supply Corp of America v US.doc, Final Clean Text: is that there was no contract and hence nothing to be reformed, since there was no meeting of the mi... File: 03 - CACI Inc-Federal v US.doc, Final Clean Text: that the government employee had violated the conflict of interest statute. In the present case, in ... File: 05 - Great Western Steel Inc v US.doc, Final Clean Text: In light of these provisions of the IFB, as amended, stating the BPA s intention to equate Buy Ameri... File: 06 - Electro-Methods Inc v US.doc, Final Clean Text: The August 2, 1983, notice was effective to temporarily suspend procurement action on the Air Force ... File: 07 - Rockwell Intern Corp v US.doc, Final Clean Text: For the reasons stated above, it is concluded that the injunctive relief sought by plaintiff must be... File: 10 - Northern Virginia Van Co Inc v US.doc, Final Clean Text: The court s bench ruling of August 19, 1983 denied plaintiff s application for permanent injunction,... File: 11 - F Alderete General Contractors Inc v US.doc, Final Clean Text: For the reasons stated, we conclude that jurisdiction was properly vested in the Claims Court under ... File: 12 - Essex Electro Engineers Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s cross-motion for summary judgment is granted, and defendant s is... File: 14 - Peter Kiewit Sons' Co v US Army Corps of Engineers.doc, Final Clean Text: Congressional oversight serves as a vital control on the quality and propriety of low visibility exe... File: 15 - ATL Inc v US.doc, Final Clean Text: As a result of the Navy s action in awarding to other bidders three of four contracts on which plain... File: 17 - Coastal Corp v US.doc, Final Clean Text: is erroneous, it would make no difference to the appellants since any action or decision by an agenc... File: 18 - Downtown Copy Center v US.doc, Final Clean Text: other than speculation. Plaintiff s unsupported allegations are not sufficient for this Court to req... File: 19 - Ohio Contractors Ass'n v Keip.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F61983133023_19" [6] \* co_anchor_B61983133023_19 \* co_anchor_B61983133023... File: 20 - AABCO Inc v US.doc, Final Clean Text: In view of the above discussion, this Court concludes that the plaintiff has met its heavy burden of... File: 21 - Cecile Industries Inc v US.doc, Final Clean Text: For the reasons given herein, the order entered in this case on June 10, 1983 is (i) modified to the... File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Final Clean Text: gains additional support from decisions of the Comptroller General that the \'3ffair proportion \'3f... File: 24 - Aqua-Tech Inc v US Army Corps of Engineers.doc, Final Clean Text: is amply reinforced by the IFB s repeated instructions to provide such information on the designated... File: 25 - US v Hamilton Enterprises Inc.doc, Final Clean Text: that this is a case of mutual fault to the extent that neither party is entitled to recover on the c... File: 27 - Dean Forwarding Co Inc v US.doc, Final Clean Text: On the basis of the foregoing, defendant s motion for summary judgment is allowed, plaintiff s motio... File: 28 - Heli-Jet Corp v US.doc, Final Clean Text: For the foregoing reasons, it has been determined that the plaintiff has little if any likelihood of... File: 29 - Related Industries Inc v US.doc, Final Clean Text: In view of the foregoing, judgment is to be entered as follows: \'3f 1. Defendant, including the Def... File: 30 - Ingersoll-Rand Co v US.doc, Final Clean Text: Defendant s motion for summary judgment is granted in part and denied in part. Plaintiff s motion fo... File: 32 - Kinetic Structures Corp v US.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss the plaintiff s first cause of action in it... File: 33 - BCM Corp v US.doc, Final Clean Text: The case was tried to the Board reserving quantum for later determination. Based on the foregoing, p... File: 34 - Georgia Gazette Pub Co v US Dept of Defense.doc, Final Clean Text: Accordingly, upon a review of the record herein, the Court concludes that the panel acted arbitraril... File: 35 - Harris Data Communications Inc v US.doc, Final Clean Text: For the reasons stated, on the merits Harris is not entitled to a declaratory judgment. Defendant s ... File: 36 - Doe v Devine.doc, Final Clean Text: In negotiating the 1982 contract with Blue Cross-Blue Shield OPM set goals that were, by and large, ... File: 37 - MWK Intern Ltd Inc v US.doc, Final Clean Text: of the hearing on even date, that: \'3f 1. The defendant, through its Department of the Navy, may ha... File: 38 - P Francini And Co Inc v US.doc, Final Clean Text: For the reasons stated in the opinion, it is concluded that neither Francini nor Dawson is entitled ... File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Final Clean Text: s were not clearly wrong or without rational basis. In any event, the State Bureau confirmed in a fi... File: 40 - DeMat Air Inc v US.doc, Final Clean Text: In view of the foregoing it is the order of this court that the defendant, including the contracting... File: 41 - US v John C Grimberg Co Inc.doc, Final Clean Text: , however, is without any support whatsoever. There is no evidence cited which indicates that Congre... File: 42 - Milmark Services Inc v US.doc, Final Clean Text: of the pre-award survey, the pre-award survey team recommended award of the contract to Milmark. The... File: 43 - Big Bud Tractors Inc v US.doc, Final Clean Text: cannot successfully be challenged here. \'3f Plaintiff s complaint alleges that RFP 5388 \'3ffails t... File: 44 - NV Philips Gloeilampenfabrieken v US.doc, Final Clean Text: of the hearing, that the plaintiff has not met its heavy burden of demonstrating that the Air Force ... File: 45 - P Francini And Co Inc v US.doc, Final Clean Text: For the reasons stated in the opinion, the plaintiff s motion for leave to file a supplemental compl... File: 46 - Quality Furniture Rentals Inc v US.doc, Final Clean Text: Defendant s motion for summary judgment is granted. Plaintiff s motion for a preliminary injunction ... File: 47 - Caci Inc - Federal v US.doc, Final Clean Text: Award of a contract to Sterling in response to the Request for Proposals (RFP) at issue in this case... File: 48 - American Dist Telegraph v Department of Energy.doc, Final Clean Text: that the procuring agent would grant maximum technical points to proposals that met the minimum spec... File: 50 - Alaska Chapter Associated General Contractors of America Inc v Pierce.doc, Final Clean Text: The HUD Indian preference regulation is authorized by section 7(b) of the Indian Self-Determination ... File: 51 - J Rose Corporation v US.doc, Final Clean Text: s, holding as follows: \'3f (1) The bid language \* co_fnRef_B0021983108893_ID0EMOAC_51 \* co_fnRef_... File: 53 - S-M-M-S v US.doc, Final Clean Text: The court hereby DENIES plaintiff s motion for a Temporary Restraining Order and ENTERS a judgment d... File: 54 - Indian Wells Valley Metal Trades Council v U S.doc, Final Clean Text: For the reasons stated, the Government s motion to dismiss the complaint is granted. \'3f \* co_allC... File: 55 - First Alabama Bank of Montgomery NA v Donovan.doc, Final Clean Text: that the attempted search was unreasonable under the Fourth Amendment. Specifically, the court held ... File: 56 - John T Brady And Co v US.doc, Final Clean Text: . We agree with the order of the United States Claims Court remanding this case to the Board for a d... File: 58 - Aero Corp v Department of the Navy.doc, Final Clean Text: is confirmed, of course, by defendant s continuing misconstruction of its even more basic obligation... File: 59 - Hoel-Steffen Const Co v U S.doc, Final Clean Text: s we derive from such review are stated in part II of this opinion. \'3f \* co_anchor_Iddb794c1de521... File: 60 - General Research Corp v US.doc, Final Clean Text: s of law set forth in the memorandum accompanying this order, the court DENIES plaintiff all declara... File: 63 - Lincoln Services Ltd v U S.doc, Final Clean Text: OF LAW On the basis of the foregoing opinion and findings of fact, which are set forth in the trial ... File: 64 - Princeton Combustion Research Laboratories Inc v McCarthy.doc, Final Clean Text: that the \'3fviolations \'3f were harmless. Thus on that basis alone, the district court should have... File: 65 - Peter Kiewit Sons' Co v U S Army Corps of Engineers.doc, Final Clean Text: s will be entered of even date herewith. \'3f \* co_allCitations_65 \* co_allCitations_65... File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Final Clean Text: Although plaintiff has standing to invoke judicial review of the DOD interpretation of the Small Bus... File: 68 - Aero Corp v Department of the Navy.doc, Final Clean Text: s of Law, it is this 18th day of February 1982, hereby \'3f ADJUDGED: that plaintiff will probably p... File: 70 - Aydin Corp v U S.doc, Final Clean Text: is bolstered by other factors known to the contracting officer at the time she conducted the bid eva... File: 72 - American Science and Engineering Inc v U S.doc, Final Clean Text: that the license agreement with AS&E was plainly illegal. This proposition is supported by our recen... File: 73 - M C West Inc v Lewis.doc, Final Clean Text: of the Transportation Department regulations, Secretary Lewis cites five statutes and two executive ... File: 74 - Peoples Gas Light and Coke Co v US Postal Service.doc, Final Clean Text: of the Perkins & Will Study, the choice of electricity would cost at least $55 million more than nat... File: 76 - American Ship Bldg Co v U S.doc, Final Clean Text: s cannot be \* co_pp_sp_289_222_76 \* co_pp_sp_289_222_76 *222 sustained even on the findings he mad... File: 77 - Robert E Derecktor of Rhode Island Inc v Goldschmidt.doc, Final Clean Text: was reached by the Coast Guard based upon its understanding of the applicable procurement regulation... File: 78 - Siller Bros Inc v U S.doc, Final Clean Text: The plaintiff s motion for summary judgment is denied, and the defendant s motion for summary judgme... File: 79 - Owen of Georgia Inc v Shelby County.doc, Final Clean Text: , I think that the Shelby County government has behaved responsibly and in the public interest. The ... File: 80 - Hoel-Steffen Const Co v U S.doc, Final Clean Text: of Law Based upon the foregoing findings of fact and opinion, it is concluded that Hoel-Steffen Cons... File: 81 - Control Data Corp v Baldrige.doc, Final Clean Text: In sustaining the district court s denial of standing, we do not feel that we have insulated the Sec... File: 83 - Lincoln Services Ltd v U S.doc, Final Clean Text: of Law On the basis of the foregoing opinion and findings of fact, which were adopted, the court con... File: 86 - Robert E Derecktor of Rhode Island Inc v Goldschmidt.doc, Final Clean Text: that the form was misleading. That construction must be rejected. There is but one construction that... File: 87 - Allis-Chalmers Corp Hydro-Turbine Division v Friedkin.doc, Final Clean Text: as to the proper administration and application of the procurement regulations. \'3f) 12. Applying t... File: 88 - Venice Maid Co Inc v U S.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for summary judgment is denied, defendant s cross-moti... File: 90 - Birmingham Realty Co v General Services Administration.doc, Final Clean Text: s shall issue. \'3f \* co_allCitations_90 \* co_allCitations_90... File: 91 - Northrop Corp v McDonnell Douglas Corp.doc, Final Clean Text: 1. MDC s motion to dismiss the complaint because of the failure to include an indispensable party is... File: 92 - City of Rochester v US Environmental Protection Agency.doc, Final Clean Text: that PALCO had met the requirements for both responsiveness and responsibility was reasonable. \'3f ... File: 93 - Old Dominion Dairy Products Inc v Secretary of Defense.doc, Final Clean Text: on this point because we are unaware of the events that have transpired since the time when the deci... File: 95 - Troup Bros Inc v U S.doc, Final Clean Text: is in no way final ( \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 96 - Hercules Inc v U S.doc, Final Clean Text: . \'3f \* HYPERLINK "#co_anchor_F61980131877_96" [6] \* co_anchor_B61980131877_96 \* co_anchor_B6198... File: 97 - Self-Powered Lighting Ltd v US.doc, Final Clean Text: , quoted above, and with the promises of broad cooperation embodied in the MOU. Moreover, plaintiff ... File: 98 - Textron Inc Bell Helicopter Textron Division v Adams.doc, Final Clean Text: that substantial numbers of American workers will be employed in the performance of the SRR Helicopt... File: 001 - Ultimate Concrete LLC v United States.doc, Final Clean Text: For the reasons set forth above, the court finds that the government s decision to award the contrac... File: 002 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Final Clean Text: For the foregoing reasons, the Court hereby GRANTS IN PART and DENIES IN PART Counterdefendants moti... File: 003 - Topping v United States.doc, Final Clean Text: In sum, when read in the light most favorable to plaintiff, the complaint clearly demonstrates that ... File: 004 - State of Kansas v United States.doc, Final Clean Text: The Court of Federal Claims does not have exclusive jurisdiction over the dispute presented here. An... File: 005 - Per Aarsleff AS v United States.doc, Final Clean Text: that any defect was latent. Because Exelis satisfied the terms of the eligibility provision as prope... File: 008 - Worldwide Language Resources LLC v United States.doc, Final Clean Text: For the reasons set forth above, plaintiff s MOTION for Injunctive and Declaratory Relief is DENIED ... File: 009 - Spectrum Comm Inc v United States.doc, Final Clean Text: Plaintiff s requests for a permanent injunction, declaratory relief, and bid and proposal costs are ... File: 010 - Desa Group Inc v US Small Business Administration.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for summary judgment (ECF No. 14) is GRANTED , and Def... File: 012 - TransAtlantic Lines LLC v United States.doc, Final Clean Text: . For these reasons, the court grants the Government s March 7, 2016 Motion To Dismiss. The Clerk of... File: 013 - PricewaterhouseCoopers Public Sector LLP v United States.doc, Final Clean Text: Based on the above discussion, defendant-intervenor CALIBRE/EY s motion to dismiss for lack of subje... File: 014 - Res Rei Development Inc v United States.doc, Final Clean Text: For the reasons set forth above, defendant s motion for judgment on the administrative record is GRA... File: 015 - MSC Industrial Direct Co Inc v United States.doc, Final Clean Text: Because we find that the agency s decisions to take corrective action and to award the BPA modificat... File: 016 - Wallace Asset Management LLC v United States.doc, Final Clean Text: In sum, the administrative record for this matter demonstrates that Wallace lacks standing to challe... File: 018 - Dellew Corporation v United States.doc, Final Clean Text: Plaintiff is awarded attorney s fees in the amount of $76,713.60 for the original litigation and for... File: 019 - National Air Cargo Group Inc v United States.doc, Final Clean Text: The United States motion to dismiss is DENIED. National s motion for a preliminary injunction and it... File: 020 - Southern Atlantic Companies LLC v School Board of Orange County.doc, Final Clean Text: In consideration of the foregoing, it is hereby \'3f ORDERED that the Motion for Summary Judgment (D... File: 021 - Reo Solution LLC v United States.doc, Final Clean Text: For the reasons set forth above, the court finds that plaintiff does not have standing to bring its ... File: 022 - GeoMed LLC v United States.doc, Final Clean Text: For the reasons stated above, plaintiffs motions for judgment on the administrative record are DENIE... File: 023 - Q Integrated Companies LLC v United States.doc, Final Clean Text: For the reasons stated, Q Integrated s motion for judgment on the administrative record is GRANTED I... File: 025 - Braseth Trucking LLC v United States.doc, Final Clean Text: For the reasons discussed above, the Court lacks subject matter jurisdiction over Braseth s complain... File: 026 - Lawson Environmental Services LLC v United States.doc, Final Clean Text: Plaintiff s motion for judgment on the Administrative Record is DENIED , and Defendant s cross-motio... File: 027 - Universal Protection Service LP v United States.doc, Final Clean Text: The court notes that the sale of ABM Security Services did not occur until after the \* co_pp_sp_613... File: 028 - Orion Construction Corporation v United States.doc, Final Clean Text: For the reasons above, Orion s motion for judgment on the administrative record is DENIED. \* co_fnR... File: 029 - Remington Arms Co LLC v United States.doc, Final Clean Text: For the reasons stated above, Remington s motion to supplement the administrative record is GRANTED ... File: 030 - Eco Tour Adventures Inc v Jewell.doc, Final Clean Text: For the foregoing reasons, the defendants motion to dismiss the Complaint, pursuant to \* HYPERLINK ... File: 031 - Prescient Inc v United States.doc, Final Clean Text: For the reasons discussed above, Prescient s motion for judgment on the administrative record is DEN... File: 032 - Excelsior Ambulance Service Inc v United States.doc, Final Clean Text: It is apparent that LMC deliberately decided not to intervene in this protest and chose instead to \... File: 033 - Ingham Regional Medical Center v United States.doc, Final Clean Text: On the grounds discussed above, defendant s motion to dismiss is GRANTED and plaintiffs first amende... File: 034 - Ameriserv Trust v United States.doc, Final Clean Text: The government breached the express warranties contained in Sections 1.2 and 1.5 \* co_pp_sp_613_749... File: 035 - Validata Chemical Services v United States Department of Energy.doc, Final Clean Text: that ADRA and its sunset provision vest that court with exclusive jurisdiction over this action, the... File: 036 - Corcel Corporation Inc v Ferguson Enterprises Inc.doc, Final Clean Text: s on the statute of limitations are case dispositive, it is not necessary to address the remaining a... File: 037 - DynCorp International LLC v United States.doc, Final Clean Text: Based upon the foregoing, the Court DISMISSES DynCorp s claims as barred by the doctrine of waiver, ... File: 038 - Algese 2 scarl v United States.doc, Final Clean Text: Algese requested that the Court remand this case to the Navy for further consideration of its respon... File: 039 - Che Consulting Inc v United States.doc, Final Clean Text: In sum, the court finds that plaintiff has standing to challenge the lawfulness of the DLA s decisio... File: 040 - Precision Asset Management Corp v United States.doc, Final Clean Text: The court GRANTS the government s motion to dismiss, see Doc. 27, and the clerk of court is directed... File: 041 - Innovative Test Asset Solutions LLC v United States.doc, Final Clean Text: For the reasons stated, Innovative Test s motion for judgment on the administrative record is DENIED... File: 042 - AvKare Inc v United States.doc, Final Clean Text: For the reasons set forth above, the Court concludes that AvKARE is unlikely to succeed on the merit... File: 043 - United States ex rel Garzione v PAE Government Services Inc.doc, Final Clean Text: For the above reasons, the Court finds and concludes that plaintiff has failed to state a claim unde... File: 044 - Phoenix Management Inc v United States.doc, Final Clean Text: For the foregoing reasons, the court GRANTS plaintiff s motion to supplement the administrative reco... File: 045 - Tri-County Contractors Inc v Perez.doc, Final Clean Text: For these reasons, the Court GRANTS the Department s motion for summary judgment and DENIES Tri-Coun... File: 046 - Higgins Electric Inc v O'Fallon Fire Protection Dist.doc, Final Clean Text: We affirm the judgment of the district court. \'3f \* co_allCitations_46 \* co_allCitations_46... File: 047 - United States v Vergez.doc, Final Clean Text: For the foregoing reasons, the movants \'3fPhilip Marsteller, Cherie Erickson, Kathy Rupp, Defense T... File: 049 - Lockheed Martin Corporation v United States.doc, Final Clean Text: Plaintiff s motion for a preliminary injunction is DENIED. On or before February 24, 2016, the court... File: 050 - Macaulay-Brown Inc v United States.doc, Final Clean Text: of the remand period on the status of the remand proceedings. \'3f IT IS SO ORDERED. \'3f \* co_allC... File: 051 - Caddell Construction Company v United States.doc, Final Clean Text: \'3f is not being challenged here. DOS determination that [* * *] full-time United States employees ... File: 052 - Avkare Inc v United States.doc, Final Clean Text: For the reasons discussed above, AvKARE s motion for judgment on the administrative record is DENIED... File: 053 - Caddell Construction Company v United States.doc, Final Clean Text: s found to be \'3f (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance... File: 055 - Dyncorp International LLC v United States.doc, Final Clean Text: For the reasons explained above, DynCorp s motion to supplement the administrative record with the J... File: 057 - Sims v United States.doc, Final Clean Text: For the reasons stated above, JRS s motion to supplement the administrative record is DENIED. JRS s ... File: 058 - Federal Acquisition Services Team LLC v United States.doc, Final Clean Text: For the reasons discussed above, plaintiff s motion for judgment on the administrative record is GRA... File: 059 - Professional Police Services Inc v Housing Authority of the City of Charlo.doc, Final Clean Text: s of law and the recommendation contained in this Memorandum must be filed within fourteen (14) days... File: 060 - Demien Const Co v O'Fallon Fire Protection Dist.doc, Final Clean Text: For the foregoing reasons, we affirm the district court s dismissal of Demien s complaint. \'3f \* c... File: 062 - Hymas v US.doc, Final Clean Text: Given our interpretive guidance in CMS and the plainly worded command of the FGCAA, I would uphold t... File: 063 - Wallace Asset Management LLC v United States.doc, Final Clean Text: In sum, Wallace has not met its heavy burden to show that it is entitled to a temporary restraining ... File: 064 - Martin Marietta Materials Inc v Kansas Dept of Transp.doc, Final Clean Text: that it had no property interest in remaining on the Approved List, and it concedes its property int... File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Final Clean Text: For these reasons, the Court will grant in part and deny in part Defendants Motion to Dismiss. A sep... File: 066 - Bona Fide Conglomerate Inc v Sourceamerica.doc, Final Clean Text: For the foregoing reasons, the Court hereby: (1) GRANTS Plaintiff s motion for leave to file a suppl... File: 067 - Itility LLC v United States.doc, Final Clean Text: For the reasons set forth above, the government s motion to dismiss the case for lack of subject-mat... File: 068 - Nexagen Networks Inc v United States.doc, Final Clean Text: In sum, Nexagen has failed to meet its burden to show that this Court possesses jurisdiction to ente... File: 069 - Octo Consulting Group Inc v United States.doc, Final Clean Text: . For the reasons discussed herein, Octo Consulting s October 15, 2015 Motion For Judgment On The Ad... File: 070 - Summit MultiFamily Housing Corporation v United States.doc, Final Clean Text: On the basis of the foregoing, the government s motion to dismiss the complaint is GRANTED and Plain... File: 071 - FFL Pro LLC v United States.doc, Final Clean Text: For the reasons set forth above: \'3f Plaintiff s motion for judgment on the administrative record i... File: 072 - US Security Associates Inc v United States.doc, Final Clean Text: Defendant s motion to dismiss for lack of jurisdiction is granted. All other motions are denied as m... File: 073 - Constellation West Inc v United States.doc, Final Clean Text: In case number 15 \'3f876C, DIA did not base its evaluation of protestor Constellation West s propos... File: 076 - Amidon Inc v United States.doc, Final Clean Text: In sum, Amidon has not met its heavy burden to show that it is entitled to a preliminary injunction ... File: 077 - Braseth Trucking LLC v United States.doc, Final Clean Text: For the reasons stated above, the Defendant s motion to dismiss is GRANTED as to Corwin but DENIED a... File: 078 - Excelsior Ambulance Service Inc v United States.doc, Final Clean Text: In sum, the court finds that injunctive relief is appropriate in this case. Accordingly, it is ORDER... File: 079 - FP-FAA Seattle LLC v United States.doc, Final Clean Text: . For reasons discussed herein, FP \'3fFAA s September 18, 2015 Motion For Judgment On The Administr... File: 080 - Haddad v United States.doc, Final Clean Text: For the foregoing reasons, the defendant s motions to dismiss case number 15 \'3f640C and case numbe... File: 081 - KWR Construction Inc v United States.doc, Final Clean Text: of the remand period on the status of the remand proceedings. \'3f IT IS SO ORDERED. \'3f \* co_allC... File: 082 - Tetzlaff v United States.doc, Final Clean Text: Because the court lacks subject matter jurisdiction with respect to plaintiff s APA, SBA, antitrust,... File: 083 - Cyios Corporation v United States.doc, Final Clean Text: The arguments CYIOS makes regarding the court s alleged errors regarding Factor 1 Technical/Risk and... File: 084 - Raymond Express International LLC v United States.doc, Final Clean Text: Plaintiff has failed to show that the contract awards to MPG and IDI were \'3farbitrary, capricious,... File: 086 - US Security Associates Inc Plaintiff v United States.doc, Final Clean Text: Because plaintiff has not established a likelihood of success on the merits nor shown irreparable ha... File: 087 - Springfield Parcel C LLC v United States.doc, Final Clean Text: For the reasons stated, Springfield s motion for judgment on the administrative record is GRANTED. T... File: 088 - Brumfield v Louisiana State Bd of Educ.doc, Final Clean Text: , it seems plain that DOJ s expressed concern \'3fhow the voucher program affects statewide public s... File: 089 - FCN Inc v United States.doc, Final Clean Text: We conclude that the Army s decision to exclude FCN from the competitive range was neither unreasona... File: 090 - AvKARE Inc v United States.doc, Final Clean Text: For the reasons set forth above, AvKARE s Motion to Supplement the Administrative Record is DENIED .... File: 091 - Raytheon Co v US.doc, Final Clean Text: We affirm the judgment of the Court of Federal Claims denying Raytheon s protest. \'3f No costs. \'3... File: 093 - Advanced Government Solutions Inc v United States.doc, Final Clean Text: Because AGS is not a prevailing party for the purposes of the EAJA, AGS s motion for fees and costs ... File: 094 - National Telecommuting Institute Inc v United States.doc, Final Clean Text: NTI could have filed this protest at least six months before it finally chose to do so. Instead, it ... File: 095 - Caddell Construction Company v United States.doc, Final Clean Text: Defendant s Motion for Judgment upon the Administrative Record is GRANTED IN PART , as the Court den... File: 096 - CMS Contract Management Services v United States.doc, Final Clean Text: For the reasons stated herein, the Court GRANTS Plaintiffs motion for bid preparation and proposal c... File: 097 - Square One Armoring Service Inc v United States.doc, Final Clean Text: Because plaintiff s bid protest is \'3ftrapped between the devil and the deep blue sea of ripeness a... File: 098 - EMTA Isaat AS v United States.doc, Final Clean Text: For the reasons stated above, EMTA s Motion for a Temporary Restraining Order and Preliminary Injunc... File: 099 - Crowley Technical Management Inc v United States.doc, Final Clean Text: For the reasons set forth above, plaintiff s MOTIONS for permanent injunctive relief and judgment on... File: 100 - Tenica And Associates LLC v United States.doc, Final Clean Text: Plaintiff seeks a preliminary injunction, but fails to explain how this court has jurisdiction over ... File: 02 - Morgan Business Associates Inc v U S.doc, Final Clean Text: in Keco II, supra, that in that instance simple negligence was not enough to establish a right to re... File: 03 - Burroughs Corp v U S.doc, Final Clean Text: would not be arbitrary and capricious. \* co_fnRef_B013131980107229_ID0E1ICI_3 \* co_fnRef_B01313198... File: 04 - Shermco Industries Inc v Secretary of Air Force.doc, Final Clean Text: that Tayko was the lowest bidder, and they were produced to the GAO in aid of their defense against ... File: 05 - Aero Corp v Department of the Navy.doc, Final Clean Text: that the kits cannot be designed, developed and produced in the required time frame. The air Force P... File: 06 - Sun Ship Inc v Hidalgo.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F71980107409_6" [7] \* co_anchor_B71980107409_6 \* co_anchor_B71980107409_6... File: 07 - Associated General Contractors of California v San Francisco Unified School.doc, Final Clean Text: The Board lacked authority to adopt its affirmative action policy because the policy was inconsisten... File: 09 - Allis-Chalmers Corp v Friedkin.doc, Final Clean Text: The Section incorrectly applied the six percent Buy-American differential to the Hitachi bid without... File: 10 - Tuxedo Contractors Inc v Swindell-Dressler Co.doc, Final Clean Text: was clearly erroneous. \'3f We are satisfied, then, that the District Court properly held that appel... File: 11 - Sun Ship Inc v Woolsey.doc, Final Clean Text: In accordance with the foregoing, the motion for a preliminary injunction is denied. Sun Ship has as... File: 12 - CSA Reporting Corp v Fanning.doc, Final Clean Text: For the reasons set forth above, the Court concludes that plaintiff is not entitled to an order prel... File: 13 - Audio Technical Services Ltd v Department of the Army.doc, Final Clean Text: ally. The cost of such an eventuality in terms of efficiency and quality of decisionmaking could be ... File: 14 - Passavant Corp v US Environmental Protection Agency Region II.doc, Final Clean Text: on such highly technical matters would unavoidably require a trial De novo on the issue, which the c... File: 16 - Charles N White Const Co Inc v Department of Labor.doc, Final Clean Text: that plaintiff has failed to demonstrate a substantial likelihood of success on the merits in a ruli... File: 19 - Uniroyal Inc v Marshall.doc, Final Clean Text: s, he ordered Uniroyal suspended from all existing contracts \'3funtil such time that it can satisfy... File: 20 - Churchill Chemical Corp v U S.doc, Final Clean Text: In view of the foregoing, it is concluded that the Board s determination, that the assessment of exc... File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Final Clean Text: is confirmed by an examination of the statutory scheme. Congress invested the head of every executiv... File: 22 - American Federation of Labor and Congress of Indus Organizations v Kahn.doc, Final Clean Text: of the district judge, expressed in his opinion, that the Congress has always occupied the field of ... File: 23 - De Matteo Const Co v U S.doc, Final Clean Text: Plaintiff s motion for summary judgment is denied; defendant s cross-motion for summary judgment is ... File: 24 - Sea-Land Service Inc v Brown.doc, Final Clean Text: . See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1978102722&pubN... File: 25 - Dick Corp v Associated Elec Co-op Inc.doc, Final Clean Text: s of law made herein. \'3f \* HYPERLINK "#co_anchor_F21979116912_25" [2] \* co_anchor_B21979116912_2... File: 26 - Zimpro Inc v US Environmental Protection Agency.doc, Final Clean Text: s of law made on a motion for a preliminary injunction are not controlling when a decision on the me... File: 27 - American Federation of Labor and Congress of Indus Organizations v Kahn.doc, Final Clean Text: There is no dispute that inflation is a vexing and festering domestic problem. It has plagued, witho... File: 28 - U S Brewers Ass'n Inc v Environmental Protection Agency.doc, Final Clean Text: that, regardless of the merits of the Brewers challenge, it has requested an inappropriate form of r... File: 30 - Old Dominion Dairy Products Inc v Brown.doc, Final Clean Text: s of law is intended in any way to affect plaintiff s rights and remedies in that or any other admin... File: 31 - T M Systems Inc v US.doc, Final Clean Text: is bolstered by the grave constitutional doubt concerning whether a state court has the power to enj... File: 32 - Bromley Contracting Co Inc v U S.doc, Final Clean Text: OF LAW Plaintiff is entitled to recover $76,505 ($368,389 - $291,884 = $76,505), the difference betw... File: 33 - Advo-System Inc v Kreps.doc, Final Clean Text: s of law. \* co_allCitations_33 \* co_allCitations_33... File: 34 - Glover Const Co v Andrus.doc, Final Clean Text: , \'3f said the Court, \'3fcan be reached only by formalistic reasoning that ignores both the histor... File: 35 - John W Danforth Co v Veterans Administration.doc, Final Clean Text: S OF LAW The Small Business Act of 1958 was enacted to protect the interest of small business concer... File: 37 - American General Leasing Inc v U S.doc, Final Clean Text: of the November 21 meeting the CO indicated that he would issue the following Monday, November 24, 1... File: 38 - Southern Packaging and Storage Co v US.doc, Final Clean Text: s found to be \'3f (A) arbitrary, capricious, and abuse of discretion, or otherwise not in accordanc... File: 39 - Art-Metal-USA Inc v Solomon.doc, Final Clean Text: that no valid grounds for debarment could be found. \* co_fnRef_B012121979181427_ID0EEABG_39 \* co_f... File: 40 - Kinnett Dairies Inc v Farrow.doc, Final Clean Text: that the contracting officer s determination was arbitrary and capricious rests on an incorrect perc... File: 41 - General Elec Co v Kreps.doc, Final Clean Text: . Plaintiff, even after extensive discovery permitted by the remand from the Court of Appeals and af... File: 42 - Barrier Industries Inc v Eckard.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F31978120548_42" [3] \* co_anchor_B31978120548_42 \* co_anchor_B31978120548... File: 43 - Trilon Educational Corp v US.doc, Final Clean Text: that the putative contracts were void ab initio . Procurement officers must find their way through a... File: 44 - American Elec Contracting Corp v U S.doc, Final Clean Text: Plaintiff s motion for summary judgment is denied; defendant s cross-motion for summary judgment is ... File: 45 - Cessna Aircraft Co v Brown.doc, Final Clean Text: if Congress had been completely silent on the subject or if they had not misread the decision of Con... File: 47 - Eastern Canvas Products Inc v Brown.doc, Final Clean Text: In sum, we do not say that bidding on competitive contracts is, as a matter of law, foreclosed to di... File: 48 - Shermco Industries Inc v Secretary of US Air Force.doc, Final Clean Text: that the contractors would be no more harmed in that situation than contractors would be harmed if, ... File: 49 - Glover Const Co v Andrus.doc, Final Clean Text: s of law are unnecessary on decisions of motions under \* HYPERLINK "https://www.westlaw.com/Link/Do... File: 50 - Tidewater Management Services Inc v U S.doc, Final Clean Text: OF LAW Upon the trial judge s findings and foregoing opinion, which are adopted by the court, the co... File: 51 - Rhode Island Chapter Associated General Contractors of America Inc v Kreps.doc, Final Clean Text: Congress in its considered judgment determined that it must pin-point its monies in construction con... File: 52 - Transcountry Packing Co v U S.doc, Final Clean Text: which had a rational basis, that Government should have known that plaintiff was nonresponsible at t... File: 54 - Dickey-John Corp v Bergland.doc, Final Clean Text: against granting a preliminary injunction is justified further because substantial harm will probabl... File: 55 - Libby Welding Co Inc v US.doc, Final Clean Text: . \'3f In support of its interpretation of this phrase regarding application of clauses in the solic... File: 56 - Northland Equities Inc v Gateway Center Corp.doc, Final Clean Text: , the court applied the standing test developed under the Administrative Procedure Act, \* HYPERLINK... File: 57 - City and County of San Francisco v US.doc, Final Clean Text: . There was no contemplation of use of the property for that purpose. If anything, this use would ha... File: 59 - Sovereign Const Co Ltd v City of Philadelphia.doc, Final Clean Text: is that Sovereign Construction Company is here as a disappointed bidder; Sovereign therefore has no ... File: 60 - Crown Zellerbach Corp v Marshall.doc, Final Clean Text: of the third hearing, the court granted a temporary restraining order, which restrained the governme... File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Final Clean Text: s of Law. An appropriate Order will be entered. \* co_allCitations_61 \* co_allCitations_61... File: 62 - Steuart Petroleum Co v US.doc, Final Clean Text: s of Law. \* co_anchor_If63dcb7a321e11e598dc8b09b4f04 \* co_anchor_If63dcb7a321e11e598dc8b09b4f04 \*... File: 65 - David Nassif Associates v U S.doc, Final Clean Text: that has been reached. For one thing, it is claimed that the cafeteria s patronage was adversely aff... File: 66 - Firestone Tire And Rubber Co v U S.doc, Final Clean Text: For the reasons given, plaintiffs motion for summary judgment should be denied, defendant s motion f... File: 67 - Grismac Corp v U S.doc, Final Clean Text: considerably diminishes the amount of detail as to the facts that need be stated. In the spring of 1... File: 68 - Nationwide Bldg Maintenance Inc v Sampson.doc, Final Clean Text: is the assumption that the potential personal benefit resulting from a successful Title II or Title ... File: 69 - Image Carrier Corp v Beame.doc, Final Clean Text: s of law, in accordance with \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L... File: 70 - City of Los Angeles v Adams.doc, Final Clean Text: that the city had a vested right to funds for the development of its airport, as allocated to it by ... File: 71 - Union Carbide Corp v Train.doc, Final Clean Text: are correct, there remains the important question whether the post-qualification procedure followed ... File: 72 - Sperry Flight Systems v U S.doc, Final Clean Text: For the reasons hereinbefore stated, plaintiff s motion for summary judgment is denied, defendant s ... File: 76 - Darin And Armstrong Inc v U S Environmental Protection Agency Region V.doc, Final Clean Text: s of Law pursuant to \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 77 - Rixon Electronics Inc v U S.doc, Final Clean Text: follows that the disclaimers as to the microfilm, with nothing to contradict them, are effective to ... File: 78 - International Tel And Tel Corp v U S.doc, Final Clean Text: : The United States Code was not enacted as a statute, nor can it be construed as such. It is only a... File: 80 - Myers And Myers Inc v U S Postal Service.doc, Final Clean Text: s based upon the record so made. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 81 - Scanwell Laboratories Inc v Thomas.doc, Final Clean Text: has also been reached by the Ninth Circuit in the recent case of \* HYPERLINK "https://www.westlaw.c... File: 82 - Brown v U S.doc, Final Clean Text: For the reasons stated above, this case is remanded to the trial division for further proceedings in... File: 83 - Bethlehem Steel Corp v U S.doc, Final Clean Text: is that even as stated the test does not fit the facts before us in such a way as to support the maj... File: 84 - Rossetti Contracting Co Inc v Brennan.doc, Final Clean Text: s. We do not reach the question of validity of those actions, since the facts and circumstances of t... File: 85 - Rossetti Contracting Co Inc v Brennan.doc, Final Clean Text: s of Law herein, in accordance therewith It is ordered, adjudged and decreed: 1. That defendant, the... File: 86 - Duke City Lumber Co v Butz.doc, Final Clean Text: At the expense of being repetitive, the Court finds the 1971 set-aside program pertains solely to th... File: 87 - Curtiss-Wright Corp v McLucas.doc, Final Clean Text: s of law expressed heretofore in this opinion, whether there are issues of fact remaining to be reso... File: 88 - McCarty Corp v U S.doc, Final Clean Text: OF LAW Upon the findings of fact and the foregoing opinion, which are adopted by the court and made ... File: 90 - Butz Engineering Corp v U S.doc, Final Clean Text: that the United States was to continue responsible for USPS activities is found in the remaining sec... File: 91 - Descomp Inc v Sampson.doc, Final Clean Text: s of law required by \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=... File: 92 - Excavation Const Inc v U S.doc, Final Clean Text: that plaintiff was the subject of arbitrary and capricious discrimination. Plaintiff differs with th... File: 93 - Colonial Metals Co v U S.doc, Final Clean Text: makes it unnecessary to consider the Government s contention, perhaps analytically antecedent to the... File: 94 - Rental Equipment Co Inc v Meridian Engineering Co Inc.doc, Final Clean Text: that the constitutional question should not be reached in terms of Rental s standing to raise it. Th... File: 97 - Keco Industries Inc v U S.doc, Final Clean Text: OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court ... File: 98 - M-R-S Mfg Co v U S.doc, Final Clean Text: The plaintiff does not attack the decision of the Board on grounds other than those mentioned above.... File: 99 - Emeco Industries Inc v U S.doc, Final Clean Text: OF LAW Upon the findings of fact and the foregoing opinion, which are adopted by the court and made ... File: 01 - Sylvania Elec Products Inc v U S.doc, Final Clean Text: s are correct as a matter of law. Accordingly, the plaintiff s motion for summary judgment is denied... File: 02 - Kentron Hawaii Ltd v Warner.doc, Final Clean Text: The award of the PMR service contract followed a lengthy and complicated procurement process. It is ... File: 03 - Dale Ingram Inc v U S.doc, Final Clean Text: We hold that the decision of the Board on all the issues was neither arbitrary nor capricious, and i... File: 04 - Northeast Const Co v Romney.doc, Final Clean Text: that the bid as submitted substantially complies with the invitation, which permits use of Appendix ... File: 05 - Merriam v Kunzig.doc, Final Clean Text: not shown to be based, at least so far as the opinion reveals, upon the underlying purposes or legis... File: 07 - Space Corp v U S.doc, Final Clean Text: by the Board. We find it difficult to give serious credence to plaintiff s final argument on Wunderl... File: 08 - Serv-Air Inc v Seamans.doc, Final Clean Text: s not reported, concluded that plaintiff had not made a showing which would permit the court to make... File: 11 - Wells v U S.doc, Final Clean Text: that the Lee Street Corporation s ability to obtain a 10-year lease, although plaintiff was unable t... File: 12 - Manloading And Management Associates Inc v U S.doc, Final Clean Text: of any fiscal year subsequent to the letting of the contract in the event that funds were not approp... File: 13 - Horne Bros Inc v Laird.doc, Final Clean Text: s based upon the record so made. \'3f The Government s regulations draw a distinction between \'3fde... File: 14 - Constructores Civiles de Centroamerica S A (CONCICA) v Hannah.doc, Final Clean Text: s. See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1962127597&pub... File: 15 - Albano Cleaners Inc v U S.doc, Final Clean Text: . Indeed, the evidence points the other way. For years, it was the judgment of knowledgeable officia... File: 16 - Continental Business Enterprises Inc v U S.doc, Final Clean Text: as to the proper administration and application of the procurement regulations [Slip op. at 22-23 (f... File: 17 - City Chemical Corp v Shreffler.doc, Final Clean Text: s of law under \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=100436... File: 19 - M Steinthal And Co v Seamans.doc, Final Clean Text: as to the proper administration and application of the procurement regulations. \* co_fnRef_B0393919... File: 20 - Shaw-Henderson Inc v Schneider.doc, Final Clean Text: s were unwarranted. Furthermore, final disposition and acceptance of the bids was vested in the City... File: 21 - A G Schoonmaker Co v Resor.doc, Final Clean Text: s of law of the District Court are substantial and accurate. I would affirm the District Court. \* c... File: 22 - Jamsar Inc v U S.doc, Final Clean Text: , defendant points out that the plaintiff s reading of paragraph 4 \'3f02, Schedule of Work, supra, ... File: 23 - Keco Industries Inc v U S.doc, Final Clean Text: had been reached that while the Air Force did not have actual knowledge that V-belt drive would be a... File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Final Clean Text: that appellant has standing to challenge the instant agency action. As we held in Scanwell Laborator... File: 25 - Chris Berg Inc v U S.doc, Final Clean Text: that acceptance of the bid would be unfair to the bidder or to other bona fide bidders. The attempts... File: 27 - Gorn Corp v U S.doc, Final Clean Text: of the proceedings of the Board, the plaintiff will report the result to the court and the parties w... File: 28 - George R Whitten Jr Inc v Paddock Pool Builders Inc.doc, Final Clean Text: does not, in our view, encroach on the freedom of speech and right to petition protected by the Firs... File: 29 - Scanwell Laboratories Inc v Shaffer.doc, Final Clean Text: For the foregoing reasons we hold that appellant has standing to bring suit in the district court, t... File: 30 - Ruggiero v U S.doc, Final Clean Text: is to impute to him, as what he should have known, all the facts as they developed in our own trial.... File: 31 - Poorvu v U S.doc, Final Clean Text: OF LAW Upon the foregoing findings of fact and opinion, which are adopted by the court and made a pa... File: 32 - Winder Aircraft Corp of Florida v U S.doc, Final Clean Text: of law of the commissioner, with a slight modification, it hereby adopts the same, as modified, as t... File: 33 - Leopold Morse Tailoring Co v U S.doc, Final Clean Text: s do not really rest on whether or not the cessation of supplies was justifiable. The plaintiff does... File: 34 - Superior Oil Co v Udall.doc, Final Clean Text: that Superior was the \'3fhighest responsible qualified bidder \'3f are amply supported by the evide... File: 35 - George Campbell Painting Corp v Reid.doc, Final Clean Text: of that court that the purported resignation should be disregarded for purposes of this case. \'3f A... File: 36 - WRB Corp v U S.doc, Final Clean Text: of law Upon the foregoing findings of fact, which are made a part of the judgment herein, the court ... File: 38 - National Movers Co v U S.doc, Final Clean Text: were found by the Board, and are supported by substantial evidence. \* HYPERLINK "#co_anchor_F219671... File: 39 - D And L Const Co And Associates v U S.doc, Final Clean Text: that United States, acting through Federal Housing Administration, was legally capable of accepting ... File: 40 - D And L Const Co And Associates v U S.doc, Final Clean Text: that the defendant was at all times cooperative and amenable to the plaintiff s proposals, as well a... File: 41 - Condec Corp v U S.doc, Final Clean Text: that the government was justified in accepting the modification is buttressed by the proviso in sect... File: 42 - Micrecord Corp v U S.doc, Final Clean Text: that could have been drawn by the contractor. Plaintiff received what it bargained for under the con... File: 45 - Thomson v U S.doc, Final Clean Text: of any binding arrangement. On the contrary, some of the most obvious assumptions laced through all ... File: 47 - Coastal Cargo Co v U S.doc, Final Clean Text: , we hold that plaintiff is entitled to recover an amount to be computed in accord with the terminat... File: 48 - Trans Intern Airlines Inc v U S.doc, Final Clean Text: , plaintiff is not, with regard to any of the three counts, entitled to recover. Therefore, the peti... File: 49 - Terminal Const Corp v U S.doc, Final Clean Text: of law \* co_pp_sp_999_21_49 \* co_pp_sp_999_21_49 **21 Upon the foregoing findings of fact, which a... File: 50 - Acme Process Equipment Co v U S.doc, Final Clean Text: is sustained by an examination of the specific claims which, according to plaintiff, were rejected i... File: 51 - Wender Presses Inc v U S.doc, Final Clean Text: of law and the case was submitted to the court on oral argument by counsel. Since the court is in ag... File: 53 - H And H Mfg Co Inc v US.doc, Final Clean Text: s of law Upon the foregoing findings of fact, which are made a part of the judgment herein, the cour... File: 55 - Commerce Intern Co v U S.doc, Final Clean Text: that any undue delays on defendant s part (with respect to the parts) have not been shown to have in... File: 56 - Southern Waldrip And Harvick Co v U S.doc, Final Clean Text: of law as filed by the commissioner, and as hereinafter set forth, it hereby adopts the same as the ... File: 58 - Gonzalez v Freeman.doc, Final Clean Text: would give rise to serious constitutional issues. See, e.g., \* HYPERLINK "https://www.westlaw.com/L... File: 59 - Air Terminal Services Inc v U S.doc, Final Clean Text: of its brief, asserts that it is entitled to a judgment in the total amount of its claim \'3fless th... File: 60 - Heers v U S.doc, Final Clean Text: that the \* co_pp_sp_289_312_60 \* co_pp_sp_289_312_60 *312 retention of the application fee represe... File: 61 - John Reiner And Co v U S.doc, Final Clean Text: is that plaintiff is entitled to recover $17,000 on its own claim and judgment will be entered to th... File: 62 - Brown And Son Elec Co v U S.doc, Final Clean Text: here on what he called \'3fthe unusual circumstances in this case. \'3f The contracting officer was ... File: 63 - Goldwasser v U S.doc, Final Clean Text: that this act of cancellation should be treated as a termination for the convenience of the Governme... File: 64 - WPC Enterprises Inc v U S.doc, Final Clean Text: . As the author of the defect in the drafting which led plaintiff to the reasonable supposition that... File: 65 - Prestex Inc v U S.doc, Final Clean Text: . Specification MIL \'3fD \'3f1645 required that the yarn for filling be four-ply and that the threa... File: 67 - Anthony P Miller Inc v U S.doc, Final Clean Text: is thus evident that plaintiff by his bid and his letters of January 17 and January 22, 1959, agreed... File: 68 - U S for Use and Benefit of Victory Elec Corp v Maryland Cas Co.doc, Final Clean Text: that it has no jurisdiction over these claims under any interpretation of the Miller Act because the... File: 69 - Paul v US.doc, Final Clean Text: in Part III of the Court s opinion that it is not now possible to undertake final resolution of the ... File: 71 - US v Gray Line Water Tours of Charleston.doc, Final Clean Text: s of law. His judgment will be affirmed. Affirmed. \* co_allCitations_71 \* co_allCitations_71... File: 74 - Somers Const Co v Board of Ed for Southern Gloucester County Regional High .doc, Final Clean Text: . Our observations as to the second count bear repeating here. The plaintiff has again failed to est... File: 76 - Toregas v Susser.doc, Final Clean Text: s are set aside, the subject matter thereof to await full development of the facts and consideration... File: 78 - United States v Mississippi Valley Generating Co.doc, Final Clean Text: or with any of \* co_pp_sp_708_319_78 \* co_pp_sp_708_319_78 **319 the findings of the Hearing Exami... File: 80 - Heyer Products Co v US.doc, Final Clean Text: s: \'3f1. Tests on low voltage circuit testers \'3fB \'3f, \'3fE \'3f and \'3fF \'3f were either dis... File: 82 - Public Utilities Commission of State of Cal v US.doc, Final Clean Text: that Congress has directed procurement officers to by-pass state minimum-price or rate regulation. I... File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Final Clean Text: of Law Upon the foregoing findings of fact, which are made a part of the judgment herein, the court ... File: 88 - Heyer Products Co v US.doc, Final Clean Text: that the Government made a contract with plaintiff to give him fair consideration. On the other hand... File: 89 - Friend v Lee.doc, Final Clean Text: , assuming arguendo that that case is applicable to situations like the present. \* co_fnRef_B005519... File: 95 - Zephyr Aircraft Corp v US.doc, Final Clean Text: upon the whole case is that the conduct of the Government s officials who had the responsibility for... File: 98 - Lym-Horman Const Co v US.doc, Final Clean Text: of the meeting it was said to be agreed by all who attended the meeting that the main causes of dela... File: 99 - Martinolich v US.doc, Final Clean Text: from anything which the defendant s contracting officer said or did. \'3f Even if such a representat... File: 01 - Pfotzer v US.doc, Final Clean Text: , as well as that of the area engineer, was that no actual increased costs were incurred. Plaintiff ... File: 02 - Penn Foundry And Mfg Co Waynesboro Va v US.doc, Final Clean Text: effective by sending the telegram of February 24. We think that the Government made a contract with ... File: 06 - Leitman v US.doc, Final Clean Text: that he could cut a helmet lining out of two feet of leather. Gurwin thereupon sent the following te... File: 07 - Massman Const Co v US.doc, Final Clean Text: , it is the opinion of this office that there is doubt whether the contractor did in fact make the m... File: 08 - Virginia Engineering Co v US.doc, Final Clean Text: cannot be reached that there were unknown conditions of an unusual nature differing materially from ... File: 11 - Pacific Air Transport v US.doc, Final Clean Text: that it was in the public interest to annul and cancel all existing route certificates and he did so... File: 15 - Perkins v Lukens Steel Co.doc, Final Clean Text: which we have reached, that a suit of this character cannot be maintained. \'3f \* co_fnRef_B0262619... File: 16 - Ship Construction And Trading Co v US.doc, Final Clean Text: that there was no contract between the parties upon which a suit for damages could be based, it is u... File: 17 - Alta Electric And Mechanical Co v US.doc, Final Clean Text: is obvious that the low bidder must have made an error in his computation. \'3f Upon the facts shown... File: 18 - Graybar Electric Co v US.doc, Final Clean Text: that the acts and decisions of the Comptroller General, for which the Government must be held respon... File: 20 - Northeastern Const Co v City of Winston-Salem.doc, Final Clean Text: that there was no binding contract, it is not necessary to discuss here. The plaintiff advertised fo... File: 23 - Harris Bros Co v US.doc, Final Clean Text: of law, and judgment will therefore be entered for the plaintiff in the sum of $99, \'3f It is so or... File: 26 - City of Hutchinson v Kansas Bitulithic Co.doc, Final Clean Text: of the pleader from the fact that the city engineer commended the paving, and that there is no evide... File: 27 - Fowler for Use of Exeter Mach Works Inc v US.doc, Final Clean Text: rest on it alone, but that we should consider the merits of the case on other questions presented. \... File: 32 - US Wood Preserving Co v Sundmaker.doc, Final Clean Text: to be drawn from the bill is that it was accepted because it was adjudged to contain a larger amount... File: 34 - Turner v Fremont.doc, Final Clean Text: reached is that the decree of the Circuit Court was right, and it is affirmed. \* co_allCitations_34... File: 35 - Scott v US.doc, Final Clean Text: can be reached, which necessarily requires reasonable time. When a government official has proceeded... File: 37 - Lord v US.doc, Final Clean Text: than that the petition should be dismissed. \'3f Petition dismissed and judgment ordered for the def... File: 38 - Ceballos v US.doc, Final Clean Text: that the second counterclaim of $12,778.75 must be rejected; that there was an overpayment for certa... File: 40 - Beach v US.doc, Final Clean Text: s of the court is intended to prejudice plaintiff in any right he may assert against individuals or ... File: 41 - City of Mankato v Barber Asphalt Paving Co.doc, Final Clean Text: . As a result of all we are satisfied that the judgment below was for the right party, and should be... File: 42 - Sanger And Moody v US.doc, Final Clean Text: s of law: \'3f First. That the claimants are not entitled to have the contract re-formed so as to in... File: 43 - Moran Bros Co v US.doc, Final Clean Text: of law. \'3f \* co_allCitations_43 \* co_allCitations_43... File: 47 - Moffett Hodgkins And Clarke Co v City of Rochester.doc, Final Clean Text: that the complainant did not intend to give the board an opportunity to correct the mistakes is base... File: 49 - McMullen v Hoffman.doc, Final Clean Text: upon the parties to the agreement. There are several old and very familiar maxims of the common law ... File: 50 - Moffett Hodgkins And Clarke Co v City of Rochester.doc, Final Clean Text: that the taking of a bond that made Griswold absolutely liable as surety for any amount adjudged to ... File: 51 - Hoffman v McMullen.doc, Final Clean Text: s reached upon this branch of the case render it unnecessary to consider the question argued by coun... File: 52 - Colorado Paving Co v Murphy.doc, Final Clean Text: that Alcatraz asphalt was inferior to the asphalt accepted, and was unfit for use for paving purpose... File: 56 - Worthington v City of Boston.doc, Final Clean Text: has been reached independently of the fact that some years before the present transaction the city p... File: 57 - US ex rel International Contracting Co v Lamont.doc, Final Clean Text: that the acceptance by the War Department of the relator s bid containing a reasonable modification ... File: 62 - Schneider v US.doc, Final Clean Text: is in accordance with the construction uniformly placed upon unilateral contracts by this court. \* ... File: 63 - Cobb Blasdell And Co v US.doc, Final Clean Text: s; that there was an emergency existing at the time when the claimants contract was made, and that t... File: 64 - Hitchcock v City of Galveston.doc, Final Clean Text: s to which I have come. See note to Case No. 6,532. \* co_allCitations_64 \* co_allCitations_64... File: 66 - Driscoll v US.doc, Final Clean Text: , I would quote from the opinion of Mr. Justice Hunt in the case of \* HYPERLINK "https://www.westla... File: 67 - McKee v US.doc, Final Clean Text: s reached by the majority of the court. Peck, J., agreed in the opinion read by Nott, J., except tha... File: 70 - Cobb v US.doc, Final Clean Text: s reached by the majority of the court. \'3f 1. There was no contract between the claimant and the d... File: 71 - Thompson v US.doc, Final Clean Text: is inevitable that the Government connot be charged as a party to a contract where the other party c... File: 72 - Harvey v US.doc, Final Clean Text: that the claimants never intended to do the work of building the coffer-dams; and that when they est... File: 73 - Adams v US.doc, Final Clean Text: of law: \'3f The defendants were entitled to have the corn weighed and inspected by their receiving ... File: 75 - Salomon v US.doc, Final Clean Text: s are: \'3f 1. That the contract, being unfulfilled, it was competent for the defendants agents to w... File: 76 - Strong v US.doc, Final Clean Text: , upon the following grounds, that the claimants have no right of action. \'3f \* co_pp_sp_289_143_7... File: 77 - Wentworth v US.doc, Final Clean Text: . In this case the requisition was not issued until the 22d of December, 1864, and the bids accepted... File: 78 - People's Pass R Co of Memphis v Memphis City R Co.doc, Final Clean Text: submit to the court that the matters set forth in the answer call for the interposition of the court... File: 83 - Baker v US.doc, Final Clean Text: s as to allow the plans of a campaign to be thwarted, nor an army paralyzed in its movements by requ... File: 84 - Fowler v US.doc, Final Clean Text: reached? If so, what constitutes an exigency? By what amount of public interest, convenience, or nec... File: 85 - Mowry v US.doc, Final Clean Text: of the majority of the court, because I believe that this is a case where the contract should have b... File: 86 - Crowell v US.doc, Final Clean Text: of the Roman Twelve Tables, \'3f Salus populi suprema lex. \'3f But here the Surgeon General was \* ... File: 87 - Stevens v US.doc, Final Clean Text: s; and we will uphold his contracts, unless it is shown that the emergency was not real, or that the... File: 88 - Reeside v US.doc, Final Clean Text: s or producing final results. Arbitrament always implies mutual submission of the dispute. In our ca... File: A G Schoonmaker Co v Resor.doc, Final Clean Text: s of Law filed herewith, and the Court being fully advised in the premises and having determined tha... File: ABC Management Services Inc v Clements.doc, Final Clean Text: S OF LAW \* HYPERLINK "#co_anchor_F11973107944_1" [1] \* co_anchor_B11973107944_1 \* co_anchor_B1197... File: Adamo Wrecking Co v Department of Housing and Urban Development.doc, Final Clean Text: that this is what occurred here. \'3f \* HYPERLINK "#co_anchor_F61976126233_1" [6] \* co_anchor_B619... File: Aero Corp v Department of the Navy.doc, Final Clean Text: s and judgments. Yet defendant has relied on Lockheed s contrary advice throughout this litigation, ... File: Agan v Pierce.doc, Final Clean Text: . In that case, a manufacturer s representative was debarred from doing any business with the Depart... File: Air Terminal Services Inc v Department of Transp.doc, Final Clean Text: s of Law In \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=197311058... File: Airco Inc v Energy Research and Development Administration.doc, Final Clean Text: . \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1971114076&pubNum=3... File: Allstate Leasing Corp v Board of County Comrs Rio Arriba County N M.doc, Final Clean Text: reached by the trial court on this point which was that the Purchases Act as it then existed was not... File: Aloha Dredging and Const Co v Heatherly.doc, Final Clean Text: s it supposes OHA reached, that: (1) plaintiff could not perform the contract but for co-indemnifica... File: Amdahl Corp v Baldrige.doc, Final Clean Text: Because the Court finds that there is no \'3fintimate involvement \'3f between the government and th... File: American Conveyor Corp v Municipality of Guanica.doc, Final Clean Text: , plaintiff s claims for monetary, declaratory and injunctive relief based on the Housing and Commun... File: American Federation of Government Emp Local 1858 v Callaway.doc, Final Clean Text: s of Law entered contemporaneously herewith, the court grants the motion for preliminary injunction ... File: American Federation of Government Emp v Hoffmann.doc, Final Clean Text: For the foregoing reasons plaintiffs motion for a permanent injunction is hereby denied, the prelimi... File: American Yearbook Co v Askew.doc, Final Clean Text: reached by the New Jersey Supreme Court in the Sills case. The implications of that decision are tro... File: Armstrong And Armstrong Inc v U S By and Through Morton (1).doc, Final Clean Text: reached above. It should be \* co_pp_sp_345_520_1 \* co_pp_sp_345_520_1 *520 noted that the apparent... File: Associated General Contractors of California Inc v City and County of San Francisco.doc, Final Clean Text: in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1981122696&pubNum=... File: Astro Resources Corp v Ionics Inc.doc, Final Clean Text: from such investigation. \'3f Id. \'3f \* HYPERLINK "#co_anchor_F51984103593_1" [5] \* co_anchor_B51... File: ATL Inc v US.doc, Final Clean Text: is thwarted by \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&pubNum=100054... File: Baird Corp v Marsh.doc, Final Clean Text: ... \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=1971114156&p... File: Barr v Rhodes.doc, Final Clean Text: that until the Supreme Court expressly overruled Gnerich v. Rutter, supra, and Webster v. Fall, supr... File: Barrett v Craven County Bd of Ed.doc, Final Clean Text: s, it is ordered that Summary Judgment be and it is hereby entered in defendants favor as to each is... File: Berkeley Unified School Dist of Alameda County Cal v James I Barnes Const Co.doc, Final Clean Text: s of law, judgment in favor of the defendants, James I. Barnes Construction Company, a co-partnershi... File: Black Hotel Co v Froehlke.doc, Final Clean Text: s found to be-(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with... File: Bollinger Mach Shop And Shipyard Inc v US.doc, Final Clean Text: that the 20 for 12-cylinder substitution was permissible. The Coast Guard s reading of this clause a... File: Brookhaven Housing Coalition v Solomon.doc, Final Clean Text: s of law on the trial record made before Judge Judd. In May of 1977, Judge Pratt filed an extensive ... File: BSP Division of Envirotech Corp v US Environmental Protection Agency.doc, Final Clean Text: clearly had its basis in EPA regulations which limit bid protests to \'3falleged violation of the pr... File: Burtz-Durham Const Co v US.doc, Final Clean Text: that acceptance would be unfair to the bidder or other bona fide bidders. The bid submitted by appel... File: Caddell Const Co Inc v Lehman.doc, Final Clean Text: , it is clear that this Court does not possess the requisite subject matter jurisdiction in this cas... File: Caribbean Tubular Corp v Fernandez Torrecillas.doc, Final Clean Text: on Congress original intention to include the government of Puerto Rico within the purview of the Bu... File: Century Metal Parts Corp v US.doc, Final Clean Text: that the government sought bids on the AB-21/GR and no other item. \* co_fnRef_B00331979116797_ID0ES... File: Cincinnati Electronics Corp v Kleppe.doc, Final Clean Text: s with respect to these matters, and we do not consider them. \* HYPERLINK "#co_anchor_F101975109422... File: City of Lakeland Fla v Union Oil Co of Cal.doc, Final Clean Text: s expressed in this opinion. \* co_allCitations_1 \* co_allCitations_1... File: Clement Martin Inc v Dick Corp.doc, Final Clean Text: that it fails to state a cause of action upon which relief can be granted. \'3f \* HYPERLINK "#co_an... File: Cofan Associates Inc v US.doc, Final Clean Text: Defendant s motion for summary judgment is granted, and plaintiff s motion for summary judgment is d... File: Colorado Central Power Co v Municipal Power Development Co.doc, Final Clean Text: s of law may be presented at convenience of counsel. \* co_allCitations_1 \* co_allCitations_1... File: Community Economic Development Corp Inc v US.doc, Final Clean Text: significantly, for although foreclosure was postponed, title to the premises remained in a precariou... File: Contel Const Corp v Parker.doc, Final Clean Text: of the original bidding. As a general proposition, this argument would no doubt be sound, as applied... File: Cubic Western Data Inc v New Jersey Turnpike Authority.doc, Final Clean Text: s of law in accordance with \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&... File: Curtis Ambulance of Florida Inc v Board of County Comrs of Shawnee County Kan.doc, Final Clean Text: For the foregoing reasons, the decision of the district court dismissing Curtis complaint is AFFIRME... File: Curtiss-Wright Corp v McLucas.doc, Final Clean Text: . But because the Air Force has not submitted this contract for consideration by way of an SF-98, no... File: Delta Data Systems Corp v Webster.doc, Final Clean Text: s concerning the lawfulness of the FBI s actions. \* co_fnRef_B020201984130215_ID0EHXAG_1 \* co_fnRe... File: Delta Elec Const Co Inc v US.doc, Final Clean Text: S OF LAW 1. The Court has jurisdiction of this suit under \* HYPERLINK "https://www.westlaw.com/Link... File: Doe v Devine.doc, Final Clean Text: The central issue in this case is whether OPM was arbitrary or capricious in accepting BC s proposal... File: Drainage Dist No 1 of Lincoln County Neb v Rude.doc, Final Clean Text: that its language is not susceptible of the interpretation claimed for it by the defendants. It may ... File: Dynalectron Corp v US.doc, Final Clean Text: s of Law on Plaintiff s Motion for Preliminary Injunction rendered February 25, 1987, it is, this 25... File: Electro-Nucleonics Inc v Goodyear Aerospace Corp.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F71980107307_1" [7] \* co_anchor_B71980107307_1 \* co_anchor_B71980107307_1... File: Ellis v City of Grand Rapids.doc, Final Clean Text: ? \'3f With respect to the first issue, if St. Mary s Hospital is the successful bidder, it is appar... File: Estey Corp v Matzke.doc, Final Clean Text: Accordingly, plaintiff s complaint for declaratory and injunctive relief is dismissed: (1) for plain... File: Fabrizio And Martin Inc v Board of Ed Central School Dist No 2 of Towns of Bedford Et Al.doc, Final Clean Text: , there is no basis for this item. As to the Second Counterclaim, namely, completion cost excess ove... File: Field v Barber Asphalt Pav Co.doc, Final Clean Text: s I have reached are not entirely satisfactory to myself, but they are more nearly so than if I were... File: Flight Intern Group Inc v Federal Reserve Bank of Chicago.doc, Final Clean Text: The Court DENIES the motion of defendant Federal Reserve Bank of Chicago to dismiss for lack of pers... File: Fortec Constructors v Kleppe.doc, Final Clean Text: s of law. Accordingly, it is by the Court this 2nd day of October 1972 Ordered that defendants motio... File: Gamewell Co v City of Phoenix.doc, Final Clean Text: . It should be added that the facts as to Allen s activities were not denied. Several city employees... File: Gary Aircraft Corp v U S.doc, Final Clean Text: For these reasons the Court denies Plaintiff s Motion for a Preliminary Injunction and Defendants an... File: General Elec Co v Seamans.doc, Final Clean Text: This Court is cognizant of its position in the governmental scheme in relation to the Executive and ... File: General Engineering Corp v Virgin Islands Water and Power Authority.doc, Final Clean Text: might not follow so readily if there were any suggestion in this case of fraud or collusion: if, for... File: Gilbert Cent Corp v Kemp.doc, Final Clean Text: was based on two factual findings. First, KDOT concluded that the fourteen letters and five phone ca... File: Goldhaber v Foley.doc, Final Clean Text: It is, perhaps, not inappropriate to conclude with some personal remarks. By virtue of my experience... File: GTE Intern Inc v Hunter.doc, Final Clean Text: s of law, the Court DENIES the Federal defendant s Motion to Dismiss, and hereby DECLARES the action... File: Harkcon Inc v United States.doc, Final Clean Text: For the reasons stated above, Harkcon has failed to meet its burden of showing that the administrati... File: Harris Corp v US.doc, Final Clean Text: that the Magnavox award lacked a rational basis. The Court understands that Harris is not required t... File: Health Care Service Corp v Califano.doc, Final Clean Text: that the method of assessment was defective. Such an argument is mere speculation. Plaintiffs have f... File: Henry Spen And Co Inc v Laird.doc, Final Clean Text: on the fact that, by not signing its bid, Union Oil-the high bidder-gave itself the option of claimi... File: Hicks v Town of Hudson.doc, Final Clean Text: s covering the issues presented by the pleadings. We have carefully reviewed those findings and they... File: HLI Lordship Industries Inc v Committee for Purchase From Blind and Other Severely Handicapped.doc, Final Clean Text: s, the court finds it unnecessary to address the Committee s contentions that Lordship did not exhau... File: Horne Bros Inc v Laird.doc, Final Clean Text: s based upon a record so made. \'3f \* HYPERLINK "#co_anchor_F61972105052_1" [6] \* co_anchor_B61972... File: Housing Authority of City of Opelousas La v Pittman Const Co.doc, Final Clean Text: s we are not unmindful of the limitations inherent in administrative action of a public body. The me... File: Huntington Beach Union High School Dist v Continental Information Systems Corp.doc, Final Clean Text: S OF LAW \* HYPERLINK "#co_anchor_F51978122280_1" [5] \* co_anchor_B51978122280_1 \* co_anchor_B5197... File: Illinois Power And Light Corporation v City of Centralia Ill.doc, Final Clean Text: is entirely applicable also to that covenant whereby the city binds itself not to sell, loan, or lea... File: In re D Federico Co Inc.doc, Final Clean Text: : (A) public agency cannot thwart the policy of \* HYPERLINK "https://www.westlaw.com/Link/Document/... File: International Assn of Firefighters Local F-100 v US Dept of the Navy Naval Ed and Training Center N.doc, Final Clean Text: Although the Plaintiff has standing under Count I to contest the decision of the Navy to cancel the ... File: International Engineering Co v Richardson.doc, Final Clean Text: s of Law and a separate Order. \* co_anchor_Ie29284d59ad711eabea3f0dc9fb69 \* co_anchor_Ie29284d59ad... File: Jets Services Inc v Hoffman.doc, Final Clean Text: , the Court holds that plaintiff s preliminary injunction motion must be denied (1) because plaintif... File: Keco Industries Inc v Laird.doc, Final Clean Text: s. \* co_allCitations_1 \* co_allCitations_1... File: Kostelac v US.doc, Final Clean Text: , which is apparently contrary to the stipulation of the parties, unless it was the court s view tha... File: L And H Sanitation Inc v Lake City Sanitation Inc.doc, Final Clean Text: that there has been any constitutional deprivation of property without due process of law within the... File: Lametti And Sons Inc v City of Davenport Iowa.doc, Final Clean Text: , but the Court does not feel bound by the Comptroller s interpretation \* co_pp_sp_345_717_1 \* co_... File: Layne-Western Co v Buchanan County.doc, Final Clean Text: operates to effect an apparent hardship upon the appellant. Upon this we can add nothing to what the... File: Lewis v Elliott.doc, Final Clean Text: . \'3f Defendants Mem. at 3. \'3fJudicial \'3f proceedings can include quasi-judicial proceedings, s... File: Lloyd Wood Const Co v Sandoval.doc, Final Clean Text: of review proceedings in order \* co_pp_sp_345_1172_1 \* co_pp_sp_345_1172_1 *1172 to prevent irrepa... File: Lombard Corp v Resor.doc, Final Clean Text: s of Law Based upon the foregoing findings of fact, the Court concludes as a matter of law: 1. The C... File: McJunkin Corp v City of Orangeburg.doc, Final Clean Text: of the case the Judge declared that it was unnecessary to rule on the admissibility of this testimon... File: McMullen v Hoffman.doc, Final Clean Text: when the case was considered upon exceptions to the answer. The contract with the city was, as betwe... File: McQuiston v Marsh.doc, Final Clean Text: Because of the unresolved issues in this record, we reverse and remand to the district court to make... File: Merriam v Kunzig.doc, Final Clean Text: s and Recommendation . Three responsive offers have been received. The offer by the owners of the Ga... File: Michigan Road Builders Assn Inc v Milliken (1).doc, Final Clean Text: s as those that were submitted by various commissions to Congress on the effectiveness of \'3f 8(a).... File: Michigan Road Builders Assn Inc v Milliken.doc, Final Clean Text: s of law. \'3f As reflected in the careful wording of their Amended Complaint, Plaintiffs do not dis... File: Miller v City of Broken Arrow Okl.doc, Final Clean Text: relied upon by the trial court is correct, hold and conclude that one or more additional grounds adv... File: Missouri Public Service Corp v Fairbanks Morse And Co.doc, Final Clean Text: s have been reached: (1) The contracts involved in the construction of the proposed municipal lighti... File: Molina Healthcare of California Inc v United States.doc, Final Clean Text: Nothing has changed on the risk corridors front in the six months since the Court issued the \* HYPE... File: Morgan Associates v US Postal Service (1).doc, Final Clean Text: that the bid of Nab-Lord is responsive and that the award could not be made to protestant. The prote... File: Mother Goose Nursery Schools Inc v Sendak.doc, Final Clean Text: s of Law In order to sustain a motion for summary judgment under \* HYPERLINK "https://www.westlaw.c... File: Motorola Inc v Adams.doc, Final Clean Text: s of Law. Let Judgment be entered accordingly. \* co_allCitations_1 \* co_allCitations_1... File: National Forge Co v US.doc, Final Clean Text: The motion for an injunction pending appeal is denied. \'3f \* co_allCitations_1 \* co_allCitations_... File: National Wrecking Co v Spangler Jennings Spangler And Dougherty.doc, Final Clean Text: We conclude that the district court correctly determined that, under the law of Indiana, National di... File: Nev-Cal Elec Securities Co v Imperial Irr Dist.doc, Final Clean Text: , we desire to advert to the salutary reluctance displayed by the courts \'3f especially, as we have... File: New York Telephone Co v Secretary of Army.doc, Final Clean Text: s of law, plaintiff s motion for a preliminary injunction is denied. Defendants motion to dismiss is... File: Noa Airscrew Howden Inc v Department of Army.doc, Final Clean Text: \'3f that the solicitation should not be sent to Able. \'3f Section 15.403 of 48 C.F.R. provides tha... File: Noce v Edward E Morgan Co.doc, Final Clean Text: is that the court below was justified in enjoining the defendant from charging the plaintiff and its... File: Nolan Contracting Inc v Regional Transit Authority.doc, Final Clean Text: s of law in accordance with \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L&... File: OBrien v Carney.doc, Final Clean Text: is that on the authorities these ministerial acts of the respondents are not subject to judicial rev... File: OReilly v City of Cambridge.doc, Final Clean Text: . Chief reliance has been placed upon the decision of that court in \* HYPERLINK "https://www.westla... File: Owen of Georgia Inc v Shelby County.doc, Final Clean Text: this Court can reach is that \'3fgood cause \'3f refers to these particular reasons or circumstances... File: Pace Co Division of Ambac Industries Inc v Department of Army of U S.doc, Final Clean Text: s found to be- \'3f \'3f(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accor... File: Pacific Bridge Co v Clackamas County.doc, Final Clean Text: , the county court of Clackamas county was authorized to contract with the plaintiff for this extra ... File: Peerless Cas Co v Housing Authority of Hazelhurst Ga.doc, Final Clean Text: of the argument the court stated: \'3fWell, I tell you what I am going to do. I think it is a very v... File: Pittman Const Co v Housing Authority of Opelousas.doc, Final Clean Text: s The original complaint asks that the Opelousas Housing Authority be enjoined from awarding and exe... File: Potts v City of Utica.doc, Final Clean Text: , I would recommend that a bond issue be authorized in the sum of Sixty Thousand ($60,000) Dollars. ... File: Prudential-Maryland Joint Venture Co v Lehman.doc, Final Clean Text: Plaintiff has made a number of other miscellaneous arguments which it claims supports the position t... File: Randolph-Sheppard Vendors of America v Weinberger.doc, Final Clean Text: This Court has jurisdiction to consider the claim that these government procurements violate the \* ... File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Final Clean Text: s of Law \* HYPERLINK "#co_anchor_F11971107208_1" [1] \* co_anchor_B11971107208_1 \* co_anchor_B1197... File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Final Clean Text: that the SBA s powers under section 8(a) of the Small Business Act may be used only in periods of em... File: Rayco Const Co Inc v Vorsanger.doc, Final Clean Text: s of the Court were incorporated in a Decree which was filed on June 23, 1975 with the Court reservi... File: Roemer v Hoffmann.doc, Final Clean Text: s of law therein set forth, IT IS HEREBY ORDERED, ADJUDGED AND DECREED: 1. The action of defendant B... File: Royal Services Inc v Maintenance Inc.doc, Final Clean Text: that Maintenance was not controlled by the Loftins in March and May, 1964. ASPR 1-703 in part reads:... File: Royal Sundries Corp v US.doc, Final Clean Text: not deemed to be admitted on this motion, in the absence of an allegation of the basis for an assert... File: Rudolph F Matzer And Associates Inc v Warner.doc, Final Clean Text: S OF LAW \* co_anchor_I0a592bdd9ad811eabea3f0dc9fb69 \* co_anchor_I0a592bdd9ad811eabea3f0dc9fb69 Sta... File: Saligman v US.doc, Final Clean Text: s of Law 1. There is no competent evidence submitted to show that the defendant knew or should have ... File: Savini Construction Co v Crooks Brothers Construction Co.doc, Final Clean Text: of the project. The likelihood that one such event would occur in the absence of a profit incentive ... File: Simpson Elec Co v Seamans.doc, Final Clean Text: was at odds with the finding of the contracting officer, if was not within its terms arbitrary or ir... File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Final Clean Text: s of law reached in this opinion the Court will issue: \'3f a. A declaratory judgment declaring that... File: Southeast Training Corp v Donovan.doc, Final Clean Text: was reached. The government presented evidence that the concerns raised by Mr. Chamblers were in fac... File: Sperry Corp and its Sperry Univac Div v City of Minneapolis.doc, Final Clean Text: s of the local trial judge on questions of state law (citation omitted). \'3f \* HYPERLINK "https://... File: Szmodis v Romney.doc, Final Clean Text: s of law required by Rule 52(a). ORDER And now, this 3rd day of November, 1969, it is ordered that t... File: Trump v Mason.doc, Final Clean Text: s of law and an appropriate order reflecting the Court s opinion. \* co_allCitations_1 \* co_allCita... File: U S ex rel Brookfield Const Co v Stewart.doc, Final Clean Text: inescapably follows that this Court may not interfere and require a reconsideration of the plaintiff... File: U S ex rel Laino v Warden of Wallkill Prison.doc, Final Clean Text: is untenable. Since the appearance was at a point so close in time to the prior one, before the same... File: U S for Use and Benefit of Victory Elec Corp v Maryland Cas Co.doc, Final Clean Text: . On the contrary, the intention to benefit the plaintiffs seems quite clear. Consequently, the meas... File: U S v Brookridge Farm.doc, Final Clean Text: that there was no competition, that an undue advantage was taken by Brookridge , that it placed its ... File: U S v Iovacchini Bros.doc, Final Clean Text: that the investigation under the circumstances had been so inadequate as to warrant a finding that t... File: US v Certain Land Situate in St Charles County Mo.doc, Final Clean Text: s of Law. \* HYPERLINK "#co_anchor_F261942121305_1" [26] \* co_anchor_B261942121305_1 \* co_anchor_B... File: US v Conti.doc, Final Clean Text: of the government s case the trial judge granted the defendant s motion for a directed verdict and s... File: US v Hangar One Inc.doc, Final Clean Text: s. Under the circumstances of the case, the court disagrees. Of course, the court is mindful of the ... File: US v Lipman.doc, Final Clean Text: of law in the case. And now, May 25, 1954, it is directed that judgment be entered in favor of the d... File: US v National Optical Stores Co.doc, Final Clean Text: that \'3fnotice of acceptance \'3f contemplates notice sufficient to toll the 90-day limit imposed b... File: US v Pan-American Petroleum Co.doc, Final Clean Text: s of law which I have filed with this opinion and under the rule of this court. \* co_allCitations_1... File: US v Paul.doc, Final Clean Text: s of law in accordance with the views herein expressed. \* co_allCitations_1 \* co_allCitations_1... File: US v Russell Elec Co.doc, Final Clean Text: S OF LAW \* HYPERLINK "#co_anchor_F291965112077_1" [29] \* co_anchor_B291965112077_1 \* co_anchor_B2... File: US v Sabin Metal Corp.doc, Final Clean Text: s of Law. 1. The court has jurisdiction of the parties and of the subject matter herein. 2. The defe... File: US v Thompson.doc, Final Clean Text: s of law, the Court finds the defendant liable to the plaintiff for the total of the net excess cost... File: US v Tri-State Metal Products Inc.doc, Final Clean Text: s of Law. 1. The defendant, Tri - State Metal Products , Inc., although not issued a corporate chart... File: US v Warne.doc, Final Clean Text: s of law, decree and writ, and settlement and signing thereof by the Court, pursuant to Rule 21 of t... File: Valley Const Co v Hoffman.doc, Final Clean Text: s, the injunctive relief sought by plaintiff is denied. Judgment is rendered in favor of the defenda... File: Virgin Islands Taxi Association v West Indian Company Limited.doc, Final Clean Text: \* co_pp_sp_999_13_1 \* co_pp_sp_999_13_1 *13 VITA has standing to challenge WICO s decision to awar... File: Warren G Kleban Engineering Corp v Caldwell.doc, Final Clean Text: on the basis of its investigation, but it is enough for us to conclude, as we do, that a factual bas... File: Washington Mechanical Contractors Inc v US Dept of Navy.doc, Final Clean Text: . For the foregoing reasons, the court finds against the plaintiff. This result does not indicate th... File: William F Wilke Inc v Department of Army of U S (1).doc, Final Clean Text: \'3fthat the bid was not delivered until after 1 o clock p. m., as shown by the clock in the bid ope... File: William F Wilke Inc v Department of Army of U S.doc, Final Clean Text: was reached by the Third Circuit in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?fin... File: 001 - Schott Government Services LLC v United States.doc, Final Clean Text: We conclude that the agency exercised reasonable judgment both in awarding the contracts to OSG and ... File: 002 - Anham FZCO v United States.doc, Final Clean Text: Defendant s motion for an enlargement of time is DENIED. \'3f Defendant shall file its response to P... File: 003 - Wigdor v United States.doc, Final Clean Text: Defendant s motion to dismiss is GRANTED . The Clerk is directed to dismiss this action. \'3f \* co_... File: 004 - Per Aarsleff AS v United States.doc, Final Clean Text: For the reasons stated, plaintiff s motion for a preliminary injunction is DENIED, without prejudice... File: 005 - Burse v Gottlieb.doc, Final Clean Text: s de novo. See \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=201940... File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Final Clean Text: Because there is a rational basis for the SBA \'3fOHA s determination that the primary and vital req... File: 007 - ClayGroup LLC v United States.doc, Final Clean Text: . For these reasons, Plaintiff s June 12, 2015 Motion For Judgment On The Administrative Record is d... File: 008 - Savantage Financial Services Inc v United States.doc, Final Clean Text: For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART defendant s motion to d... File: 009 - Cyios Corporation v United States.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss for lack of jurisdiction is DENIED . While ... File: 010 - ACC Construction Co Inc v United States.doc, Final Clean Text: For the reasons stated above, we grant in part and deny in part plaintiff s motion to supplement the... File: 011 - Dunnet Bay Const Co v Borggren.doc, Final Clean Text: We Affirm the district court s judgment. \'3f \* co_allCitations_11 \* co_allCitations_11... File: 013 - Agility Defense And Government Services Inc v United States.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F282036905643_13" [28] \* co_anchor_B282036905643_13 \* co_anchor_B28203690... File: 014 - IEICityside JV v United States.doc, Final Clean Text: On the basis of the foregoing, the government s motion for judgment on the administrative record is ... File: 015 - American Safety Council Inc v United States.doc, Final Clean Text: For the reasons set forth above, the Court hereby GRANTS IN PART ASC s Motion for Judgment on the Ad... File: 016 - Transatlantic Lines LLC v United States.doc, Final Clean Text: Further to the foregoing, and based on a thorough and careful review of the record, the court conclu... File: 017 - Guam Industrial Services Inc v United States.doc, Final Clean Text: . For these reasons, Plaintiff s June 30, 2015 Motion For Judgment On The Administrative Record is d... File: 018 - Precise Systems Inc v United States.doc, Final Clean Text: For the reasons set forth above, the court AFFIRMS the SBA s determination that Precise was ineligib... File: 019 - ViON Corporation v United States.doc, Final Clean Text: In sum, the extensive administrative record in this case shows that DISA acted reasonably and in acc... File: 020 - KWR Construction Inc v United States.doc, Final Clean Text: of the remand period informing the court of the status of the remand proceedings. \'3f \* co_pp_sp_9... File: 021 - AT Solutions Inc v United States.doc, Final Clean Text: The Court DENIES Plaintiff s motion for judgment on the AR and motion for injunctive relief. The Cou... File: 022 - Guardian Moving and Storage Co Inc v United States.doc, Final Clean Text: In accordance with the above opinion, the Court ORDERS as follows: 1. Guardian s motions to suppleme... File: 023 - WHR Group Inc v United States.doc, Final Clean Text: Based upon the foregoing, the Court awards EAJA attorneys fees and expenses to WHR in the amount of ... File: 024 - Guam Industrial Services Inc v United States.doc, Final Clean Text: . For these reasons, the Government is preliminarily enjoined from performing any work on the disput... File: 025 - Agility Public Warehousing Company KSC v Department of Defense.doc, Final Clean Text: Therefore, Agility s motion to compel (or in the alternative, for summary judgment) will be granted ... File: 026 - Wit Associates Inc v United States.doc, Final Clean Text: On the basis of the foregoing, the Motions to Dismiss filed by the government and the intervenor are... File: 027 - Pernix Group Inc v United States.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that: (1) Defendant s Motion to Dismiss, filed May 5... File: 028 - Colonial Press Intern Inc v US.doc, Final Clean Text: For the foregoing reasons, the judgment of the United States Court of Federal Claims is affirmed. \'... File: 029 - XP Vehicles Inc v United States.doc, Final Clean Text: Plaintiffs do not invoke a money-mandating constitutional provision, federal statute, or regulation ... File: 030 - Raytheon Company v United States.doc, Final Clean Text: For the reasons set forth above, the court DENIES Raytheon s motion for a stay of the court s judgme... File: 031 - Rothe Development Inc v Department of Defense.doc, Final Clean Text: For the reasons discussed above, this Court concludes that the testimony of Defendants expert witnes... File: 032 - Bona Fide Conglomerate Inc v Sourceamerica.doc, Final Clean Text: For the reasons set forth above, the Court (1) DISMISSES WITHOUT LEAVE TO AMEND claims one through n... File: 033 - Rotech Healthcare Inc v United States.doc, Final Clean Text: For the reasons stated above, Plaintiff s Motion for Judgment on the Administrative Record is DENIED... File: 034 - Bannum Inc v United States.doc, Final Clean Text: The BOP s use of a pre-existing RRC Services contract with Dismas and its use of an existing contrac... File: 035 - Per Aarsleff AS v United States.doc, Final Clean Text: For the reasons stated, plaintiffs motions for judgment on the administrative record are GRANTED, an... File: 036 - US v Bowling.doc, Final Clean Text: , the government cites several sections of the FAR, four other federal criminal cases involving the ... File: 037 - Gibson v United States.doc, Final Clean Text: For the foregoing reasons, the Government s motion to dismiss is GRANTED. \'3f IT IS SO ORDERED. \'3... File: 038 - Gibson v United States.doc, Final Clean Text: For the foregoing reasons, the Government s motion to dismiss is GRANTED. \'3f IT IS SO ORDERED. \'3... File: 039 - United States ex rel Watkins v KBR Inc.doc, Final Clean Text: For the reasons stated above, the Complaint is dismissed for failure to state \* co_pp_sp_7903_969_3... File: 040 - Sono Irish Inc v Town of Surfside Beach.doc, Final Clean Text: For the reasons stated above, the Court grants in part and denies in part Defendants [ECF64, 65, 66,... File: 041 - NVE Inc v United States.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for judgment on the administrative record and request ... File: 042 - Gil Ramirez Group LLC v Houston Independent School Dist.doc, Final Clean Text: The district court commendably dealt with novel claims in this troubling case with a long and comple... File: 044 - Unique Builders Construction Co v United States.doc, Final Clean Text: The Court issues the following orders: \'3f 1. Plaintiff s motion to supplement the AR is DENIED . \... File: 045 - Raytheon Company v United States.doc, Final Clean Text: , based on the expertise of the independent review team and its technical evaluators, that the desig... File: 046 - Southern Atlantic Companies LLC v School Bd of Orange County Fla.doc, Final Clean Text: In consideration of the foregoing, it is hereby ORDERED that the motions to dismiss (Doc. 3, 5) file... File: 048 - St Bernard Parish Government v United States.doc, Final Clean Text: . The documents listed in Court Exhibit A are admitted as evidence. See Court Exhibit A. The documen... File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS Defendant s [51] Renewed Motion for Summary Judgment and... File: 050 - Cecort Realty Development Inc v Llompart-Zeno.doc, Final Clean Text: Wherefore, for the aforementioned reasons, Plaintiff Cecort Realty Development, Inc. s Complaint is ... File: 051 - Palladian Partners Inc v US.doc, Final Clean Text: We conclude that the Court of Federal Claims had jurisdiction pursuant to \* HYPERLINK "https://www.... File: 052 - Progressive Industries Inc v United States.doc, Final Clean Text: The court finds that Irish Oxygen is entitled to intervene as a matter of right and accordingly GRAN... File: 053 - Charles F Day And Associates LLC v United States.doc, Final Clean Text: Accordingly, Defendant s motion to dismiss is GRANTED, and Plaintiff s complaint is hereby dismissed... File: 054 - Hanson v United States.doc, Final Clean Text: Defendant s motion to dismiss is GRANTED. The Clerk is directed to dismiss this action. \'3f \* co_a... File: 055 - Coast Professional Inc v United States.doc, Final Clean Text: This court need go no farther. Based on the foregoing, it GRANTS defendant s and defendants-interven... File: 056 - Marco St Croix Inc v Virgin Islands Housing Authority.doc, Final Clean Text: \* co_pp_sp_999_5_56 \* co_pp_sp_999_5_56 *5 For the foregoing reasons, we affirm the Superior Court... File: 057 - Caddell Construction Co LLC v United States.doc, Final Clean Text: For the foregoing reasons, the government s motions to dismiss are GRANTED , and plaintiff s motions... File: 059 - Anthem Builders Inc v United States.doc, Final Clean Text: . For reasons discussed herein, Plaintiff s December 23, 2014 Motion For Preliminary Injunction and ... File: 060 - Precise Systems Inc v United States.doc, Final Clean Text: For the reasons stated, the court cannot find, based on the record before it, that Precise either wa... File: 061 - Starry Associates Inc v United States.doc, Final Clean Text: We conclude that plaintiff has met its burden in showing why it is necessary to supplement the admin... File: 062 - Visual Connections LLC v United States.doc, Final Clean Text: As determined above, Visual Connections failed to challenge the terms of the RFQ before submitting i... File: 063 - RLB Contracting Inc v United States.doc, Final Clean Text: that the merits of the subsequent agency action were not properly in front of us was legally erroneo... File: 064 - Alsobrook v Alvarado.doc, Final Clean Text: AND RECOMMENDATION Plaintiff has failed to put forth adequate evidence that any Defendant violated h... File: 065 - Monterey Consultants Inc v United States.doc, Final Clean Text: . Accordingly, plaintiff s motion for judgment on the administrative record is denied; defendant s a... File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Final Clean Text: For the reasons stated herein, the Court rules as follows: \'3f \* co_pp_sp_7903_741_67 \* co_pp_sp_... File: 068 - Hyperion Inc v United States.doc, Final Clean Text: The government s motion to dismiss under \* HYPERLINK "https://www.westlaw.com/Link/Document/FullTex... File: 069 - Electronic OnRamp Inc v United States.doc, Final Clean Text: As described above, EOR failed to meet a requirement of the solicitation which the agency considered... File: 070 - Storms v US.doc, Final Clean Text: For the reasons set forth above, the Court grants Defendants motion to dismiss the Second Amended Co... File: 071 - Bannum Inc v US.doc, Final Clean Text: that Bannum waived its challenge to the terms of the solicitation does not dispose of the separate q... File: 072 - Cycenas v United States.doc, Final Clean Text: Defendant s motion to dismiss for lack of subject matter jurisdiction and failure to state a claim i... File: 073 - CGI Federal Inc v US.doc, Final Clean Text: Because FAR Part 12 applies to the 2014 RFQs and the revised payment terms violate FAR Part 12 s pro... File: 074 - Raymond Express International LLC v United States.doc, Final Clean Text: Plaintiff has failed to show that the solicitation is \'3farbitrary, capricious, an abuse of discret... File: 075 - JEM Transport Inc v United States.doc, Final Clean Text: For the foregoing reasons, the government s motion for partial summary judgment and for partial dism... File: 076 - Red River Computer Co Inc v United States.doc, Final Clean Text: The errors plaintiff has demonstrated in the agency s evaluation of plaintiff s proposal do not warr... File: 077 - E And E Enterprises Global Inc v United States.doc, Final Clean Text: Accordingly, it is hereby ORDERED that: (1) Defendant s Motion to Dismiss, filed July 28, 2014, is D... File: 078 - McClay v United States.doc, Final Clean Text: For the reasons stated, the government s motion to dismiss is GRANTED, and Mr. and Ms. McClay s comp... File: 079 - Federal Acquisition Services Team LLC v United States.doc, Final Clean Text: of yesterday s argument, the Court gave FAST leave to file a draft of written deposition questions f... File: 080 - Equa Solutions Inc v United States.doc, Final Clean Text: For all of these reasons, the court GRANTS the government s cross-motion for judgment on the adminis... File: 081 - Industries for the Blind Inc v United States.doc, Final Clean Text: On the basis of the foregoing, the government s motion to dismiss for lack of subject matter jurisdi... File: 082 - QBE LLC v United States.doc, Final Clean Text: Further to the foregoing, and based on a thorough and careful review of the record, the court conclu... File: 083 - Draken International Inc v United States.doc, Final Clean Text: The Court DENIES Plaintiff s motion for judgment on the Administrative Record and Plaintiff s motion... File: 084 - Universal Marine Co KSC v United States.doc, Final Clean Text: . For reasons discussed herein, Plaintiff s December 3, 2014 Motion For Judgment On The Administrati... File: 085 - Adams and Associates Inc v United States.doc, Final Clean Text: For reasons explained above, we grant defendant s motion to strike and grant its alternative motion ... File: 086 - Northeast Construction Inc v United States.doc, Final Clean Text: In denying plaintiff s bid protest, the court is not signaling its approval of the Army s conduct in... File: 087 - US ex rel American Systems Consulting Inc v ManTech Advanced Systems Inter.doc, Final Clean Text: s ... [are] properly excluded \'3f); \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?fi... File: 088 - Akima IntraData LLC v United States.doc, Final Clean Text: that severely handicapped individuals are able to take on the tasks identified in the contract. The ... File: 089 - Griffith v United States.doc, Final Clean Text: For the reasons stated above, the Court GRANTS defendant s motion to dismiss this case for lack of s... File: 090 - Asmussen v United States.doc, Final Clean Text: For the reasons stated above, defendant s motion to dismiss this case for lack of subject-matter jur... File: 091 - Miller v United States.doc, Final Clean Text: Counts I, III, IV, V and VI of the complaint are dismissed without prejudice for lack of subject mat... File: 092 - Brocade Communications Systems Inc v United States.doc, Final Clean Text: . For these reasons, the Government s August 15, 2014 Motion To Dismiss is granted. See \* HYPERLINK... File: 093 - Innovation Development Enterprises of America Inc v US.doc, Final Clean Text: For the foregoing reasons, we affirm the decision of the CFC. \'3f AFFIRMED. \'3f \* co_allCitations... File: 094 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Final Clean Text: AND ORDER \* co_pp_sp_999_18_94 \* co_pp_sp_999_18_94 *18 For the foregoing reasons, the Court hereb... File: 095 - Akima IntraData LLC v United States.doc, Final Clean Text: Based on the foregoing, plaintiff s motion for judgment on the administrative record is DENIED and t... File: 096 - Mrosek v City of Peachtree City.doc, Final Clean Text: \* co_pp_sp_999_11_96 \* co_pp_sp_999_11_96 *11 Defendants motion for summary judgment [81] is grant... File: 097 - Michael v United States.doc, Final Clean Text: For the reasons stated, the government s motion to dismiss is GRANTED, and Mr. Michael s complaint i... File: 099 - Demien Constr Co v O'Fallon Fire Protection Dist.doc, Final Clean Text: Plaintiff has not met its burden to establish standing to challenge the award of the contract at iss... File: 100 - Framaco International Inc v United States.doc, Final Clean Text: The court concludes that the agency s determination not to apply adjustments for inflation and not t... File: 002 - Bannum Inc v United States.doc, Final Clean Text: As determined above, protestor has not demonstrated that the agency abused its discretion. As a resu... File: 003 - Savantage Financial Services Inc v United States.doc, Final Clean Text: For the reasons set forth above, the court GRANTS IN PART and DENIES IN PART plaintiff s motion to v... File: 004 - Lynxnet LLC v United States.doc, Final Clean Text: . For reasons discussed herein, Plaintiff s August 29, 2014 Motion For Judgment On The Administrativ... File: 005 - FirstLine Transportation Security Inc v United States.doc, Final Clean Text: For the reasons explained above, the Court GRANTS the Government s motion for judgment on the admini... File: 006 - IBM Corporation v United States.doc, Final Clean Text: Based on the foregoing, IBM s motion for judgment on the administrative record is DENIED , and the g... File: 007 - Inforeliance Corp v United States.doc, Final Clean Text: For the reasons stated above, plaintiff s motion for discovery \'3fas modified, see Pl. s Reply, Ex.... File: 008 - Innovative Management Concepts Inc v United States.doc, Final Clean Text: . For these reasons, the Government s April 29, 2014 Motion to Dismiss is granted. See \* HYPERLINK ... File: 009 - VFA Inc v United States.doc, Final Clean Text: In \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=2027792059&pubNum=... File: 010 - Locascio v BBDO Atlanta Inc.doc, Final Clean Text: For the foregoing reasons, BBDO s motion to dismiss the original complaint, [Doc. 3], is DENIED as M... File: 011 - AmBuild Company LLC v United States.doc, Final Clean Text: For the reasons stated, AmBuild s motion for judgment on the administrative record is \* co_pp_sp_61... File: 012 - Walsh Const Co II LLC v City of Toledo.doc, Final Clean Text: Uncovering how the City arrived at its award in this case has been a bit like learning how sausage i... File: 013 - IBM Corporation v United States.doc, Final Clean Text: On the basis of the foregoing: 1. The Plaintiff s Motion for a Preliminary Injunction is DENIED . 2.... File: 014 - RLB Contracting Inc v United States.doc, Final Clean Text: In sum, plaintiff has satisfied the requirements for the limited injunctive relief we ordered on Sep... File: 015 - Global Military Marketing Inc v United States.doc, Final Clean Text: Plaintiff s motion to supplement the administrative record is GRANTED ; \'3f The parties consent mot... File: 016 - Bahrain Maritime And Mercantile International BSC (C) v United States.doc, Final Clean Text: On the basis of the foregoing, the government s motion for judgment on the administrative record is ... File: 017 - Hyperion Inc v United States.doc, Final Clean Text: For the reasons stated, Hyperion s application for attorneys fees and expenses under EAJA is GRANTED... File: 019 - TigerSwan Inc v United States.doc, Final Clean Text: , alleging that she relied on statements of TSI s direct competitor, Aegis, to support her finding t... File: 020 - Trident Technologies LLC v United States.doc, Final Clean Text: For the foregoing reasons, the Government s motion to dismiss Plaintiff s complaint for lack of juri... File: 021 - SRA Intern Inc v US.doc, Final Clean Text: that SRA s protest is actually with the issuance of the task order, rather than the waiver alone. Se... File: 022 - US v Gorski.doc, Final Clean Text: \* co_pp_sp_999_6_22 \* co_pp_sp_999_6_22 *6 For the foregoing reasons, the motions of defendant Dav... File: 023 - Bannum Inc v United States.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Plaintiff s Motion for Judgment on the Administrative Rec... File: 024 - Trust Title Company v United States.doc, Final Clean Text: For the reasons stated, the court finds that Trust Title was properly terminated for default, but th... File: 025 - Rotech Healthcare Inc v United States.doc, Final Clean Text: For all the reasons stated above, the Court finds that Solicitation No. VA259 \'3f14 \'3fR \'3f0107 ... File: 026 - ARKRAY USA Inc v United States.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record \* co_pp_sp_... File: 027 - Compliance Solutions Occupational Trainers Inc v United States.doc, Final Clean Text: The court will not gild the lily. For the reasons discussed above, the court hereby GRANTS defendant... File: 028 - Kvichak Marine Industries Inc v United States.doc, Final Clean Text: , the SSAC explained: Birdon offers the Government a 7.7 fps Conventional Rafting Speed when compare... File: 029 - Frankel v United States.doc, Final Clean Text: may be found in \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=Y&serNum=19521... File: 030 - Savantage Financial Services Inc v United States.doc, Final Clean Text: Because OHA s corrective action renders the claims set forth in plaintiff s complaint moot, the cour... File: 031 - CGI Federal Inc v United States.doc, Final Clean Text: The Court DENIES the Government s motion to dismiss for lack of standing. \'3f The Court DENIES Plai... File: 032 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Final Clean Text: AND ORDER For the foregoing reasons, the Court hereby ORDERS: \* co_pp_sp_999_17_32 \* co_pp_sp_999_... File: 034 - Gray Owl Services Inc v United States.doc, Final Clean Text: For the reasons set forth above, the Court concludes that because FAR \'3f 42.1503(d) was not incorp... File: 035 - Sotera Defense Solutions Inc v United States.doc, Final Clean Text: In the end, plaintiff has not met its burden to show that the Army s best value award decision was a... File: 036 - Coastal Environmental Group Inc v United States.doc, Final Clean Text: For the reasons set forth above, the court DENIES defendant s motion to dismiss and plaintiff s moti... File: 037 - Coastal Environmental Group Inc v United States.doc, Final Clean Text: For the reasons set forth above, the court concludes that (1) Ms. Nero s and Ms. Thomas s bad faith ... File: 038 - Kellogg Brown And Root Services Inc v United States.doc, Final Clean Text: Plaintiff s case concerns matters of contract administration which must be brought under the CDA, an... File: 039 - Lawrence Battelle Inc v United States.doc, Final Clean Text: For the above reasons, the United States motion to dismiss and for judgment upon the administrative ... File: 040 - Jiron v United States.doc, Final Clean Text: . For these reasons, the Government s February 4, 2014 Motion To Dismiss is granted. See \* HYPERLIN... File: 041 - CliniComp International Inc v United States.doc, Final Clean Text: Accordingly, it is hereby ORDERED that \* co_pp_sp_613_749_41 \* co_pp_sp_613_749_41 *749 (1) Plaint... File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Final Clean Text: s as well as a rationale for the final assessment ratings, in response to the concerns of agency cou... File: 043 - US v Gorski.doc, Final Clean Text: For the foregoing reasons, the government s motion for leave to file is GRANTED. The motion for reco... File: 044 - Garcia-Gonzalez v Puig-Morales.doc, Final Clean Text: For the foregoing reasons, we affirm the district court s grant of summary judgment on Garc \'3fa s ... File: 046 - Clark v United States.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss Plaintiff s entire Amended Complaint i... File: 047 - CEdge Software Consultants LLC v United States.doc, Final Clean Text: For the foregoing reasons, the court concludes that CEdge has not established that USTRANSCOM acted ... File: 048 - Hymas v United States.doc, Final Clean Text: of the 2014 farming season, the Service will terminate the cooperative farming agreements identified... File: 049 - Bailey Tool And Mfg Company v United States.doc, Final Clean Text: For the foregoing reasons, the plaintiff s motion for judgment on the administrative record is DENIE... File: 050 - BCPeabody Construction Services Inc v United States.doc, Final Clean Text: For the reasons stated, BCPeabody s application for attorneys fees and expenses under EAJA is GRANTE... File: 051 - Science Systems and Applications Inc v US.doc, Final Clean Text: For the stated reasons, Plaintiff SSAI s Motion for Reconsideration of Motion for Temporary Restrain... File: 052 - Foster v Michigan.doc, Final Clean Text: For the foregoing reasons, we AFFIRM the district court s dismissal of Appellants claims. \'3f \* co... File: 053 - Orbis Sibro Inc v United States.doc, Final Clean Text: Based on the above analysis and discussion, the protest filed by Orbis challenging the Navy s evalua... File: 054 - Rush Construction Inc v United States.doc, Final Clean Text: For the reasons discussed fully above, supra Part II. B.-E., the court finds that the Army Corps of ... File: 055 - Metropolitan Washington Chapter v District of Columbia.doc, Final Clean Text: For the reasons stated above, it is hereby ORDERED that Defendants \'3f Motion to Dismiss Plaintiffs... File: 056 - SEK Solutions LLC v United States.doc, Final Clean Text: For reasons explained above, we deny plaintiff s motion for judgment on the administrative record an... File: 057 - Octo Consulting Group Inc v United States.doc, Final Clean Text: As previously communicated to the parties, and as determined above, protestor was not able to demons... File: 058 - Call Henry Inc v United States.doc, Final Clean Text: In sum, the Court finds that the AR is lacking in evidence to demonstrate that Wolf Creek violated a... File: 059 - Winnemucca Indian Colony v United States.doc, Final Clean Text: For the reasons stated above, defendant s motion to dismiss for lack of subject matter jurisdiction ... File: 060 - Science and Management Resources Inc v United States.doc, Final Clean Text: As described above, while SMR s allegations are sufficient to establish its standing, it has failed ... File: 061 - ARKRAY USA Inc v United States.doc, Final Clean Text: Pursuant to the court s authority under \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText... File: 062 - ARKRAY USA Inc v United States.doc, Final Clean Text: \* co_pp_sp_999_5_62 \* co_pp_sp_999_5_62 *5 For the foregoing reasons, plaintiff s motion to comple... File: 063 - ARKRAY USA Inc v United States.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion to supplement the administrative record is GRANTED \'3... File: 064 - National Air Cargo Group Inc v United States.doc, Final Clean Text: As set forth above, the court possesses jurisdiction to entertain claims brought pursuant to \* HYPE... File: 065 - American Auto Logistics LP v United States.doc, Final Clean Text: As previously communicated to the parties, the government s past performance determination and final... File: 066 - BAndB Medical Services Inc v United States.doc, Final Clean Text: \* co_pp_sp_999_8_66 \* co_pp_sp_999_8_66 *8 For the foregoing reasons, the court GRANTS defendant s... File: 067 - GlobeRanger Corp v Software AG.doc, Final Clean Text: For the foregoing reasons, the Court finds genuine issues of material fact exist for GlobeRanger s t... File: 068 - Laboratory Corporation of America Holdings v United States.doc, Final Clean Text: For the reasons set forth above, Plaintiff s motion for judgment on the administrative \* co_pp_sp_6... File: 069 - Cherokee Nation Technologies LLC v United States.doc, Final Clean Text: The court finds that the prerequisites for issuing a limited preliminary injunction have been fully ... File: 072 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s of fact \'3f). Summary judgment is thus not proper on Plaintiffs damages claim for lost profits on... File: 073 - Kingdomware Technologies Inc v US.doc, Final Clean Text: For the reasons provided above, we affirm the final decision of the Court of Federal Claims in favor... File: 075 - Laboratory Corporation of America Holdings v United States.doc, Final Clean Text: For the reasons explained above, the Government s motion to strike the Declarations of Ariel H. Coll... File: 077 - Palladian Partners Inc v United States.doc, Final Clean Text: After review of the record before the court, the court finds that the contracting officer s actions ... File: 078 - FirstLine Transportation Security Inc v United States.doc, Final Clean Text: For the reasons set forth above, the Government and Akal s motion to strike the Declaration of Jimmy... File: 079 - Business Integra Inc v United States.doc, Final Clean Text: For the reasons stated, Business Integra s Motion for Judgment on the Administrative Record is DENIE... File: 080 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s contained in the complaint as true. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 082 - American Demolition and Nuclear Decommissioning Inc v IBCS Group Inc.doc, Final Clean Text: For the reasons stated, the court will grant ADND s motion for summary judgment \* co_pp_sp_7903_639... File: 083 - Lukos VATC JV LLC v United States.doc, Final Clean Text: As discussed above, the Court possesses jurisdiction over this action. That said, LVJV has failed to... File: 084 - Communication Construction Services Inc v United States.doc, Final Clean Text: 1. The Court GRANTS IN PART Defendant s motion to strike the declarations of Timothy Evard and Jimmy... File: 085 - Safepath Systems LLC v New York City Dept of Educ.doc, Final Clean Text: We have reviewed the record and considered plaintiffs remaining arguments on appeal, and find them t... File: 087 - Insight Systems Corp v United States.doc, Final Clean Text: . Defendant advanced arguments in support of the actions taken below that relied on prior decisions ... File: 088 - Hughes Group LLC v United States.doc, Final Clean Text: Because Hughes lacks standing, the government s and defendant-intervenor s motions to dismiss are GR... File: 089 - Tip Top Construction Corporation v Government of Virgin Islands.doc, Final Clean Text: \* co_pp_sp_999_8_89 \* co_pp_sp_999_8_89 *8 As the arbitrary and irrational legal standard only app... File: 090 - Champagne v US.doc, Final Clean Text: For the foregoing reasons, the Defendant s motion to dismiss Plaintiff s Complaint is GRANTED. The c... File: 091 - Hyperion Inc v United States.doc, Final Clean Text: For the reasons stated, Hyperion s motion for judgment on the administrative record is GRANTED IN PA... File: 092 - Jordan Pond Company LLC v United States.doc, Final Clean Text: Plaintiff has not shown that the Park Service s selection decision was arbitrary, capricious, or an ... File: 093 - Fisher-Cal Industries Inc v US.doc, Final Clean Text: As the district court rightly held, if the complaint of Fisher \'3fCal states a claim within the jur... File: 094 - Bannum Inc v United States.doc, Final Clean Text: Because Bannum lacks standing, this court lacks subject matter jurisdiction and must dismiss the com... File: 095 - AM General LLC v United States.doc, Final Clean Text: While AMG has shown error in the agency s procurement process, it has failed to show that it was pre... File: 096 - Ocean Ships Inc v United States.doc, Final Clean Text: For the reasons discussed, plaintiff s motion for judgment on the administrative record is DENIED an... File: 097 - DM Petroleum Operations Company v United States.doc, Final Clean Text: We have considered each of plaintiff s arguments, including the ones only briefed and not brought fo... File: 099 - WHR Group Inc v United States.doc, Final Clean Text: For the foregoing reasons, WHR s CROSS \'3fMOTION for judgment on the administrative record is GRANT... File: 100 - CMI Management Inc v United States.doc, Final Clean Text: The Agency s ratings of CMI s proposal and decision to exclude CMI from the competitive range were r... File: 001 - FCN Inc v United States.doc, Final Clean Text: After a review of the record before the court, the protestor s motion for judgment on the administra... File: 002 - Manus Medical LLC v United States.doc, Final Clean Text: For the reasons set forth above, Plaintiff s motion for judgment on the administrative record is GRA... File: 003 - Bannum Inc v United States.doc, Final Clean Text: Bannum has shown, and the Government has admitted, that Bannum was an actual bidder, thereby satisfy... File: 004 - Alsobrook v Alvarado.doc, Final Clean Text: After careful consideration and the Court being otherwise fully advised, it is ORDERED, ADJUDGED, an... File: 005 - Bannum Inc v United States.doc, Final Clean Text: Plaintiff s motion for a TRO/preliminary injunction is DENIED. \* co_allCitations_5 \* co_allCitatio... File: 006 - Management and Training Corporation v United States.doc, Final Clean Text: For the reasons set forth above, defendant s MOTION to dismiss under \* HYPERLINK "https://www.westl... File: 007 - United States ex rel American Systems Consulting Inc v ManTech Advanced Sy.doc, Final Clean Text: , Perfilio s opinion amounts to rank speculation about what the Government might have done. \'3f \* ... File: 008 - Jacqueline R Sims LLC v United States.doc, Final Clean Text: In sum, the Court finds that the undisputed facts entitle the Government to summary judgment on all ... File: 013 - AEY Inc v United States.doc, Final Clean Text: For the reasons stated, AEY s motion for summary judgment as to Count I of the government s counterc... File: 014 - Adams and Associates Inc v US.doc, Final Clean Text: Accordingly, the Court of Federal Claims decisions are affirmed. \'3f AFFIRMED \'3f \* co_allCitatio... File: 015 - Innovation Development Enterprises of America Inc v United States.doc, Final Clean Text: IDEA has not shown that it is entitled to any bid preparation and proposal costs in this bid protest... File: 016 - SRA International Inc v United States.doc, Final Clean Text: . The Government has represented that the \'3fcontinuing delay of the procurement is resulting in th... File: 017 - Sentrillion Corporation v United States.doc, Final Clean Text: 1. Plaintiff s Motion for Judgment on the Administrative Record is DENIED . 2. Defendant s Cross \'3... File: 018 - D And D Associates Inc v Board of Educ of North Plainfield.doc, Final Clean Text: that the Surety is the real party in interest. As the District Court specifically noted, this argume... File: 019 - Agility Defense And Government Services v US Dept of Defense.doc, Final Clean Text: We REVERSE the summary judgment in favor of the affiliates, Agility Defense and Agility Internationa... File: 020 - Coastal Environmental Group Inc v United States.doc, Final Clean Text: As set forth above, the court GRANTS plaintiff s motion for leave to file an amended complaint. Furt... File: 021 - Eco Tour Adventures Inc v United States.doc, Final Clean Text: The Park Service acted arbitrarily and capriciously in concluding that the financial information omi... File: 022 - NEIE Inc v United States.doc, Final Clean Text: . For the foregoing reasons, the Plaintiff s May 17, 2013 Motion for Judgment On The Administrative ... File: 023 - Chapman Law Firm LPA v United States.doc, Final Clean Text: As a result of plaintiff s commission of fraud, plaintiff s claims are forfeited under the Special P... File: 024 - AquaTerra Contracting Inc v United States.doc, Final Clean Text: Because the court finds that the plaintiff cannot show substantial prejudice, the court DENIES the p... File: 025 - Optimization Consulting Inc v United States.doc, Final Clean Text: For the reasons stated above, \* co_fnRef_B00192032814745_ID0EMEBK_25 \* co_fnRef_B00192032814745_ID... File: 026 - Gabriel v General Services Admin.doc, Final Clean Text: is of no help to Gabriel. \'3f Gabriel argues five additional grounds for subject matter jurisdictio... File: 027 - Klamath Irrigation District v United States.doc, Final Clean Text: on this fourth test than on the first three). Logic would suggest, then, that this fourth test is de... File: 029 - KWV Incorporated v United States.doc, Final Clean Text: For the reasons stated, KWV s motion for attorneys fees and expenses under EAJA is DENIED. The Clerk... File: 030 - Lyon Shipyard Inc v United States.doc, Final Clean Text: This court has considered and finds unpersuasive plaintiff s remaining arguments. Based on the foreg... File: 031 - New Green Safety Support and Supply Inc v Fluor-B And W Portsmouth LLC.doc, Final Clean Text: Accordingly, based on the foregoing, Defendant s Motion to Dismiss (Doc. 12) is GRANTED, Plaintiffs ... File: 032 - Dyncorp International LLC v United States.doc, Final Clean Text: For reasons explained above, we grant in part and deny in part plaintiff s motion to supplement the ... File: 033 - Amazon Web Services Inc v United States.doc, Final Clean Text: \* HYPERLINK "#co_anchor_F232031922997_33" [23] \* co_anchor_B232031922997_33 \* co_anchor_B23203192... File: 034 - Colonial Press International Inc v United States.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record \* co_pp_sp_... File: 035 - Trevio v United States.doc, Final Clean Text: For all of the above-stated reasons, this court does not have subject-matter jurisdiction over any o... File: 036 - Miles Construction LLC v United States.doc, Final Clean Text: For the reasons stated, Miles application for attorneys fees and expenses under EAJA is GRANTED IN P... File: 038 - Brookfield Relocation Inc v United States.doc, Final Clean Text: , for the foregoing reasons, plaintiff s protest is DISMISSED , without prejudice, for lack of subje... File: 040 - Sims v United States.doc, Final Clean Text: Ms. Sims contends that the allocation of risk in the solicitation regarding start-up tasks is improp... File: 041 - Mori Associates Inc v United States.doc, Final Clean Text: For the foregoing reasons, the Court concludes that plaintiff protests a procurement decision in con... File: 042 - Sperient Corporation Inc v United States.doc, Final Clean Text: . For the reasons stated above, the Government s July 9, 2013 Motion To Dismiss is granted. The Cler... File: 044 - Supreme Foodservice GmbH v United States.doc, Final Clean Text: For the foregoing reasons, Supreme s Motion for Judgment on the Administrative Record (ECF No. 26) i... File: 045 - Archura LLC v United States.doc, Final Clean Text: For the foregoing reasons, the government s motion for judgment on the administrative record is GRAN... File: 046 - BCPeabody Construction Services Inc v United States.doc, Final Clean Text: For the reasons stated, BCPeabody s motion for judgment on the administrative record is GRANTED, as ... File: 047 - Rockies Exp Pipeline LLC v Salazar.doc, Final Clean Text: In sum, we conclude that review of the Precedent Agreement fell within the Board s jurisdiction, and... File: 048 - Michigan Bldg and Const Trades Council v Snyder.doc, Final Clean Text: For the reasons stated, I would affirm the district court s preliminary injunction against the enfor... File: 049 - Sharpe v United States.doc, Final Clean Text: For the reasons stated, reconsideration of plaintiffs claims is not warranted and transfer of any of... File: 050 - Council for Tribal Employment Rights v United States.doc, Final Clean Text: For the reasons stated, the government s motion to dismiss or, in the alternative, motion for summar... File: 051 - US ex rel Williams v C Martin Co Inc.doc, Final Clean Text: \* co_pp_sp_999_12_51 \* co_pp_sp_999_12_51 *12 For the foregoing reasons, CMC Defendants Motion to ... File: 052 - Sikorsky Aircraft Corporation v United States.doc, Final Clean Text: The government s Motion to Unseal the Trial Record, or, in the Alternative, to Redact Sealed Documen... File: 053 - ST Net Inc v United States.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss under \* HYPERLINK "https://www.westla... File: 054 - Foster v Judnic.doc, Final Clean Text: For the above-stated reasons, the Court GRANTS Defendants motion for summary judgment. \* co_fnRef_B... File: 055 - Cohen Financial Services Inc v United States.doc, Final Clean Text: . For these reasons, the Government s July 1, 2013 Motion For Judgment On The Administrative Record ... File: 056 - Croman Corp v US.doc, Final Clean Text: For the foregoing reasons, the Claims Court decision is affirmed. The Forest Service s decisions wer... File: 057 - Laerdal Medical Corp v United States.doc, Final Clean Text: For the foregoing reasons, the government s decision to take corrective action by terminating plaint... File: 058 - Management And Training Corporation v United States.doc, Final Clean Text: WIA does not prohibit set asides, and the Small Business Act s \'3ffair proportion \'3f provision do... File: 059 - Excel Manufacturing Ltd v United States.doc, Final Clean Text: that Tennier would not comply with the limitations on subcontracting clause. DLATS rationally consid... File: 060 - Qwest Government Services Inc v United States.doc, Final Clean Text: Because plaintiff has not succeeded on the merits of its protest, the court need not consider whethe... File: 061 - Larry Grant Const v Mills.doc, Final Clean Text: For the foregoing reasons, it is, hereby, 1. ORDERED that Plaintiffs motion for summary judgment is ... File: 063 - Blackout Sealcoating Inc v Peterson.doc, Final Clean Text: that public employers need not give notice or hold hearings before ending at-will contracts. Compare... File: 064 - McAfee Inc v United States.doc, Final Clean Text: For the foregoing reasons, McAfee s motion for judgment on the administrative record is GRANTED. The... File: 065 - McVey Company Inc v United States.doc, Final Clean Text: Plaintiff has failed to demonstrate that the government erred in awarding the contract at issue to F... File: 066 - Rack And Ballauer Excavating Co Inc v City of Cincinnati.doc, Final Clean Text: Accordingly, based on the foregoing, Defendants Motion to Dismiss (Doc. 12) is GRANTED, Plaintiffs c... File: 067 - MVS USA Inc v United States.doc, Final Clean Text: For the reasons stated, the plaintiff s motion for judgment on the administrative record \* co_pp_sp... File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Final Clean Text: \* co_pp_sp_999_11_68 \* co_pp_sp_999_11_68 *11 For the foregoing reasons, it is \'3f ORDERED AND AD... File: 069 - Glenn Defense Marine (ASIA) PTE Ltd v US.doc, Final Clean Text: s regarding the subcategories seem just as divorced from the underlying data as the overall ratings.... File: 070 - A1 Procurement LLC v Hendry Corporation.doc, Final Clean Text: \* co_pp_sp_999_9_70 \* co_pp_sp_999_9_70 *9 For the foregoing reasons, it is \'3f ORDERED AND ADJUD... File: 072 - Trailboss Enterprises Inc v United States.doc, Final Clean Text: For the reasons stated above, the plaintiff s case is hereby DISMISSED without prejudice. The Clerk ... File: 073 - MilMar Century Corp v United States.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED, and the Motions of defendant and intervenor... File: 074 - 360Trainingcom Inc v United States.doc, Final Clean Text: In accord with the foregoing, 360 s Application is GRANTED, in part, and DENIED, in part. First, the... File: 075 - Pearl v United States.doc, Final Clean Text: Accordingly, defendant s MOTION for judgment on the administrative record is GRANTED and plaintiff s... File: 076 - Anderson v United States.doc, Final Clean Text: Counts IV and VIII of the complaint, as well as any retirement pay claims, independent constitutiona... File: 077 - Advanced American Construction Inc v United States.doc, Final Clean Text: The court concludes that plaintiff has standing in this case and did not waive any of \* co_pp_sp_61... File: 078 - Command Management Services Inc v United States.doc, Final Clean Text: . For the foregoing reasons, the Government s December 5, 2012 Cross \'3fMotion For Judgment On The ... File: 079 - Crewzers Fire Crew Transport Inc v United States.doc, Final Clean Text: . For these reasons, the Government s April 12, 2012 Motion To Dismiss is granted. See \* HYPERLINK ... File: 080 - Crewzers Fire Crew Transport Inc v United States.doc, Final Clean Text: . For these reasons, the Government s November 7, 2012 Motion To Dismiss is granted. The Clerk is di... File: 081 - Chameleon Integrated Services Inc v United States.doc, Final Clean Text: We therefore grant defendant s motion to dismiss, deny plaintiff s motion for judgment on the admini... File: 082 - MG Altus Apache Company v United States.doc, Final Clean Text: Plaintiff s Motion to Supplement the Court Record is DENIED. \'3f Defendant s Motion for Judgment on... File: 083 - Martin Marietta Materials Inc v Kansas Dept of Transp.doc, Final Clean Text: as alleged that it has a property and liberty interest as claimed. The plaintiffs motion for reconsi... File: 084 - Davis Boat Works Inc v United States.doc, Final Clean Text: In summary, none of Davis s arguments comes close to establishing its entitlement to relief on the m... File: 085 - Hughett v United States.doc, Final Clean Text: Accordingly, it is hereby ORDERED that: (1) Plaintiff s Motion for Attorneys Fees and Costs Under th... File: 086 - Five Star Airport Alliance Inc v Milwaukee County.doc, Final Clean Text: couched as a factual allegation. \'3f \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 087 - Chevron USA Inc v United States.doc, Final Clean Text: . For these reasons, the court has determined that DOE breached the May 19, 1997 Equity Process Agre... File: 088 - CGS Administrators LLC v United States.doc, Final Clean Text: The court has considered all of plaintiffs challenges to the SSA s award decision, and finds that no... File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Final Clean Text: Accordingly, this court finds in favor of defendant. Defendant s MOTION to dismiss for lack of subje... File: 090 - CS McCrossan Const Inc v Minnesota Dept of Transp.doc, Final Clean Text: Based on the foregoing, and all the files, records, and proceedings herein, IT IS ORDERED that McCro... File: 091 - KWV Incorporated v United States.doc, Final Clean Text: For the reasons stated, KWV s motion for judgment on the administrative record is GRANTED IN PART, a... File: 093 - Quest Diagnostics Inc v United States.doc, Final Clean Text: Because plaintiff has not shown the agency s conduct to be arbitrary, capricious, or unlawful, defen... File: 094 - Caddell Construction Co Inc v United States.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for judgment on the Administrative Record is GRANTED .... File: 095 - Beechcraft Defense Company LLC v United States.doc, Final Clean Text: The Air Force properly considered the relevant factors and reasonably determined that the override w... File: 096 - Insight Systems Corp v United States.doc, Final Clean Text: Based on the foregoing: 1. Plaintiffs motions for judgment on the administrative record are GRANTED ... File: 097 - CMS Contract Management Services v United States.doc, Final Clean Text: For the reasons stated herein, the Court finds that the 2012 NOFA properly characterizes the PBACCs ... File: 098 - Norsat International [America] Inc v United States.doc, Final Clean Text: For the forgoing reasons, the plaintiff s motion for judgment on the administrative record is DENIED... File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Final Clean Text: AGC did not identify any of its members that would be harmed by Caltrans affirmative action program.... File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Final Clean Text: For the foregoing reasons, it is \'3f ORDERED AND ADJUDGED that the Motion to Dismiss [ECF No. 91] i... File: 001 - Joslyn v United States.doc, Final Clean Text: For the foregoing reasons, the court holds that the relevant evidence does not support plaintiff s c... File: 002 - State of North Carolina Business Enterprises Program v United States.doc, Final Clean Text: Plaintiffs MOTION to admit evidence to the record is GRANTED with respect to paragraphs 14 through 2... File: 003 - Lakeshore Engineering Services Inc v United States.doc, Final Clean Text: The court will not gild the lily. Based on the foregoing, the court GRANTS defendant s motion for su... File: 004 - TigerSwan Inc v United States.doc, Final Clean Text: For the foregoing reasons, the government s motion is GRANTED \'3fIN \'3fPART and DENIED \'3fIN \'3f... File: 005 - Arcata Associates Inc v United States.doc, Final Clean Text: . As Arcata has failed to establish that it has succeeded on the merits of its Complaint, the court ... File: 006 - CW Government Travel Inc v United States.doc, Final Clean Text: For the reasons set forth above, it is hereby ORDERED : 1. The court DENIES defendant s motion to di... File: 007 - Cohen Financial Services Inc v United States.doc, Final Clean Text: . For these reasons, it is hereby ordered that: \'3f This procurement is remanded to the Agency \'3f... File: 008 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s contained in the complaint. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=... File: 009 - Preferred Systems Solutions Inc v United States.doc, Final Clean Text: For the forgoing reasons, the plaintiff s motion for judgment on the administrative record is DENIED... File: 010 - Alabama Aircraft Industries Inc v Boeing Co Inc.doc, Final Clean Text: \* co_pp_sp_999_14_10 \* co_pp_sp_999_14_10 *14 For the reasons discussed above, Defendants Motion t... File: 011 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s, or hold hearings and receive testimony from witnesses. Both a labor grievance proceeding and peer... File: 012 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s contained in the complaint as true. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 013 - G4S TECHNOLOGY CW LLC v United States.doc, Final Clean Text: For the foregoing reasons, the government s and the defendant-intervenor s motions to dismiss are DE... File: 014 - Rickett v Shinseki.doc, Final Clean Text: Our existing precedent establishes that, as long as a prospective appellant s intention is clear, VA... File: 015 - Plasan North America Inc v United States.doc, Final Clean Text: Defendant and Intervenor s Motions For Judgment On The Administrative Record are GRANTED and Plainti... File: 016 - Aircraft Charter Solutions Inc v United States.doc, Final Clean Text: This bid protest is dismissed due to laches on the part of plaintiff. In the alternative, this prote... File: 017 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: s contained in the complaint as true. \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 018 - NCL Logistics Company v United States.doc, Final Clean Text: Plaintiff s motions to supplement the AR are GRANTED in part. \'3f Defendant s Motion for Judgment o... File: 019 - Adams and Associates Inc v United States.doc, Final Clean Text: For reasons explained above, we deny plaintiff s February 4, 2013 motion to strike and plaintiff s m... File: 020 - Nobles Const LLC v Washington Parish.doc, Final Clean Text: The district court properly relied on \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?f... File: 021 - Dynamic Educational Systems Inc v United States.doc, Final Clean Text: For reasons explained above, we grant in part and deny in part defendant s January 14, 2013 motion t... File: 023 - Kellogg Brown And Root Services Inc v United States.doc, Final Clean Text: In view of the foregoing, the Court hereby GRANTS IN PART and DENIES IN PART defendant s motion to d... File: 024 - Kalick v United States.doc, Final Clean Text: For the foregoing reasons, defendant s Motion is GRANTED. The Clerk of Court shall ENTER JUDGMENT di... File: 025 - Lanier Const Co Inc v City of Clinton NC.doc, Final Clean Text: For the foregoing reasons, the defendant s motion for summary judgment is GRANTED. As no live claims... File: 026 - Supreme Foodservice GmbH v United States.doc, Final Clean Text: For the foregoing reasons, the Court concludes that the decision to override the CICA stay of perfor... File: 027 - McTech Corporation v United States.doc, Final Clean Text: Because the voluntary remedial measures taken by the government have sufficiently mitigated the effe... File: 028 - Red River Communications Inc v United States.doc, Final Clean Text: Accordingly, based on the foregoing, plaintiff s motion to amend its complaint is granted, defendant... File: 030 - Rack And Ballauer Excavating Co Inc v City of Cincinnati.doc, Final Clean Text: \* co_pp_sp_999_7_30 \* co_pp_sp_999_7_30 *7 The Court finds that Plaintiffs have not met their extr... File: 031 - Miles Construction LLC v United States.doc, Final Clean Text: For the reasons stated, the plaintiff s motion for judgment on the administrative record is GRANTED ... File: 032 - Singletary v Brown.doc, Final Clean Text: AND RECOMMENDATION Wherefore, based upon the foregoing, it is RECOMMENDED that the defendants motion... File: 033 - One Largo Metro LLC v United States.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for judgment upon the Administrative Record is DENIED ... File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Final Clean Text: IDEA has prevailed on the merits of its bid protest. Although bid preparation costs are normally ava... File: 036 - OSC Solutions Inc v United States.doc, Final Clean Text: Defendant s motion to dismiss is denied. \* co_fnRef_B00142029695503_ID0EAEAG_36 \* co_fnRef_B001420... File: 037 - KWV INC v United States.doc, Final Clean Text: For the foregoing reasons, KWV s motion for a preliminary injunction is GRANTED. OSDBU s decision da... File: 038 - Westlands Water District v United States.doc, Final Clean Text: For the reasons stated, a number of plaintiff s claims are DISMISSED \'3fIN \'3fPART for lack of sub... File: 039 - Orion Technology Inc v US.doc, Final Clean Text: The judgment of the Claims Court is \'3f AFFIRMED. \'3f \* co_allCitations_39 \* co_allCitations_39... File: 040 - Grooms v United States.doc, Final Clean Text: For the reasons set forth above, defendant s motion to dismiss under \* HYPERLINK "https://www.westl... File: 041 - Linc Government Services LLC v United States.doc, Final Clean Text: . For these reasons, it is hereby ordered that: \'3f This procurement is remanded to Army \'3ffor ad... File: 042 - Alamo Travel Group LP v United States.doc, Final Clean Text: The Court has found that the plaintiff s objection to the government s failure to consider its past ... File: 043 - Laboratory Corp of America v United States.doc, Final Clean Text: Unlike someone on good terms with the Mad Hatter s Time, the officials at the VA could not whisper a... File: 044 - P And K Contracting Inc v United States.doc, Final Clean Text: s herein follow careful consideration of the questions plaintiff presented at the beginning of its M... File: 045 - Dellew Corporation v United States.doc, Final Clean Text: Accordingly, based on the foregoing, defendant s motion to dismiss and plaintiff s motion for judgme... File: 046 - A1 Procurement LLC v Hendry Corp.doc, Final Clean Text: \* co_pp_sp_999_9_46 \* co_pp_sp_999_9_46 *9 For the foregoing reasons, it is \'3f ORDERED AND ADJUD... File: 049 - American Apparel Inc v United States.doc, Final Clean Text: For the reasons discussed above, the court concludes that the addition of two items by the defendant... File: 050 - Kingdomware Technologies Inc v United States.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the stipulated facts is DENIED , and t... File: 051 - Systems Application And Technologies Inc v United States.doc, Final Clean Text: Plaintiff s motion for judgment on the administrative record is granted. Defendant s motion for judg... File: 052 - FirstLine Transp Sec Inc v US.doc, Final Clean Text: For the reasons stated above, the Court GRANTS the Government s motion for judgment on the administr... File: 053 - Science Applications Intern Corp v US.doc, Final Clean Text: For the reasons stated, SAIC s Motion for Judgment on the AR (ECF No. 78) is DENIED, and the Cross \... File: 054 - Exelis Inc v SRC Inc.doc, Final Clean Text: to be drawn by the Court from, the face of Plaintiff s motion. (Dkt. No. 58, at 192 [Hrg. Testimony ... File: 055 - JCN Const Inc v US.doc, Final Clean Text: For the reasons stated, the plaintiff s motion for judgment on the administrative record is GRANTED ... File: 056 - Reema Consulting Services Inc v US.doc, Final Clean Text: Based on the foregoing, the court concludes that it lacks jurisdiction to consider plaintiff s claim... File: 057 - Res-Care Inc v US.doc, Final Clean Text: For reasons explained above, we deny plaintiff s motion to supplement the administrative record. We ... File: 058 - Sierra Nevada Corp v US.doc, Final Clean Text: It is the province of the Air Force in the first instance to apply Section L 6.3. Plaintiff s motion... File: 059 - Afghan American Army Services Corp v US.doc, Final Clean Text: 1. Plaintiff s Motion to Supplement the AR is GRANTED. The following documents are added to the reco... File: 060 - Your Recruiting Co Inc v US.doc, Final Clean Text: For the reasons stated above, we grant intervenor s motion to supplement the record; \* co_pp_sp_613... File: 061 - Atlantic Diving Supply Inc v US.doc, Final Clean Text: For the forgoing reasons, \* co_fnRef_B00082028865285_ID0EUNDI_61 \* co_fnRef_B00082028865285_ID0EUN... File: 062 - Phoenix Management Inc v US.doc, Final Clean Text: . For the foregoing reasons, Phoenix s June 12, 2012 Motion To Supplement The Administrative Record ... File: 063 - IHS Global Inc v US.doc, Final Clean Text: For the reasons stated above, the Court GRANTS the Defendant s and BAE s motions to dismiss for lack... File: 064 - US v City of Detroit.doc, Final Clean Text: & ORDER For the reasons above, IT IS ORDERED that the DWSD s motion is GRANTED IN PART. The motion i... File: 065 - Golden Mfg Co Inc v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that \'3f (1) Plaintiff s Motion for Judgment on the Administrativ... File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Final Clean Text: For the foregoing reasons, it is \'3f ORDERED AND ADJUDGED that the Motion to Dismiss [ECF No. 37] i... File: 067 - Phillips v Mabus.doc, Final Clean Text: For the foregoing reasons, the Court will deny the Federal Defendants Motion to Dismiss or in the Al... File: 068 - MBR Const Services Inc v City of Reading.doc, Final Clean Text: For all of the foregoing reasons, the City s motion to dismiss is granted in part and denied in part... File: 070 - KM Enterprises Inc v McDonald.doc, Final Clean Text: For the foregoing reasons, it is hereby \'3f ORDERED that the Defendant s motion to dismiss the Comp... File: 071 - Halim v US.doc, Final Clean Text: For the foregoing reasons, defendant s Motion is DENIED except to the extent GRANTED \'3fIN \'3fPART... File: 073 - Tip Top Const Inc v Donahoe.doc, Final Clean Text: For the foregoing reasons, we reverse the ruling by the Board insofar as it denied-in-part Tip Top s... File: 074 - Brennan Center for Justice at New York University School of Law v US Dept .doc, Final Clean Text: For the foregoing reasons, the district court s grant of summary judgment for the \* co_pp_sp_506_20... File: 075 - Elmendorf Support Services Joint Venture v United States.doc, Final Clean Text: For the reasons stated above, we grant defendant s motion to dismiss filed on July 2, 2012. The Cler... File: 076 - ARAMARK Correctional Services LLC v County of Cook.doc, Final Clean Text: Aramark failed to conduct proper service of its subpoena ad testificandum when it did not tender app... File: 078 - Colorado Bldg and Const Trades Council v US Dept of Defense.doc, Final Clean Text: . After the sunsetting of this court s concurrent jurisdiction with the Court of Federal Claims on J... File: 079 - Ettefaq-Meliat-Hai-Afghan Consulting Inc v US.doc, Final Clean Text: Defendant s Motion for Judgment on the Administrative Record is GRANTED. \* co_pp_sp_613_443_79 \* c... File: 081 - Croman Corp v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiff s motion for judgment on the administrative re... File: 082 - Navarro Research and Engineering Inc v US.doc, Final Clean Text: In summary, the court concludes that the GAO decision was not irrational, and that NASA s decision t... File: 083 - DynaLantic Corp v US Dept of Defense.doc, Final Clean Text: For the foregoing reasons, the Court concludes that the Section 8(a) program, \* HYPERLINK "https://... File: 084 - Midwest Auto Auction Inc v McNeal.doc, Final Clean Text: In the end, this case is about a disappointed bidder on a single contract. The contract went to the ... File: 085 - Horsley Co LLC v Milwaukee County.doc, Final Clean Text: s of independent consultants as well as experienced County personnel, the harms to the County if a p... File: 086 - Chester Bross Const Co v Schneider.doc, Final Clean Text: For the reasons stated, Defendants Motion for Summary Judgment (d/e 10) is GRANTED in part and DENIE... File: 087 - Miller v Clinton.doc, Final Clean Text: by downplaying the relevant statutory text, stacking the deck with inapposite interpretive presumpti... File: 088 - 360Trainingcom Inc v US.doc, Final Clean Text: The Court DENIES Plaintiff s First Motion to Supplement the Administrative Record and it GRANTS \'3f... File: 089 - DGR Associates Inc v US.doc, Final Clean Text: The Court of Federal Claims decision to award DGR attorneys fees and costs under the EAJA is reverse... File: 090 - Standard Communications Inc v US.doc, Final Clean Text: For the reasons set forth above, plaintiff s motion for attorney s fees and expenses pursuant to the... File: 091 - Watterson Const Co v US.doc, Final Clean Text: . For the foregoing reasons, Plaintiff s September 28, 2011 Verified Application For Costs And Fees ... File: 092 - Distributed Solutions Inc v US.doc, Final Clean Text: In view of the foregoing, the Court GRANTS defendant s and defendant-intervenor s motions for judgme... File: 093 - Omniplex World Services Corp v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion for judgment on the administrative record is DENIED, a... File: 094 - Knit With v Knitting Fever Inc.doc, Final Clean Text: In light of the foregoing, the Court is constrained to find that Plaintiff lacks statutory standing ... File: 095 - City of Pontiac General Employees' Retirement System v Lockheed Martin Cor.doc, Final Clean Text: s \'3fwill not do \'3f). But the Amended Complaint alleges, inter alia, that various division leader... File: 096 - Rivera v US.doc, Final Clean Text: . For the reasons discussed herein, the Government s November 14, 2011 Motion To Dismiss is granted.... File: 097 - System Planning Corp v US.doc, Final Clean Text: For the foregoing reasons, the court concludes that there is no genuine issue of material fact and t... File: 098 - CBY Design Builders v US.doc, Final Clean Text: of the later of the time periods specified in the previous sentence, each private party must destroy... File: 099 - McTech Corp v US.doc, Final Clean Text: The government s motion to dismiss McTECH s amended complaint on mootness grounds is DENIED. \'3f Th... File: 100 - Gillham v Tennessee Valley Authority.doc, Final Clean Text: , and neither the district court nor the majority found otherwise. I would remand this case for tria... File: 001 - BINL Inc v US.doc, Final Clean Text: In sum, the court holds that plaintiffs have standing to bring their protest. The government s motio... File: 002 - Elmendorf Support Services Joint Venture v US.doc, Final Clean Text: For the reasons stated above, we deny defendant s motion to dismiss. We also deny plaintiff s motion... File: 003 - Cox v US.doc, Final Clean Text: The court has combed through plaintiffs complaint and has not been able to discern any claim over wh... File: 004 - SUFI Network Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court rejects both parties preclusion arguments pertaining to \* HYPE... File: 005 - Corey Airport Services Inc v Clear Channel Outdoor Inc.doc, Final Clean Text: Plaintiff s conspiracy claims fail against Defendants because the underlying proposed equal protecti... File: 006 - Albino v US.doc, Final Clean Text: For the reasons set forth above, defendant s renewed motion to dismiss is GRANTED and plaintiff s mo... File: 007 - Bartel v Kemmerer City.doc, Final Clean Text: The judgment of the district court is AFFIRMED. Defendant s motion to strike is GRANTED in part and ... File: 008 - International Genomics Consortium v US.doc, Final Clean Text: This court need go no farther. Based on the foregoing, the court GRANTS defendant s cross-motion for... File: 009 - Glenn Defense Marine (Asia) PTE Ltd v US.doc, Final Clean Text: For the reasons discussed above, the Navy s past performance evaluations for Glenn Defense Marine an... File: 010 - Wildflower Intern Ltd v US.doc, Final Clean Text: For the foregoing reasons, Wildflower s motion for judgment on the administrative record pursuant to... File: 011 - CBY Design Builders v US.doc, Final Clean Text: For the foregoing reasons, the Court finds that the corrective action taken by the Army Corps of Eng... File: 012 - Burney v United States.doc, Final Clean Text: For the foregoing reasons, we grant defendant s motions to dismiss and for judgment on the administr... File: 013 - OPS 2 LLC v County of Clark ex rel University Medical Center of Southern N.doc, Final Clean Text: of Law is considered a Finding of Fact it is the Court s intention that it be so considered. \'3f \*... File: 014 - Terex Corp v US.doc, Final Clean Text: For the reasons set forth above, the court concludes that TACOM s favorable evaluation of the test d... File: 016 - Distributed Solutions Inc v US.doc, Final Clean Text: After commencing a proposed procurement and without rationale, USAID and DoS chose to forego direct ... File: 017 - BayFirst Solutions LLC v US.doc, Final Clean Text: Because plaintiff has not succeeded on the merits of either of its claims within this court s jurisd... File: 019 - California Indus Facilities Resources Inc v US.doc, Final Clean Text: For the reasons set forth above, the court DENIES plaintiff s motion for judgment on the administrat... File: 020 - Three S Consulting v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss for lack of subject matter jurisdictio... File: 021 - 360Trainingcom Inc v US.doc, Final Clean Text: For the reasons set forth above, this Court has bid protest jurisdiction over Plaintiff s challenge ... File: 022 - Columbia United Providers Inc v Washington.doc, Final Clean Text: \'3fArbitrary and capricious means \'3fwillful and unreasoning action, taken without regard to or co... File: 023 - Omniplex World Services Corp v US.doc, Final Clean Text: of this action (including any appeals and remands), each party must destroy all protected informatio... File: 024 - Midwest Tube Fabricators Inc v US.doc, Final Clean Text: For the reasons stated at the hearing held on April 16, 2012 and set out in this opinion, the court ... File: 025 - Contracting Consulting Engineering LLC v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s motion for ... File: 026 - Contract Services Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion for Judgment on the Administrative Record is DENIED, a... File: 027 - HP Enterprise Services LLC v US.doc, Final Clean Text: Because the elimination of HP s proposal from this competition was arbitrary and contrary to law, th... File: 028 - Northern Air Cargo v US Postal Service.doc, Final Clean Text: that determination did not have to be vacated, where grantee was only carrier of priority mail on se... File: 030 - Rocket Learning Inc v Rivera-Sanchez.doc, Final Clean Text: The Court has made an independent examination of the entire record in this case, including both part... File: 031 - Geo Group Inc v Community First Services Inc.doc, Final Clean Text: \* co_pp_sp_999_11_31 \* co_pp_sp_999_11_31 *11 For the reasons set forth above, the Motion to Dismi... File: 032 - May v US.doc, Final Clean Text: . For the reasons discussed herein, the Government s January 17, 2012 Motion For Summary Dismissal i... File: 033 - Electronic On-Ramp Inc v US.doc, Final Clean Text: For the reasons set forth above, Plaintiff has demonstrated that DIA s decision was arbitrary, capri... File: 034 - Reilly v US.doc, Final Clean Text: Based upon the foregoing, the Court DISMISSES Reilly s claims as untimely and need not reach the par... File: 035 - Mission Essential Personnel LLC v US.doc, Final Clean Text: For the reasons stated, the government s and Harding s motions to dismiss under \* HYPERLINK "https:... File: 036 - InGenesis Inc v US.doc, Final Clean Text: For the reasons explained above, we deny plaintiff s motion to supplement the administrative record ... File: 037 - Guzar Mirbachakot Transp v US.doc, Final Clean Text: , or whether Plaintiff s interpretation of the solicitation was reasonable in the legal sense. Tr. 6... File: 038 - Horn And Associates Inc v US.doc, Final Clean Text: The Statement of Work attached to the Order signed by Horn and the Contracting Officer determined th... File: 039 - Contracting Consulting Engineering LLC v US.doc, Final Clean Text: , the GSBCA relied on evidence of the awardee s post-award activity, as well as extra-record evidenc... File: 040 - Tp of Saddle Brook v US.doc, Final Clean Text: Plaintiff has not met its burden to establish subject matter jurisdiction. The Tucker Act grants thi... File: 041 - L-3 Services Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court of Federal Claims does not have jurisdiction over plaintiff s c... File: 042 - Po Kee Wong v US Sol Gen.doc, Final Clean Text: For the foregoing reasons, the Court must GRANT defendant s motion to dismiss plaintiff s Complaint.... File: 043 - Solute Consulting v US.doc, Final Clean Text: Because the court lacks jurisdiction to entertain Solute s bid protest, defendant s motion to dismis... File: 044 - Mission Critical Solutions v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED. \'3f IT IS SO ORDERED. \'3f \* co_allCitati... File: 045 - United States ex rel American Systems Consulting Inc v Man Tech Advanced S.doc, Final Clean Text: that the bid protest does not fit within the administrative hearing category because the GAO did not... File: 046 - Contracting Consulting Engineering LLC v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f IT IS ORDERED, as follows: \'3f 1. Plaintiff s Motion for ... File: 047 - Hi-Tech Bed Systems Corporation v United States General Services Administr.doc, Final Clean Text: WHEREFORE, for each of the reasons set forth more fully above, Defendants motion is GRANTED and Plai... File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Final Clean Text: . The Court shall require the parties to provide a Joint Status Report advising the Court of the sta... File: 049 - Terry v US.doc, Final Clean Text: For the reasons discussed above, defendant s motion to dismiss is GRANTED IN PART and DENIED IN PART... File: 050 - Boston Harbor Development Partners LLC v US.doc, Final Clean Text: This court need go no farther. Based on the foregoing, the court GRANTS defendant s and defendant-in... File: 051 - Triad Logistics Services Corp v US.doc, Final Clean Text: \* co_pp_sp_999_26_51 \* co_pp_sp_999_26_51 *26 This court concludes that Triad is not an interested... File: 052 - Singletary v South Carolina Dept of Educ.doc, Final Clean Text: and recommendation \'3f is not appropriately evidence of bias. Next, Plaintiff s allegation that the... File: 053 - Kaw Nation of Oklahoma v US.doc, Final Clean Text: The court need go no further. Defendant sees Tecon rendering \* HYPERLINK "https://www.westlaw.com/L... File: 054 - GTA Containers Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant s motion to dismiss is denied. \'3f 2. Plaint... File: 055 - Furniture by Thurston v US.doc, Final Clean Text: For the reasons set forth above, Thurston s motion for judgment on the administrative record is GRAN... File: 056 - Diversified Maintenance Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, it is hereby ORDERED that: (1) Defendant s Motion to Dismiss, filed Octob... File: 057 - Starr Intern Co Inc v US.doc, Final Clean Text: On January 31, 2012, the Court held a hearing on Starr s December 19, 2011 motion for the Court to i... File: 058 - GTA Containers Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Defendant s motion to dismiss is denied. \'3f 2. Plaint... File: 060 - Laguna Hermosa Corp v US.doc, Final Clean Text: that Laguna Hermosa s complaint fails to state a claim under \* HYPERLINK "https://www.westlaw.com/L... File: 061 - Maine Educ Ass'n Benefits Trust v Cioppa.doc, Final Clean Text: For the reasons just given, Defendant s Motion to Dismiss is hereby GRANTED and Counts I, III & IV a... File: 062 - Singletary v South Carolina Dept of Educ.doc, Final Clean Text: AND RECOMMENDATION Wherefore, based upon the foregoing, it is RECOMMENDED that the defendants motion... File: 063 - Virgin Islands Paving Inc v US.doc, Final Clean Text: . The court has determined, based upon the Administrative Record, that the FHWA s decision to withdr... File: 064 - Draper Inc v MechoShade Systems Inc.doc, Final Clean Text: Draper s Motion to Compel is GRANTED IN PART and DENIED IN PART as set forth above. It is time to de... File: 068 - Schrader v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Petition is DISMISSED. The Clerk of Court is directed to ENTE... File: 070 - SECSYS LLC v Vigil.doc, Final Clean Text: the doctrine shouldn t apply when the government interacts with independent contractors \'3fin both ... File: 071 - Pellegrini v US.doc, Final Clean Text: For the reasons stated above, the government s motion to dismiss parts of this case is GRANTED. The ... File: 072 - URS Federal Services Inc v US.doc, Final Clean Text: . For these reasons, the Government s January 5, 2012 Motion For Reconsideration is denied, as the c... File: 073 - NASCENT Group JV ex rel Native American Services Corp Inc v US.doc, Final Clean Text: . For the reasons stated above, the Clerk of Court for the United States Court of Federal Claims is ... File: 074 - Ceradyne Inc v US.doc, Final Clean Text: For the foregoing reasons, because the plaintiff s claim stemming from the modification of BAE s con... File: 075 - Antilles Cement Corp v Fortuno.doc, Final Clean Text: To recapitulate, we uphold Law 109 as a permissible action taken by Puerto Rico in \* co_pp_sp_506_3... File: 076 - MG Altus Apache Co v US.doc, Final Clean Text: Plaintiff s Motion to Supplement the Administrative Record is GRANTED. The documents in Tabs 126 \'3... File: 077 - Innovation Development Enterprises of America Inc v US.doc, Final Clean Text: \* co_pp_sp_999_6_77 \* co_pp_sp_999_6_77 *6 Plaintiffs motion to amend and supplement the complaint... File: 078 - BayFirst Solutions LLC v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Plaintiff s Motion for Judgment Pursuant to \* HYPERLINK ... File: 080 - URS Federal Services Inc v US.doc, Final Clean Text: . For these reasons, the court has determined that Treasury s November 22, 2011 override of the auto... File: 081 - Akal Sec Inc v US.doc, Final Clean Text: . For the reasons discussed herein, Akal is entitled to a two point increase in its \'3fCorporate Ex... File: 084 - CRAssociates Inc v US.doc, Final Clean Text: Having considered, and rejected, the remainder of plaintiff s points, this court need go no further.... File: 085 - Science Applications Intern Corp v US.doc, Final Clean Text: s from review. This result is not supported by relevant authority. See \* HYPERLINK "https://www.wes... File: 086 - Sheppard v US.doc, Final Clean Text: \* co_pp_sp_999_9_86 \* co_pp_sp_999_9_86 *9 The court concludes that, with one exception, there is ... File: 087 - Brooks Range Contract Services Inc v US.doc, Final Clean Text: For the foregoing reasons, plaintiff s Motion is DENIED and defendant s Combined Motion and interven... File: 088 - MORI Associates Inc v US.doc, Final Clean Text: The National Institutes of Health, and National Institute of Diabetes and Digestive and Kidney Disea... File: 089 - Metcalf Const Co Inc v US.doc, Final Clean Text: . For the reasons discussed herein, the court has determined that Plaintiff has failed to establish ... File: 090 - Joint Venture of Comint Systems Corp v US.doc, Final Clean Text: Comint and NetServices lack standing to bring their protests. Consequently, the court lacks jurisdic... File: 091 - Kone Corporation v ThyssenKrupp USA Inc.doc, Final Clean Text: s may result in the loss of the right to de novo review in the district court. See \* HYPERLINK "htt... File: 092 - Orion Technology Inc v US.doc, Final Clean Text: For the reasons set forth above, the court GRANTS defendant s motion to dismiss, FINDS AS MOOT defen... File: 093 - MED Trends Inc v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Defendant s Motion to Dismiss, filed November 16, 2011, i... File: 094 - Vanguard Recovery Assistance v US.doc, Final Clean Text: For the reasons stated, the plaintiff s motion for judgment on the administrative record is DENIED, ... File: 095 - Standard Communications Inc v US.doc, Final Clean Text: and rationale shall be thoroughly documented and explained; and 3. If, after completion of either of... File: 096 - Serco Inc v US.doc, Final Clean Text: Plaintiff s application for a temporary restraining order is hereby GRANTED. \'3f In accordance with... File: 097 - Orion Technology Inc v US.doc, Final Clean Text: As set forth above, the court: \'3f SUPPLEMENTS the administrative record with the enlarged spreadsh... File: 098 - IBM Corp v US.doc, Final Clean Text: Based on the foregoing, the Court DENIES IBM s motion for judgment on the administrative record and ... File: 099 - United Space Alliance LLC v Solis.doc, Final Clean Text: Despite the vigor with which United Space has litigated it, there is surprisingly little at stake in... File: 100 - Gonzales-McCaulley Inv Group Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff cannot meet its burden to show the offer and acceptance of any ... File: 02 - Survival Systems USA Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s Motion is DENIED, and defendant s Cross \'3fMotion and defendant... File: 03 - Ford v US.doc, Final Clean Text: Because Plaintiff has not established that this Court has jurisdiction over his claims, the Governme... File: 04 - Redondo Const Corp v Izquierdo.doc, Final Clean Text: of the litigation. \'3f So ordered. \'3f \* co_allCitations_4 \* co_allCitations_4... File: 05 - NetStar-1 Government Consulting Inc v US.doc, Final Clean Text: The court finds that the prerequisites for issuing an injunction have been fully satisfied here. In ... File: 06 - D And S Consultants Inc v US.doc, Final Clean Text: In view of the foregoing, the Court GRANTS defendant s motion for judgment on the administrative rec... File: 07 - Survival Systems USA Inc v US.doc, Final Clean Text: Based on the foregoing, defendant s Motion is DENIED. \'3f IT IS SO ORDERED. \'3f \* co_allCitations... File: 08 - US Foodservice Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, \'3f 1. Plaintiff s and plaintiff-intervenor s motions for judg... File: 09 - Outdoor Venture Corp v Mills.doc, Final Clean Text: s or unwarranted factual inferences. \'3f Id. (quoting \* HYPERLINK "https://www.westlaw.com/Link/Do... File: 10 - Wilburn v US.doc, Final Clean Text: For the reasons stated above, Defendant s motion to dismiss for lack of jurisdiction is GRANTED. The... File: 11 - Metropolitan Van and Storage Inc v US.doc, Final Clean Text: Metropolitan is awarded attorneys fees in the amount of $201,623.45 for the original litigation and ... File: 12 - Impresa Construzioni Geom Domenico Garufi v US.doc, Final Clean Text: Based on the foregoing, plaintiff s EAJA application is GRANTED IN \'3fPART and DENIED IN \'3fPART. ... File: 13 - Seaborn Health Care Inc v US.doc, Final Clean Text: Based upon the foregoing, the Court DISMISSES Seaborn s protest for lack of standing, DENIES Top Ech... File: 14 - Garcia-Gonzalez v Puig-Morales.doc, Final Clean Text: For the reasons set forth above, the Court hereby DENIES Plaintiffs partial motion for summary judgm... File: 15 - FirstLine Transp Sec Inc v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Plaintiff s Motion to Supplement the Administrative Recor... File: 17 - BlueStar Energy Services Inc v US.doc, Final Clean Text: Accordingly, based on the foregoing, the Clerk of the Court shall dismiss the complaint pursuant to ... File: 19 - MED Trends Inc v US.doc, Final Clean Text: For the reasons stated above, we deny defendant s and intervenor s motions to dismiss, deny plaintif... File: 20 - Texas Alliance for Home Care Services v Sebelius.doc, Final Clean Text: Congress has directed HHS and CMS to develop a competitive bidding program for the purchase of DME, ... File: 22 - RN Expertise Inc v US.doc, Final Clean Text: Because the Plaintiff has not established that the Court s previous decision causes a manifest injus... File: 23 - Lanier Const Co Inc v City of Clinton NC.doc, Final Clean Text: For the foregoing reasons, Defendants Motion to Dismiss [DE 26] is GRANTED. \'3f SO ORDERED. \* co_a... File: 24 - CW Government Travel Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS IN PART CWT s motion for judgment on the administrative ... File: 25 - Cheeks of North America Inc v Fort Myer Const Corp.doc, Final Clean Text: For the foregoing reasons, the Court finds that CNA lacks standing to assert its claims involving an... File: 26 - Tauri Group LLC v US.doc, Final Clean Text: s, even if a consensus approach is followed by the team, those analyses or opinions should be includ... File: 27 - Vero Technical Support Inc v US Dept of Defense.doc, Final Clean Text: For the foregoing reasons, the judgment of the district court is AFFIRMED. \'3f \* co_allCitations_2... File: 28 - O'Gilvie v Corporation for Nat Community Service.doc, Final Clean Text: For the foregoing reasons, defendant s motion to dismiss is granted. A separate order will issue. \'... File: 29 - Systems Application And Technologies Inc v US.doc, Final Clean Text: In sum, the court finds that injunctive relief is appropriate in this case. Accordingly, it is ORDER... File: 30 - Nilson Van And Storage Inc v US.doc, Final Clean Text: For the stated reasons, Nilson Van s Motion for Judgment on the Administrative Record is DENIED, and... File: 32 - Jacobs Technology Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court: 1. DENIES as moot IBM s motion for judgment on the admin... File: 33 - GEO Group Inc v US.doc, Final Clean Text: The court finds that the prerequisites for issuing a temporary restraining order have not been satis... File: 34 - Outdoor Venture Corp v US.doc, Final Clean Text: Because the court determines that plaintiff lacks standing to bring this bid protest, and because SB... File: 35 - Joint Venture of Comint Systems Corp v US.doc, Final Clean Text: For the foregoing reasons, NetServices s motion is GRANTED IN PART and DENIED \* co_pp_sp_613_170_35... File: 36 - Turner Const Co Inc v US.doc, Final Clean Text: The judgment of the Court of Federal Claims is affirmed. \'3f AFFIRMED \'3f \* co_allCitations_36 \*... File: 37 - California Indus Facilities Resources Inc v US.doc, Final Clean Text: For the foregoing reasons, Plaintiff s motion for judgment on the administrative record is GRANTED. ... File: 39 - United Concordia Companies Inc v US.doc, Final Clean Text: The agency properly conducted a comparative assessment as required by FAR part 15. The agency s eval... File: 40 - MES Inc v US.doc, Final Clean Text: . For the reasons stated above, MES s and Travelers February 21, 2011 Motions For Preliminary Injunc... File: 41 - Telemaque v US.doc, Final Clean Text: \* co_pp_sp_999_6_41 \* co_pp_sp_999_6_41 *6 For the reasons set forth above, the court DISMISSES pl... File: 42 - Castle-Rose Inc v US.doc, Final Clean Text: For the stated reasons, the government s motion to dismiss is DENIED. The plaintiff s motion for jud... File: 43 - Northrop Grumman Computing Systems Inc v US.doc, Final Clean Text: Based on the foregoing, the court GRANTS defendant s motion to dismiss the complaint under \* HYPERL... File: 44 - McCain v US.doc, Final Clean Text: \* co_pp_sp_999_9_44 \* co_pp_sp_999_9_44 *9 For the above-stated reasons the government s motion fo... File: 46 - Defense Technology Inc v US.doc, Final Clean Text: The Court DENIES defendant s \* HYPERLINK "https://www.westlaw.com/Link/Document/FullText?findType=L... File: 47 - Northeast Military Sales Inc v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s Motion and GRANTS defendant s Motion. The Cl... File: 48 - NetStar-1 Government Consulting Inc v US.doc, Final Clean Text: The court finds that the prerequisites for issuing a preliminary injunction have been fully satisfie... File: 49 - Gear Wizzard Inc v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s Motion, DENIES defendant s Motion to Dismiss... File: 50 - Northern Air Cargo v US Postal Service.doc, Final Clean Text: In sum, because the Postal Service s decision to tender nonpriority mainline bypass mail to PenAir i... File: 51 - Allied Technology Group Inc v US.doc, Final Clean Text: For the foregoing reasons, this court affirms the Claims Court s judgment on the administrative reco... File: 52 - Jacobs Technology Inc v US.doc, Final Clean Text: For the reasons set forth above, Jacobs has not demonstrated that USSOCOM s decision to adopt GAO s ... File: 54 - Dow Elec Inc v US.doc, Final Clean Text: . For these reasons, Plaintiffs January 28, 2011 Motion For Judgment On The Administrative Record is... File: 55 - Vanguard Recovery Assistance v US.doc, Final Clean Text: For the reasons stated, the government s and the defendant-intervenors motions to dismiss are DENIED... File: 56 - Jacobs Technology Inc v US.doc, Final Clean Text: For the reasons set forth above, the Government s motion to dismiss Count II of IBM s complaint, reg... File: 57 - Jacobs Technology Inc v US.doc, Final Clean Text: For the reasons set forth above, the Court DENIES the Government s motion to dismiss Jacobs claims f... File: 58 - L-3 Communications Corp v US.doc, Final Clean Text: For the foregoing reasons, the Court finds that the Air Force s approval of Egypt s selection of a s... File: 59 - Hallmark-Phoenix 3 LLC v US.doc, Final Clean Text: that plaintiff lacks standing to invoke statutes that plainly were not intended to benefit outside c... File: 60 - Tech Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court DENIES plaintiff s motions for judgment on the administrative r... File: 62 - National RR Passenger Corp v Veolia Transp Services Inc.doc, Final Clean Text: \* co_pp_sp_4637_68_62 \* co_pp_sp_4637_68_62 *68 To be sure, Amtrak s road to success at trial on b... File: 63 - Beard v US.doc, Final Clean Text: For the reasons stated, the government s motion to stay proceedings is DENIED. Ms. Beard s cross-mot... File: 64 - Santa Barbara Applied Research Inc v US.doc, Final Clean Text: For the foregoing reasons, the government s motion to dismiss is DENIED, the plaintiff s motion for ... File: 66 - Republic of New Morocco v US.doc, Final Clean Text: Plaintiff s claim is not founded upon a money-mandating source of law, and the court otherwise lacks... File: 67 - Patriot Taxiway Industries Inc v US.doc, Final Clean Text: results from a process of overall balancing, a movant is not entitled to a preliminary injunction if... File: 69 - Bowers Inv Co LLC v US.doc, Final Clean Text: For the foregoing reasons, the court GRANTS defendant s Motion to Dismiss. The Clerk is directed to ... File: 70 - Northeast Military Sales Inc v US.doc, Final Clean Text: Based on the foregoing, plaintiff s Motion is GRANTED to the extent set forth in the foregoing Opini... File: 71 - RCD Cleaning Service Inc v US.doc, Final Clean Text: Because RCD has not prevailed on the merits, the court need not examine the factors \* co_pp_sp_613_... File: 72 - RCD Cleaning Service Inc v US.doc, Final Clean Text: Because RCD has not prevailed on the merits, the court need not examine the factors to be considered... File: 73 - Glenn Defense Marine (Asia) PTE Ltd v US.doc, Final Clean Text: For the foregoing reasons, the court DENIES plaintiff s Motion and GRANTS defendant s Motion. The Cl... File: 75 - Engineering Solutions and Products Inc v US.doc, Final Clean Text: of oral argument, plaintiff failed to offer any evidence of disclosure of information by the agency ... File: 76 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: It would not be in the interest of justice to permit Plaintiff to add two late and legally deficient... File: 77 - Huntsville Times Co Inc v US.doc, Final Clean Text: Accordingly, it is hereby ORDERED that (1) Defendant shall FILE a complete version of the administra... File: 78 - Draper Inc v Mechoshade Systems Inc.doc, Final Clean Text: Draper s motion for jurisdictional discovery [Docket No. 31] is granted consistent with this order. ... File: 79 - Watterson Const Co v US.doc, Final Clean Text: . For these reasons, Plaintiff s October 1, 2010 Motion for Judgment On The Administrative Record is... File: 80 - ICP Northwest LLC v US.doc, Final Clean Text: In view of the foregoing, the Court ORDERS that plaintiff s first, second, and fourth claims are DIS... File: 81 - Ceres Environmental Services Inc v US.doc, Final Clean Text: s were a little different from mine. \'3f CAR 2098. The FAR explicitly allows contracting officers t... File: 82 - Best Wood Judge Firewood and Tree Service v US DOT.doc, Final Clean Text: For the above-stated reasons, \'3f IT IS ORDERED that Best Wood Judge s motion for summary judgment ... File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Final Clean Text: The plaintiff s entire protest is built on the faulty assumption that in order to withstand scrutiny... File: 84 - RN Expertise Inc v US.doc, Final Clean Text: For the reasons stated above, the Plaintiff fails to demonstrate that the Navy s decision to cancel ... File: 85 - K-Lak Corp v US.doc, Final Clean Text: Accordingly, the plaintiff s motion for judgment on the administrative record and its motion for inj... File: 86 - Mission Critical Solutions v US.doc, Final Clean Text: Accordingly, the court hereby DENIES Plaintiff s motion for judgment on the Administrative record an... File: 87 - Fisher Sand And Gravel Co v FNF Construction Inc.doc, Final Clean Text: \* co_pp_sp_999_15_87 \* co_pp_sp_999_15_87 *15 Defendants Gir \'3fn and Valerio argue that dismissa... File: 88 - Tech Systems Inc v US.doc, Final Clean Text: For the foregoing reasons, the Court GRANTS plaintiff s motion to supplement the administrative reco... File: 89 - Glenn Defense Marine (Asia) PTE Ltd v US.doc, Final Clean Text: Having considered, and rejected, the remainder of plaintiff s points, this court need go no further.... File: 90 - OK's Cascade Co v US.doc, Final Clean Text: Plaintiff did not suffer any injury as a result of the Forest Service s termination for convenience ... File: 91 - DGR Associates Inc v US.doc, Final Clean Text: The Court GRANTS DGR s application for attorneys fees, costs, and expenses under the EAJA. The Court... File: 92 - Digitalis Educ Solutions Inc v US.doc, Final Clean Text: For the foregoing reasons, we grant defendant s and intervenor s motions to dismiss and deny plainti... File: 93 - Hi-Tech Bed Systems Corp v US.doc, Final Clean Text: For the forgoing reasons, Defendant s Motion to Dismiss is GRANTED. The clerk is directed to enter j... File: 94 - Commissioning Solutions Global LLC v US.doc, Final Clean Text: Defendant s motion to dismiss is GRANTED with respect to the Sapelo and Knight Island solicitations.... File: 95 - Nilson Van And Storage v US.doc, Final Clean Text: \* co_pp_sp_999_3_95 \* co_pp_sp_999_3_95 *3 For the reasons stated, the government s motion to dism... File: 96 - L-3 Communications Integrated Systems LP v US.doc, Final Clean Text: The Court GRANTS IN PART Defendant s motion for reconsideration and/or clarification and Intervenor ... File: 97 - Acrow Corp of America v US.doc, Final Clean Text: The balance of factors weighs heavily in favor of defendant and MBSI. Plaintiff did not succeed on t... File: 98 - Fulcra Worldwide LLC v US.doc, Final Clean Text: For the foregoing reasons, Defendant s and Defendant \'3fIntervenor s motions for judgment on the ad... File: 99 - Washington Consulting Group Inc v Raytheon Technical Services Co LLC.doc, Final Clean Text: For the foregoing reasons, plaintiff s motion to remand this case to D.C. Superior Court pursuant to...
# Path to the directory
root_dir = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Counter for .doc files
doc_file_count = 0
# Walk through the directory and its subdirectories
for subdir, dirs, files in os.walk(root_dir):
for file in files:
if file.endswith('.doc'):
doc_file_count += 1
# Print the number of .doc files
print(f"Number of .doc files under {root_dir}: {doc_file_count}")
Number of .doc files under C:\Users\muc574\Bid Protest\WestLaw Data\Data: 3405
import pandas as pd
# Read the CSV file
df = pd.read_csv('final_clean_text.csv')
# Filter rows where 'Subdir' column contains the specified path
filtered_df = df[df['Subdir'].str.contains(r'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\\.*', regex=True)]
# Save the filtered data to an XLSX file using openpyxl
filtered_df.to_excel('final_clean_text_2.xlsx', index=False, engine='openpyxl')
filtered_df.head()
| Subdir | Filename | Final Clean Text | |
|---|---|---|---|
| 0 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 001 - PDS Consultants Inc v United States.doc | For all of these reasons, the court GRANTS IFB... |
| 1 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 002 - Veterans Contracting Group Inc v United ... | For the reasons stated, Veterans motion for a ... |
| 2 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 003 - Q Integrated Companies LLC v United Stat... | For the foregoing reasons, Q Integrated is awa... |
| 3 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 004 - In re Global Computer Enterprises Inc.doc | For the foregoing reasons, the Court finds in ... |
| 4 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 005 - AT And T Corp v United States.doc | For the foregoing reasons, the Court concludes... |
import os
import pandas as pd
# Path to the directory
root_dir = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Read the Excel file to get the list of subdirectories already included
df = pd.read_excel('final_clean_text_2.xlsx', engine='openpyxl')
included_subdirs = set(df['Filename'])
print(df['Filename'].shape)
# List to store paths of .doc files not included in the Excel file
excluded_files = []
# List to store paths of .doc files not included in the Excel file
excluded_files_long = []
# Walk through the directory and its subdirectories
for subdir, dirs, files in os.walk(root_dir):
for file in files:
if file.endswith('.doc'):
file_path = os.path.join(subdir, file)
#print(file)
# Check if the file's directory is not in the list of included subdirectories
if file not in included_subdirs:
excluded_files.append(file)
excluded_files_long.append(file_path)
print(len(excluded_files))
(2817,) 587
import csv
import os
import re
def clean_and_extract_last_100_chars(file_path):
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read()
# Split and remove all text after "All Citations"
content = re.split('All Citations', content, flags=re.IGNORECASE)[0]
# Extended cleanup pattern to also remove specific patterns and sequences of spaces
cleanup_pattern = re.compile(
r'(\\par|\\[a-z]+\d*|\{\}|\{|\}|\n|\r|\t|\f|\v|\s{2,}|\\[*]co_allCitations_\d+\\[*]co_allCitations_\d+|\s{5,})'
)
clean_content = re.sub(cleanup_pattern, '', content).strip()
return clean_content[-1000:]
except Exception as e:
print(f"Error reading file {file_path}: {e}")
return None
# Prepare to write to a CSV file
with open('additionaldata.csv', 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir', 'Filename', 'Final Clean Text'])
for file_path in excluded_files_long:
print(file_path)
last_100_chars = clean_and_extract_last_100_chars(file_path)
if last_100_chars:
directory, filename = os.path.split(file_path)
csvwriter.writerow([directory, filename, last_100_chars])
C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\007 - Mail Transportation Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\008 - Mail Transportation Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\010 - Account Control Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\011 - Van Ru Credit Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\012 - Collection Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\013 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\014 - Alltran Educations Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\028 - National Mall Tours of Washington Inc v United States Department of the In.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\030 - Board of Regents of Nevada System of Higher Education on behalf of Desert .doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\037 - United States v Burnett.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\045 - Yecheskel v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\048 - Account Control Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\049 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\050 - Alltran Educations Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\051 - Progressive Financial Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\052 - Collection Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\053 - Van Ru Credit Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\061 - Alltran Educations Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\062 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\063 - Collection Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\064 - Account Control Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\065 - Progressive Financial Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\066 - Van Ru Credit Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\069 - Remote Diagnostic Technologies LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\070 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\071 - Account Control Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\072 - Progressive Financial Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\073 - Collection Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\074 - Alltran Education Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\082 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\083 - Account Control Technology Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\084 - Pioneer Credit Recovery Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\085 - Alltran Education Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\089 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\1\099 - Continental Services Group Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\015 - Bona Fide Conglomerate Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\039 - KLAK Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\058 - Bilfinger Berger AG Sede Secondaria Italiana v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\068 - Martinez v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\071 - Wilk v Barr.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\084 - RN Expertise Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\094 - Technical Innovation Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\10\096 - McDonald-Cuba v Santa Fe Protective Services Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\002 - American Traffic Solutions Inc v Redflex Traffic Systems Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\013 - Dunnet Bay Const Co v Hannig.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\022 - Savantage Financial Services Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\040 - Hunter v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\053 - State Machinery And Equipment Sales Inc v Livingston Parish.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\062 - Kevcon Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\081 - McCollum v Secretary of Dept of Health and Human Services.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\11\084 - Oscar Renda Contracting Inc v City of Lubbock Tex.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\001 - Emergency Accessories And Installation Inc v Whelen Engineering Co Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\003 - DataPath Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\006 - Chesterfield Associates Inc v US Coast Guard.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\020 - Datapath Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\022 - Red River Holdings LLC v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\023 - NEQ LLC v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\024 - US v AEY Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\028 - White Hawk Group Inc v US ex rel US Small Business Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\046 - Walbridge Aldinger Co v City of Detroit.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\047 - Aids Healthcare Foundation Inc v Orange County.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\060 - Brevot v New York City Dept of Educ.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\076 - Nottingham Const Co LLC v City of Waveland.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\085 - Salazar v Merit Systems Protection Bd.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\12\096 - Impresa Construzioni Geom Domenico Garufi v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\003 - American Ordnance LLC v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\004 - US ex rel Osborne v Homecare Products Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\005 - EBI-Detroit Inc v City of Detroit.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\013 - Crippen v City of Fresno.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\017 - Moore's Cafeteria Services v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\022 - Information Sciences Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\041 - Archer Western Contractors Ltd v City of San Diego.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\074 - Experimental Holdings Inc v Farris.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\076 - ConocoPhillips v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\085 - Avtel Services Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\089 - Sartaine v Pennington.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\13\096 - Wilson v Moreau.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\002 - Management Ass'n for Private Photogrammetric Surveyors v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\010 - Sealift Inc v Reilly.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\013 - Aeolus Systems LLC v Small Business Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\015 - Distributed Solutions Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\016 - Bannum Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\029 - The Yadin Co v City of Peoria.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\030 - Alliance For Children Inc v City of Detroit Public Schools.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\032 - Dismas Charities Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\050 - Emerald Coast Finest Produce Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\057 - Jamerson v Ryan.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\060 - Fire-Trol Holdings LLC v US Forest Service.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\062 - Automation Technologies Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\074 - Automation Technologies Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\080 - Block v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\084 - Beta Analytics Intern Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\14\098 - CHE Consulting Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\001 - Orion Intern Technologies v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\003 - Quincy Commerce Center LLC and OMLC LLC v Maritime Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\005 - KSend v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\007 - Baird v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\019 - Precision Standard Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\044 - Contract Management Inc v Rumsfeld.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\050 - Jet Asphalt And Rock Co Inc v Angelo Iafrate Const LLC.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\059 - Eplus Technology Inc v National RR Passenger Corp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\061 - Beta Analytics Intern Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\093 - Asia Pacific Airlines v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\15\099 - RISC Management Joint Venture v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\005 - Conscoop-Consorzia Fra Coop Di Prod E Lavoro v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\011 - Night Vision Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\016 - Chapman Law Firm Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\022 - Dynamics Research Corp v Tybrin Corp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\038 - Lion Raisins Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\042 - Wolf v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\043 - Klamath Irr Dist v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\057 - Cubic Transp System Inc v Mineta.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\061 - Hunt Building Co Ltd v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\16\096 - Beta Analytics Intern Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\17\034 - Beam v Bauer.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\17\044 - Rice Services Ltd v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\17\058 - US ex rel Sanders v Allison Engine Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\17\090 - American Federation of Government Employees AFL-CIO v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\17\093 - Delaney Const Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\018 - Trifax Corp v District of Columbia.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\037 - American Federation of Government Employees v Babbitt.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\043 - City of Albuquerque v US Dept of Interior.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\048 - Impresa Construzioni Geom Domenico Garufi v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\050 - Baltimore Gas And Elec Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\060 - Mantech Telecommunications and Information Systems Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\062 - Southgulf Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\065 - Lees v Evans.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\073 - Myers Investigative And Security Services Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\074 - Advance Const Services Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\078 - Made in the USA Foundation v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\18\095 - Heard Communications Inc v Bi-State Development Agency.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\007 - Western Select Securities Inc v San Francisco City and County Employees' R.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\009 - Builders Association of Greater Chicago v County of Cook.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\013 - SD Myers Inc v City and County of San Francisco.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\014 - Hawpe Const Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\015 - Schickler v Davis.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\026 - John Gil Const Inc v Riverso.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\038 - Delk Const Co Inc v Munford.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\043 - Kellie W Tipton Const Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\046 - DeSciose v Delbalzo.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\052 - Dynacs Engineering Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\082 - Grand Design Golf Ltd v Glinstra.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\092 - Advanced Management Technology Inc v FAA.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\19\094 - Asta Engineering Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\009 - Texas by and through Texas Workforce Commission v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\012 - Teracore Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\023 - Partnership for Supply Chain Management Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\024 - Driver v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\028 - Field Training Support Services v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\046 - Midwest Fence Corporation v United States Department of Transportation.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\051 - Ogunjobi v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\053 - Oxford Development Co v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\055 - Favor TechConsulting LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\063 - Nevada Site Science Support and Technologies Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\073 - Inspace 21 LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\2\097 - Sims v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\001 - Garney Companies Inc v City of Kansas City Mo.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\005 - CS McCrossan Const Inc v Rahn.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\022 - Mineral Resource Technologies LLC v Grand River Dam Authority.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\027 - Rothe Development Corp v US Dept of Defense.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\028 - Helmark Steel Inc v US Dept of Transp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\031 - Sunland Pub Co Inc v City of Jackson.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\047 - John C Grimberg Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\048 - RAMCOR Services Group Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\050 - Charlie's Towing And Recovery Inc v Jefferson County Ky.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\071 - Brickwood Contractors Inc v Datanet Engineering Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\20\086 - Roxco Ltd v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\011 - ATAndT Corp v US Postal Service.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\034 - DSE Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\039 - Foto USA Inc v Board of Regents of University System of Florida.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\047 - Nautica Intern Inc v Intermarine USA LP.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\049 - Fore Systems Federal Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\052 - San Diego Beverage And Kup v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\059 - Syska And Hennessy Inc v General Accounting Office.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\21\061 - McClure Elec Constructors Inc v Dalton.doc 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Data\Data\22\032 - TRW Inc v Unisys Corp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\048 - Vulcan Power Co v Bonneville Power Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\051 - Scheduled Airlines Traffic Offices Inc v Department of Defense.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\060 - Enertech Elec Inc v Mahoning County Com'rs.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\064 - Kitty Hawk Aircargo Inc v Arthur D Little Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\071 - Austin Black Contractors Ass'n v City of Austin Tex.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\085 - Taylor Group Inc v Johnson.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\094 - Gould Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\097 - Dynamic Aviation v Department of Interior.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\22\100 - Percy J Matherne Contractor Inc v Grinnell Fire Protection Systems Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\001 - Blue Cross Blue Shield of Texas Inc v Office of Civilian Health and Medica.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\008 - McKnight Const Co Inc v Perry.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\009 - Blue Cross Blue Shield of Texas Inc v Office of Civilian Health and Medica.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\010 - Choate v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\015 - Techniarts Engineering v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\019 - Hotcaveg v Kennedy.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\034 - IMS Services Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\047 - Trinity Industries Inc v Reich.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\049 - GBA Associates v General Services Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\23\055 - CACI Intern Inc v Pentagen Technologies Intern Ltd.doc C:\Users\muc574\Bid Protest\WestLaw 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Irvin Industries Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\26 - MGM Const Co v Alameda County.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\42 - ATL Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\54 - Joseph Const Co v Veterans Admin of US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\56 - Tennessee Valley Authority v Imperial Professional Coatings.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\60 - Marine Power and Equipment Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\62 - AC Seeman Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\72 - ATL Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\78 - Golden Eagle Refining Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\87 - Motor Coach Industries Inc v Dole.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\28\96 - Longo-Puerto Rico Inc v USEPA.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\02 - Drexel Heritage Furnishings Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\04 - Southwest Marine Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\08 - Yachts America Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\09 - Shuey Aircraft Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\13 - American Hoist And Derrick Inc Lucker Div v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\16 - BK Instrument Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\22 - Space Age Engineering Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\26 - Clevepak Corp v USEPA.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\31 - Speco Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\49 - Baird Corp v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\52 - Gull Airborne Instruments Inc v Weinberger.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\57 - Operating Engineers Local Union No 3 of Intern Union of Operating Engineers.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\61 - John Carlo Inc v Corps of Engineers of U S Army Fort Worth Div.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\62 - Bayou State Sec Services Inc v Dravo Utility Constructors Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\66 - Matter of Marine Elec Ry Products Division Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\69 - K-W Const Inc v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\71 - Racal-Milgo Government Systems Inc v Small Business Admin.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\75 - Loffland Bros Co v Rougeau.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\82 - Spencer White And Prentis Inc v US Environmental Protection Agency.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\84 - Transco Sec Inc of Ohio v Freeman.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\85 - Hanover Area School Dist v Sarkisian Bros Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\89 - Central Alabama Paving Inc v James.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\94 - Tackett And Schaffner Inc v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\29\99 - Andrus v Glover Const Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\006 - Juliet Marine Systems Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\007 - Kingdomware Technologies Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\011 - United States v Gorski.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\017 - Sigmatech Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\024 - Sigmatech Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\048 - Johnson Controls Government Systems LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\054 - Lockheed Martin Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\3\056 - Jones v United States.doc C:\Users\muc574\Bid 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Foods Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\30\89 - Luce v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\30\95 - Amco Elec v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\30\96 - Hills Transp Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\06 - Creque v Government of Virgin Islands.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\09 - Ocean Elec Corp v Laird.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\10 - Allen M Campbell Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\18 - Wheelabrator Corp v Chafee.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\26 - Ballerina Pen Co v Kunzig.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\37 - Mid-West Const Limited v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\43 - U S v Anthony Grace And Sons Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\44 - Robert F Simmons and Associates v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\46 - Warren Bros Roads Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\52 - Jansen v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\54 - Litchfield Mfg Corp v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\57 - American Anchor And Chain Corp v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\66 - G L Christian and Associates v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\70 - G L Christian and Associates v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\72 - Star Woolen Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\73 - Moore-McCormack Lines Inc v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\75 - Copper Plumbing And Heating Co v Campbell.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\77 - Rumley v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\79 - Locke v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\81 - Escote Mfg Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\83 - Pacific Alaska Contractors Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\84 - Schlesinger v Gates.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\86 - Radium Mines Inc v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\87 - Carr v City of Anchorage.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\90 - Rhode Island Tool Co v U S.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\91 - Arcole Midwest Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\92 - Refining Associates v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\93 - Adelhardt Const Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\94 - Singleton v District of Columbia.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\96 - Beuttas v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\31\97 - Pottsville Casting And Mach Shops v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\03 - Stebel v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\04 - Albert And Harrison v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\05 - Miller v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\09 - Edmund J Rappoli Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\10 - Board of Trustees of National Training School for Boys v OD Wilson Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\12 - CE Carson Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\13 - Kuney v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\14 - Shepard v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\19 - Lukens Steel Co v Perkins.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\21 - Moran Towing And Transportation Co v City of New York.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\22 - Nason Coal Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\24 - Sequoia Mills v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\25 - American Smelting And Refining Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\28 - US v PJ Carlin Const Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\29 - Spencer v Pike County Pa.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\30 - McCormick v Oklahoma City.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\31 - Pike County Pa v Spencer.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\33 - US v Title Guaranty And Surety Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\36 - Ellicott Mach Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\39 - Brown v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\44 - Utah Nevada And California Stage Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\45 - Lundborg v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\46 - City of Newport News v Potter.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\48 - Price v Board of Chosen Freeholders of Passaic County.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\53 - Audsley v City of New York.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\54 - Haldane v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\55 - Safety Insulated Wire And Cable Co v City of Baltimore.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\58 - Pennsylvania R Co v Green.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\59 - U S v Chidester.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\60 - Seeberger v Farwell.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\61 - US v Barlow.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\65 - International SS And Ry Supply Co of NY v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\68 - Garfielde v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\69 - Lake v Hequembourg.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\74 - Cobb v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\79 - Emery v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\80 - McKinney v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\81 - Thompson v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\82 - Brady v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\32\89 - Providence Tool Co v Norris.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Ainslie Corp v Middendorf.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Alaska Movers Assn v Brown.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\American Elec Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Armstrong And Armstrong Inc v U S By and Through Morton.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Atlas Mach And Iron Works Inc v Secretary of Air Force.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Baird Corp v Marsh (1).doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Baird Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Berkeley Unified School Dist of Alameda County v James I Barnes Const Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Blackhawk Heating And Plumbing Co v Driver.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\California Dredging Co v Sanders.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Chapel Elec Co v Adamkus.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\City of Devils Lake v St Paul Fire And Marine Ins Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\City of Kingsville v Meredith.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\City of Mishawaka Ind v Santucci Const Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\CN Monroe Mfg Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Continental Ins Co v Harrison County Miss.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Covington v US By and Through Dept of Air Force.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Coyne-Delany Co Inc v Capital Development Bd of State of Ill.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Davis Associates Inc v Secretary Dept of Housing and Urban Development.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Davis Associates Inc v Secretary U S Dept of Housing and Urban Development.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Design Pak Inc v Baker.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Dillingham Const Inc v Milwaukee Metropolitan Sewerage Dist.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Eastern Service Management Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Edelman v Federal Housing Administration.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Ellsworth Bottling Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Environmental Tectonics Corp v Robinson.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Fairplain Development Co v Freeman.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Florsheim Co v Miller.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Fordice Const Co v Central States Dredging Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Fox And Co v Schoemehl.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Funderburg Builders Inc v Abbeville County Memorial Hospital.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\George Epcar Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Georgia Gazette Pub Co v US Dept of Defense.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Glamorgan Pipe And Foundry Co v Washington Suburban Sanitary Commission.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Good Roads Machinery Co of New England v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Hayes Intern Corp v McLucas.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Herbert F Darling Inc v Beck.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\HLI Lordship Industries Inc v Committee for Purchase from the Blind And Other Severely Handicapped (1).doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\HLI Lordship Industries Inc v Committee for Purchase from the Blind and Other Severely Handicapped.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Hoke Co Inc v Tennessee Valley Authority.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Holliday v Higbee.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Informatics General Corp v Weinberger.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Insley v Shepard.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\J P Mascaro And Sons Inc v Bristol Tp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Leath McCarthy And Maynard Inc v Army and Air Force Exchange Service.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Madison Bond Co v Scott County Ark.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Malan Const Corp v Board of County Road Comrs of Wayne County.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Management Science America Inc v Pierce.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Marine Power and Equipment Co Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\McDonald Welding And Mach Co Inc v Lehman.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Merrill Ditch-Liners Inc v Pablo.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Mikkilineni v United Engineers And Constructors Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Moffett Co v City of Rochester.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Morgan Associates v US Postal Service.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\North American Iron And Steel Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Ogden Development Corp v Federal Ins Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Osberg Const Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Ottinger v Blackwell.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Pennsylvania Co v Cole.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\PRI Pipe Supports v Tennessee Valley Authority.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Professional Review Organization of Florida Inc v US Dept of Health and Human Services.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Regional Scaffolding And Hoisting Co Inc v City of Philadelphia.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Reynolds v Goodwin-Hill Corp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Richardson v Grant County.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Robert Hawthorne Inc v US Dept of Interior.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Seaboard Const Co v Atlantic City.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\State of Connecticut v F H McGraw And Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Tenth St Bldg Corp v Administrator of General Services Administration.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Tip Top Construction Corporation v Government of the Virgin Islands Department of Property and Procu.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Todd Dry Dock Engineering And Repair Corporation v City of New York.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Turley v Lefkowitz.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\U S for Use and Benefit of Empire Plastics Corp v Western Cas And Sur Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\U S v New England Coal And Coke Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\U S v Virginia Elec And Power Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Ungerer v Smith.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Urban Sanitation Corp v City of Pell City Ala.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\US v Heller.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\US v Levinson.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\US v Presser.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\US v Sunshine Dairy.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\US v Taylors Oak Ridge Corp.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Vaughan v John C Winston Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\W B Fishburn Cleaners Inc v Army and Air Force Exchange Service.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\W G Cosby Transfer And Storage Corp v Froehlke.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Wampler v Goldschmidt.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\West v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\33\Zoby v American Fidelity Co.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\012 - Sigmatech Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\043 - Alsobrook v Alvarado.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\047 - Global Dynamics LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\058 - Alliant Enterprise JV LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\066 - Community Maritime Park Associates Inc v Maritime Park Development Partner.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\4\098 - GCC Technologies LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\001 - Magpul Industries Corp v Blue Force Gear Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\018 - Mercom Corporation v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\033 - Arc Aspicio LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\045 - Affordable Engineering Services LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\070 - Fisher Sand And Gravel Co v FNF Construction Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\071 - Fisher Sand And Gravel Co v FNF Construction Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\074 - B And B Medical Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\076 - Fisher Sand And Gravel Co v FNF Construction Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\081 - Fisher Sand And Gravel Co v FNF Construction Inc.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\086 - Space Exploration Technologies Corp v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\5\098 - CMS Contract Management Services v Massachusetts Housing Finance Agency.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\009 - B And B Medical Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\010 - Innovative Management Concepts Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\011 - SRA International Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\012 - Lanier v Fresno Unified School Dist.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\028 - Res-Care Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\037 - TRC Global Solutions Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\039 - Capital Relocation Services LLC v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\043 - Atlantic Diving Supply Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\062 - Goforth v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\071 - BCPeabody Construction Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\6\092 - Kellogg Brown And Root Services Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\022 - Metters Industries Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\029 - JCN Construction Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\035 - Mitchell Enterprises Ltd v Bennie Consulting Engineers LLC.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\047 - Burney v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\048 - COMINT Systems Corp v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\069 - East West Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\072 - Blackout Sealcoating Inc v Peterson.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\077 - Systems Application And Technologies Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\7\080 - Kingdomware Technologies Inc v United States.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\015 - Andersen v US Dept of Housing and Urban Development.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\018 - California Indus Facilities Resources Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\029 - Highview Engineering Inc v US Army Corps of Engineers.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\059 - Glenn Defense Marine (Asia) PTE v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\065 - Crewzers Fire Crew Transport Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\066 - CRAssociates Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\067 - Mabey Bridge And Shore Inc v Schoch.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\069 - Chicago United Industries Ltd v City of Chicago.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\079 - Digitalis Educ Solutions Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\082 - Rothe Development Inc v US Dept of Defense.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\8\083 - ACC Const Co v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\01 - CBY Design Builders v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\16 - Mori Associates Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\18 - Tech Systems Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\21 - East West Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\31 - Joint Venture of Comint Systems Corp and EyeITcom Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\38 - Hallmark-Phoenix 3 LLC v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\45 - Essex Electro Engineers Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\53 - TotoloKing Joint Venture v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\61 - Northeast Military Sales Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\65 - Mori Associates Inc v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\68 - Humantouch LLC v US.doc C:\Users\muc574\Bid Protest\WestLaw Data\Data\9\74 - Creation Upgrades Inc v US.doc
import pandas as pd
import os
# Read the CSV file
df_csv = pd.read_csv('additionaldata.csv')
# Read the Excel file
df_excel = pd.read_excel('final_clean_text_2.xlsx', engine='openpyxl')
# Append the dataframes
df_combined = df_csv.append(df_excel, ignore_index=True)
# Export the combined dataframe to a new Excel file
df_combined.to_excel('final_clean_text_3.xlsx', index=False, engine='openpyxl')
# Confirm the number of rows in the final dataframe is equal to the sum of the rows in each
print(f"Rows in additionaldata.csv: {df_csv.shape[0]}")
print(f"Rows in final_clean_text_2.xlsx: {df_excel.shape[0]}")
print(f"Rows in combined dataframe: {df_combined.shape[0]}")
assert df_combined.shape[0] == df_csv.shape[0] + df_excel.shape[0], "Row counts do not match."
C:\Users\muc574\AppData\Local\Temp\ipykernel_26992\1100021393.py:11: FutureWarning: The frame.append method is deprecated and will be removed from pandas in a future version. Use pandas.concat instead. df_combined = df_csv.append(df_excel, ignore_index=True)
Rows in additionaldata.csv: 587 Rows in final_clean_text_2.xlsx: 2817 Rows in combined dataframe: 3404
Case outcomes in legal proceedings can be categorized into several typical categories, depending on the context of the legal system and the nature of the case (civil, criminal, administrative, etc.). Below are some common outcome categories:
Dismissed: The case is thrown out by the judge without a trial or further hearing, often due to lack of evidence, procedural errors, or jurisdictional issues.
Denied: In the context of motions or specific legal requests within a case, the judge decides not to grant the request.
Granted: Opposite of denied, where the judge decides to approve a motion or request made by one of the parties.
Judgment: A final decision by the judge or jury regarding the case. This can result in several specific outcomes, such as:
For the plaintiff (or prosecutor in criminal cases): The case is won by the party bringing the lawsuit (or the state in criminal matters), and damages or specific actions may be awarded. For the defendant: The case is won by the party defending against the lawsuit or charges, leading to no action required or damages awarded against them. Settled: The parties come to an agreement before the final judgment, often resulting in a financial settlement or other terms that both parties agree to, which resolves the dispute.
Convicted: In criminal cases, this means the defendant is found guilty of the charges against them.
Acquitted: In criminal cases, the defendant is found not guilty of the charges against them.
Summary Judgment: A legal decision made by the court without a full trial, typically because one party is entitled to judgment as a matter of law, based on the evidence presented.
Appeal: One of the parties requests a higher court to review the decision made by a lower court, which can lead to the decision being upheld, reversed, or remanded for further proceedings.
Remanded: The case is sent back to a lower court from an appellate court for further action or a new trial, often due to procedural errors or issues identified by the appellate court.
These categories represent the general outcomes that can occur in legal proceedings, although specific terms and processes can vary based on jurisdiction and the type of law involved (criminal, civil, family law, etc.).
import pandas as pd
import numpy as np
import re
# Read the Excel file
df = pd.read_excel('final_clean_text_3.xlsx', engine='openpyxl')
# Function to check if the patterns "denied" or "sustained" exist in the text
def contains_pattern(text, pattern):
if pd.isna(text):
return 0
return 1 if re.search(pattern, text, re.IGNORECASE) else 0
# Generate dummy variables
df['contains_denied'] = df['Final Clean Text'].apply(lambda x: contains_pattern(x, 'denied'))
df['contains_rejected'] = df['Final Clean Text'].apply(lambda x: contains_pattern(x, 'rejected'))
df['contains_dismissed'] = df['Final Clean Text'].apply(lambda x: contains_pattern(x, 'dismissed'))
df['contains_remanded'] = df['Final Clean Text'].apply(lambda x: contains_pattern(x, 'remanded'))
df['contains_settled'] = df['Final Clean Text'].apply(lambda x: contains_pattern(x, 'settled'))
# Optional: save the updated dataframe with dummy variables to a new Excel file
df.to_excel('final_clean_text_4.xlsx', index=False, engine='openpyxl')
df.head()
| Subdir | Filename | Final Clean Text | contains_denied | contains_rejected | contains_dismissed | contains_remanded | contains_settled | |
|---|---|---|---|---|---|---|---|---|
| 0 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 007 - Mail Transportation Inc v United States.doc | HYPERLINK "https://www.westlaw.com/Link/Docume... | 0 | 0 | 0 | 0 | 0 |
| 1 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 008 - Mail Transportation Inc v United States.doc | conversion serves the public interest, an inj... | 1 | 0 | 0 | 0 | 0 |
| 2 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 010 - Account Control Technology Inc v United ... | a947fe08ef5e04eeedbf79e1eebe33c5c31feedea87c41... | 0 | 0 | 0 | 0 | 0 |
| 3 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 011 - Van Ru Credit Corporation v United State... | 5ad879fb8d2e86f4d2245807cb00009aa61f3e7c4892e4... | 0 | 0 | 0 | 0 | 0 |
| 4 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 012 - Collection Technology Inc v United State... | 686363039e5feb04f01211168160a6f6e8d123ad561b1c... | 0 | 0 | 0 | 0 | 0 |
df.describe()
| contains_denied | contains_rejected | contains_dismissed | contains_remanded | contains_settled | |
|---|---|---|---|---|---|
| count | 3404.000000 | 3404.000000 | 3404.000000 | 3404.000000 | 3404.000000 |
| mean | 0.454465 | 0.037015 | 0.159224 | 0.056110 | 0.017920 |
| std | 0.497995 | 0.188827 | 0.365939 | 0.230169 | 0.132681 |
| min | 0.000000 | 0.000000 | 0.000000 | 0.000000 | 0.000000 |
| 25% | 0.000000 | 0.000000 | 0.000000 | 0.000000 | 0.000000 |
| 50% | 0.000000 | 0.000000 | 0.000000 | 0.000000 | 0.000000 |
| 75% | 1.000000 | 0.000000 | 0.000000 | 0.000000 | 0.000000 |
| max | 1.000000 | 1.000000 | 1.000000 | 1.000000 | 1.000000 |
import csv
import os
import re # Import the regular expression module
def clean_text(text):
# Replace the specific sequences with desired characters or an empty string
text = text.replace('u8220' , "") # Example: replacing with a standard left double quotation mark
text = text.replace('u8221' , "") # Example: replacing with a standard right double quotation mark
text = text.replace('\\\'3f', '') # Removes the sequence \'3f correctly
# Add more replacements as needed
return text
def save_paragraphs_with_regex_to_csv(root_dir, csv_filename='paragraphs_with_regex_rule_of_two.csv'):
# Compile the regular expression for efficiency in a loop
pattern = re.compile(r'rule of two', re.IGNORECASE) # Case-insensitive search
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir','Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if ".doc" in filename:
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if pattern.search(paragraph): # Use re.search to find the pattern
paragraph = clean_text(paragraph)
print(f"Dir: {subdir}, File: {filename}, Paragraph with 'The Rule of Two': {paragraph}") # Keep printing
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_regex_to_csv(root_directory)
Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying \rule of two\ analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), incumbent contractor filed motion, as defendant-intervenor, seeking stay pending appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The Veterans Benefits, Health Care, and Information Technology Act (VBA) generally requires the Veterans Administration (VA) to set goals for providing contracts to veteran-owned small businesses (VOSBs), with a special preference for service-disabled veteran-owned small businesses (SDVOSBs), and further requires that the VA perform a \rule of two\ analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services; if the rule of two is met, the VA must conduct the competition for such products or services only among VOSBs or SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business\rquote s (SDVOSB) challenge to Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD), before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was \in connection with a procurement or a proposed procurement,\ within meaning of Tucker Act, providing bid protest jurisdiction, since VA made clear that, absent judicial intervention, VA would continue to enter into eyewear contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor\rquote s appeal of judgment for service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was substantial case on merits, in support of granting stay of procurement pending appeal, since issues on appeal were of first impression involving important contracting preferences and thus were fair ground for litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor would suffer irreparable harm in absence of stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA); incumbent contractor was nonprofit that existed to provide employment, training, and services to blind persons, so incumbent\rquote s harm was unique from other incumbents in that judgment would cause incumbent to lose 62% of optical services revenue or 15.5% of total revenue, likely resulting in loss of employment opportunities for blind persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of harms favored stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA), since harm to incumbent contractor from loss of 62% of its optical services revenue or 15.5% of its total revenue that would likely result in loss of employment opportunities for blind persons was more significant than hypothetical harm to SDVOSB from inability to compete for eyewear contracts during pendency of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA), since harm to incumbent contractor from loss of 62% of its optical services revenue or 15.5% of its total revenue that would likely result in loss of employment opportunities for persons who were blind and had severe disabilities outweighed hypothetical harm to SDVOSB from inability to compete for eyewear contracts during pendency of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': before first applying the \Rule of Two\ analysis prescribed under the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\VBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The VBA generally requires the VA to set goals for providing contracts to veteran-owned small businesses (\VOSBs\), with a special preference for SDVOSBs, and further requires that the VA perform a Rule of Two analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': If the Rule of Two is met, the VA must conduct the competition for such products or services only among VOSBs or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': At issue in this protest was whether the requirement that the VA conduct a Rule of Two analysis to determine whether to restrict a procurement to VOSBs or SDVOSBs under the VBA applies when a good or service has been previously placed on the AbilityOne Procurement List. Specifically, the protest focused on the VA\rquote s decision to procure eyewear products and services from an AbilityOne nonprofit for four Veterans Integrated Service Networks (\VISNs\) without performing a Rule of Two analysis. Eyewear products and services for VISNs 2 and 7 were added to the AbilityOne Procurement List before 2010. VISNs 6 and 8 were added to the AbilityOne Procurement List after 2010. In its protest PDS, a SDVOSB, argued based on the plain language of the VBA and the broad reading to the language of the VBA given by the Supreme Court in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , that the VA\rquote s decision to continue to enter into new purchasing agreements for eyewear products and services with AbilityOne nonprofits for VISNs 2, 6, 7 and 8 before performing a Rule of Two analysis was inconsistent with the VA\rquote s obligations under the VBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': PDS argued that before the VA could continue to procure eyewear products and services through new agreements with AbilityOne nonprofits for VISNs 2, 6, 7 and 8, the VA had to first apply the Rule of Two to determine whether the products and services could be provided by SDVOSBs or VOSBs at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The government initially argued that the VA had no legal choice but to purchase items found on the AbilityOne Procurement List from AbilityOne nonprofits under the terms of JWOD. IFB intervened in the bid protest and also argued that JWOD is controlling and that the VA has to purchase items off of the AbilityOne Procurement List from AbilityOne nonprofits when those items are on the AbilityOne Procurement List. Prior to hearing oral argument on the protest, the government informed the court that the VA had changed positions and had decided that the VA would perform a Rule of Two analysis before procuring items from the AbilityOne Procurement List for items added to the AbilityOne Procurement List on or after January 7, 2010, the date the original regulations implementing the VBA took effect. Under the revised VA regulation, the Rule of Two analysis is not applicable to items which were added to the AbilityOne Procurement List before January 7, 2010. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The parties agreed that the VA\rquote s decision to perform the Rule of Two analysis for items added to the AbilityOne Procurement List after January 7, 2010 mooted PDS\rquote protest with regard to eyewear products and services for VISNs 6 and 8, but that the protest was not moot with regard to the procurement of eyewear products and services for VISNs 2 and 7, which had been added to the AbilityOne Procurement List before 2010. PDS argued with regard to VISNs 2 and 7 that the VA was required by law to perform a Rule of Two analysis before entering into any new purchasing agreements for eyewear products and services for VISNs 2 and 7. The court agreed with PDS and rejected the government\rquote s contention \that items added to the [AbilityOne Procurement List] prior to 2010 are forever excepted from the VBA\rquote s requirements no matter how many contracts are issued or renewed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': IFB for VISN 2 was set to expire on September 30, 2017 and that the Blanket Purchase Agreement with IFB for VISN 7 would expire in July 2017, but that there were several option periods available under the agreement with IFB for VISN 7. In its judgment the court stated that the VA would be required to perform a Rule of Two analysis with regard to VISN 2 before the bridge contract with IFB expired on September 30, 2017. With regard to VISN 7, the court determined that the VA would be required to perform a Rule of Two analysis before December 2017, and, if the Rule of Two is satisfied, award a contract before January 31, 2018. (ECF. No 86). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . At issue in this protest is whether the VA can procure eyewear products and services from the AbilityOne Procurement List before performing a Rule of Two analysis. As the court stated in its opinion, \the VA has made it clear that, absent intervention by this court, it will continue to enter into contracts with IFB for eyewear without performing a Rule of Two analysis in VISNs 2 and 7. Accordingly, PDS\rquote challenge is \ \u8216in connection with a procurement or a proposed procurement\u8217,... and thus is within this court\rquote s bid protest jurisdiction.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Specifically, the VA\rquote s 2017 Veterans Administration Acquisition Regulation 808.002 provides that the VA will apply the Rule of Two before procuring any item on the AbilityOne Procurement List if that item was added on or after January 7, 2010. It states in relevant part: \Priorities for use of mandatory Government sources. (a)(1) Supplies.... (iv) Supplies on the Procurement List maintained by the Committee for Purchase of People Who are Blind or Severely Disabled, known as AbilityOne ... Supplies on the Procurement List are mandatory only if: (1) The supplies were added to the Procurement List prior to January 7, 2010, and the date the supplies were added is readily available; or (2) The supplies were added to the Procurement List on or after January 7, 2010, the VA Rule of Two ... was applied prior to the addition of the supplies to the Procurement List, and that information is readily available ... (C) When the VA Rule of Two is not satisfied and award to eligible SDVOSBs/VOSBs.... will not occur, the priority use of AbilityOne ... applies.\ The same language is repeated with regard to services in the next section of the regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': PDS argued that this court had jurisdiction on the grounds that it was seeking to prevent the VA from entering into a new purchasing agreement to procure eyewear products and services in VISNs 2 and 7 once the purchase agreements with IFB expired. PDS maintained that the VA must conduct a Rule of Two analysis before entering into any new purchasing agreements with IFB. PDS thus argued its protest was a challenge to the VA\rquote s compliance with the VBA \in connection with a procurement or proposed procurement\ as provided for under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . The court noted that in the 2006 VBA, Congress did not act to expressly preserve an exemption for purchases made under JWOD through the AbilityOne Procurement List. In the court\rquote s view this distinction supported PDS claim that Congress understood how to exempt JWOD from other preference programs and that by not exempting JWOD in the 2006 VBA, Congress did not mandate that the VA, unlike other federal agencies, be bound by JWOD if the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Initially IFB sought to have the court enjoin the VA from conducting a Rule of Two analysis, it is no longer seeking that relief and thus the VA can continue that analysis to the extent it is not already completed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business brought bid protest action against United States, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements, including for products and services from designated non-profits that employed blind and otherwise severely disabled people on list required by Javits-Wagner-O\rquote Day Act, and which were added prior to VBA\rquote s passage. Successful bidder and advocacy organization intervened, government moved to dismiss for lack of jurisdiction, and parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': under VBA, VA was required to conduct rule of two analysis for all new contracts; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest claim by service-disabled veteran-owned small business, seeking to prevent Department of Veteran\rquote s Affairs (VA) from awarding future contracts without first performing \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work, as required under Veterans Benefits Act, was in connection with procurement or proposed procurement, and thus Court of Federal Claims had Tucker Act jurisdiction over bid protest claim; VA made it clear that, absent intervention from Court of Federal Claims, it would have continued to enter into contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Under Veterans Benefits Act (VBA), Department of Veteran\rquote s Affairs (VA) was required to conduct \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at fair price for all new contracts, regardless of whether or when product or service from designated non-profits that employed blind and otherwise severely disabled people were added to procurement list under Javits-Wagner-O\rquote Day Act (JWOD); if there were not two qualified veteran-owned small businesses willing to perform contract under rule of two analysis, VA would have been required to use list as mandatory source, and VBA was more specific than JWOD in applying specific mandate only to VA to give priority to veteran-owned small businesses in awarding contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Doctrine of laches did not apply to bar bid protest claim by service-disabled veteran-owned small business, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements; delay in bringing case was not unreasonable and unexcused in light of recent Supreme Court decision clarifying mandatory nature of VBA and VA\rquote s most recent procurement guidance, and successful bidder would not have lost investment to perform under past contracts, had more than ten years of business following enactment of VBA, and may have had past contracts renewed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': This process is known as a \Rule of Two\ analysis. The JWOD requires government agencies, including but not limited to the VA, to purchase products and services from designated non-profits that employ blind and otherwise severely disabled people when those products or services appear on a list known as the \AbilityOne List\ or \List.\ The entity responsible for placing goods and services on the List is known as the \AbilityOne Commission.\ The question before the court in this case is which procurement priority must the VA first employ: the requirement that the VA conduct a Rule of Two analysis to determine whether it must restrict the procurement to veteran-owned small businesses under the VBA or the requirement that the VA use the AbilityOne List under the JWOD, regardless of whether the VA has conducted a VBA Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The VA, faced with these potentially contradictory contracting preferences, originally took the position in this litigation that if a product or service appears on the AbilityOne List for a particular region of the country the JWOD requires the VA to purchase that product off of the List without first performing a Rule of Two analysis. However, during the pendency of the litigation, the VA changed its position through regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The VA now agrees that if a product or service was added to the AbilityOne List after 2010, the VA will perform the Rule of Two analysis before purchasing off of the List. The new regulation provides, however, that the VA will continue to purchase items off of the AbilityOne List without first performing a Rule of Two analysis for items added to the List before 2010. Plaintiff, PDS Consultants, Inc. (\PDS\), is a service-disabled veteran-owned small business that provides eyewear and other vision-related products to the VA under a number of contracts corresponding to different regions of the country. PDS argues that under the Supreme Court\rquote s recent decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , the VA is required to perform a Rule of Two analysis for all procurements, regardless of when the item was listed on the AbilityOne List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (collectively, \the defendants\) argue that the JWOD trumps the VA\rquote s VBA obligations if the product or service was added to the AbilityOne List before 2010, when the VA implemented the VBA priority system. In effect, the defendants argue that for products and services in the VA regions that were added to the List before 2010 the VA is permanently exempt from having to perform the Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': For the reasons that follow, the court finds that the VA is required to perform a Rule of Two analysis for all procurements after the VBA was passed. Accordingly, the VA may not enter into future contracts with IFB until Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': it performs a Rule of Two analysis and determines whether two or more veteran-owned small-businesses can perform the subject work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . Further, the VBA included the \Rule of Two,\ which restricts competition for contracts to veteran-owned small businesses and service-disabled veteran-owned small businesses in cases where the contracting officer \has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , the VA\rquote s guidelines stated that the agency would give first priority to all items already on the AbilityOne List. However, the VA determined that before working with AbilityOne to add any new items to the AbilityOne List, the VA\rquote s contracting officer (\CO\) would first perform a Rule of Two analysis to determine whether qualifying veteran-owned small businesses were able to perform the procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , the court found that the VA contracting officer did not follow the VA\rquote s guidelines when laundry services formerly performed by a veteran-owned small business were added to the AbilityOne List without the VA performing a Rule of Two analysis first. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Accordingly, the court concluded that that the CO\rquote s actions in assisting AbilityOne in adding the laundry services to the List before following the guidelines\rquote instruction to first perform a Rule of Two analysis \lacked a rational basis and were arbitrary and capricious.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': decision, AbilityOne \ended cooperation and collaboration between the AbilityOne Program staff and VA contracting officers regarding PL additions.\ AR 708. Thereafter, AbilityOne began to add items unilaterally. AbilityOne took the position that because the VBA only applied to the VA, and not to AbilityOne, therefore AbilityOne was not required to perform the Rule of Two analysis before adding items to the List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Because the VA could no longer participate in List additions without first performing a Rule of Two analysis, the AbilityOne Commission determined that the VA \has effectively made unilateral decisions by the Commission the only means to accomplish its statutory obligations when making additions to the PL for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . At issue in that case was the VA\rquote s position that if the VA was meeting its annual goals for contracts with veteran-owned small businesses as required by law, the VA had the discretion to issue contract awards under the Federal Supply Schedule (\FSS\) (a list of certain products and services that government agencies can quickly acquire without having to go through the ordinary procurement process) without performing a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . Kingdomware Technologies, Inc., a veteran-owned small business, challenged the VA\rquote s interpretation of the VBA, and on June 16, 2016, the Supreme Court issued a unanimous decision finding that the VBA\rquote s Rule of Two was mandatory for the procurement of all VA goods and services and not, as the VA argued, discretionary if the VA was meeting its VBA contracting goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': In rejecting the government\rquote s argument that the VA could purchase items from the FSS without performing a Rule of Two analysis, the Court explained that the text of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': \requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': mandates the use of the Rule of Two in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': requires the Department to use the Rule of Two before awarding a contract to another supplier. The text also has no exceptions for orders from the FSS system.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': at 666. A decision tree attached to the memorandum provided that if there was a mandatory source, including items on the AbilityOne List, then the Rule of Two \does not apply.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': at 701. However, the VA continued to take the position that before a contracting officer could propose an addition to the AbilityOne List, the contracting officer was required to \conduct market research\ and \apply the VA Rule of Two\ as required under the VBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': found that the Rule of Two was mandatory and Congress intended it to cover \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': at 703. On July 19, 2016, PDS wrote the Commission another letter encouraging it to \work with the VA to ensure that the [VA] performs the necessary market research to determine whether the Rule of Two can be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': On February 13, 2017, two days before oral argument was scheduled on the parties\rquote cross-motions for judgment on the Administrative Record in this case, the government filed a notice of proposed changes in the VA\rquote s guidelines that would require VA procurement officials to apply the Rule of Two before procuring an item from the AbilityOne List if that item was added to the List on or after January 7, 2010 (the date the VA issued its initial regulations implementing the VBA) if the Rule of Two analysis was not performed before the item was added to the List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The government, plaintiff, and defendant-intervenor all agree that in light of the new regulations, the plaintiff\rquote s challenges to the addition of VISN 6 and VISN 8, which were added to the List after January 10, 2010, are now moot because the VA has agreed to perform a Rule of Two analysis before entering into a contract with a vendor on the List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Rule of Two prior to making new contracting determinations, including contract awards ....\ Pl.\rquote s Supp. Brief (ECF No. 71) at 2. The court understands from this that PDS is no longer challenging existing contracts in VISN 2 and VISN 7. Instead, PDS is challenging the VA\rquote s position that it may issue new contracts in VISN 2 and VISN 7 without first performing a Rule of Two analysis after the existing contracts expire. Accordingly, the only issue that remains before the court is whether the VA may issue additional contracts for VISN 2 and VISN 7 (which were both added to the List prior to the passage of the VBA) to vendors on the List before performing a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': In its initial briefing, PDS challenged both existing contracts between the VA and IFB and the addition of VISNs to the List when the VA had not first performed a Rule of Two analysis. For the first time at oral argument, the government argued that PDS was required to challenge additions to the List as an APA challenge before a federal district court, not as a bid protest action in this court, and therefore, the court lacks jurisdiction over PDS\rquote s challenge. The court disagrees. Following the government\rquote s change in its regulations in March 2017, PDS is seeking to prevent the VA from awarding future contracts to IFB in VISNs 2 and 7 without first performing a Rule of Two analysis. This is a challenge to the VA\rquote s decision not to perform a Rule of Two analysis when the contract for VISN 2 and VISN 7 expire and are up for renewal. This court\rquote s bid protest jurisdiction is \very sweeping in scope.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . In fact, the VA has made it clear that, absent intervention from this court, it will continue to enter into contracts with IFB for eyewear without performing a Rule of Two analysis in VISNs 2 and 7. Accordingly, PDS\rquote s challenge is \in connection with a procurement or a proposed procurement,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': B. The VA is Required to Conduct a Rule of Two analysis for New Contracts Regardless of when the VISN was Added to the Procurement List Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Turning to the merits of the parties\rquote dispute the court finds the issue to be decided is correctly stated by the plaintiff. The plaintiff phrases its understanding of the issue remaining in this case as \[w]hether the VA must apply the VBA Rule of Two prior to making new contracting determinations, including contract awards, as indicated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , for products and services currently listed on the Procurement List for VA facilities located in [VISN] 2 and VISN 7, which were added to the Procurement List prior to January 7, 2010.\ Pl.\rquote s Supp. Brief at 2. The government phrases its understanding slightly differently: \Whether the VA reasonably interpreted the [VBA] of 2006 when it identified the pre-VBA List additions of VISN 2 and VISN 7 as mandatory sources and awarded two contracts to [IFB] without applying the Rule of Two.\ Def.\rquote s Supp. Brief at 2. The court finds that the government misstates the issue at hand and that the plaintiff\rquote s statement of the issue is correct. The question before the court is not whether the VA was wrong to award the initial contract to IFB, but whether, after passage of the VBA in 2006, the VA was required to perform a Rule of Two analysis before treating the AbilityOne List as a mandatory source for any new contracts. The court finds that the VBA requires the VA to perform the Rule of Two analysis for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': new procurements for eyewear, whether or not the product or service appears on the AbilityOne List, because the preference for veterans is the VA\rquote s first priority. If the Rule of Two analysis does not demonstrate that there are two qualified veteran-owned small businesses willing to perform the contract, the VA is then required to use the AbilityOne List as a mandatory source. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The defendants argue that the JWOD and the VBA are not directly in conflict. Further, defendants argue that the VA\rquote s solution, as expressed in its new guidelines, which gives effect to both statutes by requiring the VA to perform a Rule of Two analysis for all procurements except for products and services that were put on the AbilityOne List before 2010 should be upheld. According to the government, neither the VBA nor the JWOD express a priority for competitive awards, and therefore, the VA\rquote s construction of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Under the VBA, the VA must perform a Rule of Two inquiry that favors veteran-owned small businesses and service-disabled veteran-owned small businesses \in all contracting before using competitive procedures\ and limit competition to veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Department must first apply the Rule of Two.\ 136 S.Ct. at 1977 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': mandates the use of the Rule of Two in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , which expressly held that the Rule of Two was \mandatory, not discretionary,\ and that it thus covered the non-competitive procurements authorized under the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': court\rquote s reading of the statutes and thus finds that the VA has a legal obligation to perform a Rule of Two analysis under the VBA when it seeks to procure eyewear in 2017 for VISNs 2 and 7 that have not gone through such analysis\u8212even though the items were placed on the AbilityOne List before enactment of the VBA. The VA\rquote s position that items added to the List prior to 2010 are forever excepted from the VBA\rquote s requirements is contrary to the VBA statute no matter how many contracts are issued or renewed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': As noted above, the court does not understand that PDS is challenging the existing contracts between IFB and the VA. Rather, it is seeking only to prevent the VA from \making new contracting determinations, including contract awards,\ for VISNs 2 and 7 without first applying the Rule of Two. Pl.\rquote s Supp. Brief at 2. Thus IFB will not lose all of its investment immediately. In addition, the court is mindful that while IFB had expected that its contracts in VISNs 2 and 7 would be renewed as mandatory sources under the JWOD for years to come, IFB has had more than ten years of business following enactment of the VBA. Indeed, application of the Rule of Two analysis may or may not result in loss of VISNs 2 and 7 work in the future. In such circumstances, prejudice is not so great as to outweigh the VA\rquote s obligation to meet its statutory mandate under the VBA. For these reasons, the government\rquote s laches defense is rejected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . The VA is ordered not to enter into any new contracts for eyewear in VISNs 2 and 7 from the AbilityOne List unless it first performs a Rule of Two analysis and determines that there are not two or more qualified veteran-owned small businesses capable of performing the contracts at a fair price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': to submit a joint proposed judgment that shall include the expiration dates of all active contracts in VISNs 2 and 7 under the AbilityOne program, and shall include a timeline of the VA\rquote s plan to conduct a Rule of Two analysis for any further contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': As discussed below, PDS initially challenged the validity of all existing contracts with IFB that the VA had entered into without performing a Rule of Two analysis. Following the government\rquote s change in its regulations, PDS now appears to be challenging only \new contracting determinations,\ Pl.\rquote s Supp. Brief 3, including renewing or extending existing contracts, for the contracting regions in which the VA maintains that it need not perform a Rule of Two analysis before renewing or issuing a new contract to organizations on the AbilityOne List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The plaintiff argues that because the VA did not use notice-and-comment rulemaking, and because there appear to be errors in the new guidance, the VA will have to revise the guidance again. Accordingly, plaintiff argues, the VA could amend or revoke the new guidance at any time \making the issues raised in this case ones that could easily recur and that are not completely mooted by the corrective action.\ Pl.\rquote s Supp. Brief 3. In light of the court\rquote s ruling discussed below\u8212that the VA is required to apply the Rule of Two before entering into a contract for items on the List and not previously subject to a Rule of Two analysis\u8212the court rejects the plaintiff\rquote s request for an injunction expressly barring the VA from deviating from the regulation presented to the court with regard to post-2010 AbilityOne items that the VA can change its practice in such a manner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The court rejects the defendants\rquote contention that giving the VBA priority effectively repeals the JWOD by implication. The VBA is a specific priority statute that does not mandate a result but a process which may or may not result in a contract award to a veteran-owned small business. If the Rule of Two is not satisfied, the VA remains required under the JWOD to purchase products and services that appear on the AbilityOne List. By its terms the VBA did not repeal the JWOD. Rather, as the VBA states, where the VBA applies the Rule of Two is satisfied, veteran-owned small businesses have the first priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, the HUBZone provision makes clear that, before a procurement can be set-aside under the 8(a) program, a contracting officer must first determine if the procurement can be set-aside for a HUBZone small business concern; in particular, the contracting officer must apply the \rule of two\ and determine whether: (1) there is a reasonable expectation that two or more qualified HUBZone small business concerns will submit offers, and (2) the award can be made at a fair market price. Small Business Act, \u167 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s procurement for military housing maintenance services, by setting aside solicitation only for 8(a) small businesses, rather than giving priority to qualified HUBZone program small business concerns, violated Small Business Act, establishing priority for HUBZone program over other competing small business programs, since if Air Force had complied with HUBZone provision requirements, Air Force would have found, under rule of two, that there was reasonable expectation that at least two qualified HUBZone small business concerns could have submitted bids at fair market prices, so that setting aside solicitation for qualified HUBZone bidders was mandated. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). The two conditions set forth in this provision\u8212\a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers\ and \that the award can be made at a fair market price\\u8212are commonly referred to as \the rule of two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': If the rule of two is not satisfied, the HUBZone program provides that a contracting officer, \[n]otwithstanding any other provision of law,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In particular, the contracting officer must apply the \rule of two\ and determine whether: (1) there is a reasonable expectation that two or more qualified HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ] on the basis of competition restricted to qualified HUBZone small business concerns\ if the rule of two is met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': over other small business programs whenever the rule of two is met. The GAO reached a similar interpretation of this language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Historically underutilized business zone (HUBZone) program had priority over business development program and over service-disabled veteran-owned (SDVO) business concern program, under Small Business Act provision governing HUBZone small businesses, mandating that, \notwithstanding any other provision of law,\ contract opportunity \shall be awarded\ on basis of competition restricted to qualified HUBZone small business concerns upon satisfying \rule of two,\ providing for competition among qualified HUBZone small businesses where reasonable expectation was that not less than two such qualified businesses would submit offers and award could be made at fair market price, since plain meaning of \notwithstanding\ phrase included other provisions in Small Business Act that governed business development program and SDVO businesses, and HUBZone mandatory statutory language contrasted with discretionary statutory language for business development program and SDVO businesses. Small Business Act, \u167\u167 2[8](a)(1)(A), (a)(1)(D)(I), 2[31](b)(2)(B), 2[36](b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Department of Army\rquote s award to Alaska Native corporation, as participant in business development program, of follow-on sole-source contract to provide information technology (IT) services, without first complying with rule of two by determining whether there was reasonable expectation that no less than two qualified historically underutilized business zone (HUBZone) small business concerns would submit offers and that award could be made at fair market price, failed to comply with plain meaning of HUBZone provision that had priority over provision governing business development program, under Small Business Act. Small Business Act, \u167\u167 2[8](a)(1)(A), 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': not begin to run on an Indian tribe\rquote s claims until the claimant has been provided with an accounting). \Any other provision of law\ therefore encompasses provisions found within the Small Business Act, including the provisions implementing the 8(a) program. The operative language of the statute combines the phrases \[n]otwithstanding any other provision of law\ and the directive that the \contract opportunity shall be awarded\ on the basis of competition among qualified HUBZone small business concerns whenever the specified criteria, or \rule of two,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ] on the basis of competition restricted to qualified HUBZone small business concerns\ if the rule of two is met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Defendant further argues that, even if the use of the word \shall\ does create a priority for HUBZone competition when the rule of two is met, that priority is over HUBZone sole-source awards rather than over 8(a) concerns, which are governed under a separate section of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The court interprets the language of the HUBZone competition provision\u8212\shall be awarded\\u8212to be mandatory, such that a contract opportunity must be set aside for competition among qualified HUBZone small business concerns whenever the rule of two is met. The court agrees that the \shall\ of the competition provision contrasts with the \may\ of the sole-source provision but does not conclude that the mandatory nature of the HUBZone competition provision is bounded by this relationship. The court concludes that the HUBZone competition provision is properly interpreted as mandatory in relationship to both the sole-source provision and the 8(a) program provisions, and that this interpretation is further supported by the differences in the statutory language providing authority for contract decisionmaking and program administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': \The provisions providing for competition among qualified HUBZone small business concerns where the contracting officer has a reasonable expectations that not less than two qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price is often referred to as the \u8216rule of two.\u8217 \ Def.\rquote s Resp. 5. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 080 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , referred to as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': issuance of modifications violated \Rule of Two\; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Coast Guard\rquote s issuance of modifications to task order issued pursuant to procurement contract violated \Rule of Two\ relating to evaluation of competition adequacy for a small business set aside; Coast Guard\rquote s issuance of modifications constituted \acquisitions\ under procurement regulations because the work encompassed by modification exceeded the scope of task order, and there was no indication that the Coast Guard engaged in any reasonable effort to determine the likelihood that it would receive offers from at least two responsible small businesses at fair market prices for the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s obligation to comply with the \Rule of Two\ in evaluation of competition adequacy for a small business set aside is independent of its obligation to issue only in-scope modifications of task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Coast Guard\rquote s violations of competitive bidding requirement and \Rule of Two\ in issuing modifications that exceeded scope of task order issued pursuant to procurement contract resulted in prejudice to bid protestor, thereby entitling it to relief; protestor had been performing the work encompassed by modification and, as the incumbent, had regularly competed in full-and-open competitions and won the work fairly, protestor would have been within the zone of active consideration for the award, and there was a substantial chance that protestor would have been awarded contract for the work encompassed by the modifications if the Coast Guard issued a competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': GCE\rquote s Claim That the Coast Guard Violated the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': E. GCE\rquote s Claim That the Coast Guard Violated the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , referred to as the \Rule of Two,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': FAR \Rule of Two\; Requirements for Setting Aside Acquisitions for Small Business, 49 Fed.Reg. 40,135 (Oct. 12, 1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , the Coast Guard \was required to conduct a \u8216Rule of Two\u8217 analysis before utilizing modifications to [the] SETS II [task order] to award financial systems work,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Perm. Inj. Hr\rquote g Tr. 11:7\u821110 (\[I]t\rquote s significant that the government doesn\rquote t ever suggest in this case[ ] that it conducted an inquiry into whether the financial system\rquote s work should be set aside for small businesses[.]\), and suggests that an analysis would have yielded a conclusion that the \Rule of Two\ requirements were satisfied, thereby compelling the Coast Guard to set aside the work encompassed by Modifications 30 and 32 for a small business, Compl. \u182\u182 62\u821163; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mot. Prelim. Inj. & TRO 29 (stating that \had the Coast Guard made the required inquiries assessing the interest and capabilities of small businesses to perform this work, it appears likely that there would have been strong grounds for the Coast Guard to conclude that the \u8216rule of two\u8217 requirements were met\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The government\rquote s response to GCE\rquote s \Rule of Two\ claim is intertwined with its argument that the FASA divests this court of jurisdiction: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': QSS advances a similar argument, stating first that the \Rule of Two\ \is inapplicable here and, in any case, the FASA bar on protests of task orders applies here to the same degree that it does with Plaintiff\rquote s CICA claims.\ Def.-Intervenor\rquote s Mot. & Opp\rquote n 31. According to QSS, \if plaintiffs could elude the FASA jurisdictional hurdle by alleging small business regulation violations, then every protest would include such claims, making the statute a hollow shell.\ Def.-Intervenor\rquote s Opp\rquote n & Reply 13. Nevertheless, QSS concedes that \the \u8216rule of two\u8217 would only apply[ ] if modifications were held to be out-of-scope of the contract such that a distinct contract were required.\ Def.-Intervenor\rquote s Mot. & Opp\rquote n 32; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Second, QSS asserts that the \Rule of Two\ does not apply to task order modifications. Def.-Intervenor\rquote s Opp\rquote n & Reply 12. QSS suggests that the GAO\rquote s decisions in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , upon which GCE relies, support its position that \the \u8216rule of two\u8217 is concerned with solicitations and invitations for bids and not modifications of task orders issued under GWACs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \). The GAO indicated that the \Rule of Two\ applied \to \u8216any acquisition over $100,000,\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': and conduct the appropriate \Rule of Two\ analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': supports GCE\rquote s position that its \Rule of Two\ claim is distinct from its claim that Modifications 30 and 32 exceed the scope of the SETS II task order. To that end, GCE argues that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': 60:3\u82118. However, as GCE notes, \the obligation to comply with the Rule of Two is independent of the obligation to issue only in-scope modifications.\ Pl.\rquote s Mem. 22. Therefore, the court rejects the government\rquote s position that only modifications that increase the scope of an order are subject to review under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Perm. Inj. Hr\rquote g Tr. 59:12\u821113 (stating the government\rquote s position that \the Rule of Two doesn\rquote t apply to in-scope modifications\). Thus, in this case, the modification was, in fact, not part of one continuing acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': was required by law to undertake a \Rule of Two\ analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': In a more recent decision, the GAO determined that the \Rule of Two\ applied to individually competed task or delivery orders under multiple-award contracts because, in part, \those orders are properly viewed as \u8216acquisitions.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Competitions for task and delivery orders are the stage when holders of multiple-award ID/IQ contracts offer prices and solutions to meet specific agency needs. This is therefore the most meaningful stage for a Rule of Two analysis, in which the contracting officer needs to judge the likelihood of receiving at least two fair-market priced submissions from small businesses for the services or supplies being acquired under a specific solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': the initial award, the subsequent procurement of that work\u8212via task order or modification\u8212violates the Rule of Two.\). That assessment, according to GCE, \could have been performed when [the] SETS II [task order] was issued.... [I]f the Coast Guard had[,] at that time[,] determined that no two small businesses would have competed for the financial systems work, it would not have been required to set it aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': of its responsibility to follow the Rule of Two\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': ]\rquote s requirements were satisfied\ and, \[m]ore importantly, neither the Government nor QSS contests GCE\rquote s claim that, had the analysis been performed, the Rule of Two requirements would have been satisfied, mandating that the work be set aside for small businesses.\ Pl.\rquote s Cross\u8211Mot. & Mot. Perm. Inj. 25; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Additionally, for the reasons discussed above, the Coast Guard was required to follow the \Rule of Two\ and determine whether it would have reasonably anticipated receiving at least two offers from small businesses. Because the Coast Guard failed to compete or set aside for small businesses the work at issue in this case, the Coast Guard\rquote s transfer of this work to QSS via Modifications 30 and 32 to the SETS II task order was not in accordance with law and must be set aside. Accordingly, GCE\rquote s cross-motion for judgment on the administrative record is granted, the government\rquote s motion and opposition is denied, and QSS\rquote s motion and opposition is denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': task order modifications must be separately evaluated under the Rule of Two. As long as an agency conducts a proper Rule of Two analysis of all work included in a task order when that task order is originally issued, any work later procured through an in-scope modification would already have been evaluated. If no initial evaluation is conducted, and work that should be set aside is instead included within the scope of the task order, the agency violates the Rule of Two when it modifies the task order to procure the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s decision to cancel original solicitation that was set aside for small businesses and issue new solicitation on an unrestricted basis was rationally based and in compliance with the \Rule of Two,\ where agency determined that there was only one small business manufacturer who could be expected to submit a proposal, rather than at least two, as required by rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': , known as the \Rule of Two,\ requires the Government to set-aside acquisitions over $100,000.00 for small businesses \when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small businesses concerns offering the products of different small business concerns; and (2)[the] award will be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': made at fair market prices.\ Benchmade relies on the \Rule of Two\ for its argument that \two small business concerns,\ as used in the FAR, simply means any two small business entities, including resellers who offer the same product of a single manufacturer. Benchmade claims that the Rule of Two was met here because at least two resellers could be expected to offer the Benchmade knife called for in the solicitation. Pltf\rquote s Motion at 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': The FAR\rquote s \Rule of Two\ clearly states that a contracting officer must expect offers from at least two responsible small businesses offering \the products of different small business concerns\ before setting aside the procurement. As applied to the facts here, the FAR required the Contracting Officer to identify at least two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': According to the set-aside regulation known as the \Rule of Two,\ a CO shall set aside for small businesses any procurement greater than $100,000 if the CO has a \reasonable expectation\ that \two responsible small business\ offerors will submit bids that will result in an award \at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': A comparison of the RFP term at issue with the \Rule of Two\ also supports the idea that the term \responsible\ was intended to refer to future application of FAR Subpart 9.1. According to the Rule of Two, a decision to set a procurement aside is prospective in nature: \The [CO] shall set aside any acquisition over $100,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Although the Rule of Two does not govern cascading procurements, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The similarities between the Rule of Two and the definition of adequate competition are obvious. They share nearly every material provision. That the Rule operates prospectively is explicit: a CO shall set aside a procurement if he has a \reasonable expectation\ of responsible bidders and fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Chapman filed a separate motion to dismiss. In it, Chapman argues that Greenleaf lacks standing to bring this protest because the procurement was restricted to small businesses either by the establishment of the competitive range or by the Rule of Two. Because the GAO determined that Greenleaf was not small, Chapman reasons that it was not injured because the procurement\rquote s restriction to offerors in the small business tier rendered Greenleaf ineligible for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The SBA letter has some obvious shortcomings. For example, the SBA supported the first conclusion with subsection (a) of the Rule of Two despite the fact that subsection (a) applies to procurements with an anticipated dollar value between $2,500 and $100,000. Subsection (b), which governs more costly acquisitions, contains no such express direction. Furthermore, the Comptroller decisions cited by the SBA for additional support examined a version of the Rule of Two that is materially different from the regulation currently in force. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In contrast to the SBA\rquote s conclusion that \all FAR provisions applicable to small business set-asides must be followed when a procuring agency utilizes the cascading set-aside methodology,\ AR 3784, we de not simply apply the Rule of Two to the matters at hand. The Rule only governs whether a procurement will be issued as a small business set aside. It has no impact on issued solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . This requirement is triggered by the \Rule of Two,\ which requires contracting officers to restrict competition to either VOSBs or SDVOSBs when \the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ \u167 8127(d). The Supreme Court stated that \before contracting with a non-veteran owned business, the [VA] must first apply the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . But, the Supreme Court declined to determine \precisely what sort of search for veteran-owned small businesses the [VA] must conduct to comply with the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2015, the Army issued a third Request for Information, which \[w]as released to determine if [the] rule of two exists, as defined in FAR [Federal Acquisition Register] 19.502, and if a small business set-aside is appropriate for Increment 2 development.\ Palantir indicated that it was not a small business and, as with the previous Requests for Information, responded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2015, the Army issued a third Request for Information, which \[w]as released to determine if rule of two exists, as defined in FAR [Federal Acquisition Register] 19.502, and if a small business set-aside is appropriate for Increment 2 development.\ As with the previous Requests for Information, Palantir USG indicated that it was not a small business and further responded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Veteran-owned small business brought bid protest claim seeking declaratory and injunctive relief against Department of Veterans Affairs (VA), alleging Department\rquote s failure to comply with statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Department is not excused from complying with Rule of Two, even if Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if an order is placed through Federal Supply Schedule (FSS). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Exception to mootness doctrine, for controversies that are capable of repetition yet evading review, applied to Supreme Court\rquote s certiorari review in bid protest case in which disappointed bidder alleged that Department of Veterans Affairs (VA) had failed to comply with statutory Rule of Two generally requiring Department to set aside procurement contracts for veteran-owned small businesses; while winning bidder\rquote s provision of services had already been fully performed less than two years after contract award, two years was too short to complete the judicial review of lawfulness of procurement, it was reasonable to expect that Department would refuse to apply Rule of Two in future procurements for the kind of services provided by disappointed bidder, and it was reasonably likely that disappointed bidder, which had been awarded many previous contracts, would be awarded a future contract if its interpretation of statutory Rule of Two prevailed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) is not excused from compliance with statutory Rule of Two for set asides, which states that Department generally \shall award\ a contract to a veteran-owned small business when there is a reasonable expectation that two or more such businesses will bid for the contract at a fair and reasonable price that offers the best value to the United States, even if the Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if the order is placed through the Federal Supply Schedule (FSS). Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Prefatory clause in statutory Rule of Two for Department of Veterans Affairs (VA) set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, does not change the plain meaning of the operative clause, which requires the Department to award a contract to a veteran-owned small business regardless of whether the Department has already met its annual goals for awarding contracts to veteran-owned small businesses. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The Department of Veterans Affairs\rquote (VA) placement of an order through the Federal Supply Schedule (FSS) is a \contract,\ within meaning of statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that the interpretation by Department of Veterans Affairs (VA) of prefatory clause in statutory Rule of Two for Department\rquote s set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, could be owed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': deference, the Rule of Two was unambiguous regarding Department\rquote s obligation to award a contract to a veteran-owned small business regardless of whether the Department had already met its annual goals for awarding contracts to veteran-owned small businesses, and thus, the Supreme Court would not defer to the Department\rquote s interpretation. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . To help reach those goals, a separate set-aside provision known as the \Rule of Two\ provides that a contracting officer \shall award contracts\ by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that \the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Petitioner Kingdomware Technologies, Inc., a service-disabled veteran-owned small business, filed a bid protest with the Government Accountability Office (GAO), alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department\rquote s actions were unlawful, but when the Department declined to follow the GAO\rquote s nonbinding recommendation, Kingdomware filed suit, seeking declaratory and injunctive relief. The Court of Federal Claims granted summary judgment to the Government, and the Federal Circuit affirmed, holding that the Department was only required to apply the Rule of Two when necessary to satisfy its annual goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': after they were awarded, and it is reasonable to expect that the Government will refuse to apply the Rule of Two in a future bid by Kingdomware. Pp. 1975 \u8211 1977. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \rquote s text unambiguously requires the Department to use the Rule of Two before contracting under the competitive procedures. The word \shall\ usually connotes a requirement, unlike the word \may,\ which implies discretion. Compare Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \rquote s prefatory clause, which declares that the Rule of Two is designed \for the purposes of\ meeting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , which applies when the Department \award[s] contracts.\ Third, to say that the Rule of Two will hamper mundane Government purchases misapprehends current FSS practices, which have expanded well beyond simple procurement to, as in this case, contracts concerning complex information technology services over a multiyear period. Finally, because the mandate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . This provision is known as the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In this case, we consider whether the Department must use the Rule of Two every time it awards contracts or whether it must use the Rule of Two only to the extent necessary to meet annual minimum goals for contracting with veteran-owned small businesses. We conclude that the Department must use the Rule of Two when awarding contracts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Act\rquote s \Rule of Two,\ at issue here, provides that the Department \shall award\ contracts by restricting competition for the contract to service-disabled or other veteran-owned small businesses. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers and that \the award can be made at a fair and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Kingdomware alleged that the Department procured multiple contracts through the FSS without restricting competition using the Rule of Two, as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Kingdomware contended that the Department could not award the contracts at issue here without first checking to see whether at least two veteran-owned small businesses could perform the work at a fair and reasonable price. The GAO issued a nonbinding determination that the Department\rquote s failure to employ the Rule of Two was unlawful and recommended that the Department conduct market research to determine whether there were two veteran-owned businesses that could fulfill the procurement. The Department disagreed with the recommendation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': did not require the Department to use the Rule of Two in all contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Instead, the court concluded, mandatory application of the Rule of Two was limited to contracts necessary Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Thus, so long as those goals were satisfied, the Court of Appeals concluded, the Department need not apply the Rule of Two any further. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': employs mandatory language that \could not be clearer\ in requiring the Department to apply the Rule of Two in every instance of contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': requires the Department to apply the Rule of Two in all contracting, or whether the statute gives the Department some discretion in applying the rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Second, it is reasonable to expect that the Department will refuse to apply the Rule of Two in a future procurement for the kind of services provided by Kingdomware. If Kingdomware\rquote s interpretation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': unambiguously requires the Department to use the Rule of Two before contracting under the competitive procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': award contracts\ to veteran-owned small businesses using restricted competition whenever the Rule of Two is satisfied, \[e]xcept as provided in subsections (b) and (c).\ (Emphasis added.) Subsections (b) and (c) provide, in turn, that the Department \may\ use noncompetitive procedures and sole-source contracts for lower value acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': requires the Department to use the Rule of Two before awarding a contract to another supplier. The text also has no exceptions for orders from the FSS system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': mandates the use of the Rule of Two in all contracting before using competitive procedures. Unlike the word \may,\ which implies discretion, the word \shall\ usually connotes a requirement. Compare Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': ) prefer veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': We therefore hold that, before contracting with a non-veteran owned business, the Department must first apply the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': That clause declares that the Rule of Two is designed \for the purposes of\ meeting the annual contracting goals that the Department is required to set under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Third, the Department contends that our interpretation fails to appreciate the distinction between FSS orders and contracts. The Department maintains that FSS orders are only for simplified acquisitions, and that using the Rule of Two for these purchases will hamper mundane purchases like \griddles or food slicers.\ Brief for United States 21. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': We hold that the Rule of Two contracting procedures in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': We need not decide today precisely what sort of search for veteran-owned small businesses the Department must conduct to comply with the Rule of Two. We do not decide, for example, whether the Department may satisfy its obligations by searching for eligible veteran-owned small businesses within the FSS, or whether it must conduct a broader search for such businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Virgin Islands Taxi Association v West Indian Company Limited.doc, Paragraph with 'The Rule of Two': (concluding that a challenge to the Department of Veterans Affairs\rquote refusal to apply the statutory \Rule of Two\ under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': that challenge, and the current one, is that DOL improperly set aside the procurement for small businesses, making Adams, a large business, ineligible to compete. The first protest was unsuccessful. We held that the agency had properly conducted a \rule of two\ analysis and that the set-aside did not violate the Workforce Investment Act, Pub.L. No. 105 220, 112 Stat. 936 (1998) (\WIA\) (amending various sections codified throughout Title 29). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Small Business Set-Asides; Statutory Construction; Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': (\Rule of Two\). Because some of the items supplied through the TLSP were not manufactured by small businesses, the Small Business Administration (\SBA\) issued a waiver to the non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Before settling on the instant procurement strategy, DLA Troop Support Contracting Officer (\CO\), Maria Sesso\u8211Punzo conducted market research by contacting three commercial soft shelter manufactures that each responded with interest in competing. Ms. Sesso\u8211Punzo relied on DLA\rquote s knowledge of the industry and the market research to conclude that the Rule of Two could not be satisfied because \there is not one small business or group of small businesses that provide the full array of shelter systems required.\ AR 609.1. She decided to pursue the procurement as multiple award, unrestricted IDIQ contracts with delivery orders to be competed among contract holders, at which level the question of small business set asides would have to be considered again. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': and second, that the contracting officer failed to conduct a proper Rule of Two analysis. We review the agency\rquote s action through the lens of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': (\Acquisitions begin with a description of the Government\rquote s needs stated in terms sufficient to allow conduct of market research.\). Plaintiff argues that there is no way of knowing, under the terms of the solicitation, whether DLA wants Boy Scout pup-tents or a shelter system designed to withstand desert conditions. This lack of precision, plaintiff argues, makes it virtually impossible to evaluate and compare proposals and also makes the Rule of Two analysis meaningless. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the CO failed to conduct the necessary Rule of Two analysis. The Rule of Two provides that the CO shall set aside acquisitions over $150,000 when he or she has a reasonable expectation that \offers will be obtained from at least two responsible small business concerns\ and at \fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff contends that \DLA\rquote s failure to determine the government\rquote s actual needs, and identify those items in the Solicitation, makes it impossible for the Agency to conduct the mandated \u8216Rule of Two\u8217 analysis because the Agency cannot determine whether small businesses offer products that will satisfy the government\rquote s needs.\ Pl.\rquote s Mot. J. on the AR 21. Plaintiff\rquote s argument about the Rule of Two is linked to its first argument; namely, that the agency must specify its actual and legitimate needs before it issues a solicitation or conducts market research. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument is not really that the CO completely failed to conduct a Rule of Two analysis, which would be contrary to the evidence in the record, but that the CO\rquote s analysis was fundamentally flawed because she was not asking the right questions. The CO analyzed whether there were two or more small businesses capable of providing DLA with the range of tents client customers might need and concluded that \both large and small business are crucial to satisfy the requirements and there are not two or more small businesses within this market capable of providing the full array of Shelters and associated components desired by the customers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': umbrella concept was proper, then the question merely becomes whether what the CO did was reasonable. We do not sit in the place of the CO and conduct the Rule of Two analysis Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': . In this case, defendant argues that the CO undertook reasonable efforts to determine if the Rule of Two was satisfied because she called eleven companies to gauge their interest, compared the most popular tents under the TLSP to those offered by small businesses that had submitted proposals, and sought equivalent products amongst small businesses. While the CO found that small businesses offered some of the products that would likely be obtained through the Emall, the CO reasonably concluded that soft shelter systems provided by both large and small businesses were necessary to achieve the full range of products required by the government. This is reflected in the fact that under the previous procurement, the TLSP, the small business manufacturer rule had to be suspended so that small businesses could offer products manufactured by large businesses. It was logical, moreover, to test the agency\rquote s initial hypothesis (that the umbrella contract could not be limited to small businesses) by isolating a few items from past procurements that were in high demand. If those were not offered by small businesses, there was no point undertaking the exercise more extensively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , Circuit Judge, held that Veterans Act did not require VA to conduct Rule of Two analysis in every procurement, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Veterans Act did not require Department of Veterans Affairs (VA) to conduct Rule of Two analysis in every procurement, which was procedure well-known throughout government in connection with award of contracts set aside for competition restricted to small businesses, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . The discretionary authority to award contracts beyond the limited dollar amount specified for sole-source contracts requires satisfaction of the Rule of Two, a procedure well-known throughout the Government in connection with award of contracts set aside for competition restricted to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (reciting the Rule of Two within the \if\ clause). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Unlike that subsection, which does not distinguish between VOSBs and SDVOSBs, the VA provided a separate regulation for each group, repeating in each regulation the statutory language that the contracting officer shall award contracts according to the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (providing for SDVOSBs); \u167 819.7006 (providing for VOSBs). The regulations further specify that contracting officers must give preference to SDVOSBs over VOSBs, and if only one SDVOSB makes an offer at a fair and reasonable price, the contracting officer \should make\ the award to that offeror (thus converting the Rule of Two to a Rule Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': always bars the VA from using the FSS without first invoking the Rule of Two and if satisfied, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': awarding the contract pursuant to the Rule of Two. The VA argued that subsection (d)\rquote s requirement to invoke this Rule of Two applies only when the VA determines that this is necessary to meet the established contracting goals. The GAO, relying on its opinion in a previous case, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Kingdomware argued that the word \shall\ in the statute is an unambiguous imperative that the Secretary can never use the FSS where the Rule of Two may be satisfied. The VA responded that Kingdomware\rquote s view writes out of the statute its obligation to set the goals for VOSB contract awards because a mandatory set-aside requirement for all contracts would obviate the need for the Secretary to establish goals. The VA argued that all the words in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': have to be accounted for, and that \for the purposes of meeting the goals under subsection (a)\ language in subsection (d) gives clear meaning to the \shall\ imperative to use the Rule of Two procedure: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': properly understood only compels the VA to conduct a Rule of Two analysis when the Secretary determines that doing so is necessary to meet the goals set by him under subsection (a). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': is not supported by the plain language of the statute because it does not account for the mandatory goal-setting requirements of the section and the command that the Rule of Two procedure be used \for purposes of meeting the goals.\ Without addressing the VA\rquote s plain meaning interpretation, the Court of Federal Claims ruled that \the goal-setting nature of the statute clouds the clarity plaintiff would attribute to the phrase \u8216shall award\u8217 in subsection (d) of the Act, and renders the Act ambiguous as to its application to other procurement vehicles, such as the FSS.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In the case before us, Congress did speak directly to the question of the Secretary\rquote s authority to use the Rule of Two \for purposes of meeting the goals under subsection (a),\ stating that for such purposes the Secretary \shall\ use the Rule of Two procedures. For the reasons explained below, we conclude that Kingdomware\rquote s interpretation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': does not account for, and undercuts, the Secretary\rquote s mandatory authority to set the goals for contracts to VOSBs, and therefore is not a reasonable interpretation. By directly tying the mandatory Rule of Two contracting procedure set forth in subsection (d) to the achievement of the goals set pursuant to subsection (a), Congress\rquote s intent is clear. Congress intended the VA to meet the goals set by the Secretary. To meet the goals, the Secretary \shall\ use Rule of Two procedures, \may\ use the subsection (b) and (c) contract tools, and may elect to use the FSS at other times so long as the goals are met. We perceive no ambiguity in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \u8212\shall award\\u8212requires the VA to conduct a Rule of Two analysis in all cases (other than those covered by subsections (b) and (c)), including those cases where the VA would prefer to order against the FSS. Kingdomware points out that Congress used language almost identical to that in \u167 8127 in the 2003 Veterans Act, but importantly, changed the permissive term \may\ to the mandatory term \shall.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': to enter into VA procurement contracts.\ H.R. REP., at 14\u821115 (emphases added). According to Kingdomware, this is evidence that Congress intended the VA to determine whether the Rule of Two was satisfied for every contract before it could look to the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Kingdomware assigns no substantive meaning to the phrase \for purposes of meeting the goals under subsection (a),\ and instead contends that the words only state the objective for Rule of Two awards, i.e., to meet the Secretary\rquote s goals. Kingdomware is adamant that the \for purposes\ words have no limiting effect. But Kingdomware does not explain why Congress intended \shall\ to continue as an imperative after the Secretary\rquote s goals are achieved, or why Congress intended for the goals to be set not by the Secretary, but by whatever success VOSBs have under the Rule of Two in the marketplace. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Looking first to the text of the statute, the VA notes that the mandatory language of subsection (d)\u8212\shall award\\u8212is preceded by the phrase \for purposes of meeting the goals under subsection (a).\ While Kingdomware maintains that this phrase is merely hortatory, the VA argues that it must be given effect, and that, read as a whole, the provision mandates a Rule of Two analysis only for those contracts the VA has decided are necessary \for purposes of meeting the goals under subsection (a).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': would be rendered superfluous, if it were required to apply the Rule of Two for every contract. Under Kingdomware\rquote s interpretation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , the goal would be whatever number the Rule of Two produces, regardless of the Secretary\rquote s preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Responding to Kingdomware\rquote s argument that \shall\ in the 2006 statute is necessarily entirely imperative because \may\ limited the Rule of Two in the 2003 statute, the VA explains that \shall\ in subsection (d) exists to distinguish \may\ with regard to the non-competitive set-aside procedures of subsections (b) and (c). In support, the VA cites the legislative history of the 2006 Act which explains clearly that Congress preferred use by the Secretary of the Rule of Two over the permissive noncompetitive procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The VA also asserts that Kingdomware\rquote s reading of \shall\ conflicts with its multiple small business contracting responsibilities. According to the VA, if it were to follow subsection (d)\rquote s Rule of Two in every instance, in addition to respecting the contracting priorities of subsection (i), it would be unable to meet other small business contracting goals specified by the Small Business Act. Moreover, the VA points out that under the Small Business Act, including the 2003 Veterans Act amendments, agencies have always retained the discretion to use the FSS in lieu of following the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Despite its consistent practice of retaining the discretion to forego the Rule of Two when using the FSS, the VA notes that since the passage of the 2006 Act it has consistently set and exceeded ambitious VOSB contracting goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Kingdomware\rquote s interpretation of subsection (d) assigns dispositive weight to the command term \shall,\ but ignores additional statutory language stating that this mandate is \for purposes of meeting the goals under subsection (a).\ Under Kingdomware\rquote s interpretation, the statute\rquote s mandate requiring the VA to conduct a Rule of Two analysis would apply to every competitive contract contemplated by the VA without any regard for the VOSB contracting goals set under subsection (a), despite the provision\rquote s explicit reference to these goals. Indeed, Kingdomware conceded at oral argument that under its interpretation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , the VA must continue to apply a Rule of Two analysis for every contract even Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': requires the agency to conduct a Rule of Two analysis for every contract irrespective of the goals set under subsection (a), this goal-setting provision is itself made superfluous. Because Kingdomware\rquote s plain meaning interpretation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The statutory scheme as a whole links the Rule of Two mandate (denoted by the word \shall\) in subsection (d) to the goals set under subsection (a). The mandate is, therefore, the required procedure for meeting these goals. It is fully consistent Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': with subsection (a), which requires the VA to set goals for contracting with VOSBs, but grants the VA considerable discretion to set the value of these goals. Accordingly, the agency need not perform a VOSB Rule of Two analysis for every contract, as long as the goals set under subsection (a) are met. The correct reading of the statute according to its plain meaning puts the \shall\ in subsection (d) in harmonious context with the discretionary \may\ provisions of subsections (b) and (c), and assures that the goals of subsection (a) will be set by the Secretary, not the success or failure of the Rule of Two in the marketplace. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': As it stands, there is no reason to compel the Secretary to set aside any contract for a Rule of Two inquiry before using the FSS notwithstanding his goals, as Kingdomware requests. The VA has consistently met the mandatory goals for procurement from SDVOSBs and VOSBs in each year since the Veterans Act of 2006 went into force, and Kingdomware does not contend otherwise. The Secretary has complied with his statutory mandate to both set goals and meet them, and, accordingly, the VA contracting officer\rquote s decision not to set aside the contracts at issue was not arbitrary, capricious, or contrary to the law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority holds that the 2006 Veterans Act does not require the Department of Veterans Affairs (\VA\) to conduct a Rule of Two analysis in every procurement, as long as the VA satisfies its annual small business participation goals. I do not construe the 2006 Veterans Act as giving the VA discretion to decide whether to conduct a Rule of Two analysis. For this and other reasons set forth below, I respectfully Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The plain language of the 2006 Veterans Act unambiguously requires VA contracting officers to conduct a Rule of Two analysis in every acquisition and does not exempt Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': task or delivery orders under the Federal Supply Schedule (\FSS\) from this imperative. Despite the statute\rquote s clarity, the majority guts the Rule of Two imperative of its full force and effect by holding that a Rule of Two analysis is not required for every contract \as long as the goals set under subsection (a) are met.\ Maj. Op. at 933. Participatory goals, however, are aspirational, and an agency cannot refuse to set aside an acquisition solely because small businesses already receive a fair proportion of the agency\rquote s contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': award contracts\ on the basis of restricted competition whenever the contracting officer has a reasonable expectation that the Rule of Two will be satisfied: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In contrast, subsection (d) of the 2006 Veterans Act applies to all VA acquisitions and requires VA contracting officers to conduct a Rule of Two analysis in every acquisition, without limitation. Unlike subsections (b) and (c), which use discretionary language (\may use\ and \may award\), subsection (d) uses mandatory language (\shall award\), and does not otherwise give discretion to VA contracting officers to decide whether to conduct a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Rule of Two analysis. As the Supreme Court has noted, the word \shall\ is ordinarily the language of command, and when the same statute uses both \may\ and \shall,\ the normal inference is that each is used in its usual sense and that the former is permissive, the latter mandatory. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \rquote s \unequivocal\ imperative to conduct a Rule of Two analysis in every procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , the majority relies on the provision\rquote s prefatory language to reason that requiring a Rule of Two analysis in every VA procurement \makes the mandatory goal-setting statutory provision unnecessary.\ Maj. Op. at 933. Prefatory language is introductory in nature and does nothing more than explain the general purpose for the Rule of Two mandate. The Supreme Court has noted, albeit in the context of constitutional construction, that \apart from [a] clarifying function, a prefatory clause does not limit or expand the scope of the operative clause\ and that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Here, the operative clause is that VA contracting officers must award contracts on the basis of restricted competition if they have a reasonable expectation that the Rule of Two will be satisfied, a mandate that cannot be limited by its prologue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority takes an unusual step of collecting extrinsic evidence to show that \[t]he VA has consistently met the mandatory goals for procurement from SDVOSBs and VOSBs in each year since the Veterans Act of 2006 went into force [.]\ Maj. Op. at 934. While the exact rationale for exploration outside the record is not clear, the majority apparently rests on these statistics to conclude that \there is no reason to compel the Secretary to set aside any contract for a Rule of Two inquiry\ where the goals were met for the time period in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Moreover, these statistics were not before the Court of Federal Claims or relied upon by either party, but were provided in response to a request during oral argument. As the appellant notes, the VA submission does not identify the source of the data and \appears to have been created specifically in response to the Court\rquote s request in this litigation.\ ECF# 50, Appellant Letter to Court (Apr. 2, 2014). Significantly, there is no evidence in the record to show that VA contracting officers rely on, or have access to, these types of data in making contracting decisions, and the GAO has explicitly held that an agency\rquote s belief it has satisfied its small business goals does not affect its obligation to conduct a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority\rquote s reliance on the phrase \for purposes of meeting the goals\ is also belied by the VA\rquote s own regulations, which contain no such language. Specifically, in 2009, the VA issued regulations reiterating the imperative to conduct a Rule of Two analysis in every acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': regulations thus unequivocally require the VA to conduct a Rule of Two analysis in every procurement, which is consistent with the agency\rquote s authority to write regulations as broadly as it wishes, subject only to the limits of the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Accordingly, the VA\rquote s refusal to conduct a Rule of Two analysis before proceeding to the FSS is at minimum a violation of its own regulations, if not also a violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': obligation under the Federal Acquisition Regulation (\FAR\) to conduct a Rule of Two analysis in nearly every acquisition exceeding $3,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': By holding that the 2006 Veterans Act\rquote s Rule of Two provision is discretionary, the majority effectively renders Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': superfluous and unnecessary in light of the FAR\rquote s existing Rule of Two requirement. Although the FAR exempts task or delivery orders awarded under FSS contracts from the general Rule of Two requirement, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , the 2006 Veterans Act is devoid of any similar language that would allow the VA to proceed directly to the FSS without first conducting a Rule of Two analysis. Hence, the majority\rquote s holding reads this exemption into Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': and expands the VA\rquote s discretion to decide when to conduct a Rule of Two analysis, thereby undermining the statutory role of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority, on the other hand, finds mischief in requiring contracting officers to continue conducting Rule of Two analyses after the agency\rquote s goals are met. The majority concludes that requiring a Rule of Two analysis in every VA procurement would render the goal-setting provision superfluous, as \the goal would be whatever number the Rule of Two produces, regardless of the Secretary\rquote s preference.\ Maj Op. at 932. The majority seemingly believes it is bad policy to require an agency to continue efforts to award contracts to small businesses once its participation goals are met, overlooking that participation goals are aspirations, not destinations. Indeed, the FAR explicitly provides that an agency may not refuse to set aside an acquisition solely on the basis that small businesses are \already receiving a fair proportion of the agency\rquote s contracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The mischief feared by the majority is further refuted by the discretion retained by contracting officers in how they perform a Rule of Two analysis. Because the Rule of Two requires contracting officers to set aside an acquisition Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . The Rule of Two, therefore, does not diminish the contracting officer\rquote s discretion to ultimately conclude that there is (or is not) a reasonable basis for setting aside any given procurement for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority\rquote s reticence to requiring agency advancement of small business participation beyond the aspirational goals is due to a misapprehension of the interplay between a Rule of Two analysis and agency-wide goals. The former is undertaken by the contracting officer on a contract-by-contract basis, while the latter are set by the head of the agency and inform the agency\rquote s entire procurement process. Under the majority\rquote s rationale, the participation goals established under the Small Business Act would also be rendered superfluous by the FAR\rquote s existing Rule of Two requirement, which applies in nearly every acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Such an outcome would overturn more than thirty years of federal procurement law upholding the Rule of Two as a legitimate method of ensuring that agencies award a \fair proportion\ of contract dollars to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In fact, the FAR requires agencies to conduct a Rule of Two analysis under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': dollars\u8212but does not elaborate on how contracting officers can determine that these goals have been \met\ before the end of the fiscal year. Participation goals require agency officials to consider a range of factors in their broader acquisition policies well before a solicitation is issued or an individual contract is contemplated. The majority thus errs when it asserts that an obligatory Rule of Two requirement would obviate the goal-setting provision of the 2006 Veterans Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In sum, the majority adopts an untenable construction of the 2006 Veterans Act by holding that the agency need not perform a VOSB Rule of Two analysis for every contract, as long as the goals set under subsection (a) are met. The majority\rquote s holding deprives the Rule of Two mandate of its force and effect, it impedes congressional objectives regarding set asides, and it renders Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the [Rule of Two is satisfied]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The FAR contemplates two situations in which the contracting officer must conduct a Rule of Two analysis. For acquisitions exceeding $3,000 but less than $150,000, the contracting officer must award the contract on the basis of restricted competition unless he or she makes an affirmative finding that the Rule of Two is not reasonably expected to be satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \ the acquisition for small businesses \when there is a reasonable expectation that\ the Rule of Two will be met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (noting that \[t]he origin of the Rule of Two predates the FAR\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation (FAR) \Rule of Two\, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': contracting officer\rquote s \Rule of Two\ determination was not arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Under \fair proportion\ provision of Small Business Act and \Rule of Two\ in implementing regulations, contracting officer was not required to make predicate determination as to fair proportion in order to designate contract for operation of Job Corps center as small business set aside, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge that decision; use of progressive tense word \assuring,\ in \Rule of Two\ was not grammatically parallel to other clauses that obviously expressed condition, use of same language as in \fair proportion\ provision appeared to be sloppy, backward reference to overall statutory goal of promoting small businesses, which was advanced by applying \Rule of Two,\ and even if \Rule of Two\ provision contained two express conditions, it did not explicitly specify that contracting officer was person who should do \assuring\ or who should determine that regulatory circumstances were met, and nothing in Small Business Act indicated that determination had to be made on contract-specific basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL), Employment and Training Administration (ETA), reasonably expected to receive offers from at least two responsible small businesses, and thus contracting officer\rquote s \Rule of Two\ determination was not arbitrary and capricious, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge ETA\rquote s decision to designate contract for operation of Job Corps center as small business set aside; officer determined that three of \Request for Information\ (RFI) respondents were capable, statutory criteria that contractor cited were to be considered at award stage, but there was no requirement that they be considered at set-aside stage, and officer had no obligation to award procurement to any RFI respondent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL), Employment and Training Administration (ETA), reasonably expected award to be made at fair market prices, and thus contracting officer\rquote s \Rule of Two\ determination was not arbitrary and capricious, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge ETA\rquote s decision to designate contract for operation of Job Corps center as small business set aside; contractor\rquote s contrary argument confused fair market price with lowest possible price, and \Rule of Two\ only required fair market prices, not lowest cost, and officer\rquote s reliance on expected competition among responsible bidders was reasonable in light of fact that applicable criterion was fair market price, rather than lowest price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': RCFC 12(b)(1); Jurisdiction to review Agency set-aside decision; Pre-award bid protest; Set-asides under the Workforce Investment Act, 29 U.S.C. \u167 2887(a)(2)(A); \Predicate determination\ and the Rule of Two; RCFC 12(b)(1) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL\rquote s Office of Contracts Management (\OCM\) reviewed the responses from small businesses to ETA\rquote s RFI and determined that the \Rule of Two\ analysis required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Third, plaintiff alleges that the set-aside decision was arbitrary and capricious because the contracting officer failed to consider relevant factors in applying the so-called \Rule of Two,\ which authorizes a set-aside if the contracting officer has a \reasonable expectation\ of receiving bids from at least two \responsible\ small business concerns. Compl. \u182 7, 114\u8211131. Specifically, the parties disagree as to whether the contracting officer improperly failed to consider the compliance of the small business concerns with four statutory criteria set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Mot. Dismiss & Cross\u8211Mot. at 25\u821127. The parties also disagree as to whether the contracting officer improperly failed to consider various non-statutory factors as part of the Rule of Two determination, including the small business concerns\rquote (1) higher indirect rates, (2) past performance problems, (3) ability to operate multiple centers concurrently, and (4) lack of a federally approved purchasing system and written procurement policies to manage the Paul Simon JCC pursuant to the proposed cost-reimbursement contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (4) Whether the contracting officer\rquote s Rule of Two determination in this case is arbitrary or capricious for failing to consider the statutory factors of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': a formal decision has been made and publicly announced in the Presolicitation Notice. Moreover, ETA announced in the Presolicitation Notice that a \Small Business Set Aside Request for Proposal\ would be available October 26, 2012, and that offerors for this small business set-aside would be invited to attend a \Pre\u8211Proposal conference\ on October 23. Tab 7, AR 61. Thus, ETA\rquote s own actions demonstrate that it does not consider the set-aside decision merely \tentative\ or \interlocutory.\ Additionally, defendant\rquote s insistence that the set-aside is interlocutory is at odds with its posture in this litigation, that because the Rule of Two is satisfied, the agency has no choice but to set aside the Paul Simon JCC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . at 27\u821128 (arguing that the Rule of Two was properly applied and that the Paul Simon JCC satisfied both requirements of the Rule of Two); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . at 28\u821132 (arguing that the Rule of Two is \mandatory\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ., the \Rule of Two\), by setting aside the procurement without making a \predicate determination\ as to whether a set-aside would be in the interest of assuring that a \fair proportion\ of contracts go to small business concerns. Compl. \u182\u182 100\u8211113, Pl.\rquote s Cross\u8211Mot. at 30\u821132. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (the Rule of Two). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ., the Rule of Two] ... exist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). The Rule of Two, in turn provides, in relevant part, that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': appears to be a sloppy backward reference to the overall statutory goal of promoting small businesses, which is advanced by applying the \Rule of Two.\ In light of the grammar and structure of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': 4. The Contracting Officer\rquote s Rule of Two Determination Was Not Arbitrary or Capricious Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s final argument is that ETA acted arbitrarily and capriciously in its application of the Rule of Two because the contracting officer failed to give proper consideration to the selection criteria listed in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The \Rule of Two,\ as stated above, requires the contracting officer to \set aside any acquisition over $150,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . The Rule of Two only requires that the contracting officer have a \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': requires that \the set-aside be withdrawn and ... be resolicited on an unrestricted basis.\ As the court has observed, \[t]he threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff, however, confuses fair market price with lowest possible price. The Rule of Two only requires \fair market prices,\ not lowest cost. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': For the foregoing reasons, the court finds that the defendant\rquote s Rule of Two determination was not arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also argues that the Rule of Two is not mandatory because the contracting officer must make a discretionary \predicate determination\ that a set aside is in the interest of assuring that a \fair proportion\ of contracts go to small business concerns. The court has already considered and rejected this argument in the previous section. Moreover, this court has consistently held that the Rule of Two is mandatory. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': regulation directing agency to apply FAR to procurements for operation of job training facilities was enforceable, such that \rule of two\ addressing small business set-asides applied; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Workforce Investment Act of 1998, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to provision of Small Business Act addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility, where contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (\Requirements for setting aside acquisitions\). These regulations provide a \contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when ... [a]ssuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; and the circumstances described in 19.502\u82112 [i.e., the so-called \Rule of Two\] ... exist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The Rule of Two requires the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': the Rule of Two.\ Appellant\rquote s Br. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': ) 16. As applied to Gadsden and Shriver, Adams contends that the contracting officer was required to make a threshold \fair proportion\ determination before applying the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': the circumstances described in 19.502\u82112 or 19.502\u82113(a) [i.e., the Rule of Two] exist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': in 19.502\u82112 [i.e., the Rule of Two] ... exist.\u8217 \ Appellant\rquote s Br. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': within subsection (a)(2), which suggests to Adams that each step must be performed by a contracting officer in sequence. Adams implies it was improper for the DOL to make the \fair proportion\ determination and the \Rule of Two\ determination at two different agency levels. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': \u8212goal setting by the Executive Branch, input from the [Office of Small and Disadvantaged Business Utilization], and the industry specific application of size standards by [the Office of Management and Budget] and the [Small Business Administration]\u8212were implemented.... [N]othing more was required to satisfy the \u8216fair proportion\u8217 requirement.\). It was then left to the Contracting Officer to perform the Rule of Two analysis based on the results of the RFIs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': V. The DOL Properly Applied the Rule of Two Analysis Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': \Rule of Two\ framework, the DOL did not apply it correctly to these procurements. As noted, the Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams\rquote s reading of the Rule of Two ignores that \a reasonable expectation\ that at least two responsible small businesses will submit bids at fair market prices is all that is required. Here, through the RFI process, the DOL performed market research about the level of interest from small businesses in bidding on the Shriver and Gadsden contracts. It then determined from the responses that there was a reasonable expectation that at least two responsible small businesses would make offers for the operation of each of the Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': To Adams, \the issue here is that the market research ... must generate the information necessary to address the expressly required responsibility and price reasonableness legal elements of the Rule of Two.\ Appellant\rquote s Br. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Adams contends that only by collecting information related to these factors can the DOL meet the requirements of the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; the former determines whether there is a reasonable expectation that at least two responsible small businesses will make an offer at fair market prices, while the latter determines whether an individual contractor is responsible in the context of awarding a contract. As the lower court noted, a set-aside determination requires only that the contracting officer have a reasonable expectation that likely small business offerors will survive a future responsibility determination. The DOL was not required to impose the requirements of the contractor-selection process onto the small business set-aside determination, and it properly applied the Rule of Two. Because its decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, it will not be disturbed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (the so-called \Rule of Two\), had been met, the contracting officer recommended conducting the Blue Ridge contract selection as a small business set-aside. DOL subsequently issued a presolicitation notice indicating that the next Blue Ridge contract, with a value of $25 million, would be solicited as a \100% Set\u8211Aside for Small Business\ for the two-year base period beginning April 1, 2013, with three unilateral option years. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': The court also found that the contracting officer did not violate the Rule of Two in setting aside Blue Ridge for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Res\u8211Care also argues that the DOL contracting officer violated the Rule of Two when setting aside Blue Ridge, and thus the Claims Court erred in granting judgment to the government. When reviewing a contracting officer\rquote s decision in a pre-award bid protest, the Claims Court applies the standards established by the Administrative Procedure Act to decide whether the agency\rquote s decision was \arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Before setting aside a contract for small business participation under the Rule of Two, the Federal Acquisition Regulations require that a contracting officer shall determine that a reasonable expectation exists that \at least two responsible small business concerns\ will submit offers and that an \award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Applying the first factor of the Rule of Two, she determined that two responding small businesses were \capable under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': the Blue Ridge award would be made at fair market prices. We find no abuse of discretion in the contracting officer\rquote s thorough analysis of the submitted materials or her application of the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': It does not contain any negative performance data about the two small businesses that satisfied the Rule of Two. As the Claims Court stated, whether other small businesses, as a general class, performed at lower levels than larger firms has no bearing on the question of whether the contracting officer used appropriate criteria or properly assessed the capabilities of the identified small businesses against those criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': case, a \Rule of Two\ determination under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL\rquote s analysis under \rule of two\ regulation was not arbitrary or capricious; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims reviews contracting officer\rquote s \rule of two\ analysis, addressing whether procurement should be set aside for small businesses, to determine whether it was arbitrary or capricious, a standard requiring only that the action be supported by a rational basis; contracting officer\rquote s determination under \rule of two\ regulation concerns a matter of business judgment within contracting officer\rquote s discretion that will not be disturbed absent a showing that it was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \Rule of two\ regulation, addressing small business set asides for government contracts, does not mandate any particular method for assessing availability of small business bidders, and prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist are all approved bases for the decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \Rule of two\ regulation, addressing small business set asides for government contracts, only requires agency, in setting aside solicitation, to have a reasonable expectation that it will receive at least two offers from some responsible small businesses, not necessarily any two specific small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Analysis conducted by Department of Labor (DOL) under \rule of two\ regulation in determining that solicitation for operation of residential job training center would be set aside for small businesses was not arbitrary or capricious, despite incumbent contractor\rquote s contention that DOL had set aside a number of such contracts for small businesses, knowing that insufficient number of small businesses were capable of performing those contracts; \rule of two\ provided for set asides based on contracting officer\rquote s \reasonable expectation\ that offers would be obtained from small businesses, set aside could be rescinded if necessary, and incumbent contractor did not show that DOL would be incapable of awarding contract in dispute to small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL) had reasonable expectation that it would receive offers from two capable small businesses in solicitation for contract to operate residential job training center, as required for DOL to set aside solicitation for small businesses pursuant to \rule of two\ regulation; fact that six small businesses responded to request for information (RFI) was sufficient, standing alone, to form reasonable expectation of offers from two responsible small businesses, and DOL also could have reasonably expected two responsible small businesses to submit offers based upon small business responses to previous solicitations for similar contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Small Business Set Aside; Contract to Operate Dayton Job Corps Center; Workforce Investment Act of 1998; Selection of Operators \On a Competitive Basis\; 29 U.S.C. \u167 2887(a); \Rule of Two\; FAR 19.502\u82112(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': signed a determination memorandum setting aside the Dayton JCC contract for small businesses. AR Tab 10, at 71\u821173. The amended RFI and the spreadsheet analyzing each respondent\rquote s capability were attached to the memorandum. AR Tab 10, at 74\u821180. The memorandum appears to have been designed to document DOL\rquote s compliance with regulations known as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two sets forth conditions under which procurements should be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': , the primary source of the \Rule of Two,\ provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': At the set aside stage, the \Rule of Two\ regulations implement both the goal of awarding a fair proportion of contracts to small businesses and the requirement that the award be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (explaining that the regulations that became the \Rule of Two\ were \intended to implement the requirements of the procurement statutes\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\[T]he Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to set aside a contract without determining whether a fair proportion of contracts were placed with small businesses or whether the Rule of Two was satisfied. That outcome is consistent with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL\rquote s Rule of Two Analysis Was Not Arbitrary or Capricious Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two does not mandate any particular method for assessing the availability of small business bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': which DOL believed to be responsible and likely to submit offers, the Rule of Two only requires the agency to have a \reasonable expectation\ that it will receive at least two offers from Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument is most properly directed not at DOL\rquote s set aside of the Dayton contract but at Congress\rquote s policy of promoting contracting with small businesses and the implementation of those policies in the FAR through the Rule of Two. Plaintiff\rquote s argument suggests that DOL will eventually be unable to award all of the contracts it has set aside to only the small businesses that have responded to its RFIs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': But the Rule of Two does not require that the eventual award be made to one of the RFI respondents. One could imagine a policy less favorable to small business in which contracts would not be set aside unless the contracting officer could be sure that at least two capable small businesses would definitely submit offers that would be no more expensive than offers from large businesses. But this is not the policy designed by Congress or implemented by the FAR. Instead, the FAR provides for set asides based on the contracting officer\rquote s \reasonable expectation,\ implicitly accepting the possibility that that expectation may ultimately prove incorrect. When DOL evaluates offers, if [* * *] and [* * *] are operating additional JCCs and are no longer capable of operating the Dayton JCC, the contracting officer can award the contract to another small business or rescind the set aside and solicit offers from large businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': necessary to satisfy the Rule of Two. Accordingly, DOL\rquote s expectation of receiving offers from two capable small businesses was not arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ). Accordingly, a \fair market price\ in the Rule of Two context is \a price based on reasonable costs under normal competitive conditions and not on lowest possible cost.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': WIA does not prohibit set asides, and the Small Business Act\rquote s \fair proportion\ provision does not prohibit DOL from setting aside more than a fair proportion of JCC contracts. Therefore, DOL did not violate applicable laws or regulations by setting aside the Dayton contract. Additionally, DOL\rquote s Rule of Two analysis was not arbitrary, capricious, or an abuse of discretion. Consequently, the Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': (discussing the \rule of two\ established by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to provision of Small Business Act addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility, where contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Under \rule of two\ regulation, which requires contracting officer to set aside any acquisition over $150,000 for small business participation when there is reasonable expectation that offers will be obtained from at least two responsible small business concerns and award will be made at fair market price, particular companies that respond to request for information (RFI) need not actually be determined responsible; rather, test is simply whether it appears likely that, when solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Whether to set aside a solicitation for small businesses under \rule of two\ regulation is a matter of business judgment within the contracting officer\rquote s discretion, and the law does not require any particular method for making determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer need not make affirmative determinations of responsibility, but need only have a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns, and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Job Corps Centers; Small Business Set\u8211Asides; Statutory Construction; Rule of Two; Fair Proportion Analysis; Workforce Investment Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': the issue has been complicated for three reasons. First, the decision to set aside the procurement for small businesses, although nominally ordered by Edmond Thomas Pendleton, the Contracting Officer for the Shriver center, was at a minimum done in close coordination with Jillian Matz, the Division Chief for the Division of Job Corps Procurement in the Office of Contracts Management (\OCM\), which is within the Education and Training Administration at the Department of Labor (\ETA DOL\). The initial record produced by the government was limited to what Mr. Pendleton had before him. Second, the decision to set aside the Shriver center arose from the sources sought notice (also known as a Request for Information or RFI) for five centers; i.e., not just the Shriver center. Third, plaintiff\rquote s challenge to the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': As to the lack of an affidavit from Ms. Matz, and with respect to the bulk of the material in plaintiff\rquote s appendix, which was either not available to Mr. Pendleton or Mr. Daitoku, or not considered by them, we acknowledge the substance of the material and the fact of no response from Ms. Matz in connection with plaintiff\rquote s arguments that the Rule of Two decision for Shriver could not be made in a vacuum, and that the criteria used for the Rule of Two evaluation in Shriver were insufficient. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In other words, if plaintiff is correct, for example, that it is relevant that the Gadsden material shows both the same small businesses appearing in response to that solicitation and that different standards were used by the agency for applying the Rule of Two test, then we would have to consider ordering the agency to supplement the existing administrative record. If, on the other hand, it would make no difference whether expanding the administrative record showed that there is a small pool of interested small businesses or that the use of a different standard for evaluating small businesses was used for a different procurement, then the absence of the material in the administrative record is also irrelevant. We will rule on whether plaintiff\rquote s appended material should be properly part of the administrative record when we evaluate whether it would be outcome determinative to the Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 203. The administrative record does not reveal the content of this initial set-aside memo, but the outcome would have been determined by application of the Rule of Two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that the agency\rquote s small business set-aside decision, based on application of the Rule of Two determination called for by FAR part 19.502\u82112(b), constituted a violation of the Workforce Investment Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . At least with respect to its arguments directed at the agency\rquote s application of the Rule of Two, Adams is an \interested party\ because the set-aside determination prevented Adams, the incumbent, from competing for the upcoming contract. \A deprivation of an opportunity to compete is sufficient economic harm to demonstrate prejudice for purposes of standing.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': 20 C.F.R. \u167 670.320. By referring to the FAR and DOLAR, these regulations make possible the application of the Rule of Two in procurements for Job Corps Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . For purposes of this argument, plaintiff assumes that the Rule of Two set-aside process called for by FAR part 19.502\u82111(a) is not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': It points out that the Rule of Two regulation contains the conjunction \and\ when referring to the \fair proportion\ determination: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': the circumstances described in 19.502\u82112 [the \Rule of Two\] ... exist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). Plaintiff envisions that prior to any procurement process in any executive agency, the contracting officer would consult with a representative from the OSDBU and consider the current level of small business participation within the industry category and the capacity of those small businesses to take on new contracts prior to determining whether setting aside a particular contract would be in the interest of assuring a fair proportion. Depending on the outcome, this analysis presumably could render application of the Rule of Two unnecessary. Plaintiff asserts that the \fair proportion\ analysis was not conducted in this case and that had it been conducted, then Shriver may not have been set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': is not made in the context of individual contracts, but is reflected in high level policy judgments made on an ongoing and iterative basis by the President and the heads of agencies. According to defendant, it should not be assumed that subsection (a) requires any particular form of a determination; Congress was not literally insisting that the contracting officer make a formal study of what impact a particular contract would have on the ratio of small to large businesses in a specific industry category. Instead, discretion was left to the Executive Branch to work out a means to accomplish an end. Defendant argues that FAR part 19.502\u82112, the Rule of Two, is the means by which the Executive Branch has chosen to satisfy the obligation to determine a fair proportion of contracts to be awarded to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The origin of the Rule of Two predates the FAR; when the FAR was promulgated, the Office of Federal Procurement Policy (OFPP) prepared a Federal Register notice seeking comments on the rule\rquote s inclusion in the new government-wide procurement regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . This notice explains that the Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Thus, while the Rule of Two is not specifically set out in the Small Business Act, it has been adopted as the FAR\rquote s implementation of the Act\rquote s requirements through notice and comment rulemaking. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': was initially adopted on the assumption that some other device would emerge to implement the \fair proportion\ determination, Congress understood that set-asides were being used to accomplish that end. By then, of course, the Rule of Two was already in place. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In sum, we agree with defendant that the fair proportion determination was satisfied when the Contracting Officer applied the appropriate NAIC S size standard, received the endorsement of the OSDBU, and then invoked the Rule of Two. The mechanisms contemplated by Section 644\u8212goal setting by the Executive Branch, input from the OSDBU, and the industry specific application of size standards by OMB and the SBA\u8212were implemented. We conclude that nothing more was required to satisfy the \fair proportion\ requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': C. Application of the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s final argument is that the agency was arbitrary and capricious in the way it conducted its Rule of Two analysis. We disagree. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff offers several arguments to support the assertion that the Rule of Two decision was arbitrary and capricious. They fall into two categories: those that rely only on the materials that the government contends Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': As to the first category, plaintiff contends that Mr. Pendleton\rquote s response that set-asides at Shriver and New Haven were \hard to swallow\ evinces concerns that call into question the reasonable expectation required under the Rule of Two. Despite his initial reservations, however, Mr. Pendleton determined that a set-aside was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the Rule of Two was satisfied when the contracting officer relied on market research and a history of successful procurements conducted as small business set-asides); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (rejecting plaintiff\rquote s argument that inadequate past maintenance service by the incumbent small business invalidated the contracting officer\rquote s reasonable expectation in the Rule of Two analysis). Crucially, the contracting officer need not make affirmative determinations of responsibility, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Past acquisition history may be relevant to the Rule of Two analysis, but \it is not the only factor to be considered in determining whether a reasonable expectation exists.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 9\u821167. While it is true that the rationales offered for finding the entities potentially responsible, which were relied on to show a sufficient pool of available small businesses, consisted uniformly of \currently operates JCC,\ it is not irrational to assume that, \[s]ince these [two] respondents have been awarded [Job Corps Center] contracts it\rquote s anticipated that similar small businesses will provide a competitive proposal that is based on fair market price for the operation of the Shriver Job Corps Center.\ AR 73. While the Rule of Two analysis was not extensive, an extensive analysis was not required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff contends, however, that Mr. Pendleton\rquote s analysis was too narrow. It argues that to artificially limit the Rule of Two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': analysis to what was in front of Mr. Pendleton is to ignore the evidence in the record that suggests that OCM led the decision-making process and had before it all of the information regarding Job Corps Center set-asides occurring contemporaneously across the nation. While it may have been reasonable for Mr. Pendleton to conclude that the Rule of Two was satisfied when two small businesses with operations experience expressed interest in the Shriver center, plaintiff asserts that it was not reasonable when OCM \decided to set-aside 13 [Job Corps Centers] for competition amongst a maximum of three small businesses, which between them operated only four [Job Corps Centers].\ Pl.\rquote s Mot. J. AR 50. In support of its position, plaintiff cites material it included as an appendix to its motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. We conclude that, even if the materials related to other Job Corps Centers were in front of us, the result here would be the same. Therefore, we decline to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation part 19.502\u82112(b) is the source of the Rule of Two and will be discussed in detail below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states: \The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor was interested party with respect to its arguments addressing agency\rquote s application of \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices, and thus had standing to bring its pre-solicitation protest challenging decision to designate contract as small business set-aside in proposed follow-on procurement, since set-aside prevented incumbent contractor from competing for contract and its direct economic interest would be affected by award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to statute addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility when contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Under \rule of two\ regulation, which requires contracting officer to set aside any acquisition over $150,000 for small business participation when there is reasonable expectation that offers will be obtained from at least two responsible small business concerns and award will be made at fair market price, particular companies that respond to request for information (RFI) need not actually be determined responsible; rather, test is simply whether it appears likely that, when solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Whether to set aside a solicitation for small businesses under \rule of two\ regulation is a matter of business judgment within the contracting officer\rquote s discretion, and the law does not require any particular method for making determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer need not make affirmative determinations of responsibility, but need only have a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns, and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Job Corps Centers; Small Business Set\u8211Asides; Statutory Construction; Rule of Two; Fair Proportion Analysis; Workforce Investment Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': One of the numerous sources of contention in this protest has been the question of what constitutes the administrative record (\AR\). That has not been a simple question to answer for at least three reasons. First, the decision to set aside the procurement for small businesses, although nominally ordered by Carol Andry, the Contracting Officer for the Montgomery center, was at a minimum done in close coordination with Jillian Matz, the Division Chief for the Division of Job Corps Procurement in the Office of Contracts Management (\OCM\), which is within the Education and Training Administration at the Department of Labor (\ETA DOL\). The initial record produced by the government was closely cabined around only what Ms. Andry had before her and was minimal. Second, the decision to set aside the Montgomery center arose from the sources sought notice (also known as a Request for Information or RFI) for seven centers; i.e., not just the Montgomery center. Third, plaintiff\rquote s challenge to the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': As to the lack of an affidavit from Ms. Matz, and with respect to the bulk of the material in plaintiff\rquote s appendix, which was either not available to Ms. Andry, Mr. Bolden, or Mr. Daitoku, or not considered by them, we acknowledge the substance of the material and the fact of no response from Ms. Matz in connection with plaintiff\rquote s arguments that the Rule of Two decision for Montgomery could not be made in a vacuum, and that the criteria used for the Rule of Two evaluation in Montgomery were insufficient. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In other words, if plaintiff is correct, for example, that it is relevant that the Gadsden material shows both the same small businesses appearing in response to that solicitation and that different standards were used by the agency for applying the Rule of Two test, then we would have to consider ordering the agency to supplement the existing administrative record. If, on the other hand, it would make no difference whether expanding the administrative record showed that there is a small pool of interested small businesses or that the use of a different standard for evaluating small businesses was used for a different procurement, then the absence of the material in the administrative record is also irrelevant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': of the seven Job Corps Centers to Ms. Matz, Division Chief for the Division of Job Corps Procurement, and Regional Contracting Officers Gail Thomsen and Ms. Andry. AR 571. The memo concludes that five of the Job Corps Centers should be set aside because the conditions of the FAR part 19.502\u82112(b) were met for all centers except Dr. Benjamin L. Hooks and Earle C. Clements. AR 571.2. FAR part 19.502\u82112(b), known as the Rule of Two, directs that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 672\u821173. Rather than conclude that the potentially responsible entities will \continue to offer [ ] competitive proposal[s] that [are] based on fair market price,\ AR 673, Mr. Bolden also indicated his expectation that the Rule of Two was satisfied because \it\rquote s anticipated that similar small businesses will provide a competitive proposal that is based on fair market price.\ AR 585.3. Ms. Andry approved of the analysis. Andry Decl. \u182 18. The only change to the document was the author\rquote s name. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that the agency\rquote s small business set-aside decision, based on application of the Rule of Two determination called for by FAR part 19.502\u82112(b), constituted a violation of the Workforce Investment Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': and the WIA, and that the Rule of Two determination was arbitrary and capricious\u8212we plainly have subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . At least with respect to its arguments directed at the agency\rquote s application of the Rule of Two, DESI is an \interested party\ because the set-aside determination prevented DESI, the incumbent, from competing for the upcoming contract. \A deprivation of an opportunity to compete is sufficient economic harm to demonstrate prejudice for purposes of standing.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': fair proportion determination is fundamentally a policy judgment reflected in decisions of the Executive Branch that are not directly connected to particular procurements, then the court would be without jurisdiction. We could rephrase the argument, or perhaps add to it ourselves: if the fair proportion determination is purely one of \policy,\ then there are no judicially enforceable means to evaluate a \proper\ determination. We could not order a remedy that the court could meaningfully evaluate or enforce. Nevertheless, determining whether this assumption is correct requires some examination of the broad framework which has evolved in the last sixty years for introducing small business preferences into the procurement apparatus for executive agencies. Defendant argues that this apparatus includes the Rule of Two determination. Indeed, one of defendant\rquote s points in support of plaintiff\rquote s asserted lack of standing is that the fair proportion determination is implemented through the Rule of Two. Defendant thus contends that the fair proportion and Rule of Two determinations are interconnected, both in terms of statutes, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': 20 C.F.R. \u167 670.320. By referring to the FAR and DOLAR, these regulations make possible the application of the Rule of Two in procurements for Job Corps Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . For purposes of this argument, plaintiff assumes that the Rule of Two set-aside process called for by FAR part 19.502\u82111(a) is not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': It is plaintiff\rquote s position that this predicate determination as to a \fair proportion\ must be made by the contracting officer prior to the set-aside determination made under FAR part 19.502\u82111(a). It points out that the Rule of Two regulation contains the conjunction \and\ when referring to the \fair proportion\ determination: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': the circumstances described in 19.502\u82112 [the \Rule of Two\] ... exist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). When asked by the court during oral argument how an individual contracting officer would be in a position to know whether or not it was necessary to move a particular award toward small businesses in order to maintain a fair proportion across the government within a specific job category, counsel responded that this is the role, within a particular agency, of the OSDBU. Plaintiff envisions that prior to any procurement process in any executive agency, the contracting officer would consult with a representative from the OSDBU and consider the current level of small business participation within the industry category and the capacity of those small businesses to take on new contracts prior to determining whether setting aside a particular contract would be in the interest of assuring a fair proportion. Depending on the outcome, this analysis presumably could render application of the Rule of Two unnecessary. Plaintiff asserts that the \fair proportion\ analysis was not conducted in this case and that had it been conducted, then Montgomery may not have been set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': is not made in the context of individual contracts, but is reflected in high level policy judgments made on an ongoing and iterative basis by the President and the heads of agencies. According to defendant, it should not be assumed that subsection (a) requires any particular form of a determination; Congress was not literally insisting that the contracting officer make a formal study of what impact a particular contract would have on the ratio of small to large businesses in a specific industry category. Instead, discretion was left to the Executive Branch to work out a means to accomplish an end. Defendant argues that FAR part 19.502\u82112, the Rule of Two, is the means by which the Executive Branch has chosen to satisfy the obligation to determine a fair proportion of contracts to be awarded to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The origin of the Rule of Two predates the FAR; when the FAR was promulgated, the Office of Federal Procurement Policy (OFPP) prepared a Federal Register notice seeking comments on the rule\rquote s inclusion in the new government-wide procurement regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . This notice explains that the Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Thus, while the Rule of Two is not specifically set out in the Small Business Act, it has been adopted as the FAR\rquote s implementation of the Act\rquote s requirements through notice and comment rulemaking. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': was initially adopted on the assumption that some other device would emerge to implement the \fair proportion\ determination, Congress understood that set-asides were being used to accomplish that end. By then, of course, the Rule of Two was already in place. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In sum, we agree with defendant that the fair proportion determination was satisfied when the Contracting Officer applied the appropriate NAICS size standard, received the endorsement of the OSDBU, and then invoked the Rule of Two. The mechanisms contemplated by Section 644\u8212goal setting by the executive branch and input from the OSDBU\u8212and the industry specific application of size standards by OMB and the SBA, all were implemented. We conclude that nothing more was required to satisfy the \fair proportion\ requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': C. Application of the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s final argument is that the agency was arbitrary and capricious in the way it conducted its Rule of Two analysis. We disagree. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff offers several arguments to support the assertion that the Rule of Two decision was arbitrary and capricious. They fall into two categories: those that rely only on the materials that the government contends were properly before the Contracting Officer, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': As to the first category, plaintiff contends that Ms. Andry\rquote s June 26 email evinces concerns about adequate competition that call into question the reasonable expectation required under the Rule of Two. However, Ms. Andry explains in her January 14 affidavit that her concerns were addressed during a teleconference held July 18, 2012. Each contracting officer would handle the set-aside determination for his or her own procurements and control\u8212and if necessary, adjust\u8212the contract start date to accommodate the possibility that a single small business contemporaneously was awarded more than one contract. Decl. Carol Andy \u182\u182 16, 17. Despite her initial reservations, Ms. Andry determined that a set-aside was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the Rule of Two was satisfied when the contracting officer relied on market research and a history of successful procurements conducted as small business set-asides); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (rejecting plaintiff\rquote s argument that inadequate past maintenance service by the incumbent small business invalidated the contracting officer\rquote s reasonable expectation in the Rule of Two analysis). Crucially, the contracting officer need not make affirmative determinations of responsibility, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Past acquisition history may be relevant to the Rule of Two analysis, but \it is not the only factor to be considered in determining whether a reasonable expectation exists.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Center.\ AR 5. While the Rule of Two analysis was not extensive, an extensive analysis was not required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff contends, however, that Ms. Andry\rquote s analysis was too narrow. It argues that to artificially limit the Rule of Two analysis to what was in front of Ms. Andry is to ignore the evidence in the record that suggests that OCM led the decision-making process and had before it all of the information regarding Job Corps Center set-asides occurring contemporaneously across the nation. While it may have been reasonable for Ms. Andry to conclude that the Rule of Two was satisfied when three small businesses with operations experience expressed interest in the Montgomery center, plaintiff asserts that it was not reasonable when OCM \decided to set-aside 13 [Job Corps Centers] for competition amongst a maximum of three small businesses, which between them operated only four [Job Corps Centers].\ Pl.\rquote s Mot. J. AR 50. In support of its position, plaintiff cites material it included as an appendix to its motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. We conclude that, even if the materials related to other Job Corps Centers were in front of us, the result here would be the same. Therefore, we decline to include it in the administrative record because it is not necessary for effective judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation part 19.502\u82112(b) is the source of the Rule of Two and will be discussed in detail below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': If, for example, remand for a new Rule of Two determination would be futile. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Only one of the two capable entities expressed an interest in Sacramento. AR 677. Sacramento\rquote s \current contract awarded in 2008 was solicited as a 100% small business set-aside and seven offers were received.\ AR 677. Based on the procurement history for the center, the Contracting Officer determined that the Rule of Two was met. AR 677. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': stating that a contracting officer must have \a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price\ is often referred to as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . The \Rule of Two\ is common among small business set-aside procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . A contracting officer conducts market research, such as by searching through a database of small businesses, to determine whether the \Rule of Two\ is satisfied. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VAAR \u167 819.7005 then implements the terms of the 2006 Act in regard to SDVOSBs, and in particular the \Rule of Two,\ stating, in relevant part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \shall\ in directing a contracting officer to award contracts based on the \Rule of Two\ for SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': The GAO has not, however, consistently rejected VA\rquote s decision to use the FSS without first applying the \Rule of Two\ analysis. In another recent protest, the GAO held that VA may use the FSS first if it undertakes the \Rule of Two\ analysis in selecting among FSS vendors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': For the reasons discussed below, the court disagrees with plaintiff and the GAO, and finds that VA need not comply with the \Rule of Two\ under \u167 8127(d) of the Act before using the FSS to meet its procurement needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': analysis, the court must first determine whether Congress has spoken directly to the issue of whether VA must first determine if the \Rule of Two\ is satisfied\u8211that is, whether the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States\u8211before ordering against the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the HUBZone program takes priority over other small business programs). Plaintiff argues that the 2006 Act is like the HUBZone provision of the Small Business Act because it also uses the phrase \shall award\ in directing the agency to award contracts based on the \Rule of Two.\ Plaintiff concludes that the 2006 Act therefore created a mandatory set-aside for SDVOSBs and VOSBs without any exceptions or exclusions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Further, the legislative history of the Act undermines plaintiff\rquote s interpretation of the 2006 Act. The Joint Explanatory Statement accompanying the 2006 Act states that VA contracting officers \would retain the option to restrict competition to small businesses owned and controlled by veterans\ if the \Rule of Two\ is met, and that the Act was meant to give VA the \tools\ to meet its SDVOSB and VOSB set-aside goals, but not to the detriment of other set-aside goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': B. Application of the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s alternative argument is that the contracting officer violated the \rule of two,\ which requires the contracting officer to have a reasonable belief that there are at least two responsible small businesses that can satisfy the contract requirements at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': and (2) by failing to consider whether there were two or more small businesses that could provide either, or both of the packages at a reasonable price in contravention of the \Rule of Two\\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': . This was a new collaborative endeavor; whether plaintiffs provided the software products and/or integration to another agency, is not the standard. Neither the determination following RFI# 1 that a prime integrator was required, nor the finding that no one vendor could provide both acquisition and assistance software that optimally met the needs of the agencies, are assailed, rendering inapt plaintiffs\rquote citation to the Rule of Two in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Unlike the treatment of General Services Administration (GSA) federal supply schedule (FSS) orders, nothing in the procurement regulations pertaining to task orders, or in Federal Acquisition Streamlining Act (FASA), exempts those purchases from the procurement regulation\rquote s Rule of Two, assuring small businesses\rquote fair proportion, pursuant to the Small Business Act. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The procurement regulation\rquote s Rule of Two analysis to assure small businesses\rquote fair proportion, pursuant to the SBA, is required by an agency before competing a task order among the general pool of indefinite delivery/indefinite quantity (ID/IQ) contract holders, as a reasonable expectation that at least two responsible small businesses will submit offers allowing an award at a fair market price and thus requiring the award to be set aside for small businesses. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': There is nothing in the procurement regulations to suggest that the Rule of Two set-aside decision, assuring small businesses\rquote fair proportion, pursuant to the SBA, must be made at the time an indefinite solicitation, such as those for multiple award indefinite delivery/indefinite quantity (ID/IQ) contracts, is written and issued. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': An actual \acquisition\ begins when an agency\rquote s needs are established, and the set-aside decision, under the procurement regulation\rquote s Rule of Two, assuring small businesses\rquote fair proportion, pursuant to SBA, must occur prior to the selection of the vehicle to be used to satisfy these needs, since certain vehicles may exclude small businesses; contracting officers cannot reasonably expect small businesses to submit offers if the officers do not allow the small businesses to do so. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to government agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement, allegedly in violation of Rule of Two due to agency\rquote s failure to conduct SBA small business set-aside determination before selecting procurement vehicle, was not prohibited protest \in connection with the issuance or proposed issuance of a task or delivery order,\ within meaning of Federal Acquisition Streamlining Act (FASA), since procurement that protest concerned was stage of process of acquiring services that fell after establishment of particular agency needs but before selecting vehicle to satisfy those needs, and was logically distinct step from issuance or proposed issuance of task orders that presupposed selection of multiple award task order contract vehicle. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Even if bid protestor\rquote s challenge to agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement was considered protest of terms of task order contract solicitation, protestor\rquote s right to challenge those terms was not waived, under timeliness rule, as to agency\rquote s alleged violation of Rule of Two regulation by failing to conduct SBA small business set-aside determination before selecting procurement vehicle, since at time that solicitation for task order contracts was still open and timely protest of patent errors could have been made, protestor was not put on notice that work was to be transferred to task order contracts. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Even if bid protestor\rquote s challenge to agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement was considered to be protest of task orders, which allegedly violated Rule of Two regulation by failing to conduct SBA small business set aside determination, jurisdiction over protest was not barred, under Federal Acquisition Streamlining Act (FASA), prohibiting protests in connection with issuance or proposed issuance of task order, since FASA subsection limiting protests of task orders had expired pursuant to amendments containing sunset clause that applied to entire subsection, rather than merely to portion of subsection governing Government Accountability Office\rquote s (GAO) expanded protest authority. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder seeking preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation had reasonable likelihood of success on merits of claim that procurement regulation\rquote s Rule of Two required new solicitation to be set aside for award to small business, pursuant to SBA, since solicitation sought services that three small businesses were competing to provide under another contract vehicle and that disappointed bidder had provided as incumbent small business contractor and had offered services at discount. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation, since disappointed bidder\rquote s harm from lost opportunity to compete and corresponding lost profits outweighed government\rquote s alleged harm from allegedly excessive judicial infringement upon agency\rquote s discretion, as agency had no discretion to ignore procurement regulation\rquote s Rule of Two that likely required new solicitation to be set aside for award to small business, pursuant to SBA. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Public interest supported grant of preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation, without determining whether procurement regulation\rquote s Rule of Two required new solicitation to be set aside for award to small business, pursuant to SBA, since public interest was served by enforcing policy choice of Congress, as implemented in procurement regulations, to have small business participation in acquisitions. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The second supplemental complaint added allegations concerning the Help Desk Solicitation\u8212which were included in a revised Count VI and were the subject of a new Count VIII. Plaintiff contends that NIDDK\rquote s issuance of the Help Desk Solicitation violated the \Rule of Two\ contained in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 175, 201\u821104. Under the Rule of Two, contracting officers are required to \set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that ... offers will be obtained from at least two responsible small business concerns\ and that the \award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 169, 174. Since the work is valued at over $150,000, MORI maintains that the Rule of Two requires it be set aside for small businesses. Compl. \u182\u182 170, 201. Plaintiff argues that the Rule of Two regulation was clearly violated by the issuance of the Help Desk Solicitation, which it alleges was done arbitrarily, as a pretext and in bad faith. Pl.\rquote s Help Desk Br. at 21\u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': when it decided to issue the Help Desk Solicitation without conducting the Rule of Two analysis to determine if a small business set-aside was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 200\u821105. MORI explains that it is not challenging the issuance of a task order, but rather the failure of the agency to take the preliminary step of conducting the Rule of Two analysis before selecting a procurement vehicle that cannot reserve the award for a small business. Pl.\rquote s Resp. Gov\rquote t Mot. Dismiss (July 21, 2011) (\Pl.\rquote s Help Desk Reply\) at 6. Plaintiff notes that the GAO considers such challenges to be against the underlying solicitation for the ID/IQ contracts to which an agency seeks to transfer work in lieu of a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': To assure small business\rquote s fair proportion, under the so-called Rule of Two a \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ... and (2) award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Orders from the GSA FSS, like the one NIDDK attempted in the cancelled IT services procurement, are specifically exempted from most provisions in FAR Part 19, including the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, if the Rule of Two were relevant only at that point in the procurement process, use of that contract vehicle would allow agencies to avoid following the policies of the Small Business Act. MORI contends, however, that the obligation to apply the Rule of Two falls upon contracting officers Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Unlike the treatment of FSS orders, nothing in the FAR provisions pertaining to task orders, or in FASA itself, exempts those purchases from the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': \). Thus, the GAO has concluded that the Rule of Two must be applied when an agency is competing a task order using a pool of multiple-award ID/IQ contract holders which includes small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': This is therefore the most meaningful stage for a Rule of Two analysis, in which the contracting officer needs to judge the likelihood of receiving at least two fair-market priced submissions from small businesses for the services or supplies being acquired under a specific solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Rule of Two analysis is required by an agency before it competes a task order among the general pool of ID/IQ contract holders\u8212as a reasonable expectation that at least two responsible small businesses will submit offers allowing an award at a fair market price requires the award to be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': stage in the acquisition process at which the Rule of Two analysis should be performed? As defined in the FAR, an acquisition consists of many steps: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': If an agency seeks to acquire services from a pool of offerors that has already been restricted\u8212by being limited to multiple award task order contract holders, for instance\u8212and this pool has no small businesses, the selection of the vehicle has made the Rule of Two analysis an empty gesture. One cannot reasonably expect small business offers when small businesses are not allowed to submit offers. Thus, as MORI points out, Pl.\rquote s Help Desk Reply at 9, the Small Business Administration has taken the position that \the FAR requires an agency to consider the suitability of an upcoming requirement for performance by small business first, while conducting acquisition planning,\ and believed that \[i]f such planning reveals that the requirement should be set aside for small businesses ... the procuring agency must then select a procurement vehicle consistent with the requirement for a set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court looks to the opinions of the GAO, which can be persuasive, for guidance on this point. The GAO, however, has taken multiple approaches to the issue of when the Rule of Two analysis should be conducted. As noted above, in the context of a protest from a small business holding an ID/IQ contract (and when a protest connected to the issuance of a task order posed no jurisdictional difficulties), it thought \the most meaningful stage for a Rule of Two analysis\ was when competition for a task order was to occur. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': of the required Rule of Two analysis, the GAO yoked the timeliness rule for protests of solicitation terms to Rule of Two challenges. Under the timeliness rule, which the Federal Circuit has adopted for bid protests in our court, \a party who has the opportunity to object to the terms of a government solicitation containing a patent error and fails to do so prior to the close of the bidding process waives its ability to raise the same objection afterwards.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': It is not inappropriate to focus, as the GAO has, on the burden that would be placed on small businesses if they had to protest any solicitation which might be interpreted to encompass the work they have been performing under contract. But the consideration of two other burdens make it clear to the Court that this type of protest\u8212based on the failure to conduct Rule of Two analysis before committing an acquisition to a vehicle that excludes small businesses\u8212is not a challenge to the terms of that vehicle\rquote s solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': ). Viewing the Rule of Two protests as challenges to the solicitations\rquote terms is tantamount to presuming that every specific job that falls in a category for which ID/IQ contracts are available Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': federal agency, although it is probable that none would be available in particular circumstances. But if MORI\rquote s Rule of Two protest is considered a challenge to the CIO\u8211SP2i contract solicitation\rquote s terms, this means that the agency was expected to conduct the Rule of Two analysis before placing this (or, indeed, any) category of work under the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': hardly serve the purpose of setting aside government contracts for small businesses if the existence of responsible small businesses capable of providing required services at market prices was to be ignored, merely because the businesses were not alive when multiple ID/IQ contracts were awarded a decade earlier and thus failed to protest the terms of the solicitation for those contracts. But this would be the result if Rule of Two protests such as this one are considered to be challenges to the terms of such solicitations\u8212the realities of the current marketplace are disregarded in favor of the fiction that an agency conducted Rule of Two analyses for needs it may not have even contemplated at the distant time multiple-award ID/IQ contracts were solicited. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': to suggest that the Rule of Two set-aside decision must be made at the time an indefinite solicitation, such as those for multiple award ID/IQ contracts, is written and issued. The provision concerns \any acquisition over $150,000,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': When an agency skips past the step of conducting Rule of Two analysis and proceeds with the plan of obtaining services through task order contracts, this does not, however, mean that a protest in response by an interested small business is one \in connection with the issuance or proposed issuance of a task or delivery order.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The \procurement,\ then, which this Rule of Two protest concerns, is a \stage of the process of acquiring property or services\ that falls after the establishment of the particular agency needs, but before the choice of the vehicle to satisfy these needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': at 25\u821126. Thus, the Rule of Two analysis was not relevant when the NITAAC solicitation was open, but only became relevant once the NIDDK attempted to transfer the work to the CIO\u8211SP2i contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Help Desk Br. at 15\u821117, 31\u821135. MORI argues that the agency acted arbitrarily by failing to consider whether the FAR\rquote s Rule of Two, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': , required the work in the Help Desk Solicitation to be set aside for award to a small business, and contends that the agency clearly violated the Rule of Two by not setting this work aside. Pl.\rquote s Help Desk Br. at 17, 24. It also argues that the agency acted in bad faith, using the Help Desk Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Rule of Two in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The government\rquote s opposition to plaintiff\rquote s motion did not argue that the Help Desk work was unsuitable for a small business set-aside. Instead, it first maintained that the agency\rquote s choice of an ID/IQ contract vehicle that uses task orders placed enforcement of the Rule of Two beyond the jurisdiction of courts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': at 18\u821119, the government\rquote s only argument is that MORI waived its right to challenge the agency\rquote s failure to follow the Rule of Two by not challenging the terms of the NITAAC CIO\u8211SP2i solicitation eleven years earlier, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': at 10\u821114, 17\u8212an argument which the Court has also rejected in part II.B.2 of this opinion. Since it appears that the Help Desk Solicitation involved an acquisition exceeding $150,000 in value; that the solicitation sought services that three small businesses were competing to provide under another contract vehicle; that these services are currently provided by MORI, which is a small business; and that at least one small business (MORI) was offering to provide these services at a discount from its GSA FSS contract rates, the Court concludes it is likely that, under the Rule of Two, the acquisition must be set aside for a small business award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . No harm to third parties is involved, as no task order has issued. Clearly, the balance of hardships favors plaintiff. And finally, the public interest is served by enforcing the policy choice of Congress, implemented in the FAR, to have small business participation in certain acquisitions. Accordingly, MORI has demonstrated that all four factors point in its favor, and it is entitled to a preliminary injunction preventing the agency\rquote s use of the Help Desk Solicitation. The agency cannot use such a vehicle, precluding any small business participation, without first determining under the Rule of Two whether the acquisition should be set aside. It is highly likely that the application of the Rule of Two will show that the acquisition of Help Desk services should, indeed, be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': ). Presumably, this new discretionary authority either supplements or may be used to carry out the mandatory responsibility to set aside acquisitions under the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': No suggestion has been made that the Rule of Two for setting aside contracts for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 16 - Mori Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The Court has also determined that the \Rule of Two\ requirement of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 16 - Mori Associates Inc v US.doc, Paragraph with 'The Rule of Two': applies to the National Institutes of Health\rquote s (\NIH\) attempt to use RFQ No. NLM\u821111\u8211105/KDM to obtain help desk services for the National Institute of Diabetes, Digestive and Kidney Diseases (\NIDDK\), and that failure to perform the \Rule of Two\ analysis would be a clear and prejudicial violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 16 - Mori Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court has determined that the plaintiff will suffer irreparable injury if the procurement is not enjoined; that the harm suffered by the plaintiff, if the procurement is not enjoined, will outweigh the harm to the defendant and third parties; and that granting injunctive relief serves the public interest. The Court has also determined that plaintiff has made a sufficient showing of likelihood of success on the merits of its claim to warrant the extraordinary remedy of injunctive relief, taking into account the other factors, above. The Court has not been made aware of any evidence that the Contracting Officer had performed the \Rule of Two\ analysis before deciding to use a procurement method that did not set aside the acquisition for small businesses, and it appears that at least two responsible small business concerns had been offering these services under solicitation NIH\u8211NIDDK\u821108\u821101. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': , which is referred to as the \rule of two,\ Def.\rquote s Mot. 5, states, in relevant part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . This so-called \Rule of Two\ requires a contracting officer to make a determination as to whether at least two small businesses could provide the relevant good or service at a fair market price before proceeding with the procurement process with a larger business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The court agrees with the government and concludes for the reasons set forth below that because the Air Force decided to use the FSS after K\u8211LAK\rquote s contract expired, the Air Force was not required to comply with the Rule of Two or any of the other regulations applicable to small businesses that the plaintiff relies upon in its complaint and subsequent briefing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Nothing in the Small Business Act suggests or requires that the Rule of Two ... takes precedence over the FSS program. To the contrary, and as noted above, the implementing regulations for the small business set-aside program and the FSS program expressly provide that set-aside requirements for the program do not apply to FSS buys. [citations omitted] Accordingly, we conclude that the Small Business Act and its implementing regulations do not impose a requirement on agencies to first evaluate whether a solicitation should be set-aside for small businesses before purchasing the goods or services through the FSS program.
import os
import pandas as pd
# Step 1: Loop each '.doc' file under all subdirectories
root_dir = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
doc_files = []
for subdir, dirs, files in os.walk(root_dir):
for file in files:
if file.endswith('.doc'):
doc_files.append([subdir, file])
# Step 2: Produce a dataframe that includes [subdir (excluding filename), filename]
df_doc_files = pd.DataFrame(doc_files, columns=['Subdir', 'Filename'])
df_doc_files['rule_of_two'] = 0 # By construction, set 'rule_of_two' to zero
# Step 3: Check if [Subdir, Filename] exist in [Subdir, Filename] of 'paragraphs_with_regex_rule_of_two.xlsx'
df_rule_of_two = pd.read_csv('paragraphs_with_regex_rule_of_two.csv')
df_doc_files['rule_of_two'] = df_doc_files.apply(lambda row: 1 if any(
(df_rule_of_two['Subdir'] == row['Subdir']) & (df_rule_of_two['Filename'] == row['Filename'])) else 0, axis=1)
# Step 4: Count the unique number of [Subdir, Filename] in 'paragraphs_with_regex_rule_of_two.xlsx'
unique_rule_of_two = df_rule_of_two[['Subdir', 'Filename']].drop_duplicates().shape[0]
print(f"Unique [Subdir, Filename] in paragraphs_with_regex_rule_of_two.xlsx: {unique_rule_of_two}")
# Step 5: Count the sum of variable 'rule_of_two'
sum_rule_of_two = df_doc_files['rule_of_two'].sum()
print(f"Sum of 'rule_of_two': {sum_rule_of_two}")
Unique [Subdir, Filename] in paragraphs_with_regex_rule_of_two.xlsx: 31 Sum of 'rule_of_two': 31
df_doc_files.describe()
| rule_of_two | |
|---|---|
| count | 3405.000000 |
| mean | 0.009104 |
| std | 0.094995 |
| min | 0.000000 |
| 25% | 0.000000 |
| 50% | 0.000000 |
| 75% | 0.000000 |
| max | 1.000000 |
import csv
import os
import re # Import the regular expression module
def clean_text(text):
# Replace the specific sequences with desired characters or an empty string
text = text.replace('u8220' , "") # Example: replacing with a standard left double quotation mark
text = text.replace('u8221' , "") # Example: replacing with a standard right double quotation mark
text = text.replace('\\\'3f', '') # Removes the sequence \'3f correctly
# Add more replacements as needed
return text
def save_paragraphs_with_regex_to_csv(root_dir, csv_filename='paragraphs_with_regex_sb.csv'):
# Compile the regular expression for efficiency in a loop
pattern = re.compile(r'small business', re.IGNORECASE) # Case-insensitive search
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir','Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if ".doc" in filename:
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if pattern.search(paragraph): # Use re.search to find the pattern
paragraph = clean_text(paragraph)
print(f"Dir: {subdir}, File: {filename}, Paragraph with 'The Rule of Two': {paragraph}") # Keep printing
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_regex_to_csv(root_directory)
Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': After service-disabled veteran-owned small business (SDVOSB) was granted judgment on administrative record, by the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The Veterans Benefits, Health Care, and Information Technology Act (VBA) generally requires the Veterans Administration (VA) to set goals for providing contracts to veteran-owned small businesses (VOSBs), with a special preference for service-disabled veteran-owned small businesses (SDVOSBs), and further requires that the VA perform a \rule of two\ analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services; if the rule of two is met, the VA must conduct the competition for such products or services only among VOSBs or SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business\rquote s (SDVOSB) challenge to Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD), before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was \in connection with a procurement or a proposed procurement,\ within meaning of Tucker Act, providing bid protest jurisdiction, since VA made clear that, absent judicial intervention, VA would continue to enter into eyewear contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor\rquote s appeal of judgment for service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was substantial case on merits, in support of granting stay of procurement pending appeal, since issues on appeal were of first impression involving important contracting preferences and thus were fair ground for litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor would suffer irreparable harm in absence of stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA); incumbent contractor was nonprofit that existed to provide employment, training, and services to blind persons, so incumbent\rquote s harm was unique from other incumbents in that judgment would cause incumbent to lose 62% of optical services revenue or 15.5% of total revenue, likely resulting in loss of employment opportunities for blind persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of harms favored stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA), since harm to incumbent contractor from loss of 62% of its optical services revenue or 15.5% of its total revenue that would likely result in loss of employment opportunities for blind persons was more significant than hypothetical harm to SDVOSB from inability to compete for eyewear contracts during pendency of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Public interest supported grant of stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': This bid protest case was originally filed by plaintiff, PDS Consultants Inc. (\PDS\), a service-disabled veteran-owned small business (\SDVOSB\), on August 25, 2016 challenging the Veterans Administration\rquote s (\VA\) continued procurement of products and services from the AbilityOne Procurement List created under the Javits\u8211Wagner\u8211O\rquote Day Act (\JWOD\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The VBA generally requires the VA to set goals for providing contracts to veteran-owned small businesses (\VOSBs\), with a special preference for SDVOSBs, and further requires that the VA perform a Rule of Two analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': As relevant here, the VBA provides: \(d) USE OF RESTRICTED COMPETITION.\u8212Except as provided in subsections (b) and (c) [with regard to circumstances when noncompetitive procedures are authorized with SDVOSB and VOSB concerns] for purposes of meeting the goals under subsection (a) and in accordance with this section, a contracting officer of the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': In this connection, the court distinguished the 2006 VBA at issue in this protest with the Veterans Benefit Act of 2003, which amended the Small Business Act to provide authority for contracting officers throughout the government to restrict competition to SDVOSB concerns, but which expressly provides that the SDVOSB preference is not permitted if the procurement would otherwise be made under the JWOD. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor filed pre-award bid protest against United States, challenging Department of Veterans Affairs\rquote (VA) removal of contractor from VA database for qualified service-disabled veteran-owned small businesses (SDVOSBs) and Small Business Administration\rquote s (SBA) underlying determination that contractor was ineligible to compete for federal contracts as SDVOSB. Contractor moved for preliminary injunction requiring VA to reinstate contractor into SDVOSB database and to enable contractor to compete for VA\rquote s two procurements that were set aside for SDVOSBs. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor that was removed by Department of Veterans Affairs (VA) from database for qualified service-disabled veteran-owned small businesses (SDVOSBs), after Small Business Administration (SBA) determined that contractor was ineligible to compete as SDVOSB, was \interested party,\ within meaning of Tucker Act, as required for standing to pursue pre-award bid protest of two VA procurements set aside for SDVOSBs, since contractor was actual bidder for one contract and prospective bidder for second contract, and contractor had direct economic interest in both procurements due to VA\rquote s deprivation of contractor\rquote s opportunity to compete for contracts by allegedly erroneously removing contractor from SDVOSB database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protestor, seeking preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so protestor could compete for VA set aside contracts, was more likely than not to succeed on merits of claim that VA\rquote s removal of protestor from database and Small Business Administration\rquote s (SBA) underlying decision that contractor was ineligible to compete as SDVOSB were arbitrary, capricious, and contrary to law; SBA unreasonably concluded that service-disabled veteran did not unconditionally own 51% of protestor\rquote s shares due to availability of optional buy-out that was contrary to regulation requiring SBA to disregard unexercised stock options in determining unconditional ownership. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protestor would suffer irreparable harm in absence of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for VA contracts set aside for SDVOSBs, since absent injunctive relief protestor would be deprived of opportunity to compete for SDVOSB procurements with VA and any future SDVOSB solicitations for which protestor would otherwise be eligible competitor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships weighed in favor of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate bid protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for two VA procurements set aside for SDVOSBs, since protestor would suffer irreparable harm by denial of opportunity to compete for SDVOSB procurements with VA, and VA would not suffer harm from any delay due to protestor\rquote s reinstatement, as protestor would be eligible for competition without further delay of procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Public interest supported grant of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate bid protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for two VA procurements set aside for SDVOSBs, since public had strong interest in preserving integrity of procurement process, and protestor was more likely than not to succeed on merits of claim that VA\rquote s removal of protestor from database and Small Business Administration\rquote s (SBA) underlying decision that contractor was ineligible to compete as SDVOSB were arbitrary, capricious, and contrary to law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': , Director, and Allison Kidd\u8211Miller, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington D.C. Of counsel were Steven Devine and Mark G. Machiedo, Office of General Counsel, United States Department of Veterans Affairs, and Karen Hunter, Office of General Counsel, United States Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211award bid protest; motion for a preliminary injunction; protester\rquote s qualification as a service-disabled veteran-owned small business; jurisdiction; standing; differences between VA\rquote s and SBA\rquote s regulations; likelihood of success on the merits; equitable factors Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': by the United States Department of Veterans Affairs (\VA\) as a service-disabled veteran-owned small business (\SDVOSB\). It has a history of bidding on and securing awards of contracts from the VA that are set aside for competition among firms qualifying as SDVOSBs. It planned to submit offers on two such solicitations announced by VA, but very recently it was disqualified as a SDVOSB as a result of a dispute that arose after Veterans received a contract award in January 2017 that was set aside for SDVOSBs. After another bidder protested the award, an area office of the Small Business Administration (\SBA\) determined in July 2017 that Veterans did not qualify as a SDVOSB and was therefore ineligible for the award. Shortly thereafter, the VA informed Veterans that it was being removed from the VA database for qualified SDVOSBs. Veterans then filed this bid protest with respect to the two SDVOSB procurements that have not yet been awarded, alleging that it is a qualified SDVOSB eligible for an award in those procurements and it should not have been removed from the VA database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': (finding jurisdiction where a bid protester alleged that the \VA contravened its regulations governing [veteran-owned small business] eligibility through an unreasonable and inconsistent application of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': To increase procurement opportunities for \small business concerns owned and controlled by veterans with service-connected disabilities,\ Congress authorized the VA to set aside certain contracts for SDVOSBs through the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Further, as a small business, Veterans represents that its inability to obtain work as a SDVOSB could threaten its viability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , awarding measure of injunctive relief and bid preparation and proposal costs for post-award bid protest challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts, protestor moved for bid costs, as well as for attorney fees and related nontaxable expenses pursuant to Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protester unnecessarily incurred costs due to Department of Housing and Urban Development\rquote s (HUD) failure to conduct meaningful discussion for contract areas during procurement process for small business set-aside contracts, as required for protester to recover bid preparation and proposal costs under Tucker Act; HUD\rquote s failure prejudiced protester by materially and adversely affecting its chance to receive contract awards, and protester devoted at least some of bid costs it incurred to proposals rendered futile by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Allocation of 30 percent of protester\rquote s bid costs, under Tucker Act, was appropriate in bid protest challenging decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts; although protester did not receive nine of 10 contracts for which it submitted proposals, it only protested the award for three areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Successful bid protester was entitled to recover reasonable direct and indirect labor costs, under Tucker Act, incurred due to Department of Housing and Urban Development\rquote s (HUD) failure to conduct meaningful discussion for contract areas during procurement process for small business set-aside contracts; although protester did not maintain contemporaneous time records, its president recreated time he and vice president worked on proposal for HUD procurement, relying on calendar entries, notes, and personal recollection, requester\rquote s hours incurred prior to issuance of solicitation were reasonable because HUD released draft version of performance work statement, upon which protester relied to begin developing its proposal, and with regard to indirect costs, protester applied hourly rate for direct costs based on president and vice president\rquote s annual compensation for years they worked on proposal, and revised its initial request by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Successful bid protester was entitled to recover reasonable consulting fees as well as substantiated direct costs for travel, copying and printing and shipping and postage expenses, under Tucker Act, incurred due to Department of Housing and Urban Development\rquote s (HUD) failure to conduct meaningful discussion for contract areas during procurement process for small business set-aside contracts; both fees and costs fell within generally recognized categories of recoverable bid costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Successful bid protester sufficiently established it was requisite size and net worth to recover attorney fees, pursuant to Equal Access to Justice Act (EAJA) in bid protest action arising from Department of Housing and Urban Development\rquote s (HUD) failure to conduct meaningful discussion for contract areas during procurement process for small business set-aside contracts; although protester initially only submitted affidavit signed by its majority owner and vice president, it submitted, with its reply, a supplemental declaration and additional documentation, including a balance sheet, excerpts from protester\rquote s federal tax filings, and payroll records, that affirmatively established that protester met requisite criteria for eligibility to receive an award under EAJA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development (HUD) was not substantially justified in determining meaningful discussions with bid protester regarding past performance were unnecessary during procurement process for small business set-aside contracts and, thus, protester was entitled to award of attorney fees under Equal Access to Justice Act (EAJA); although HUD relied on overall \passing\ past performance rating, sub-ratings of \not relevant\ assigned to protester\rquote s past performance during procurement process, references constituted significant weaknesses or adverse past performance information, which HUD was obligated to raise with protester during discussions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protester received \substantial relief,\ rather than \partial or limited relief,\ when bringing post-award bid protest challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts and, thus, was entitled to full award of attorney fees under Equal Access to Justice Act (EAJA); HUD conducted inadequate discussions with protester regarding its past performance information in violation of governing federal acquisition regulation and terms of solicitation, which prejudiced protester, protester was awarded injunctive relief to fullest possible extent, and also awarded bid preparation and proposal costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protester was entitled to award of attorney fees, under Equal Access to Justice Act (EAJA), for time incurred working on post-award bid protest, challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts, including time spent challenging determination that it did not have standing to bring protest action on grounds it was deemed \other than small\ by Small Business Administration (SBA) in size determination for different area of procurement; however, protester was not entitled to fees for time incurred on its motion to amend complaint, as determination had been rescinded and appeal process before SBA had not been exhausted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , claiming that Q Integrated did not have standing to bring its protest because it had been deemed \other than small\ by the Small Business Administration (\SBA\) in a size determination for a different area of the HUD procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Ultimately, SBA ruled that Sage also was not a qualifying small business for HUD areas not involved in this protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Appl. at 2; Pl.\rquote s Reckoning at 2; Decl. of Michael Ognek (May 18, 2016) \u182 10, ECF No. 82\u82118; Decl. of Christopher Ognek (May 18, 2016) \u182 8, ECF No. 83. Such summaries that are based on records maintained by the business are sufficient to support a claim for reasonable bid costs, particularly with regard to small businesses that do not regularly maintain contemporaneous time records. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': The Asset Management procurement included a number of small business set-aside contracts, including the three areas at issue in this case and the areas at issue in the aforementioned size appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging Department of Education\rquote s (ED) proposed corrective action to allow all potential bidders to provide updates regarding their small business participation plans. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Education\rquote s (ED) proposed corrective action to re-open competition for contracts to collect defaulted student loans and to allow all potential bidders to provide updates regarding their small business participation plans was reasonable, after Government Accountability Office (GAO) sustained Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': administrative bid protests upon determining that ED\rquote s evaluation of bids under past performance and management approach factors was unreasonable, even though ED had previously informed bidders that no changes would be allowed regarding subcontracting certain percentage of work to small businesses, since ED was permitted to take corrective action to address both deficiencies identified by GAO decision and new information brought to ED\rquote s attention. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': On December 11, 2015, the United States Department of Education (\ED\) issued Solicitation No. ED\u8211FSA\u821116\u8211R\u82110009 (the \Solicitation\) to request proposals for the award of multiple Indefinite\u8211Delivery, Indefinite\u8211Quantity (\IDIQ\) contracts to collect defaulted student loans. AR Tab 1, at 1. Under the terms of the Solicitation, as amended, offerors were to be evaluated under three factors: \Past Performance\ (Factor 1); \Management Approach\ (Factor 2); and \Small Business Participation Plan,\ (Factor 3). AR Tab 3, at 150. Forty-seven offerors, including Automated Collection Services, Inc. (\ACSI\), submitted timely proposals. AR Tab 22, at 940\u821141. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': . AR Tab 24, at 990. All prior offerors, however, were informed that no changes would be allowed regarding commitments to subcontracting a certain percentage of work to small business subcontractors. AR Tab 24, at 990. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': On May 25, 2017, ED announced a decision to re-open the competition in all respects, by allowing all offerors to submit revised small business participation plans. AR Tab 28, at 1044\u821145. Therefore, ED would reevaluate proposals based not only on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': On June 9, 2017, ACSI filed a bid protest complaint in the United States Court of Federal Claims to challenge ED\rquote s decision to take corrective action. Compl. \u182 57. Therein, ACSI requested that the court enter a declaratory judgment that ED\rquote s proposed corrective action was arbitrary, capricious, and an abuse of discretion, and otherwise contrary to federal law. Compl. \u182 57. In addition, ACSI requested that the court enjoin ED from \considering revised small business participation plans in connection with the corrective action and a new award decision.\ Compl. \u182 58. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': On July 13, 2017, the Government filed a Memorandum In Support Of Its Motion To Dismiss [ACSI\rquote s June 9, 2017] Complaint, Its Cross\u8211Motion For Judgment On The Administrative Record, And In Response To Plaintiff\rquote s Motion For Judgment On The Administrative Record (\Gov\rquote t Mot\), arguing that ACSI does not have standing to challenge ED\rquote s proposed corrective action to allow all potential offerors to provide updates regarding small business participation. Gov\rquote t Mot. at 14. In the alternative, the Government argues that ACSI\rquote s July 3, 2017 Motion For Judgment On The Administrative Record should be denied and the requested elements of injunctive action have not been established. Gov\rquote t Mot. at 30. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 006 - Automated Collection Services Inc v United States.doc, Paragraph with 'The Rule of Two': Performance, Factor 2, Management Approach, and Factor 3, Small Business Participation Plan. 8/4/2017 Status Rep. at 2\u82113. After completing the reevaluation, ED will conduct a new source selection determination and announce any new award or awards, or termination of previously-awarded contracts. 8/4/2017 Status Rep. at 2. ED\rquote s planned completion date of the corrective action is August 25, 2017. 8/4/2017 Status Rep. at 2\u82113. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Joint venture, as former awardee of small business set-aside contract, and joint venture member filed bid protest challenging Small Business Administration\rquote s Office of Hearings and Appeals\rquote (SBA OHA) size determination that they were other than small businesses, resulting in Missile Defense Agency terminating for convenience awardee\rquote s contract to provide support to ballistic missile defense system and reissuing solicitation. Awardee and member moved for judgment on administrative record, and government cross-moved to dismiss in part and for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s Office of Hearings and Appeals (SBA OHA) determination, that joint venture, as former awardee of small business set-aside contract, and joint venture member were other than small businesses, was \in connection with a procurement,\ within meaning of Tucker Act, and thus, Court of Federal Claims had jurisdiction over appeal of that size determination, since SBA OHA determination required Missile Defense Agency to alter its procurement choices by terminating contract for convenience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Joint venture, as former awardee of small business set-aside contract, was interested party with standing to pursue bid protest, challenging Small Business Administration\rquote s (SBA) determination that awardee was other than small business, resulting in Missile Defense Agency terminating for convenience awardee\rquote s contract to provide support to ballistic missile defense system and reissuing solicitation, since awardee was actual bidder for contract, had direct economic interest in procurement, incurred non-trivial competitive injury from termination for convenience, and suffered prejudice in that awardee had substantial chance of re-securing award upon prevailing in bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Joint venture member was not interested party with standing to pursue bid protest, challenging Small Business Administration\rquote s (SBA) determination that member was other than small business and thereby not qualified for Missile Defense Agency\rquote s solicitation for support services for ballistic missile defense system, since member was not actual or prospective bidder for solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) lacked rational basis for determining that joint venture awardee of small business set-aside contract was other than small business, resulting in Missile Defense Agency terminating for convenience awardee\rquote s contract to provide support to ballistic missile defense system; SBA provided no parameters for fact finder to ascertain any reliable information relevant to whether awardee\rquote s joint venture member was dominant in field of operation, and SBA did not discuss why it declined to exercise its discretion to find that no economic dependence existed between joint venture member and large business such that they were not affiliates. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': 15 U.S.C. \u167\u167 632, 637 (Small Business Act); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': MEMORANDUM OPINION AND ORDER REMANDING A JULY 20, 2016 SMALL BUSINESS ADMINISTRATION\rquote S OFFICE OF HEARINGS AND APPEALS SIZE DETERMINATION DECISION Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': On November 10, 2016, Veterans Technology, LLC (\Vet Tech\) and MDW Associates, LLC (\MDW\) filed a Complaint (\Compl.\) in the United States Court of Federal Claims to protest a July 20, 2016 decision by the Small Business Administration\rquote s Office of Hearings and Appeals (\SBA OHA\), affirming a May 2, 2016 Small Business Administration\rquote s Area Office (\SBA Area Office\) finding that Vet Tech and MDW were \other than small businesses for the size standard of $15 million.\ AR 2634. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': B. On April 1, 2016, The Missile Defense Agency Awarded Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': On June 26, 2015, the Missile Defense issued Solicitation No. HQ0147\u821115\u8211R\u82110019 (the \Solicitation\) to seek offers to provide \support to the Ballistic Missile Defense System in the areas of strategic planning and financial management, cost estimating, and analysis, earned value management, accounting and financial systems support and integration.\ AR 2623. The Solicitation was set aside for a small business concern with an annual revenue of $15 million or less. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': C. On May 2, 2016, A Small Business Administration Area Office Found That Veterans Technology, LLC, Did Not Qualify As A Small Business Concern, Because It Was Affiliated With A Large Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': it could only qualify for a \small business\ set-aside contract, if all of its members were small businesses. AR 2628. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': D. On July 20, 2016, The Small Business Administration\rquote s Office Of Hearings And Appeals Affirmed The Area Office\rquote s Size Determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': those decisions were distinguished on the basis that MDW was not a \startup business\ in August 2015, when it submitted a bid on the Solicitation, and MDW\rquote s arrangement with ECS was not a single small contract of short duration, but instead involved the recipient of \multi-million dollar subcontracts spanning several years.\ AR 2804. Accordingly, the SBA OHA concluded that MDW was \affiliated\ with ECS. AR 2804. Therefore, ECS\rquote s size was attributed to MDW, prohibiting Vet Tech from being awarded a \small business\ set aside for the April 1, 2016 Missile Defense Contract. AR 2805. In addition, Vet Tech and MDW were advised they \cannot certify as a small business concern on future Government procurements.\ AR 2634. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': , because of the SBA OHA\rquote s July 20, 2016 ruling disqualifying Vet Tech as a small business. AR 2807. Thereafter, Missile Defense re-issued the Solicitation, but represented to the court that it would not make any contract award, until this bid protest was resolved. 11/17/16 Erskine Decl. \u182\u182 2\u82113, ECF No. 8. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': , because the SBA OHA\rquote s July 20, 2016 ruling caused Missile Defense to cancel a contract that was awarded to Vet Tech. AR 2801. In addition, the SBA\rquote s determination prohibited Vet Tech from competing for future government contracts that are classified as small business set asides. AR 2634. Therefore, the court has determined that Vet Tech is an \interested party\ and has incurred a \non-trivial competitive injury\ under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': In this case, Missile Defense initially determined that Vet Tech\rquote s bid provided the \best value\ for the Government and awarded Vet Tech a contract under the Solicitation. AR 1686. Missile Defense, however, was compelled to terminate Vet Tech\rquote s Contract and re-issue the Solicitation, because the SBA OHA determined that Vet Tech was not a \small business.\ AR 2807. As such, the November 10, 2016 Complaint challenges the SBA OHA\rquote s determination as \arbitrary, capricious, an abuse of discretion, [and] otherwise not in accordance with law[.]\ Compl. at \u182\u182 44\u821145. Therefore, but for the SBA OHA\rquote s allegedly erroneous ruling that MDW was not a \small business,\ by virtue of being economically dependent on ECS, Vet Tech would have been able to perform the Contract, as the \best value\ bidder. Accordingly, if Vet Tech prevails in this bid protest, it has a \substantial chance\ of re-securing the award at issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': C. Whether The Small Business Administration\rquote s Determination That Veterans Technology, LLC Was Not A \Small Business\ Was Contrary To Law, Not Rational, Or Arbitrary And Capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': sensible construction of the Small Business Act, that defines a \small business concern\ as \one which is independently owned and operated and which is not dominant in its field of operation.\ Pl. Br. at 17 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': ). Vet Tech recognizes it is consistent with the Small Business Act to ensure that small businesses are not controlled by large ones by applying a rebuttable presumption of economic dependence, where a small business derives over 70% of their revenue from a single large firm. Pl. Br. at 17. But, treating the 70% presumption as irrebuttable, conflicts with the Small Business Act, because \it takes a factor associated with small businesses (having relatively undiversified revenue sources) and turns it into a factor that disqualifies a business from being classified as small.\ Pl. Br. at 17\u821118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Although economic dependence can raise concerns about control, that fact alone does not establish that control exists. Pl. Reply at 6. In fact, \[d]ependence on large customers is positively correlated with being a small business in certain sectors.\ Pl. Reply at 6 (citing NFIB Research Found., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': ). In this case, the SBA OHA failed to analyze in any detail the evidence that MDW could function as a freestanding small business, without any revenue from ECS. Pl. Reply at 10. Nor did the SBA OHA properly consider evidence that MDW was considered a new business in the defense contracting industry. Pl. Reply at 11. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': The Government replies that the SBA OHA performed a case-specific analysis and determined that MDW failed to rebut the presumption of economic dependence, because it: (1) derived 100% of its revenues from ECS during 2012, 90% of its revenues in 2013 and 2014, and over 70% of its revenues in 2015; (2) was not a start-up; and (3) had contracts with ECS that spanned several years and were worth millions of dollars. Gov\rquote t Reply at 8\u821110. In addition, the SBA OHA\rquote s application of the presumption of economic dependence did not conflict with the Small Business Act or SBA regulations, simply because it did not consider whether MDW operated in a unique industry that \requires much longer lead time for start-ups to become truly independent.\ Gov\rquote t Reply at 12 (citing Pl. Reply at 11). Instead, the SBA Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act defines a \small business\ as \one which is independently owned and operated and is not dominant in its field of operation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': . In addition, \Congress ... gave SBA authority to \u8216specify detailed definitions or standards by which a business concern may be determined to be a small business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Therefore, although the SBA has authority to \specify detailed definitions or standards by which a business may be determined to be a small business concern,\ such definitions and standards are to take into account the relevant \industry.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': On January 5, 1956, the SBA issued a Notice of Proposed Rulemaking \to establish the definition of small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': at 80. When the first regulations were issued on January 1, 1957, however, neither the definition of \industry\ nor \field of operation\ were included. Instead, the SBA took a different tact and defined \a small business for the purposes of Government procurement\ as a \concern that (1) is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': , employs fewer than 500 employees, or (2) is certified by as a small business concern by [the] SBA.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': The point of determining whether the members of a joint venture are economically dependent on another business concern, however, is to prevent a business that is \dominant in a field of operation\ from being able to obtain a preference under the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Programs: Controlled Chaos?\ 19 No. 1 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': (commenting on \the chaotic rules that ... implement the small business initiatives of the Government\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'The Rule of Two': (ruling that a small business was not economically dependent, despite relying on only two contracts with the same customer, because it was a startup operation); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to amend complaint to add two claims against Small Business Administration (SBA) for allegedly improperly issuing certificate of competency (COC) to awardee and improperly reconsidering initial declination to issue COC to awardee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s proposed amendment of its complaint to add two claims against Small Business Administration (SBA), for allegedly improperly issuing certificate of competency (COC) to awardee of service-disabled veteran-owned small business set-aside contract to train aircrew and for improperly reconsidering its initial declination to issue COC to awardee, was not justified; amendment would be futile, as SBA\rquote s issuance of COC was not subject to judicial review, and protestor failed to justify its delay in seeking to amend nearly three weeks after becoming aware that complaint was insufficient to warrant investigation into SBA\rquote s decision-making process and after Court of Federal Claims twice informed protestor that SBA\rquote s reasoning was irrelevant to complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Motion to Amend Complaint; Small Business Administration; Jurisdiction over Certificate of Competency Decision; Unjustified Delay. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': In this bid protest, Sonoran Technology and Professional Services, LLC (\Sonoran\) challenges the United States Air Force\rquote s decision to terminate its contract to train aircrew to fly B\u821152 and B\u821151 aircrafts and award the same contract to Spectre Pursuit Group, LLC (\SPG\) as a result of corrective action. Sonoran now seeks to amend its complaint to add two counts against the Small Business Administration (\SBA\) for issuing a Certificate of Competency (\COC\) to a non-responsible bidder and re-opening a COC referral contrary to established SBA practices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have a facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': , \SBA COC\rquote s are conclusive with respect to all elements of responsibility of prospective small business contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest challenging award of small business set-aside training and analysis support services (TASS) contract by United States Coast Guard. Following intervention by contract awardee, as defendant-intervenor, parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': Awardee of small business set-aside training and analysis support services (TASS) contract by Coast Guard was not disqualified due to any appearance of impropriety, despite small disparity in total evaluated price between disappointed bidder and awardee compared to other bidders\rquote significantly higher prices and awardee\rquote s employment of retired Coast Guard officer, since officer lacked access to any relevant information regarding procurement, he was not actively involved in preparing or guiding preparation of request for proposals (RFP), he retired before source selection plan was finalized and RFP was issued, he was not involved in developing pricing for awardee\rquote s bid, he did not provide other bidders\rquote proprietary information to awardee, and he received ethics memo clearing him to work for awardee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': Technical evaluation team\rquote s (TET) assessment of deficiency in disappointed bidder\rquote s staffing approach subfactor for small business set-aside training and analysis support services (TASS) contract awarded by Coast Guard was reasonable; Coast Guard\rquote s request for proposals (RFP) contained necessary and desired qualifications and education for various training positions, but bidder\rquote s proposal framed educational requirements as desired, rather than mandatory qualifications, five of bidder\rquote s nine key personnel failed to meet education guidelines, and bidder had ample notice of educational requirements for key personnel and ample opportunity to either meet or object to those requirements but failed to do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': Technical evaluation team\rquote s (TET) assessment of deficiency in bidder\rquote s staffing approach subfactor for small business set-aside training and analysis support services (TASS) contract awarded by Coast Guard did not improperly impact bidder\rquote s overall technical and management approach evaluation factor rating, although there were also six identified strengths and no identified weaknesses or significant weaknesses across remaining subfactors, since request for proposals (RFP) stated that educational requirements of bidder\rquote s key personnel were mandatory, but five of bidder\rquote s nine key personnel failed to meet education guidelines, bidders had agreed to assign only qualified key personnel, and Coast Guard specified that award would only be to responsible bidder whose bid conformed to RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': at 1602\u821108. The Market Research Report was developed by Mr. Mann\u8211Thompson, Mr. Boucher, and Commander Roethler, and provided for the TASS procurement to be conducted as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'The Rule of Two': at 233, 767. As described in the RFP, the Coast Guard sought to award an IDIQ contract with a five-year ordering period that was a \100% Total Small Business Set\u8211Aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 018 - American Sanitary Products Inc v United States.doc, Paragraph with 'The Rule of Two': Former awardee of small business set-aside contract to provide solid laundry products to Federal Bureau of Prisons (BOP) filed bid protest against United States, challenging BOP\rquote s decision to take corrective action and cancel solicitation and award of contract. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 018 - American Sanitary Products Inc v United States.doc, Paragraph with 'The Rule of Two': Former awardee of small business set-aside contract to provide solid laundry products to Federal Bureau of Prisons (BOP) was \interested party,\ within meaning of Tucker Act, as required for standing to pursue bid protest challenging BOP\rquote s decision to take corrective action and cancel solicitation and award of contract, since awardee was actual bidder, had direct economic interest in procurement, and was prejudiced by BOP\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 018 - American Sanitary Products Inc v United States.doc, Paragraph with 'The Rule of Two': Federal Bureau of Prisons\rquote (BOP) decision to take corrective action and cancel solicitation and award of small business set-aside contract to provide solid laundry products was reasonable; contracting officer (CO) explained in writing that BOP took corrective action to ensure that solicitation accurately reflected BOP\rquote s requirements, as original solicitation significantly underestimated BOP\rquote s actual requirements in pounds by assuming that each case of product weighed two pounds even though each case actually weighed between 5 and 16 pounds, which had material effect on price quotes from bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 018 - American Sanitary Products Inc v United States.doc, Paragraph with 'The Rule of Two': the BOP announced the intention to establish a small business set aside for the purchase of \Safer Choice\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 024 - Orbital ATK Inc v Walker.doc, Paragraph with 'The Rule of Two': (enforcing an Executive Order that explicitly referenced the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to supplement administrative record with all documents currently in Air Force\rquote s possession related to Small Business Administration\rquote s (SBA) decision to issue awardee certificate of competency (COC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': In bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, supplementation of administrative record was warranted with documents in Air Force\rquote s possession related to Small Business Administration\rquote s (SBA) decision to issue awardee certificate of competency (COC), specifically all communications, emails, and documents referred to in email exchange between SBA and Air Force explaining why contracting officer did not document SBA\rquote s rationale for issuing COC, since email exchange raised questions as to Air Force\rquote s decision to take corrective action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Supplementing the Administrative Record; Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': challenges the United States Air Force\rquote s decision to terminate its contract to train aircrew to fly B\u821152 and B\u821151 aircrafts and award the same contract to Spectre Pursuit Group, LLC (\SPG\) as a result of corrective action. Sonoran now seeks to supplement the Administrative Record, for the second time, with all documents currently in the Air Force\rquote s possession related to the United States Small Business Administration\rquote s (\SBA\) decision to issued SPG a Certificate of Competency (\COC\). For the reasons described below, Sonoran\rquote s motion is GRANTED IN PART and DENIED IN PART. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have a facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': .... [I]f you recall, during our conversation, the COC was not in process and did not go into process until you expressly told me that you would be compelled to award to SPG if you received the COC.... [Air Force] is doing nothing but delaying the inevitable and continues to harm small business.... I\rquote d like to know Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest against United States, claiming that Department of Veterans Affairs (VA) acted arbitrarily and capriciously in awarding service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center and in revoking bidder\rquote s SDVOSB status. Following intervention of contract awardee as defendant-intervenor, parties cross-moved for judgment on administrative record, and government moved to dismiss bidder\rquote s original and supplemental complaints. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to revocation of its status as service-disabled veteran-owned small business (SDVOSB), in its supplemental complaint filed after its original bid protest complaint challenging Department of Veterans Affairs\rquote (VA) award of SDVOSB contract to upgrade chiller plant at VA medical center, was not \in connection with a procurement,\ within meaning of Tucker Act, requiring bid protestor to object to regulation in connection with procurement in order to have standing to pursue bid protest, since bidder\rquote s SDVOSB status was revoked after VA awarded contract in unrelated proceeding independent of contract award and original bid protest complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) reasonably concluded that awardee of service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center had experience and past performance required to complete contract, although bid protestor alleged that awardee\rquote s past project was only substantially completed and that awardee failed civil and fire protection requirements of request for proposals (RFP), since RFP did not define \civil\ and \fire protection work\ that were part of minutia of procurement process over which VA had discretion, VA had authority to determine what constituted adequate work under RFP, awardee was not disqualified by sole weakness in past performance, and VA determined that awardee had clear bid bond obligation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) conducted reasonable price evaluation of bids for service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center, although bid protestor argued that VA conducted price evaluation impossibly \fast,\ failed to analyze protestor\rquote s alternate price, and wrongly determined awardee was responsible bidder; proposed prices were not far off VA\rquote s estimate, good price realism was reflected through request for proposals\rquote (RFP) price competition, more in-depth price evaluation was unnecessary as awardee\rquote s offer was lowest and its bid was technically acceptable, VA was not required to evaluate protestor\rquote s voluntary alternate price, and determination of awardee\rquote s responsibility was well within VA\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': This bid protest action comes before the Court on the parties\rquote cross-motions for judgment on the administrative record and defendant\rquote s Motion to Dismiss plaintiff\rquote s original and supplemental complaints. Plaintiff, Geiler/Schrudde & Zimmerman, A Joint Venture (\GSZ\), alleges the following: (1) the United States Department of Veterans Affairs (\Agency\) acted arbitrarily and capriciously in awarding the bid to defendant-intervenor, Innovative Support Solutions, Inc. (\ISS\); (2) GSZ should have been awarded the bid because it was the lowest-priced offeror; and (3) GSZ\rquote s status as a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) was improperly revoked by the Agency. For the reasons set forth below, the Court dismisses plaintiff\rquote s Supplemental Complaint, and grants the United States\rquote (\government\) and defendant-intervenor\rquote s motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'The Rule of Two': . The federal SDVOSB program reserves specific government contracts for service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 029 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , awarding measure of injunctive relief and bid preparation and proposal costs for post-award bid protest challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts, protestor moved for bid costs, as well as for attorney fees and related nontaxable expenses under Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 029 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Federal government\rquote s notice of appeal divested Court of Federal Claims of jurisdiction over bid protestor\rquote s motion for bid preparation and proposal costs, under Tucker Act, after obtaining partial grant of judgment on administrative record, awarding measure of injunctive relief and bid costs for post-award bid protest challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts, since motion for bid costs was integral part of merits of bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 029 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Prudential considerations warranted suspension of consideration of bid protestor\rquote s motion for attorney fees and costs, under Equal Access to Justice Act (EAJA), pending government\rquote s appeal of partial grant of protestor\rquote s motion for judgment on administrative record, awarding measure of injunctive relief and bid preparation and proposal costs for post-award bid protest challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts; although protestor was prevailing party under EAJA, judgment on administrative record could be overturned on appeal such that protestor would no longer be prevailing party entitled to attorney fees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 029 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': . Thereafter, the court suspended briefing on plaintiff\rquote s application for bid costs and motion for attorneys\rquote fees pending the Small Business Administration\rquote s (\SBA\rquote s\) resolution of size appeals involving Q Integrated and defendant-intervenor Sage Acquisitions, LLC (\Sage\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 029 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': . Certain contracts, including those for the three areas at issue in this case, Areas 7A, 1D, and 5P, were intended to be small business set-aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 031 - Dell Federal Systems LP v United States.doc, Paragraph with 'The Rule of Two': at 155. The awards would be divided into two categories: those reserved for small business, and those available through full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 031 - Dell Federal Systems LP v United States.doc, Paragraph with 'The Rule of Two': at 198. For the first category, the Army intended to \select the five lowest priced Small Business Offerors for award, provided that five responsible small business proposals [were] found to be acceptable in all non-price factors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 031 - Dell Federal Systems LP v United States.doc, Paragraph with 'The Rule of Two': Further, if the Army chose to open discussions, \all proposals, to include small business proposals previously removed for unacceptability ... [would] be included,\ after which the Army would reevaluate proposals in accordance with the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 031 - Dell Federal Systems LP v United States.doc, Paragraph with 'The Rule of Two': All proposals from offerors were due by August 4, 2016. AR Tab 31 at 392. Fifty-eight offerors had submitted proposals by that date (fifty-two from small businesses and six from large businesses). AR Tab 69 at 4327. The Army found that three of the fifty-eight proposals did not comply with the solicitation\rquote s requirements, so the Army only evaluated the remaining fifty-five proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 033 - i3 Cable And Harness LLC v United States.doc, Paragraph with 'The Rule of Two': Ace Electronics Defense Systems, LLC (ACE) is a privately held, Service\u8211Disabled, Veteran\u8211Owned Small Business (SDVOSB) and is International Organization for Standardization (ISO) 9001:2008 certified. The company specializes in electronics manufacturing services to include electronics and mechanical design, manufacturing of cabling assemblies, diagnostic repair and integration services including higher-level electro-mechanical assemblies. With our 22,000 sq. ft. manufacturing facility in Troy, MI and resources to another 18,000 sq. ft. in Metuchen, NJ, we support rapid prototyping and full scale production Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 033 - i3 Cable And Harness LLC v United States.doc, Paragraph with 'The Rule of Two': It takes the opportunity out of a small business set aside for a small business. It takes away the opportunity for a small business to give jobs to many employees and from the community. Ace is relying on Unicor extensively for a high volume of each order and this takes away growing a small business and creating jobs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 033 - i3 Cable And Harness LLC v United States.doc, Paragraph with 'The Rule of Two': Again, the court notes that protestor\rquote s counsel has characteristically failed to provide any citations to the record, statutes, regulations, or case law to support protestor\rquote s assertions. Regardless, it is obvious that the alleged effects of the award of the contract at issue on small businesses and job creation are irrelevant to the issue of whether Ace or Unicor had a competitive advantage over other offerors because of access to nonpublic information. Protestor\rquote s assertions in its reply brief, thus, do not come close to meeting the level of evidence required to support the seriousness of an OCI allegation. Judgment on the administrative record in favor of the defendant and defendant-intervenor on the issue of an improper OCI, therefore, is granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 034 - Integrity National Corporation v DSS Services Inc.doc, Paragraph with 'The Rule of Two': The Small Businesses Administration\u8217s Business Development Program (also known as the \8(a) program\) provides assistance to firms owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to supplement administrative record with depositions of contracting officer and area director for Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Supplementation of administrative record with deposition of contracting officer (CO), limited to no more than four hours, was warranted, in bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, since two agency decisions were not adequately explained in administrative record thereby hindering judicial review, namely that CO offered no explanation for his decision to take corrective action by referring matter to Small Business Administration (SBA), and he failed to document rationale for his determination that different awardee was responsible contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Supplementation of administrative record with deposition of area director for Small Business Administration (SBA) was not warranted, in bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, since contractor sought to determine SBA\rquote s reasoning throughout its evaluation of different awardee\rquote s responsibility, but contractor\rquote s complaint never challenged SBA\rquote s responsibility determination or issuance of certificate of competency (COC), so further discovery into SBA\rquote s reasoning was irrelevant to judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Supplementing the Administrative Record; Deposition of Contracting Officer and Small Business Association. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': In this bid protest, Sonoran Technology and Professional Services, LLC (\Sonoran\) challenges the United States Air Force\rquote s decision to terminate its contract to train aircrew to fly B\u821152 and B\u821151 aircrafts and award the same contract to Spectre Pursuit Group, LLC (\SPG\) as a result of corrective action. Sonoran now seeks to supplement the Administrative Record with depositions of Contracting Officer, Captain John R. Sidor, and Area Director for the United States Small Business Administration (\SBA\), Ms. Carol L. Thompson, due to an alleged deficiency in the Administrative Record as to the decision-making process of the Air Force and SBA. Since motions to supplement the administrative record should only rarely be granted when necessary to allow effective judicial review, Sonoran\rquote s motion is GRANTED IN PART and DENIED IN PART. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'The Rule of Two': On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': (TAC, Docket Entry No. 112.) Plaintiffs allege that Defendants arbitrarily denied reconsideration of Plaintiffs\rquote application to renew A1\rquote s status as a \qualified Service-Disabled, Veteran-Owned Small Business\ (\SDVOSB\), in violation of the Administrative Procedures Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the \Veterans Benefits Act\) to increase contracting opportunities for small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': . Congress conferred upon the VA the authority to set aside certain government contracts for SDVOSBs and to maintain a database of small businesses eligible for the set-aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': . As a result, the VA maintains an online database of eligible small businesses called the VetBiz Vendor Information Pages (\VIP\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': . By statute, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the business are listed in the database of veteran-owned businesses maintained by the Secretary [of the VA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': which is charged with evaluating applications to determine whether a small business is \unconditionally owned and controlled by one or more eligible veterans, service-disabled veterans or surviving spouses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'The Rule of Two': (ordering the VA to reinstate the plaintiff\rquote s veteran-owned small business (\VOSB\) statute extending the eligibility date \to account for the days it was wrongfully excluded from the VIP database\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': The Technical Capability factor was subdivided into three subfactors: Process Performance, Performance Management, and Small Business participation. An offeror needed to be rated \acceptable\ for each technical subfactor in order to be considered Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': AR at 319\u821120 (Process Performance); 320\u821122 (Program Management); 322 (Small Business Participation). There were 21 Measures of Merit in total across all three subfactors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': For the Small Business Participation subfactor, plaintiff did not have any past performance contracts that met the requirements of the PROS V contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': The SSEB\rquote s past performance evaluators assigned an overall performance confidence rating of satisfactory to plaintiff for the Past Performance factor. This was explained in the PAR as a result of the SSEB\rquote s finding that SupplyCore had met all of the relevant requirements in each of its six past performance references but had exceeded requirements in only one contract for one technical subfactor. The one requirement that the SSEB found SupplyCore to have exceeded was with respect to packing and shipping of items internationally. Not having had any references relevant to the small business subfactor, this subfactor neither negatively nor positively affected Supplycore\rquote s overall Past Performance rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': For Small Business Participation, one contract was found to be relevant with very good performance quality. S & K \exceeded the requirements for small business.\ AR 1202. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 039 - SupplyCore Inc v United States.doc, Paragraph with 'The Rule of Two': All three final offerors were found technically acceptable overall and for all three technical subfactors (Process Performance, Program Management, and Small Business Participation). Because that factor was effectively a pass/fail test, we will limit further discussion to the discriminating factors of Past Performance and Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Former awardee filed bid protest challenging second decision of Department of Health and Human Services (HHS), Centers for Medicare & Medicaid Services (CMS), to take corrective action on solicitation, following disappointed bidder\rquote s prior bid protest filed on same solicitation, that terminated award of small business set-aside contract to assist CMS with education and outreach initiative, cancelled solicitation, and reassessed procurement strategy to determine more appropriate contract vehicle. Following intervention by disappointed bidder as defendant-intervenor, parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Former awardee of small business set-aside contract to assist Centers for Medicare & Medicaid Services (CMS) with education and outreach initiative was interested party, under Tucker Act, as required for awardee\rquote s standing to pursue bid protest challenging CMS\rquote s decision to take corrective action that terminated award in response to prior bid protest filed by disappointed bidder, where former awardee had direct economic interest in procurement and corrective action decision due to termination of its contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Centers for Medicare & Medicaid Services\rquote (CMS) decision to take corrective action terminating award of small business set-aside contract to assist CMS with education and outreach initiative, canceling solicitation, and reassessing procurement strategy, including further market research, to determine more appropriate contract vehicle was reasonable response to prior bid protest filed by disappointed bidder; corrective action was based on contracting officer\rquote s informed assessment that procurement was flawed as only two bids had been received, both of which contained possible errors that could result in dual ineligibility for award, so contracting officer justifiably chose to cancel solicitation and re-procure due to risk of no eligible bidders for contract award under existing solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Centers for Medicare & Medicaid Services\rquote (CMS) corrective action terminating award of small business set-aside contract to assist CMS with education and outreach initiative, canceling solicitation, and reassessing procurement strategy to determine more appropriate contract vehicle, rather than allowing bidders equal opportunity to review their bids to address deficiencies, was reasonable in scope; contracting officer concluded that discussions with bidders was not appropriate corrective action, as both bidders submitted flawed proposals that risked their eligibility for contract award and CMS was concerned that contract vehicle was too restrictive to promote competition, so neither discussions or reevaluation of bids could address defects in existing solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': According to the solicitation, the task order was \100% set aside for offerors identified as small businesses under the General Services Administration (\u8216GSA\u8217) Professional Services Schedule, 00CORP, Schedule 541 Advertising & Integrated Marketing Solutions, Category 541\u82115 Integrated Marketing Services.\ The solicitation identified the following program goals for the GEO program: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Prior to issuing the solicitation, CMS performed market research in order to determine if the GSA Schedule 541\u82115 contract could be used to meet CMS\rquote s GEO requirement. According to the Market Research Report, included in the administrative record, CMS researched the capabilities of the seven companies listed as small businesses on the GSA Schedule 541\u82115 contract, including Novak Birch, which included \reviewing websites, sources sought responses and Contractor Performance Assessment Reporting System (CPARS) reports where available.\ Regarding Novak Birch, the Market Research Report described Novak Birch as a \Good Candidate\ and stated, \Novak Birch does not have healthcare experience. However, their overall ability to demonstrate their Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Novak Birch is a certified small business that offers marketing, event planning and management, web design, and copyrighting services. Based on the market research, when CMS issued the solicitation on July 28, 2016 for a GEO contractor, it solicited proposals through GSA\rquote s \e-Buy\ platform from six small businesses identified as vendors under the GSA Schedule 541\u82115 contract, including Novak Birch. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': Although CMS solicited proposals from six small business vendors under GSA Schedule 541\u82115, Novak Birch and Rainmakers were the only two offerors to submit proposals in response to the solicitation. In their original proposals, Rainmakers\rquote total proposed price was [Redacted], and Novak Birch\rquote s total proposed price was [Redacted]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 040 - Novak Birch Inc v United States.doc, Paragraph with 'The Rule of Two': At the time the solicitation was issued, Rainmakers\rquote GSA Professional Services Schedule contract did not include Schedule 541, however, Rainmakers requested a modification of its GSA Professional Services Schedule contract to include Schedule 541\u82115 and GSA issued the modification prior to the proposal deadline, such that Rainmakers was eligible to submit a proposal. Although the market research considered the capabilities of the seven small businesses listed on the GSA Schedule 541\u82115 contract, CMS concluded that one of the companies, [Redacted], \would not be a good candidate for this procurement,\ thus, CMS did not solicit a proposal from [Redacted]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': On March 28, 2017, Continental filed a Complaint in the United States Court of Federal Claims, alleging that the ED\rquote s determination that Continental was not responsible, based on inconsistencies in its proposed small business subcontracting plan, violated the Solicitation and Federal Acquisition Regulations (\FAR\), because: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': \u8226 enjoin the ED from placing more than 37% of monthly accounts with small businesses that provide the ED with student debt collection services under Solicitation No. ED\u8211FSA\u821113\u8211R\u82110006; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': On April 10, 2017, Pioneer also filed a Complaint in the United States Court of Federal Claims, alleging that the ED\rquote s determination that Pioneer was not responsible due to inconsistencies in its small business subcontracting plan was contrary to law, arbitrary and capricious, and irrational, because: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': On May 19, 2017, the Government filed a Notice Of Corrective Action advising the court that, consistent with the GAO\rquote s March 27, 2017 decision, the ED plans to allow all offerors to submit new past performance proposals and management plans, and correct the mistakes identified by the GAO\rquote s March 27, 2017 decision regarding the evaluation of bids under the past performance and management approach factors. 5/19/17 Gov\rquote t Notice at 7\u82118. The ED also will allow all of the offerors\rquote to correct inconsistencies in their small business subcontracting plans and re-submit those plans. 5/19/17 Gov\rquote t Notice at 8\u82119. After conducting the reevaluation, the ED intends to issue a new source selection decision. 5/19/17 Gov\rquote t Notice at 9. If \the current awardees are not evaluated as having a proposal among the most advantageous to the Government, the ED will terminate those awards for the convenience of the Government.\ 5/19/17 Gov\rquote t Notice at 9. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': On May 25, 2017, the Government filed an Amendment To Defendant\rquote s Notice Of Corrective Action (\5/25/17 Gov\rquote t Notice\) stating that, in addition to allowing the offerors to submit revised small business subcontracting plans, the ED would allow offerors to submit revised small business participation plans. ECF No 135, 5/25/17 Gov\rquote t Notice at 2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': ). In this case, Continental\rquote s March 28, 2017 Complaint and Pioneer\rquote s April 10, 2017 Complaint challenge the ED\rquote s determination that Continental and Pioneer were not responsible, based on inconsistencies in their small business subcontracting plans. But, those claims are moot, because the ED\rquote s corrective action plan will allow Continental and Pioneer to compete for a debt-collection contract under Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 042 - Continental Service Group Inc v United States.doc, Paragraph with 'The Rule of Two': The March 28, 2017 Complaint and April 10, 2017 Complaint challenge the ED\rquote s determination that the proposals of the respective plaintiffs were not \responsible\ due to inconsistencies in their small business subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 044 - Iron Bow Technologies LLC v United States.doc, Paragraph with 'The Rule of Two': The solicitation identified five evaluation factors: (1) technical approach, (2) management approach, (3) past performance, (4) price (\evaluated but not rated\), and (5) small business participation. AR 1091. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 044 - Iron Bow Technologies LLC v United States.doc, Paragraph with 'The Rule of Two': a price evaluation and a small business evaluation, which were completed on November 18, 2016, and a technical evaluation and a past performance evaluation, which were completed on November 30, 2016, the Marine Corps found that due to the number of deficiencies and weaknesses none of the original proposals, including Iron Bow\rquote s proposal, was acceptable for an award. AR 1908\u821170 (Technical and Past Performance Evaluation Report), 1986\u821189 (Business Clearance Memorandum, Dec. 1, 2016). The agency conducted the first round of discussions from December 1, 2016 through December 21, 2016. AR 2009\u821112 (first round discussion letters), 2013\u821156 (responses), 2066\u82112114 (requests for final proposal revisions and discussions). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 044 - Iron Bow Technologies LLC v United States.doc, Paragraph with 'The Rule of Two': and the findings from the technical evaluation team, price evaluation team, and the source selection authority with regard to the agency\rquote s ratings for Iron Bow\rquote s technical and price proposals. AR 3809\u821110. The agency acknowledged that Iron Bow\rquote s proposal received ratings of \satisfactory\ for past performance, \acceptable\ for small business participation, and \acceptable\ for management factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': Awardee of scientific support contract by Department of Energy (DOE) included all required information in its proposal, including small business subcontracting plan and transition plan, although DOE removed excessive pages that included formal transition plan from awardee\rquote s proposal that exceeded required page limit, since proposal\rquote s information relating to transition satisfied basic requirements of transition plan, source evaluation board (SEB) reasonably explained how information in proposal addressed transition and reduced risk to continuity of operations, SEB acknowledged that lack of information increased risk of unsuccessful performance thereby justifying finding of significant weakness, and source selection official (SSO) rationally explained how that risk was manageable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': AR at 789. Eighth, offerors were to provide a completed \Small Business Contracting Plan.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': The second of the subcriteria called for the Agency to evaluate \the offeror\rquote s plan for the use of small businesses in work directly impacting the DOE mission.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': As is relevant to this protest, it was observed that both offerors had submitted small business plans. AR at 2224\u821125. The SEB did note, however, that DRI had failed to submit properly authorized letters of commitment from entities other than DRI that were purportedly offering property or services at no cost to the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': In the evaluation of DRI\rquote s proposal under the Program Implementation criterion, the SEB identified four weaknesses and one significant weakness. AR at 2252. The significant weakness was assigned because the SEB determined that DRI had failed to provide sufficient detail in explaining the proposed labor mix and staffing levels. AR at 2255\u821156. Under this criterion, the SEB assigned a significant weakness to ORAU due to the offeror\rquote s limited reliance on small businesses. AR at 2261. The SEB determined that this was a significant flaw in the proposal as ORAU\rquote s proposed small business participation was limited to ancillary aspects of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': By contrast, one of DRI\rquote s two strengths under this criterion was for its proposed use of multiple small businesses to do core contract work. AR at 2253. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': With regard to the evaluation of DRI\rquote s proposal under the Strategic Vision criterion, the SSO observed that DRI\rquote s proposed focus on primary and secondary STEM outreach and education was not well aligned with the ORISE contract\rquote s focus, which is principally on education at the undergraduate level and above. AR at 2336\u821137. With respect to the Program Implementation criterion, the SSO echoed the SEB\rquote s concerns that ORAU had failed to make sufficient use of small businesses in DOE mission-related work areas. AR at 2339. The SSO noted that DRI was superior with respect to its use of small businesses, but that its proposal was inferior under this criterion taken as a whole. AR at 2339\u821140. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': Plaintiff contends that ORAU\rquote s proposal failed to include two items required by the solicitation\u8212a Small Business Subcontracting Plan and a transition plan. Pl.\rquote s Mot. at 2, 6. With respect to the first point, defendant and intervenor both correctly point out that plaintiff is confusing the Small Business Subcontracting Plan with an offeror\rquote s proposed use of small businesses. Def.\rquote s Mot. at 11\u821115; Int.\rquote s Mot. at 22\u821124. The former was required to be included in Volume I of an offeror\rquote s proposal, while the latter was a subcriterion of the Program Implementation criterion used to evaluate Volume II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': AR at 776\u821177 (describing the Small Business Subcontracting Plan) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': AR at 853 (explaining small business use subcriterion). As the SEB noted in its evaluation of ORAU\rquote s proposal, a fully executed Small Business Subcontracting Plan was included with that proposal. AR at 2224\u821125; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': AR at 1472, 1482\u821192 (ORAU Small Business Subcontracting Plan). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': Plaintiff stresses that under the Program Implementation criterion, offerors were to be evaluated on the extent to which they proposed using small business in areas \directly impacting\ the DOE\rquote s mission, and that ORAU proposed using small business subcontractors only in support roles. Pl.\rquote s Mot. at 5\u82116; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': AR at 853 (evaluation subcriterion for use of small business under the Program Implementation criterion); AR at 1563\u821165 (ORAU proposes using small business subcontractors for services such as information technology, meeting planning and travel services). The SEB determined that this limited use of small businesses was a \significant weakness\ in ORAU\rquote s proposal. AR at 2261. Plaintiff argues that this should be downgraded to a deficiency. Pl.\rquote s Mot. at 5\u82116. But DRI has identified no objective errors or subjective inconsistencies connected with this particular rating, and thus there is no basis for the Court to find it arbitrary or unlawful. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 046 - Board of Regents of Nevada System of Higher Education on Behalf of Desert .doc, Paragraph with 'The Rule of Two': The solicitation included a model version of such a small business plan for use by offerors in submitting their proposals. AR at 678\u821186. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 047 - Favor TechConsulting LLC v United States.doc, Paragraph with 'The Rule of Two': because it is a small business that had fewer than 500 employees and a net worth that did not exceed $7,000,000 when the October 19, 2016 Complaint was filed. Pl. Mot. at 5; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 047 - Favor TechConsulting LLC v United States.doc, Paragraph with 'The Rule of Two': (\The novelty of a legal issue does not by itself satisfy the [G]overnment\rquote s burden of proof under EAJA.\). Moreover, a rule that would deny a small business EAJA legal fees, because it was the first litigant to successfully challenge an agency\rquote s unlawful conduct would have a chilling effect on the very type of plaintiff the EAJA was enacted to assist. In this case, FTC should not be barred from an attorney fee award, because of the novel nature of the Government\rquote s position. Based on the entire record, the court has determined that that the Government failed to meet its burden to establish its litigation position was \substantially justified.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'The Rule of Two': Factor 4\u8211Small Business Participation Factor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'The Rule of Two': were significantly more important than Factor 3, Price/Cost. Factor 4 (Small Business Participation) was evaluated on an acceptable/non-acceptable basis. With regard to the technical subfactors, Subfactor 6 (Program Planning and Control) was the most important. Subfactor 7 was less important than Subfactor 6, but more important than Subfactors 1, 2, 3, 4, and 5 individually. Subfactors 1 through 5 were weighted equally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'The Rule of Two': According to the SSA\rquote s source selection documentation, the contracting officer evaluated Factor 4, Small Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business brought bid protest action against United States, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements, including for products and services from designated non-profits that employed blind and otherwise severely disabled people on list required by Javits-Wagner-O\rquote Day Act, and which were added prior to VBA\rquote s passage. Successful bidder and advocacy organization intervened, government moved to dismiss for lack of jurisdiction, and parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest claim by service-disabled veteran-owned small business, seeking to prevent Department of Veteran\rquote s Affairs (VA) from awarding future contracts without first performing \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work, as required under Veterans Benefits Act, was in connection with procurement or proposed procurement, and thus Court of Federal Claims had Tucker Act jurisdiction over bid protest claim; VA made it clear that, absent intervention from Court of Federal Claims, it would have continued to enter into contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Under Veterans Benefits Act (VBA), Department of Veteran\rquote s Affairs (VA) was required to conduct \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at fair price for all new contracts, regardless of whether or when product or service from designated non-profits that employed blind and otherwise severely disabled people were added to procurement list under Javits-Wagner-O\rquote Day Act (JWOD); if there were not two qualified veteran-owned small businesses willing to perform contract under rule of two analysis, VA would have been required to use list as mandatory source, and VBA was more specific than JWOD in applying specific mandate only to VA to give priority to veteran-owned small businesses in awarding contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Doctrine of laches did not apply to bar bid protest claim by service-disabled veteran-owned small business, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements; delay in bringing case was not unreasonable and unexcused in light of recent Supreme Court decision clarifying mandatory nature of VBA and VA\rquote s most recent procurement guidance, and successful bidder would not have lost investment to perform under past contracts, had more than ten years of business following enactment of VBA, and may have had past contracts renewed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (\JWOD\). The VBA requires the Department of Veteran\rquote s Affairs (\VA\) to set goals for providing contracts to veteran-owned small businesses, and with exceptions not relevant here, mandates that before procuring goods and services the VA first determine whether there are at least two veteran-owned small businesses capable of performing the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': If so, the VA must limit competition to veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': This process is known as a \Rule of Two\ analysis. The JWOD requires government agencies, including but not limited to the VA, to purchase products and services from designated non-profits that employ blind and otherwise severely disabled people when those products or services appear on a list known as the \AbilityOne List\ or \List.\ The entity responsible for placing goods and services on the List is known as the \AbilityOne Commission.\ The question before the court in this case is which procurement priority must the VA first employ: the requirement that the VA conduct a Rule of Two analysis to determine whether it must restrict the procurement to veteran-owned small businesses under the VBA or the requirement that the VA use the AbilityOne List under the JWOD, regardless of whether the VA has conducted a VBA Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The VA now agrees that if a product or service was added to the AbilityOne List after 2010, the VA will perform the Rule of Two analysis before purchasing off of the List. The new regulation provides, however, that the VA will continue to purchase items off of the AbilityOne List without first performing a Rule of Two analysis for items added to the List before 2010. Plaintiff, PDS Consultants, Inc. (\PDS\), is a service-disabled veteran-owned small business that provides eyewear and other vision-related products to the VA under a number of contracts corresponding to different regions of the country. PDS argues that under the Supreme Court\rquote s recent decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Congress passed the current version of the VBA on December 22, 2006, PL 109\u8211461, December 22, 2006, 120 Stat. 3403. The purpose of the VBA was to \increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . To that end, the VA is required to set specific annual goals for VA contracts to be awarded to veteran-owned small businesses and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . Further, the VBA included the \Rule of Two,\ which restricts competition for contracts to veteran-owned small businesses and service-disabled veteran-owned small businesses in cases where the contracting officer \has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , the VA\rquote s guidelines stated that the agency would give first priority to all items already on the AbilityOne List. However, the VA determined that before working with AbilityOne to add any new items to the AbilityOne List, the VA\rquote s contracting officer (\CO\) would first perform a Rule of Two analysis to determine whether qualifying veteran-owned small businesses were able to perform the procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , the court found that the VA contracting officer did not follow the VA\rquote s guidelines when laundry services formerly performed by a veteran-owned small business were added to the AbilityOne List without the VA performing a Rule of Two analysis first. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . In finding that the VA\rquote s decision to give veteran-owned small businesses priority when adding items to the List was reasonable, the court noted that it is \a general maxim of statutory interpretation that a specific statute of specific intention takes precedence over a general statute, particularly when the specific statute was later enacted.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Under those circumstances, the court found the VA\rquote s \action in giving first priority to [veteran-owned small businesses] is justified in light of the terms of the [VBA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . At issue in that case was the VA\rquote s position that if the VA was meeting its annual goals for contracts with veteran-owned small businesses as required by law, the VA had the discretion to issue contract awards under the Federal Supply Schedule (\FSS\) (a list of certain products and services that government agencies can quickly acquire without having to go through the ordinary procurement process) without performing a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . Kingdomware Technologies, Inc., a veteran-owned small business, challenged the VA\rquote s interpretation of the VBA, and on June 16, 2016, the Supreme Court issued a unanimous decision finding that the VBA\rquote s Rule of Two was mandatory for the procurement of all VA goods and services and not, as the VA argued, discretionary if the VA was meeting its VBA contracting goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': \requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': at 727. In the notice published in the Federal Register, AbilityOne addressed PDS\rquote s comments, noting that while the AbilityOne Commission appreciated that it may be possible to purchase eyewear from veteran-owned small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': VISN 6 was added more recently to the AbilityOne List and thus there is no current contract with an AbilityOne contractor. There is a current contract in place with a service-disabled veteran-owned small business in VISN 8. Oral Argument Trans. 83:8\u821110. In VISN 8, the VA\rquote s contract with an AbilityOne contractor expires in May of 2017. Oral Argument Trans. 83:8\u821110. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': new procurements for eyewear, whether or not the product or service appears on the AbilityOne List, because the preference for veterans is the VA\rquote s first priority. If the Rule of Two analysis does not demonstrate that there are two qualified veteran-owned small businesses willing to perform the contract, the VA is then required to use the AbilityOne List as a mandatory source. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . The government argues that Congress did not \unambiguously express[ ] a priority for veteran-owned small businesses over mandatory sources identified on the procurement list,\ Def.\rquote s MJAR 21. Therefore, the government argues, \the VA is being required to apply two statutory mandates that Congress did not prioritize expressly, this Court should defer to the VA\rquote s reasonable construction of the Veterans Benefit Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': , establishes a preference for veteran-owned small businesses as the VA\rquote s first priority. As the Supreme Court stated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Under the VBA, the VA must perform a Rule of Two inquiry that favors veteran-owned small businesses and service-disabled veteran-owned small businesses \in all contracting before using competitive procedures\ and limit competition to veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': [A] contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The Veterans Benefits Act is a specific mandate to the Department...to grant first priority to [service-disabled veteran-owned small businesses] and [veteran-owned small businesses] in the awarding of contracts. On the other hand, the Javits\u8211Wagner\u8211O\rquote Day Act is a more general procurement statute. Were there a conflict between the two statutes, the more specific Veterans Benefits Act would control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . The VA is ordered not to enter into any new contracts for eyewear in VISNs 2 and 7 from the AbilityOne List unless it first performs a Rule of Two analysis and determines that there are not two or more qualified veteran-owned small businesses capable of performing the contracts at a fair price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': . It establishes a first priority for small businesses owned and controlled by veterans with service-connected disabilities. In this opinion both preferences are labeled as a priority for small business owned and controlled by veterans: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Priority for contracting preferences.\u8212Preferences for awarding contracts to small business concerns shall be applied in the following order of priority: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (1) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service-connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (2) Contract awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (A) section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': (4) Contracts awarded pursuant to any other small business contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The court rejects the defendants\rquote contention that giving the VBA priority effectively repeals the JWOD by implication. The VBA is a specific priority statute that does not mandate a result but a process which may or may not result in a contract award to a veteran-owned small business. If the Rule of Two is not satisfied, the VA remains required under the JWOD to purchase products and services that appear on the AbilityOne List. By its terms the VBA did not repeal the JWOD. Rather, as the VBA states, where the VBA applies the Rule of Two is satisfied, veteran-owned small businesses have the first priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 059 - Harmonia Holdings Group LLC v United States.doc, Paragraph with 'The Rule of Two': In this procurement, the Small Business Administration\rquote s (\SBA\) Office of Disaster Assistance (\ODA\) sought maintenance and service for reporting systems for the Disaster Credit Management System (\DCMS\). AR 8, 506. DCMS is a \mission critical system\ ODA uses to process, disburse, and modify disaster home and business loans to rebuild property damaged by \qualifying disaster events.\ AR 19. ODA\rquote s DCMS \handles custom report requests initiated by the U.S. Congress, the White House, and other stakeholders within SBA and the federal government regarding disaster loan processing operations.\ AR 506. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 067 - Vintage Autoworks Inc v United States.doc, Paragraph with 'The Rule of Two': (b) Satisfactory performance record. A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be nonresponsible, unless the contracting officer determines that the circumstances were properly beyond the contractor\rquote s control, or that the contractor has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is strong evidence of nonresponsibility. Failure to meet the quality requirements of the contract is a significant factor to consider in determining satisfactory performance. The contracting officer shall consider the number of contracts involved and the extent of deficient performance in each contract when making this determination. If the pending contract requires a subcontracting plan pursuant to Subpart 19.7, The Small Business Subcontracting Program, the contracting officer shall also consider the prospective contractor\rquote s compliance with subcontracting plans under recent contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 067 - Vintage Autoworks Inc v United States.doc, Paragraph with 'The Rule of Two': (d)(1) Small business concerns. Upon making a determination of nonresponsibility with regard to a small business concern, the contracting officer shall refer the matter to the Small Business Administration, which will decide whether to issue a Certificate of Competency (see subpart 19.6). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 067 - Vintage Autoworks Inc v United States.doc, Paragraph with 'The Rule of Two': (2) A small business that is unable to comply with the limitations on subcontracting at 52.219\u821114 may be considered nonresponsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 077 - Open Spirit LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff raises two protest grounds arguing that the Navy 1) unreasonably canceled the solicitation and 2) acted in bad faith by discriminating against small businesses and conducting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 077 - Open Spirit LLC v United States.doc, Paragraph with 'The Rule of Two': This clause hurts small businesses. Is there any way to change that? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 077 - Open Spirit LLC v United States.doc, Paragraph with 'The Rule of Two': 2. The Agency acted in bad faith \in shaping the solicitation in a way to preclude small businesses\ and in conducting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 077 - Open Spirit LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff further asserts that the RFP\rquote s terms requiring that the lessee deposit a $750,000 performance bond and split sublessee rent payments with the Navy, imposed \inherently unfair\ provisions on small businesses. Pl.\rquote s Mot. 28. The Court addresses each of Plaintiff\rquote s arguments in turn. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 078 - IT Enterprise Solutions JV LLC v United States.doc, Paragraph with 'The Rule of Two': The Air Force\rquote s Source Selection Plan (SSP) also stated that the Air Force would \issue an open market RFP on a competitive basis applying the Department of Defense (DoD) Source Selection Procedures Trade\u8211off source selection process,\ and that the RFP would be \100% set-aside for woman-owned small businesses (WOSB) utilizing best value procedures.\ AR Tab 6 at 131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 081 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': at 76. The tiered approach would favor small businesses over large ones. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 081 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': JLL, the incumbent contractor, is not a small business, and it filed three protests with the Government Accountability Office (\GAO\) that challenged several aspects of the solicitation, including the tiered approach. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 086 - Eco Tour Adventures Inc v Zinke.doc, Paragraph with 'The Rule of Two': The plaintiff, Eco Tour Adventures, Inc. (\Eco Tour\), a Wyoming-based small business, seeks rescission of two concession contracts for cross-country ski touring services in Grand Teton National Park (\the disputed contracts\) that were awarded to two incumbent concessioners, despite a ruling from the U.S. Court of Federal Claims (\CFC\) holding that the incumbents\rquote proposals were improperly considered by the National Park Service (the \NPS\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest, challenging decision by United States Special Operations Command (USSOCOM) to set-aside solicitation exclusively for small businesses. After parties cross-moved for judgment on administrative record, government took corrective action and issued notice of inaccuracy in administrative record. The Court of Federal Claims, Wheeler, J., issued order to show cause, ordering government to explain why sanctions should not be imposed for misconduct regarding administrative record. Subsequently, parties reached agreement that government would pay bidder\rquote s attorney fees and litigation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': Although government\rquote s contracting staff engaged in misconduct by manufacturing backdated document for administrative record that was sole basis for government\rquote s decision to set-aside solicitation for small businesses, after bidder filed pre-award bid protest challenging small business set-aside decision, government would not be subjected to formal imposition of Rule 11 sanctions awarding attorney fees and costs to bidder, since parties reached agreement that government would pay bidder\rquote s attorney fees and costs, and government would also issue guidance for staff emphasizing importance of completeness, accuracy, and integrity of preparing records and certifications and would provide training session focusing on accuracy and ethics in preparing and certifying administrative records. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': In this pre-award bid protest, Plaintiff Gallup, Inc. (\Gallup\) challenged a decision by the United States Special Operations Command (\USSOCOM\) to set-aside a solicitation exclusively for small businesses. Gallup argued that USSOCOM irrationally evaluated responses to a Request for Information (\RFI\) when it decided that small businesses would be able to perform the solicited work while complying with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': USSOCOM conducts Military Information Support Operations (\MISO\) which are \efforts undertaken to influence public opinion in countries around the world.\ Dkt. No. 17, Pl.\rquote s Mot. at 2. USSOCOM contemplated issuing a small business set-aside solicitation to support its Global Research and Assessment Program (\GRAP\) in assessing the effectiveness of MISO operations by conducting qualitative and quantitative studies based on thousands of interviews in target countries. AR 2. The LOS clause, applied to small business set-asides, states that \[a]t least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the [small business].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': On May 31, 2016, USSOCOM issued RFI No. H92222\u821116\u8211GRAP02 in order to gather information regarding \small businesses\rquote ability to support GRAP while ensuring compliance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': at 156. Satisfied that a small business could perform the GRAP requirements while complying with the LOS clause, USSOCOM posted Solicitation H9222\u821117\u8211R\u82110009 as a small business set-aside incorporating the LOS clause on November 14, 2016. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': at 354. Gallup is not a small business, and thus was ineligible to compete under the Solicitation. Gallup challenged the rationality of USSOCOM\rquote s set-aside decision specifically arguing that the RFI responses did not indicate that a small business could satisfy both the GRAP requirements and the LOS clause simultaneously. Pl.\rquote s Mot. at 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': Dkt. No. 10. The Administrative Record contains a key document entitled \Market Analysis (June 24, 2016)\ which provides the only record of USSOCOM\rquote s evaluation of the RFI responses and basis for the small business set-aside decision. AR, Index at 2, 156\u821160. First, the Market Analysis contains a \Memorandum for Record\ which includes the following pertinent language: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': The GRAP team ... reviewed the responses and consolidated comments on the attached matrix, see Enclosure 1. [...] Of the 22 responses from small businesses, 14 respondents were determined capable of supporting the GRAP requirements. While a majority of responses addressed [the LOS clause], the responses from [three small businesses] provided the most extensive and detailed information regarding compliance with the clause. Based on the assessment of responses received as detailed in the enclosure and with concurrence Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': at 156. Instead, the chart contains a column entitled \Plan for addressing at least 50%\ (seemingly referring to the LOS clause) for which each RFI response received a \yes\ or \no,\ with only three small businesses receiving a \yes.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': at 157\u821160. Thus, the Memorandum for Record is the only consensus documentation of USSOCOM\rquote s decision to process the GRAP acquisition as a small business set-aside. Pursuant to normal Court procedures, the Administrative Record also contains a \Certification of Contracting Office\ signed by Ms. DeLoach affirming that \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': On March 27, 2017, after the parties completed briefing on their cross-motions for judgment on the administrative record, the Government filed a Notice of Corrective Action stating that \[b]ecause broader, more-integrated support services are now needed, USSOCOM has determined that it is in the United States\rquote best interests to cancel the current small business set-aside procurement ....\ Dkt. No. 21, at 1. In addition, the Government notified the Court that on March 23, 2017 the Government learned the Memorandum for Record \had been prepared on or about December 15, 2016, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': , after the agency had proceeded with the procurement as a small business set-aside and had received [Gallup\rquote s] pre-filling notice regarding its putative protest (the accompanying chart was created in June 2016).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 087 - Gallup Inc v United States.doc, Paragraph with 'The Rule of Two': at 22:19\u821125 (demonstrating the misleading nature of the Memorandum for Record\rquote s forward-looking statement: \As such, the GRAP acquisition will be processed as a small business set-aside.\ AR 156). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 089 - Continental Services Group Inc v United States.doc, Paragraph with 'The Rule of Two': , No. 17\u8211493. Instead, the Government insisted that the court should amend the March 29, 2017 TRO to allow the ED to assign defaulted student loan accounts to eleven small businesses that were awarded contracts for student loan collection services in 2014, under a small business set-aside solicitation. Again, the Government was unable to identify the eleven small-business contractors or whether the ED was transferring work subject to Solicitation No. ED\u8211FSA\u821116\u8211R\u82110009 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 089 - Continental Services Group Inc v United States.doc, Paragraph with 'The Rule of Two': Therefore, the court determined that it required additional briefing from the parties summarizing the complex history of this bid protest, and explaining the relationship, if any, to the eleven contracts for student loan collection services that ED awarded under a small business set-aside solicitation in 2014. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 094 - Jacobs Technology Inc v United States.doc, Paragraph with 'The Rule of Two': AR 23\u82112614. The mission capability factor was \significantly more important\ than the past performance factor, which in turn was \more important\ than the small business participation factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 094 - Jacobs Technology Inc v United States.doc, Paragraph with 'The Rule of Two': The [s]olicitation required offerors to provide hard copies of their oral presentation briefings with their initial limited written Mission Capability submission. Since the [performance work statement] and labor categories in [Technical Exhibit] 10, [i]tem 6 remain unchanged and offerors provided oral presentations based on [Technical Exhibit] 10[,] [i]tem 6, it is not anticipated that revisions to other proposal volumes (Mission Capability, Past Performance, Small Business Participation) are necessary. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 094 - Jacobs Technology Inc v United States.doc, Paragraph with 'The Rule of Two': Notwithstanding that disclaimer, on September 23, 2016, Jacobs submitted a second revised final proposal to reflect updates to the mission capability and small business participation factors. AR 118\u82119939. Jacobs stated that such updates were \minor\ and had been made \to ensure consistency across\ the factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 094 - Jacobs Technology Inc v United States.doc, Paragraph with 'The Rule of Two': Jacobs\rquote Mot. at 19\u821120, is based on unjustified assumptions and inferences. The extent to which the revised slides benefitted Jacobs\rquote evaluation is not evident from the administrative record. What is apparent from the record is that the Army had questions about the topics Jacobs covered in its revised proposal submitted after the time for oral presentations had passed. On August 30, 2016 and September 6, 2016, the Contracting Officer issued Evaluation Notices (\ENs\) to Jacobs asking it to identify who would perform certain work due to the deletion of a subcontractor from its previously proposed team. AR 84\u82118447 to \u821149; AR 88\u82118477. Jacobs responded to the ENs on September 8, 2016, stating that it was updating its \Staffing Plan, Past Performance proposal, Small Business Participation Plan, and Cost Volume.\ AR 116\u82118937. Several weeks thereafter, on September 23, 2016, Jacobs submitted its final proposal revision and its revised slides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 094 - Jacobs Technology Inc v United States.doc, Paragraph with 'The Rule of Two': Jacobs also received a \[***]\ rating for the past performance factor and a \[***]\ rating for the small business participation factor, whereas TRAX received ratings of \[***]\ and \[***]\ for those two factors, respectively. AR 103\u82118700. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 095 - Tiare Enterprises Inc v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': . In addition to other requirements that are not relevant here, the USDOT can only approve a grant if it receives written assurances that \at least 10 percent of all business at the airport selling consumer products or providing consumer services to the public are small business concerns ... owned and controlled by a socially and economically disadvantaged individual. ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 099 - Continental Services Group Inc v United States.doc, Paragraph with 'The Rule of Two': Although [Continental Services\rquote ] proposal was one of the most highly rated proposals, [Continental Services], was not selected for an award based on the fact that the [ED] determined that they were not responsible [because] [Continental Services] did not submit an acceptable subcontracting plan that reflects and is consistent with the commitments it offered in its small business participation plan, as required by the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts in several geographic areas to market and sell single-family homes acquired by HUD after owners defaulted on mortgages supported by Federal Housing Administration (FHA). Following intervention as defendant-intervenor by awardee of challenged contracts for three areas, the Court of Federal Claims, Lettow, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , granted in part and denied in part cross-motions for judgment on administrative record, leaving awards undisturbed for base period and first option year but setting aside and enjoining awards beyond that period and requiring HUD to either reevaluate bidder\rquote s updated bid or conduct new solicitation. Government moved for relief from judgment after Small Business Administration (SBA) determined that bidder was other than small for indirectly related contract for different geographical area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination that disappointed bidder was not small with regard to competition for asset management small-business set-aside contract to be awarded by Department of Housing and Urban Development (HUD) for one geographic area was not newly discovered evidence warranting relief from prior judgment, in Court of Federal Claims, in post-award bid protest action challenging HUD\rquote s award of small-business set-aside contracts for three other geographic areas, that left those three awards undisturbed for base period and first option year but set aside and enjoined awards beyond that period, where SBA\rquote s size determination for bidder with respect to indirectly related contract was made after, rather than before, judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination that bidder was not small with regard to small-business set-aside contract to be awarded by Department of Housing and Urban Development (HUD) for one geographic area did not divest bidder of standing to protest HUD\rquote s award of contracts for three other areas, and thus, government lacked extraordinary circumstances justifying setting aside judgment in post-award bid protest, that required HUD to either reevaluate bidder\rquote s updated bid or conduct new solicitation for those three areas, and enforcement of judgment had not become inequitable; bidder had substantial chance of winning any bid resolicited on unrestricted basis or any reopened small-business set-aside bid for three contracts to which the SBA\rquote s size determination did not apply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': On June 22, 2016, the government filed a motion for relief from the judgment pursuant to Rules 60(b)(2), (b)(5), and (b)(6) of the Rules of the Court of Federal Claims (\RCFC\). Shortly thereafter, at the request of the parties, briefing on that motion was suspended for months while the Small Business Administration (\SBA\) considered size determinations of entities competing for contractual awards. Briefing was renewed when SBA decided that a number of offerors, including Q Integrated and Sage, were \other than small\ in connection with competition for contracts for HUD areas other than the areas at issue in this case. At that point, the government contended that Q Integrated no longer had standing and that the judgment should be vacated. Defendant-intervenor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': . Within this procurement, \Areas 3A, 6A, 7A, 8A, 1D, 1P, 3P, 4P, and 5P were to be 100 percent small business set-aside contracts, Areas 4A and 5A were to be woman-owned small business set-aside contracts, and Area 2D was to be an unrestricted competition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': On January 29, 2016, Q Integrated received an award under the HUD Asset Management contract solicitation for Area 6A. Def.\rquote s Mot. to Request Relief from Judgment (\Def.\rquote s Mot.\), ECF No. 86, Ex. 1 (\Area Office Size Determination\) at 3. Two unsuccessful offerors for Area 6A, ARNC Bridge Consulting and Alpine/First Preston, JV VI, filed protests with the SBA alleging that Q Integrated was ineligible to be awarded the contract because it was not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': at 4. In a decision issued on June 10, 2016, the SBA Area Office concluded that Q Integrated was \other than a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , \[a] contractor and its ostensible subcontractor are treated as joint venturers, and therefore affiliates, for size determination purposes.\ Because MMREM is not a small business, Q Integrated was \determined not to be a small business through affiliation with MMREM\ for purposes of the Area 6A contract. Area Office Size Determination at 13. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Sage\rquote s status as a small business was also challenged before the SBA with regard to contracts it has been awarded under the HUD procurement. On November 4, 2015, an Area Office concluded that Sage was a small business for the procurement with regard to awards it received for Areas 1D and 4P. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': at 4\u82116. HUD also stated that reevaluating any remaining viable small businesses is not in the government\rquote s best interest because Sage has already been determined to provide the best value to the government for these contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': at 6\u82117. Thus, HUD indicated that its preferred course of action would be to realign existing Asset Management small business contracts to cover Areas 7A, 1D, and 5P through contract modification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': have a substantial chance of receiving a contract award because it has been deemed other than small for a different area, and the contract areas in this case were set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': , the procuring agency issued a solicitation for a \small business set-aside contract,\ and SBA found that the awardee was the only eligible offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': In this case, a hypothetical reopened procurement of asset management services for Areas 7A, 1D, and 5P would also likely have to be solicited on an unrestricted basis. As Q Integrated notes, \four of the five companies receiving small business awards under the [s]olicitation have been determined by the SBA to be other than small.\ Pl.\rquote s Opp\rquote n at 8 n.4. This includes both Q Integrated and Sage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Further, even if the reopened solicitation continued to be limited to small businesses, Q Integrated would not necessarily be eliminated from contention based on the size determination for Area 6A. In its size determination for Sage with regard to Areas 1P and 3P, OHA stated that some size determinations can be contract-specific, particularly with regard to multiple-firm arrangements that can vary on a contract-by-contract basis, such as joint ventures or subcontractor relationships. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': determination for Q Integrated, the circumstances surrounding the relationship between MMREM and Q Integrated could enable Q Integrated to be considered small for a future contract under the HUD procurement. It is thus inappropriate for the court to extrapolate the size determination for Area 6A and automatically apply it to the areas at issue in this case. Q Integrated has not been determined to be other than small with regard to Areas 7A, 1D, and 5P, and therefore might remain eligible to compete for these contracts in a reopened solicitation with a small business restriction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 100 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Sage and HUD had argued to OHA that an Area Office determination in November 2015, stating that Sage was a small business for Areas 1D and 4P, was a final decision that controlled OHA\rquote s size determination for Areas 1P and 3P. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 003 - Acrow Corp of America v US.doc, Paragraph with 'The Rule of Two': [T]he Government will evaluate the following factors: Experience, Price, Technical and Small Business Participation. Experience is equal in importance to Price. Price is more important than Technical. Technical is more important than Small Business Participation. The non-price factors when combined are more important than Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 003 - Acrow Corp of America v US.doc, Paragraph with 'The Rule of Two': AR at 3349. However, plaintiff and MBSI were rated equivalently in each of the subject areas evaluated under the Solicitation except in price\u8212Acrow submitted a proposal to complete the project for [deleted] and MBSI\rquote s bid was for [deleted]. AR at 3324. MBSI ultimately received the award because \[b]oth offerors are essentially equal in Experience, Technical, and Small Business Participation, but the MBSI proposal is significantly lower in Total Evaluated Price than that of Acrow.... The MBSI proposal is reasonable, realistic and affordable; and MBSI has been determined to be a responsible contractor.\ AR at 3365 (Memorandum of Source Selection Decision). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 007 - Acrow Corp of America v US.doc, Paragraph with 'The Rule of Two': [T]he Government will evaluate the following factors: Experience, Price, Technical and Small Business Participation. Experience is equal in importance to Price. Price is more important than Technical. Technical is more important than Small Business Participation. The non-price factors when combined are more important than Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 007 - Acrow Corp of America v US.doc, Paragraph with 'The Rule of Two': TACOM notified plaintiff via e-mail on June 8, 2010, that the award would go to MBSI. At the June 16, 2010 oral debriefing requested by plaintiff, TACOM reported: \As part of the responsibility determination process, particular attention was placed on the integrity and business ethics portion of the standards,\ especially with regard to the M & J fraud litigation. AR at 3349. However, plaintiff and MBSI were rated equivalently in each of the subject areas evaluated under the Solicitation except in price\u8212plaintiff had submitted a proposal to complete the project for $134 million and MBSI\rquote s bid was for $109 million. AR at 3324. MBSI ultimately received the award because \[b]oth offerors are essentially equal in Experience, Technical, and Small Business Participation, but the MBSI proposal is significantly lower in Total Evaluated Price than that of Acrow.... The MBSI proposal is reasonable, realistic and affordable; and MBSI has been determined to be a responsible contractor.\ AR at 3365 (Memorandum of Source Selection Decision, dated June 8, 2010). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 009 - Terry v US.doc, Paragraph with 'The Rule of Two': Am. Compl. \u182\u182 21\u821122 (alleging that Ms. Roldan \wrongfully influenced\ the procurement process and that her \methods for procurement were arbitrary and capricious\), 27 (alleging that the AAFES engaged in a \wrongful bidding and award process). Additionally, plaintiff alleges that the AAFES discriminates against small businesses, women, and minorities in the administration of her concessionaire contract at Fort Benning. Am. Compl. \u182\u182 33\u821138 (alleging that the AAFES requires plaintiff to pay a fee percentage to the AAFES that is higher than the percentage paid to the AAFES by other concessionaires). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 013 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': The RFP specified two factors for the evaluation of proposals: (1) price and (2) mission suitability. AR 2089. Mission suitability, in turn, included three subfactors for evaluation: (a) technical approach; (b) management approach; and (c) small business utilization. AR 2089, 2091. An offeror\rquote s relevant past performance history was not to be evaluated separately but as part of each mission suitability subfactor. AR 2090. Contract award was to be made to the offeror(s) whose proposal(s) provided the \best value\ based upon a \trade-off\ among price and mission suitability, with the proviso that mission suitability was more important than price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 015 - Bona Fide Conglomerate Inc v US.doc, Paragraph with 'The Rule of Two': Since 2000, GSA has obtained the subject custodial and ground maintenance services from a small business pursuant to section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 018 - Bilfinger Berger AG Sede Secondaria Italiana v US.doc, Paragraph with 'The Rule of Two': (explaining that \the failure of a bidder to include completed standard representations and certifications with its bid does not render the bid nonresponsive because it does not affect the bidder\rquote s material obligation\ and indicating that \the failure of a bidder under a small business set-aside to provide a properly executed certification of small business status with its bid is normally waivable and the appropriate representation may be made after bid opening because it pertains only to the bidder\rquote s status and eligibility for award, not to the firm\rquote s commitment to provide the required service\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 020 - Sheridan Corp v US.doc, Paragraph with 'The Rule of Two': In that case, Delaney, a self-certified small business, submitted the lowest priced, technically acceptable offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 020 - Sheridan Corp v US.doc, Paragraph with 'The Rule of Two': Tug Hill, a self-certified HUBZone small business contractor, submitted the second lowest priced, technically acceptable proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 020 - Sheridan Corp v US.doc, Paragraph with 'The Rule of Two': to Tug Hill\rquote s price, which would have made Tug Hill\rquote s bid the lowest technically acceptable offeror. However, the agency determined that the preference did not apply when a HUBZone small business competed against another small business, and therefore, the agency awarded the contract to Delaney. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 020 - Sheridan Corp v US.doc, Paragraph with 'The Rule of Two': Tug Hill initiated a size protest contending that Delaney did not meet the required small business size standards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 020 - Sheridan Corp v US.doc, Paragraph with 'The Rule of Two': Shortly thereafter, Delaney notified the contracting officer that it had failed to consider revenues from affiliated companies, and conceded that it no longer met the small business standards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 021 - Baldwin v US.doc, Paragraph with 'The Rule of Two': Minority small business contractor sued United States for alleged breaches by Army and Air Force Exchange Service (AAFES), as nonappropriated fund instrumentality, of temporary concession contracts for sales of cellular telephone accessories and clothing. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 021 - Baldwin v US.doc, Paragraph with 'The Rule of Two': Minority small business contractor failed to satisfy jurisdictional requirements, under CDA, for claim of breach of contract by Army and Air Force Exchange Service (AAFES), as nonappropriated fund instrumentality, for alleged interference with, and frustration of, temporary concession contracts for sales of cellular telephone accessories and clothing, since contractor had not submitted written demand to contracting officer and had neither argued in any filings nor averred in her affidavit that she submitted sum certain demand to contracting officer. Contract Disputes Act of 1978, \u167 6(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 021 - Baldwin v US.doc, Paragraph with 'The Rule of Two': Any Tucker Act claim by minority small business contractor for alleged tortious interference with performance of her temporary concession contracts with Army and Air Force Exchange Service (AAFES), as nonappropriated fund instrumentality, by purportedly subjecting contractor\rquote s businesses to competition in violation of implied contract of exclusivity with AAFES, was not sufficiently alleged to be brought under CDA, since contractor failed to allege that any express clause in concession contracts granted her exclusive right to sell products or prevented AAFES from contracting with vendors to offer competing goods or services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 021 - Baldwin v US.doc, Paragraph with 'The Rule of Two': Malinda Baldwin (\plaintiff\), a minority businesswoman, operates J & M Wireless and co-owns The Urban Wear Store, two small businesses in Columbus, Georgia. Compl. filed July 28, 2009, \u182 1. Plaintiff holds temporary concessions with the Army and Air Force Exchange Service (\AAFES\) to sell cellular telephone accessories and clothing items at Fort Benning, Georgia. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': Treatment by Department of Housing and Urban Development (HUD) of subcontracting in evaluating unsuccessful bidder\rquote s socio-economic status, in awarding contract for asset managers (AMs) to market HUD\rquote s real estate owned (REO) properties, was adequately explained, consistent with solicitation\rquote s requirements, and consistent with treatment of other bidders, since solicitation indicated that socio-economic factor was to be evaluated to increase participation of small businesses as prime contractors, and explained that bidders proposing teaming arrangements should document amount of work to be performed by small businesses, but did not discuss increasing small businesses\rquote role as subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': Socio\u8211Economic Status of the Vendor shall be considered as a primary evaluation factor for award with the goal of achieving one of the Agency\rquote s socio-economic goals to increase small business participation as prime contractors. HUD is strongly committed to ensuring that small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned and 8a small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': have maximum opportunities to participate as prime contractors. For vendors proposing GSA Schedule Contractor Teaming Arrangements (CTAs), the vendor shall specify the allocation taking into consideration the appropriate weight based on their planned performance of each Team member will be used [sic]. For 90% to 100% of the work being performed by [small businesses], the offeror will receive a rating of Excellent. For 70% to 89% of the work being performed by [small businesses], the offeror will receive a rating of Very Good. For 51 % to 69% of the work being performed by [small businesses], the offeror will receive a rating Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': of Good. For 50% or less of the work being performed by [small businesses], the offeror will receive a rating of Fair. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': As Pyramid stated in its proposal, Pyramid is a [* * *] business. AR Tab 51, at 8183. The Solicitation explained that proposals by multiple vendors working together under CTAs would be evaluated on the Socio\u8211Economic factor depending on the amount of work performed by a small business. AR Tab 13, at 534\u821135. [* * *], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': The first sentences of the section describing how the Socio\u8211Economic factor was to be evaluated make clear HUD\rquote s goal to increase the participation of small business as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': contractors: \Socio\u8211Economic Status of the Vendor shall be considered as a primary evaluation factor for award with the goal of achieving one of the Agency\rquote s socioeconomic goals to increase small business participation as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': HUD is committed to ensuring that [small businesses] have maximum opportunities to participate as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': \ AR Tab 13, at 516 (emphasis added). The rest of the paragraph explained that vendors proposing Contractor Teaming Arrangements (CTAs) should document how much of the work will be performed by small businesses and specified the score bidders would receive based on what percentage of the work small businesses would perform. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': The description of the evaluation did not address the evaluation of the participation of small businesses as sub-contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': HUD saw CTAs as a way to for small businesses to work together or with larger businesses to submit bids as prime contractors. Section A.30 of the Solicitation, titled \Teaming to Propose a Total Solution\ describes CTAs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': Among the benefits Section A.30 lists are: \Allows increased small business participation,\ \Increases market share\ and \Expands visibility.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': Many small businesses that might otherwise serve as subcontractors might, through CTAs, be able to bid on the Solicitation as prime contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': By contrast with the Solicitation\rquote s focus on CTAs, at no point did the Solicitation discuss increasing the role of small businesses as subcontractors. The Solicitation explained that HUD would look up vendors on the GSA eLibrary to determine their socio-economic status. Under a CTA, a small business teaming with other businesses becomes a vendor, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': at 399, which was to be looked up. The Solicitation did not mention looking up subcontractors to see whether they were small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': Pyramid argues that \HUD provided no explanation or rational[e] for its faulty rating.\ Pl.\rquote s Mot. 12. But, the TET was clear about its reasoning, which was quite simple and followed from the requirements of the Solicitation: [* * *]. AR Tab 38, at 2139. Pyramid argues that HUD\rquote s more lengthy evaluation of the socio-economic status of another bidder, [* * *], demonstrates that the evaluation of Pyramid was flawed. Pl.\rquote s Mot. 12. In fact, the evaluation of [* * *] demonstrates the importance HUD placed on determining the amount of work that would be performed by small businesses as prime contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'The Rule of Two': For convenience, the court refers to the listed categories of small businesses collectively as small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed bid protest challenging award of follow-on contract to supply laundry services for six veterans\rquote hospitals that Department of Veterans Affairs (DVA) restricted on sole-source basis to nonprofit bidder employing blind or otherwise severely disabled individuals, pursuant to AbilityOne program under Javits-Wagner-O\rquote Day Act, rather than giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, and seeking permanent injunction setting aside placement of services on AbilityOne procurement list. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': SDVO and VO small businesses had contracting preference over AbilityOne program bidders; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor\rquote s bid protest, challenging Department of Veterans Affairs\rquote (DVA) extension of laundry services contract in order to place services on AbilityOne procurement list for bidder employing blind and otherwise severely disabled individuals, pursuant to Javits-Wagner-O\rquote Day Act, as failing to comply with procurement regulation and DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, was \in connection with a procurement,\ within meaning of Tucker Act, conferring jurisdiction to consider bid protest without constraint as to any equitable remedy of removing services from AbilityOne list, since Javits-Wagner-O\rquote Day Act\rquote s rulemaking provisions subjecting deletions from AbilityOne list to judicial review under Administrative Procedure Act (APA) did not supersede Tucker Act\rquote s protest jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor providing laundry services for veterans\rquote hospitals, pursuant to contract with Department of Veterans Affairs (DVA), had standing for bid protest action, under Tucker Act, to challenge DVA\rquote s alleged violation of procurement regulation and DVA\rquote s new guidelines, giving priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, although contractor was not SDVO or VO, since contractor had direct economic interest due to substantial chance of being awarded longer-term, gap-filling, follow-on contract based on satisfactory performance as incumbent contractor with resources already in place to meet requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) lacked rational basis for failing to comply with Department of Veterans Affairs\rquote (DVA) new guidelines reasonably giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, by CO intentionally awarding DVA contract to provide laundry services to veterans\rquote hospitals on sole-source basis to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, since guidelines were effective immediately, did not exempt placements on AbilityOne procurement list that were being considered but not yet completed, and warranted Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor would suffer irreparable harm in absence of permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, since contractor would lose ability to compete for contract without injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, since contractor\rquote s infrastructure remained in place to provide critical services to veterans\rquote hospitals so that injunction would not result in interruption of services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Public interest in preserving integrity of procurement process supported grant of permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': On January 25, 2010, before receiving NISH\rquote s required capabilities statement, Ms. Jones as the Contracting Officer determined that the Department should award the new laundry contract to NISH on a sole-source basis. AR 8\u8211131 (Dynamic Small Business Search Results\u8212Industrial Launderer NAICS code 812332 (Jan. 25, 2010)) (\It is this recommendation that this requirement be sole sourced IAW FAR Part 8\u8211Required Sources of Suppliers and Services, FAR Part 8.7 Acquisition from Non\u8211Profit Agencies employing people who are blind or severely disabled.\); Jones Dep. 27:23\u821128:19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': The Veterans Benefits Act, signed on December 22, 2006, directs the Secretary for Veterans Affairs to \give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': AR 38\u8211540 to 541 (New Guidelines for Placing Items and Services on the AbilityOne Procurement List (Apr. 28, 2010) (\New Guidelines\)). The program directed the Department to consider service-disabled veteran-owned small businesses (\SDVOSB\) and veteran-owned small businesses (\VOSB\) as a first and second priority when satisfying its acquisition requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Jones, the contracting officer handling the laundry services procurement, was aware that SDVO and VO small businesses had priority. She sent an e-mail on February 4, 2010, stating: \Items not currently on the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Jones understood that if a requirement could be met by a SDVO small business, it would have priority in winning the contract. Jones Dep. 61:19\u821162:12. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Additionally, the contract file must be reviewed by the head of the respective contracting activity or appropriate designee, the Department\rquote s Office of Small Business Utilization, and the Senior Procurement Executive. AR 38\u8211542. The Department\rquote s Chief Acquisition Officer must then approve the new item for the AbilityOne Procurement List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Jones did not follow the New Guidelines. Apart from issuing the sources sought notification, she did not conduct market research to determine if appropriate SDVO or VO small businesses were available to fulfill the requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Jones Dep. 10:13\u821110:20, 11:19\u821111:22, 17:10\u821117:14, 29:2\u821129:19. The contract file does not include market research results or supporting documents regarding the availability of SDVO or VO small businesses to perform the desired services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Jones Dep. 30:16\u821131:1, 45:19\u821145:25, 57:15\u821158:4. There are no pertinent determinations, and there are no findings indicating whether SDVO and VO small businesses were available to fulfill the requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': AR 29\u8211450 to 451 (Justification and Approval for Other Than Full and Open Competition). There is no indication that the contract file was reviewed by the head of the respective contract activity or an appropriate designee, the Department\rquote s Office of Small Business Utilization, or the Senior Procurement Executive. In addition, the contracting officer had repeated contact with NISH despite not having acquired the approval of the Chief Acquisition Officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Resp. to Pl.\rquote s Cross\u8211Mot. (\Def.\rquote s Resp.\) at 5\u82116. Under the Department\rquote s New Guidelines, a procurement should not be placed on the AbilityOne list if there is a SDVO or VO small business available to fulfill the requirement at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': The Veterans Benefits Act\rquote s goal is to \increase contracting opportunities for small business concerns owned and controlled by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': . To that end, the Act directs the Secretary for Veterans Affairs to \maintain a database of small business concerns owned and controlled by veterans,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': . The Act also allows the use of restricted competition if a contracting officer \has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, the Department\rquote s action in giving first priority to SDVO and VO small businesses is justified in light of the terms of the Veterans Benefits Act. It is a general maxim of statutory interpretation that a specific statute of specific intention takes precedence over a general statute, particularly when the specific statute was later enacted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'The Rule of Two': , 2867 (Oct. 13, 2010), clarify the responsibilities of the Secretary in addressing and verifying applications for inclusion of small businesses owned or controlled by veterans on the database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 030 - Weston Solutions Inc v US.doc, Paragraph with 'The Rule of Two': (E) AE firms shall show Small Business (SB) and Small Disadvantaged Business (SDB) participation. Show how SBs and SDBs were utilized in projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 031 - Linc Government Services LLC v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mot. for J. at 8. Nor does the court need to decide whether GLS and intervenor are \affiliates\ within the meaning of the Small Business Size Regulations or the debarment and suspension regulations of the FAR, all of which are inapposite regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 032 - CRAssociates Inc v US.doc, Paragraph with 'The Rule of Two': The subcontracting plan was not to be rated as part of the technical proposal, but rather was to be rated by the CO in his overall evaluation, and then approved by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': Small business contractor sued United States, seeking declaratory relief, temporary restraining order, and preliminary and permanent injunctions enjoining performance of protested task order awarded by Department of Energy (DOE) for environmental remediation of radioactive and other hazardous contamination, after DOE approved override of automatic stay of performance, pursuant to Competition in Contracting Act (CICA), pending outcome of contractor\rquote s bid protest filed with Government Accountability Office (GAO). Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': factors, DOE did not base override on factors that Congress did not intend DOE to consider, but rather, rationally determined that waiting for GAO to resolve bid protest before commencing performance would pose unacceptable risk to human health and safety, DOE did not fail to consider important aspect of override decision, but rather, considered reasonable alternatives to override, considered impact of override on competition and integrity of procurement system, and was not required to consider remand of small business determination regarding awardee, DOE did not offer explanation for override that was inconsistent with evidence from documents reasonably relied upon as to ineffectiveness of temporary decontamination efforts and risk of future contamination incident or inconsistent with concern that publicizing risk of contamination would risk create panic, and DOE advanced plausible explanation for override due to unnecessary and unacceptable risk to human health and safety caused by further delay of permanent remediation of radioactive contamination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': \u182 2. On July 20, 2009, plaintiff filed the first of three bid protests with the GAO related to the remediation work at issue in this case. AR Tab 21. In that protest, plaintiff argued that defendant was required to limit competition for the task order to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': On October 1, 2009, defendant issued a request for task proposals (RFTP) for the proposed work on Buildings 3026 and 3038 and limited participation in the procurement to small businesses with IDIQ base contracts. AR Tab 1. The task order involves the demolition and disposition of several nuclear radiation containment chambers, known as \hot cells,\ located within Building 3026 at the ORNL. AR at 9. Under the task order, the contractor is required to decontaminate and demolish the hot cells to grade, remove and dispose of the resulting debris, and decontaminate the remaining slab. AR at 14, 23. The RFTP also calls for the removal and disposal of legacy material from Building 3038, also located at the ORNL, in preparation for its subsequent disposition and demolition. AR at 14\u821116, 23. Finally, the RFTP includes optional line items for the disposition and demolition of Building 3038 and the removal of legacy material and related work on two other buildings at the ORNL. AR at 17\u821121. The RFTP indicates that the task order would be funded through the American Recovery and Reinvestment Act of 2009 (ARRA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': On April 2, 2010, plaintiff filed a size protest with the Small Business Administration (SBA), in which it argued that SEC exceeded the size limitation set forth in the RFTP. Compl. \u182 31. One week later, plaintiff filed a second bid protest with the GAO. AR Tab 4. In that protest, plaintiff argued that the substantial adjustments made to SEC\rquote s proposed costs reflected a lack of technical understanding on the part of SEC that was not reflected in defendant\rquote s evaluation of SEC\rquote s technical proposal. AR at 236\u821139. Defendant once again elected to take corrective action in response to the protest, and the GAO therefore dismissed that protest as academic on May 19, 2010. AR Tab 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': According to plaintiff, defendant failed to consider at least three relevant issues in this case. First, plaintiff argues that defendant did not consider the reasonable alternatives to an override of the stay. Second, plaintiff contends that defendant did not consider the impact of the override on competition and the integrity of the procurement system. Finally, plaintiff states that defendant failed to consider the possibility that SEC is not a small business and is therefore ineligible for the protested task order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 033 - PMTech Inc v US.doc, Paragraph with 'The Rule of Two': Finally, plaintiff argues that defendant failed to consider that the SBA might reverse its earlier decision that SEC meets the size requirements set forth in the RFTP. Although the SBA has determined that SEC is an eligible small business, plaintiff notes that OHA has remanded that decision to the SBA for further review. However, the reasonableness of the stay override must be evaluated based on the evidence that was available to the government when its decision was made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': (extending SAFETEA\u8211LU). TEA\u821121 requires that \not less than 10 percent of the amounts made available for any program under Titles I, III, and V of this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': Both TEA\u821121 and SAFETEA\u8211LU incorporate the Small Business Act (\SBA\) definitions for \small business concern\ and \socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': A small business concern \shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation\ and which has annual receipts and a number of employees below a certain threshold established by SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': . A \ \u8216small business concern owned and controlled by socially and economically disadvantaged individuals\rquote shall mean a small business concern ... \u8216which is at least 51 per centum owned by one or more socially and economically disadvantaged individuals\rquote \ and \whose management and daily business operations are controlled by one or more of such individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': (1) Arranging solicitations, times for the presentation of bids, quantities, specifications, and delivery schedules in ways that facilitate DBE, and other small businesses ...; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': (5) Implementing a supportive services program to develop and improve immediate and long-term business management, record keeping, and financial and accounting capability for DBEs and other small businesses; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': (6) Providing services to help DBEs, and other small businesses, improve long-term development, increase opportunities to participate in a variety of kinds of work, handle increasingly significant projects, and achieve eventual self-sufficiency; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': (9) Assisting DBEs, and other small businesses, to develop their capability to utilize emerging technology and conduct business through electronic media. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': Certification Program (UCP) Business Directories for the states of New Jersey, New York, and Pennsylvania; NJ Transit Vendor List; Dun & Bradstreet database; 2002 Survey of Small Business Owners; and NJ Transit Pre\u8211Qualification List. (Pls.\rquote Ex. 10 at 5.) The availability rates were then \calculated by comparing the number of ready, willing, and able minority and women-owned firms in the defined geographic marketplace to the total number of ready, willing, and able firms in the same geographic marketplace.\ (Pls.\rquote Ex. 10 at 5.) The availability rates in each industry were weighed in accordance with NJ Transit expenditures to determine a base figure. (Pls.\rquote Ex. 10 at 6\u82118.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': Defendant\rquote s expert, Dr. Myers, then used various methods to calculate the availability of DBEs including: Unified Certification Program (UCP) Business Directories for the states of New Jersey, New York, and Pennsylvania; NJ Transit Vendor List; Dun & Bradstreet database; 2002 Survey of Small Business Owners; and NJ Transit Pre\u8211Qualification List. NJ Transit only utilized one of the examples listed in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 034 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': Dr. John Lunn, Plaintiffs\rquote expert economist, also testified and submitted expert reports prior to trial. (Trial Tr. vol. 6, Mar. 22, 2010.) According to Dr. Lunn, Dr. Myers\rquote s analysis is flawed as the \availability estimates that are provided in the report are inflated\ and the race-neutral component has been under-estimated. (Trial T. vol. 6, 8\u82119.) Dr. Lunn\rquote s disagreement with Dr. Myers lies in the differences between the methods used by each expert to estimate availability and disparity ratios. (Trial Tr. vol. 6, 11\u821112.) Dr. Lunn\rquote s testimony included an extensive explanation of the measures of availability used by Dr. Myers and he opined that four of the methods used by Dr. Myers, particularly the Dun & Bradstreet database and the 2002 Survey of Small Business Owners, do not meet the criteria of the regulations. (Trial Tr. vol. 6, 15\u821124.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 039 - KLAK Corporation v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor, which was awarded contract to provide credit reports to Air Force, filed bid protest challenging Air Force\rquote s decision to exit small business program, under Small Business Act, and instead procure reports via General Services Administration (GSA) Federal Supply Schedule (FSS) after declining to exercise option to extend contractor\rquote s contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 039 - KLAK Corporation v United States.doc, Paragraph with 'The Rule of Two': contractor had standing to challenge decision to remove procurement from small business program and instead use FSS to obtain reports, but Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 039 - KLAK Corporation v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor under contract to provide credit reports to Air Force, which was both likely bidder and potential awardee if requirement was returned to small business program, had standing to challenge Air Force\rquote s decision to remove its procurement of credit reports from small business program and instead use Federal Supply Schedule (FSS) to obtain reports. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 039 - KLAK Corporation v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor under contract to provide credit reports to Air Force lacked standing to challenge Air Force\rquote s procurement of credit reports from another contractor, via Federal Supply Schedule (FSS), if Air Force acted permissibly in removing requirement from small business program, based upon its fair market price evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 039 - KLAK Corporation v United States.doc, Paragraph with 'The Rule of Two': In its complaint and subsequent briefing, the plaintiff claims that the Air Force violated the law by removing the requirement from the 8(a) program after the Small Business Association (\SBA\) rejected the Air Force\rquote s request to do so. The plaintiff also claims that the Air Force\rquote s fair market price evaluation was not proper under the appropriate regulations. In its August 3, 2010 opinion, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 040 - DCS Corp v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder filed post-award procurement protest action, seeking declaratory and injunctive relief and contesting award of small business set-aside contract by United States Air Force for SEEK EAGLE modeling, analysis, and tools support (SEMATS), pursuant to SEEK EAGLE program, providing standard process for aircraft stores certification with mission of ensuring new war-fighter capabilities. Following intervention by successful awardee, government and intervenor moved to dismiss, and all parties moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 040 - DCS Corp v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for award of small business set-aside contract by United States Air Force for SEEK EAGLE modeling, analysis, and tools support (SEMATS) had standing, under Tucker Act, to bring post-award procurement protest action alleging prejudicial failure to evaluate past performance information, since bidder had direct economic interest affected by award, and had substantial chance of obtaining award if protest were sustained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 040 - DCS Corp v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s award of small business set-aside contract for SEEK EAGLE modeling, analysis, and tools support (SEMATS) to bidder offering substantially lower price than competing bidder that had same substantial confidence assessment had rational basis, on grounds that awardee provided best overall value to Air Force, since Air Force placed substantial confidence on awardee\rquote s past performance of three efforts with excellent performance ratings plus number of past efforts by its subcontractors with excellent or very good performance ratings, and substantial confidence ratings to both bidders did not provide basis for selecting one over another, so that awardee\rquote s lower cost provided best value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 040 - DCS Corp v US.doc, Paragraph with 'The Rule of Two': The Solicitation is a small business set-aside, subject to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Upon judgment in favor of service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor, in post-award protest of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), pursuant to Small Business Act, contractor applied for attorney fees and costs, under Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Government\rquote s position in defending against bid protest by service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor, that successfully challenged award of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), was not substantially justified throughout dispute, as required for award of attorney fees and costs to contractor, under Equal Access to Justice Act (EAJA), even though initial administrative protest was dismissed and legal precedent concerning application of Small Business Administration\rquote s (SBA) regulations was sparse, since administrative decision did not conform to agency\rquote s prior precedent construing SBA regulations and was not credible, regulations unambiguously contradicted government\rquote s position, and limited precedent showed that government\rquote s position was unfounded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Post-judgment matters are at issue. Earlier this year, judgment was entered in favor of plaintiff, Infiniti Information Systems (\Infiniti\), in this post-award bid protest of a contract to provide internet-related support services for the Department of Housing and Urban Development (\HUD\). The contract had been awarded to Ideogenics, LLC (\Ideogenics\), pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': \). First, the award contravened a regulation adopted by the Small Business Administration (\SBA\), barring a \non-competitive\ award where potential awardees had received a statement of work and been evaluated based upon their responses. Second, HUD had made the award to a non\u8211Service\u8211Disabled\u8211Veteran\u8211Owned (\SDVO\) entity although it had indicated that the award would be made to an SDVO entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Infiniti, an SDVO and African\u8211American\u8211owned company, performed these services from 2005 to September 19, 2009, under two sequential sole-source contracts issued pursuant to Section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Act Requirements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Section 8(a) authorizes the Small Business Administration to enter into procurement contracts with other federal agencies and to subcontract performance of those contracts to disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': A procuring activity must comply with the requirements of the Small Business Act and implementing regulations in carrying out its delegated authority. Among other things, in a non-competitive procurement, it must not release a \statement of work for the requirement ... to any of the Participants\ being considered for a contract, although the procuring activity \[m]ay conduct informal assessments of several Participants\rquote capabilities to perform a specific requirement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': , including where \[t]he procuring activity ... expressed a clear intent to reserve the procurement as a small business or small disadvantaged business (\SDB\) set-aside prior to offering the requirement to SBA for an award as an 8(a) contract,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': By an agreement effective January 30, 2007, SBA delegated to HUD its authority to enter into prime contracts under Section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': Self-represented service-disabled veteran-owned small business (SDVOSB) contractor filed pre-award bid protest, seeking to permanently enjoin Department of Veterans Affairs (VA) from denying contractor award of contract for emergency electrical system upgrade at VA medical center on ground that contractor was not listed as verified SDVOSB on VA\rquote s online vendor information pages (VIP) database. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': Regulation providing that if a service-disabled veteran-owned small business (SDVOSB) status protest is sustained, pursuant to a challenge to that firm\rquote s listing status on the Department of Veterans Affairs (VA) online vendor information pages (VIP) database, and the federal contract has already been awarded, then the contracting officer cannot count the award as to a VOSB or SDVOSB and the firm cannot submit another offer as a VOSB or SDVOSB on a future procurement, unless the firm demonstrates to the VA that it has overcome the reasons for the determination of ineligibility, only applies to status protests sustained against firms that already have been awarded a contract, but does not apply against an unsuccessful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': Self-represented service-disabled veteran-owned small business (SDVOSB) contractor was not \interested party,\ within meaning of Tucker Act\rquote s requirements for standing to assert pre-award bid protest, seeking to permanently enjoin Department of Veterans Affairs (VA) from denying contractor award of contract for emergency electrical system upgrade at VA medical center due to removal of contractor from VA\rquote s online vendor information pages (VIP) database, since contractor lacked substantial chance of securing contract due to ineligibility for VIP listing based on negative finding during verification of self-represented SDVOSB status as result of organizational structural flaws that materially affected control by service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': Contractor\rquote s pre-award bid protest claim seeking injunction ordering reopening of bidding on contract to be awarded by Department of Veterans Affairs\rquote (VA), based on VA\rquote s allegedly unreasonable delay in restoring contractor to online vendor information pages (VIP) database as eligible service-disabled veteran-owned small business (SDVOSB), after contractor amended operating agreement to remedy prior status protest, was rendered moot under Article III case or controversy requirements, since injunctive relief could not be granted due to subsequent determination by Center for Veterans Enterprise (CVE) that contractor was otherwise ineligible to bid on VA contract as SDVOSB as result of organizational structural flaws that precluded restoration of contractor to VIP list. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court after argument on defendant\rquote s motion to dismiss on jurisdictional grounds and the parties\rquote cross-motions for judgment on the administrative record. CS\u8211360, LLC (\plaintiff\), a self-represented service disabled veteran-owned small business (\SDVOSB\) contracting firm, seeks permanently to enjoin the Department of Veterans Affairs (the \DVA\ or \VA\) from denying plaintiff a contract award for an emergency electrical system upgrade at the VA Maryland Health Care System at the VA Medical Center in Perry Point, Maryland (the \Project\), on the ground that plaintiff is not listed on the DVA\rquote s online Vendor Information Pages (the \VIP\) database. On April 30, 2010, the DVA sustained against plaintiff a status protest in an unrelated procurement, and plaintiff was removed from the VIP database. Plaintiff contends that it has satisfied the DVA\rquote s concerns related to its SDVOSB status and charges that the DVA unreasonably delayed re-listing plaintiff on the VIP database. On July 30, 2010, the DVA acknowledged that plaintiff resolved its earlier concerns, but concluded on other grounds that plaintiff is ineligible for SDVOSB status, a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': ), was enacted to increase contracting opportunities for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': ( \[T]he Secretary shall maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': ( \A small business concern may be awarded a contract under this section only if the small business concern and the veteran owner of the small business concern are listed in the database of veteran-owned businesses maintained by the Secretary under subsection (f).\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': (\Prior to January 1, 2012, all VOSBs and SDVOSBs must be listed in the VIP database, available at http:// www.VetBiz.gov, and also must be registered in the Central Contractor Registration (CCR) (see 48 CAR subpart 4.11) to receive contract awards under VA\rquote s Veteran-owned Small Business prime contracting and subcontracting opportunities program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': (2010). Pending an interagency agreement with the Small Business Administration (the \SBA\), the Executive Director of the OSDBU decides protests of SDVOSB status raised by either another offeror or the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': Plaintiff counters that the operative laws and DVA policy establish that a small business concern may be eligible for an SDVOSB set-aside contract if it is listed on the VIP database on the date of the award, which in this case has been stayed. Therefore, plaintiff is still eligible to bid on the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': , for the proposition that the \VA has itself has argued that under the applicable statutes and regulations, a small business concern is only eligible for award under a SDVOSB set-aside if it is listed in the VIP on the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': applies to status protests where the contract already has been awarded. \If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, unless it demonstrates to VA that it has overcome the reasons for the determination of ineligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,627 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': (\In maintaining the database, the Secretary shall carry out at least the following two verification functions: (A) Verification that each small business concern listed in the database is owned and controlled by veterans. (B) In the case of a veteran who indicates a service-connected disability, verification of the service-disabled status of such veteran.\). Defendant correctly contends that these two provisions cannot be considered in isolation. Each provision is examined in turn. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': , in turn, lists \the eligibility requirements for VIP verification.\ VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration (SBA) Protest Decisions. Any firm registered in the VetBiz VIP database that is found to be ineligible due to an SBA protest decision Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': , \a small business concern is eligible for award under a VA SDVOSB set-aside only if it is listed in the database on the date of award,\ which justified the denial of an award to a concern that was in the VIP database at the time of bid opening, but was removed prior to the award. B\u8211402465, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,619 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': is an interim rule that governs until an interagency agreement is reached between the DVA and the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. at 64,627 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'The Rule of Two': the request, stating that service-disabled, veteran-owned small businesses could manufacture the units. As an alternative to procuring the units from service-disabled, veteran-owned small businesses, the Office of Small and Disadvantaged Business Utilization suggested buying them through the GSA FSS. The contracting officer decided that service-disabled, veteran-owned small businesses were not capable of producing the units, and sought information about the capacity of companies on the FSS to produce the units. The contracting officer contacted her counterpart at the GSA FSS office, who informed her that the mobile units could be purchased through the \Firefighting Vehicles and Accessories\ category or the \New Technologies\ category of the GSA FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 055 - Office Depot Inc v US.doc, Paragraph with 'The Rule of Two': On page 25 of your tech proposal, you indicate there will be subcontracting to various small businesses, etc. However, in the standard language of the reps and certs further back in the proposal, you have checked there will be no subcontracting opportunities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 060 - Jackson v Cerpa.doc, Paragraph with 'The Rule of Two': Jackson, an African\u8211American man, is the sole owner, employee and shareholder of DWJ Petroleum, Inc., an Illinois business incorporated in 2001 (D.St.\u182\u182 2\u82113). As a minority small business owner, Jackson was eligible to participate as a certified Disadvantaged Business Entity (\DBE\) in an affirmative action contracting program administered by Department (J. Resp. 1, 3). Department\rquote s DBE program, the constitutionality of which was upheld in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 061 - Vero Technical Support Inc v US Dept of Defense.doc, Paragraph with 'The Rule of Two': concerned a decision by the Small Business Administration over the plaintiff\rquote s \Small Disadvantaged Business\ status, hence not a bid protest or procurement-related matter, at least directly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': Loan servicing contractor brought action against subcontractor, alleging failure to make payments in connection with procurement of small business concern (SBC) set-aside contract. Contractor moved for temporary restraining order (TRO) and preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': Claim brought by loan servicing contractor against subcontractor, alleging failure to make payments in connection with procurement of small business concern (SBC) set-aside contract, impermissibly called for enforcement of illegal contract under Small Business Act; parties had fraudulently procured contract in violation of restrictions against awards of small business preferences to joint venturers in relationships of unusual reliance. Small Business Act, \u167\u167 2[2], 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': Subcontract entered into between loan servicing contractor and subcontractor in connection with procurement of small business concern (SBC) set-aside contract was unenforceable, for purposes of contractor\rquote s claim seeking equitable relief; since primary SBC contract had been illegally obtained under Small Business Act, subcontract contravened public policy by discouraging professional development of small businesses and furthering unlawful purposes. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': Claim brought by loan servicing contractor against subcontractor, seeking equitable relief as to alleged failure to make payments in connection with procurement of small business concern (SBC) set-aside contract, was barred by doctrine of unclean hands; contractor had acted in bad faith towards Department of Housing and Urban development (HUD) by orchestrating submission of unlawful bid under Small Business Act, and accruing labor expenses in excess of amounts budgeted in proposal. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': The federal government sets aside approximately one quarter of its annual procurement budget for the procurement of goods and services from small business concerns (SBCs). Many of these SBCs, standing alone, lack the resources or expertise to carry out these set-aside contracts. Accordingly, the government permits SBCs to team up with larger companies in order to perform their set-aside contracts. This case involves a dispute between a contractor and a subcontractor on an SBC set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': MGC is a minority-owned firm with over twenty years of experience in the mortgage loan servicing business. (Compl. \u182 18.) MGC\rquote s President is Theodore Griffin (\Griffin\). (Compl. \u182 22.) Until 2007, MGC qualified as a \socially and economically disadvantaged\ SBC under \u167 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': ). The Small Business Administration (SBA) initially rejected the parties\rquote bid based on CLS\rquote s lack of loan servicing experience and poor financial standing. (Compl. \u182 24.) The SBA only reversed course after HUD\rquote s contracting officer called and expressed \confidence in MGC\rquote s capabilities based on its performance of the prior contract.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': and 13 C.F.R. \u167 121 were designed to protect the public. More specifically, the Court finds that these restrictions were designed to protect the public from fraud. The Small Business Act requires agencies to employ a variety of preference strategies to assist small businesses, in furtherance of Congress\rquote declared policy to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': and 13 C.F.R. \u167 121 are intended to further this purpose and to protect the public from \ostensible subcontractors\ who might fraudulently obtain small business preferences through the simple expedient of acting through a nominal \u167 8(a) contractor. As the United States Business Administration Office of Hearing and Appeals (\OHA\) has stated, \[t]he purpose of the rule is to prevent other than small firms from forming relationships with small firms to evade SBA\rquote s size requirements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': . To determine whether a small business is \unusually reliant\ upon its subcontractors, the Small Business Administration employs a seven-factor test, looking to the following: (1) who will manage the contract; (2) which party possesses the requisite background and expertise to carry out the contract; (3) which party \chased the contract\; (4) what degree of collaboration was there on the bid; (5) are there discrete tasks to be performed by each party or is there a commingling of personnel and material; (6) what is the relative amount of work performed by each contractor; and (7) which party performs the more complex and costly contract functions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': For purposes of bidding on the HUD Contract, since it was clearly affiliated with MGC, CLS was an other-than-small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 121; Compl. \u182 21. Yet CLS submitted an electronic certification falsely indicating that it was a small business concern for purposes of performing \other activities related to credit intermediation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': that ... qualified as a small business under the criteria in 13 CFR part 121 and the size standard in paragraph (a) of this provision.\ (Emphasis added). These representations were false, and CLS acted with knowledge of its affiliation with MGC. CLS\rquote fraudulent certification was incorporated by reference into the CLS\u8211MGC bid on the HUD Contract, and was a necessary precondition to the ultimate award of the Contract. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': The Court finds that the Subcontract is likewise unenforceable for three reasons. First, the Subcontract is unenforceable because it is against public policy. Congress has declared that it is a matter of public policy to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': . The Subcontract in question subverts this purpose by hindering CLS\rquote s control of an awarded \u167 8(a) contract and thus discouraging the professional development of a small business concerned owned and controlled by a socially and economically disadvantaged individual. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': 67 (1975) (quoting unidentified letter from Felix Frankfurter to Hugo Black). Nonetheless, since the Court\rquote s opinion has heretofore addressed only the conduct of the parties to this suit, the Court feels compelled to place its opinion within the larger context of the practice small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': , an SBA contracting officer \may accept a concern\rquote s self-certification as [a small business concern as] true for the particular procurement involved in the absence of a written protest by other offerors or other credible information which causes the contracting officer or SBA to question the size of the concern.\ An individual SBA officer has little incentive, if any, to question a particular small business\rquote certification. After all, the percentage of federal contracting dollars set aside for small business concerns is publicly reported. The Department of Housing and Urban Development, in particular, has a reputation as being the \friendliest\ cabinet-level agency to small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': Sept. 9, 2005 (available at 2005 WLNR 26158148). In 2005, HUD awarded nearly three-quarters of its contracting budget to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': The incentives that this system creates are perverse. Small business concerns enter into teaming agreements where their primary contribution is one thing and one thing only: eligibility for \u167 8(a) contracts. This practice is amply demonstrated by the facts of the current case, where a janitorial firm nominally secured a multi-million dollar contract to perform mortgage loan servicing, despite a complete lack of any prior experience in the industry. Does this truly benefit small businesses? Certainly their owners can profit from this arrangement. But in terms of actually allocating work to the small businesses that are so vital to our nation\rquote s economy, the system is hardly ideal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': What is not unusual, at least to the Court\rquote s mind, is the arrangement between the parties. Without an effective mechanism to verify a small business concern\rquote s capability to perform its \u167 8(a) contract, the SBA has invited the very problems Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': that this case presents. This harms not only the public fisc, but also small business owners. In enacting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with 'The Rule of Two': , surely Congress did not intend to create a class of small businesses whose chief asset is their eligibility for set-asides. Rather, Congress intended to create a class of small businesses capable of performing important federal contracts. In that sense, both MGC (in the mortgage servicing business) and CLS (in the janitorial services business) are success stories. The problem in the present case is that MGC tried to take the easy way out, and is now paying the consequences as it chose its own partner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor qualified as HUBZone small business concern, but not eligible to compete under 8(a) business development program, filed bid protest, seeking declaratory and injunctive relief for Air Force\rquote s alleged violation of Small Business Act in conducting 8(a) program small business set-aside procurement for housing maintenance services at Air Force base, after contractor prevailed in bid protest at Government Accountability Office (GAO), but Air Force refused to follow GAO\rquote s recommended decision. Following intervention of contract awardee, government and intervenor moved to dismiss for lack of jurisdiction, and parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act mandates priority to HUBZone program; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor did not waive right to challenge Air Force\rquote s alleged violation of Small Business Act in conducting small business set-aside procurement for military housing maintenance services, even though contractor filed bid protest after close of bidding process, since contractor timely challenged alleged defect in solicitation before closing date for receipt of proposals and diligently pressed position at each step of administrative process, pursuant to federal acquisition regulations and Government Accountability Office (GAO) protest procedures, by first sending letter to Air Force contracting officials, then filing agency-level protest, and then filing timely protest with GAO within 10 days of adverse agency action, which GAO sustained. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, the HUBZone provision makes clear that, before a procurement can be set-aside under the 8(a) program, a contracting officer must first determine if the procurement can be set-aside for a HUBZone small business concern; in particular, the contracting officer must apply the \rule of two\ and determine whether: (1) there is a reasonable expectation that two or more qualified HUBZone small business concerns will submit offers, and (2) the award can be made at a fair market price. Small Business Act, \u167 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The phrase, \notwithstanding any other provision of law,\ within meaning of the Small Business Act provision governing the HUBZone program, assisting small businesses operating in historically underutilized business zones, encompasses provisions of law found within the Act, including provisions implementing the 8(a) business development program, assisting firms owned and controlled by socially and economically disadvantaged individuals, and because the phrase applies without relevant limitation, the effect is to give priority to the HUBZone provisions in the Act. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': A contracting officer retains the discretion to place contracts in the 8(a) business development program whenever the statutory criteria for the HUBZone program are not satisfied; therefore, the HUBZone provision\rquote s phrase, \notwithstanding any other provision of law,\ indicates only that the HUBZone program has a priority, but does not preempt the 8(a) program, as the HUBZone provision does not place the HUBZone program in conflict with the 8(a) program. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In combination, the phrases \notwithstanding any other provision of law\ and \shall be awarded,\ within meaning of the Small Business Act HUBZone program provisions, leave no doubt that a contract is to be awarded under the HUBZone program\rquote s restricted competition subsection if the required conditions are met; thus, only after the contracting officer has determined that these conditions are not satisfied, can the procurement be awarded as a HUBZone sole source contract or set-aside under another small business program. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s procurement for military housing maintenance services, by setting aside solicitation only for 8(a) small businesses, rather than giving priority to qualified HUBZone program small business concerns, violated Small Business Act, establishing priority for HUBZone program over other competing small business programs, since if Air Force had complied with HUBZone provision requirements, Air Force would have found, under rule of two, that there was reasonable expectation that at least two qualified HUBZone small business concerns could have submitted bids at fair market prices, so that setting aside solicitation for qualified HUBZone bidders was mandated. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor, as qualified HUBZone small business concern, but ineligible to compete under 8(a) business development program, would suffer irreparable harm in absence of permanent injunction prohibiting Air Force from proceeding with performance of military housing maintenance services contract awarded to 8(a) small business contractor in violation of Small Business Act, establishing priority for HUBZone program over 8(a) program, since incumbent contractor had lost opportunity to compete for contract. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored permanent injunction prohibiting Air Force from proceeding with performance of military housing maintenance services contract awarded to 8(a) small business contractor in violation of Small Business Act, establishing priority for HUBZone program over 8(a) business development program, since incumbent contractor, as qualified HUBZone small business, but ineligible to compete under 8(a) program, would suffer irreparable harm by lost opportunity to compete for contract, and Air Force\rquote s additional time and effort to conduct procurement in lawful manner did not constitute adequate hardship. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Public interest supported grant of permanent injunction prohibiting Air Force from proceeding with performance of military housing maintenance services contract awarded to 8(a) small business contractor in violation of Small Business Act, establishing priority for HUBZone program over 8(a) program, since public interest was served by canceling contract and issuing new solicitation to correct illegality that occurred and preserve integrity of procurement process. Small Business Act, \u167\u167 2[8], 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , Small Business Administration, Of Counsel, for Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In this bid protest, Plaintiff DGR Associates, Inc. (\DGR\) challenges the Department of the Air Force\rquote s decision to conduct an 8(a) program small business set-aside procurement for housing maintenance, inspection, and repair services at Eielson Air Force Base, Alaska. DGR contends that the Air Force violated the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , by not giving priority to HUBZone small business concerns when there is a reasonable expectation that two or more such concerns would submit offers and that the award could be made at a fair market price. DGR is a qualified HUBZone small business concern, but is not eligible to compete under the 8(a) program. DGR prevailed in a timely bid protest at the Government Accountability Office (\GAO\), but the Air Force announced that it would not follow the GAO\rquote s recommended decision. DGR then filed suit in this Court, requesting declaratory and injunctive relief. The Air Force awarded the contract under the 8(a) set-aside procurement to Defendant\u8211Intervenor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Defendant also argues that, under the Small Business Administration\rquote s regulations, the Air Force was not required to give any priority to HUBZone small business concerns. The outcome of this dispute turns on the interpretation of the statutory language that Congress used to establish the section 8(a) and HUBZone small business programs. Despite executive agency memoranda to the contrary, this Court and the GAO have held that the plain meaning of the Small Business Act mandates a priority to the HUBZone program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On the issue of statutory interpretation, the language of the Small Business Act granting priority to the HUBZone program could not be more clear. By using the phrases \notwithstanding any other provision of law ... a contract opportunity shall be awarded on the basis of competition to qualified HUBZone small business concerns,\ Congress established a priority for the HUBZone program over other competing small business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': With the issuance of this decision, the Court permanently enjoins Defendant from proceeding with the contract unlawfully awarded to General Trades & Services, and from awarding any contract that is not in compliance with the Small Business Act as interpreted herein. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Congress enacted the Small Business Act (\the Act\) to \aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The Small Business Administration (\SBA\) is charged with carrying out the policies of the Act and with promulgating the necessary rules and regulations to fulfill its Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': To further the goal of aiding small businesses, Congress has established certain programs to assist qualifying small businesses in obtaining \a fair proportion\ of Federal contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; and (2) the HUBZone Program, which assists those small businesses operating in a \historically underutilized business zone.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ). The program\rquote s stated purpose is to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . It also \expand[ed] the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': \u167 644(g)(1). Pursuant to the Act, the SBA is empowered to enter into contracts with federal procurement agencies to furnish goods and services and then to \arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': A contract may not be awarded to an 8(a) small business if \the award of the contract would result in a cost to the awarding agency which exceeds a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Reauthorization Act of 1997 added the HUBZone Program to the Small Business Act in order to assist small businesses operating in a \historically underutilized business zone,\ defined as an area located within one or more qualified census tracts, non-metropolitan counties, Indian reservations, or base closure areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . A qualified HUBZone small business is eligible to receive federal contracts on a sole-source basis, through competition restricted to HUBZone concerns, or through a ten percent pricing preference for contracts awarded on the basis of full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Under the HUBZone program, a contracting officer must award on the basis of competition restricted to qualified HUBZone small businesses if certain conditions are met. Specifically, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). The two conditions set forth in this provision\u8212\a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers\ and \that the award can be made at a fair market price\\u8212are commonly referred to as \the rule of two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': award a sole source contract to any qualified HUBZone small business concern if: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': \... the qualified HUBZone small business concern is determined to be a responsible contractor with respect to performance of such contract opportunity, and the contracting officer does not have a reasonable expectation that 2 or more qualified HUBZone small business concerns will submit offers for the contracting opportunity....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In addition, similar to the 8(a) program, the SBA Administrator may appeal a contracting officer\rquote s decision to \not award a contract opportunity under this section to a qualified HUBZone small business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The HUBZone statute further provides that a \Government-wide goal for participation by qualified HUBZone small business concerns shall be established at ... not less than 3 percent of the total value of all prime contract awards for fiscal year 2003 and each fiscal year thereafter.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR is a qualified HUBZone small business concern. AR 425. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Initial Solicitation Set Aside for HUBZone Small Businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Solicitation No. FA5004\u821109\u8211R\u82110001 (re-posted as Solicitation No. FA5004\u821109\u8211R\u8211C014 on April 1, 2009) (\Solicitation I\). The Air Force set aside Solicitation I for qualified HUBZone small business concerns. AR 419. At least four offerors submitted proposals in response to Solicitation I. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR protested the eligibility of Inuit Services at the SBA, whereupon Inuit Services admitted that it was not a qualified HUBZone small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Before issuing its second solicitation (\Solicitation II\), the Air Force, in coordination with the SBA, conducted market research to determine the best method of procuring a follow-on contract for military housing maintenance services at the Base. AR 1\u821117. The Air Force\rquote s research revealed that it could set the solicitation aside either for qualified HUBZone concerns or 8(a) small businesses. AR 5. However, the contracting officer determined that it was in the best interests of the Air Force to offer the contract for an 8(a) competition. Specifically, in an October 27, 2009 \Market Research Analysis Report,\ the contracting officer stated: \Based on the 354th Contracting Squadron failing to meet its [fiscal year 2009] mandated [small disadvantaged business] goal and far exceeding their HUBZone goal, it has been determined to be in our best interest to set this procurement aside as a competitive 8(a).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On December 2, 2009, the Air Force posted a synopsis of Solicitation II, which sought a cost reimbursable requirements contract for Base family housing maintenance services. AR 55\u8211206. Solicitation II limited the pool of offerors to qualified 8(a) small businesses and set January 25, 2010 as the response date for the submission of proposals. AR 55\u821159. Solicitation II included a one-year base period and two one-year option periods. The base period was to run from March 1, 2010 to February 28, 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On December 16, 2009, DGR requested the Air Force set-aside Solicitation II for qualified HUBZone small business concerns rather than 8(a) program participants. AR 24\u821125. DGR argued that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , which concluded that an agency could not proceed with an 8(a) program award without first considering whether a set-aside to a qualified HUBZone small business concern is required. AR 25\u821131. The Air Force responded that the GAO\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In this memorandum, the OLC concluded that the Small Business Act \does not compel SBA to prioritize the HUBZone Program [over the 8(a) Program] in the manner GAO determined to be required.\ AR 35, 38\u821145. The OLC further explained that its opinion was binding on all executive agencies, notwithstanding any GAO decision to the contrary. AR 46\u821147. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On January 22, 2010, DGR filed an agency-level protest with the Air Force, protesting its failure to set aside Solicitation II for qualified HUBZone small business concerns. AR 415\u821122. DGR requested the Air Force postpone the closing date for receipt of proposals pending the determination of its protest. AR 422. The Air Force did not postpone the closing date, and proposals were received on January 25, 2010, as required by Solicitation II. AR 424. The agency formally denied DGR\rquote s protest on February 4, 2010. AR 423. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR protested to the GAO on February 4, 2010. AR 424\u821132. DGR asserted: (1) \Federal law requires this Solicitation [to] be set aside for qualified HUBZone companies;\ (2) \The procedure for selection for award is inconsistent with the stated evaluation factors;\ (3) \The Solicitation Performance Work Statement is ambiguous and requires bidders to unnecessarily speculate as to significant work requirements;\ and, (4) \DGR was prejudiced by the Air Force\rquote s actions.\ AR 427. DGR later dismissed the second and third grounds of its protest after a senior attorney at the GAO advised DGR through \outcome prediction\ that it likely would not prevail on those grounds. AR 918. On March 5, 2010, the Air Force informed the GAO that because \[i]t is Air Force Policy to comply with the OLC opinion not to provide priority to HUBZones but rather to treat them with parity with the other small business programs,\ the Air Force \will not comply with a GAO opinion contrary to that policy.\ AR 489. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The GAO held that the Air Force had to consider whether it could expect two or more qualified HUBZone small business concerns to submit proposals at a fair market price, in accordance with the \plain language of the HUBZone statute.\ AR 921\u821123. The GAO further concluded that, if the Air Force could expect two or more qualified HUBZone small business concerns to submit proposals at a fair market price, then it must cancel Solicitation II and issue a new solicitation as a HUBZone set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On May 27, 2010, the Air Force informed the GAO in a letter that it would not comply with the GAO\rquote s decision sustaining DGR\rquote s protest. AR 945\u821146. The Air Force contended that memoranda from the Office of Management and Budget and the Department of Justice constituted \binding\ and \mandatory\ guidance on the prioritization of HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , and to place qualified HUBZone small business concerns and section 8(a) program participants on an equal footing for the award of contracts. AR 945\u821165. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On December 16, 2009, more than one month prior to the closing date and before the Air Force had issued the solicitation, DGR requested the Air Force to set aside the solicitation for qualified HUBZone small business concerns. AR 24\u821131. DGR cited the GAO\rquote s decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , holding that a procuring agency by statute must give priority to HUBZone set-asides over other program preferences contained in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On January 22, 2010, three days before the closing date for receipt of proposals, DGR filed an agency-level protest with the Air Force, protesting the agency\rquote s failure to set aside the solicitation for qualified HUBZone small business concerns. AR 415\u821122. On January 25, 2010, the Air Force went ahead with the closing date for receipt of proposals without amending the solicitation as DGR had requested. AR 51\u821153. DGR understood that the Air Force thereby had acted adversely to DGR\rquote s agency-level protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': On February 4, 2010, within ten days of the Air Force\rquote s adverse action, DGR timely filed a protest with the GAO, docketed as B\u8211402494. AR 425\u821157. That same day, the Air Force issued a decision on DGR\rquote s agency-level protest, ruling that the Air Force was not obligated by law to set aside the solicitation for qualified HUBZone small business concerns. AR 423. On May 14, 2010, the GAO sustained DGR\rquote s protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The GAO ruled that the Air Force first must consider whether two or more qualified HUBZone small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act Grants Priority to The HUBZone Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The parties agree that this case hinges on a single question of statutory interpretation: whether the language of the Small Business Act grants priority to a HUBZone competition over a section 8(a) competition. The Court decided this same question earlier this year in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In that case, Chief Judge Hewitt found the language of the HUBZone provision to demand unequivocally the prioritization of the HUBZone program over other Small Business Act programs, including the section 8(a) program. The HUBZone provision makes clear that, before a procurement can be set-aside under the 8(a) program, a contracting officer must first determine if the procurement can be set-aside for a HUBZone small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In particular, the contracting officer must apply the \rule of two\ and determine whether: (1) there is a reasonable expectation that two or more qualified HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In the instant case, the relevant provisions of the Small Business Act are unambiguous, and Congress clearly has answered the question presented by the parties. Therefore, this Court finds no reason to afford deference under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': other laws and prioritize the HUBZone program over other Small Business Act programs is plain on the face of the statute. The HUBZone provision states that \[n]otwithstanding any other provision of law,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . (Def.\rquote s July 9, 2010 Mot. 30.) Thus, according to Defendant, \this introductory phrase is reasonably understood to refer only to provisions outside of the Small Business Act that otherwise might frustrate the authority of a contracting officer to award a contract to a HUBZone concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': the Small Business Act, including provisions implementing the 8(a) program. Because the \notwithstanding\ clause applies to \any other provision of law\ without relevant limitation, the effect is to give priority to the HUBZone provisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': examined the language of other provisions of the Small Business Act and found no language indicating that Congress intended to limit the plain meaning of this phrase. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . \Notwithstanding any other provision of law\ is a recurring phrase throughout the Small Business Act, including in the 8(a) provision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The HUBZone provision of the Small Business Act requires that \a contract opportunity Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ] on the basis of competition restricted to qualified HUBZone small business concerns\ if the rule of two is met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR argues that the language \shall be awarded\ mandates a set-aside for HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': over other small business programs whenever the rule of two is met. The GAO reached a similar interpretation of this language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': (finding that the plain language of the statute required the Air Force first to consider whether the conditions for setting aside a procurement for HUBZone businesses were met, and if so, to set aside the procurement for HUBZone small businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': in relation to other sections of the Small Business Act, including the section establishing the 8(a) program. Again, there is no language in either the HUBZone provision, or the Small Business Act more generally, to restrict the application of the mandatory language of the HUBZone competition subsection to the HUBZone program alone. Moreover, the competition phrase \shall be awarded\ is prefaced by the expansive phrase \notwithstanding any other provision of law,\ which this Court has interpreted to apply to other provisions in the Small Business Act. In combination, the phrases \notwithstanding any other provision of law\ and \shall be awarded\ leave no doubt that a contract is to be awarded under the HUBZone program\rquote s restricted competition subsection if the required conditions are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Only after the contracting officer has determined that these conditions are not satisfied, can the procurement be awarded as a HUBZone sole source contract or set-aside under another small business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': that legislative history clearly indicates Congress\rquote intent not to prioritize the HUBZone Program over other small business programs, including the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': To support its argument, Defendant relies heavily on the Senate version of the HUBZone program, introduced in 1997 as part of the Small Business Reauthorization Act. (Def.\rquote s July 9, 2010 Mot. 34.) Defendant alleges that because the original Senate version of the Small Business Reauthorization Act contained language clarifying that the HUBZone assistance provisions \shall not limit the discretion of a contracting officer to let any procurement contract to [SBA] under section 8(a),\ the intent of Congress was to establish parity between the 8(a) and HUBZone programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': S. 1139, 105th Cong. \u167 31(b)(5) (as reported by S. Comm. on Small Business, Aug. 19, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Despite Defendant\rquote s contentions, this Court does not find that the legislative history of the statute warrants departure from the plain words of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force Violates The Small Business Act by Complying With The SBA\rquote s Statutory Interpretation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': If the Air Force had followed the HUBZone provision as it was obligated to do by the plain statutory language, it would have found there was a reasonable expectation that at least two qualified HUBZone small business concerns could submit offers at fair market prices. Under an earlier solicitation for the same services, Solicitation I, four offerors submitted proposals under a HUBZone small business set-aside, including DGR. After awarding Solicitation I under the HUBZone program, the Air Force cancelled it following DGR\rquote s protest of the contract award to an ineligible entity. Therefore, if the Air Force had complied with the Small Business Act as interpreted herein, the current contract would have been set aside for a HUBZone small business concern, which would have given DGR an opportunity to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': that \the mandatory language of the HUBZone statute requires that a contracting officer first determine whether the specified criteria are met before awarding a contract under another small business program or on a sole-source basis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court here agrees with Chief Judge Hewitt\rquote s determination. Accordingly, the Air Force violated the Small Business Act by complying with the SBA\rquote s regulations, which fail to prioritize the HUBZone program over other small business programs as provided in the plain language of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . If the Air Force had followed the HUBZone provision as it was obligated to do by the plain statutory language, it would have found there was a reasonable expectation that at least two qualified HUBZone small business concerns could submit offers at fair market prices. DGR would have been given an opportunity to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': By this decision, the Court enters a permanent injunction requiring the Air Force and the Small Business Administration to terminate the unlawful contract awarded to General Trades & Services, and to determine whether the criteria of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': are met, such that the contracting opportunity at issue must be set aside and awarded on the basis of restricted competition to a qualified HUBZone small business concern. Defendant is enjoined from awarding the contract in a manner that is inconsistent with this decision. This permanent injunction shall take effect upon the filing of this Opinion and Order in the Court\rquote s electronic filing system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': \It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women, shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': As Defendant points out, the phrase \notwithstanding any other provision of law\ precedes subsections (A), (B), and (C), and not simply the restricted competition provision set forth in subsection (B). However, this fact does not change the Court\rquote s interpretation. Subsections (A) and (C) contain permissive language. Only subsection (B) contains the mandatory word \shall,\ which serves to indicate the priority of this subsection over the others and when combined with the phrase \notwithstanding any other provision of law\ establishes the priority of the HUBZone competition provision over other provisions in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 066 - HomeSource Real Estate Asset Services Inc v US.doc, Paragraph with 'The Rule of Two': For 90% to 100% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Excellent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 066 - HomeSource Real Estate Asset Services Inc v US.doc, Paragraph with 'The Rule of Two': For 70% to 89% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Very Good. For 51% to 69% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Good. For 50% or less of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Fair. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 069 - PAI Corp v US.doc, Paragraph with 'The Rule of Two': The Office of Secure Transportation (\OST\), a division of the Department of Energy (\DOE\), is responsible for the safe and secure transportation of all government-owned nuclear weapons and materials. On December 13, 2007, DOE issued a \Sources Sought Synopsis\ notice seeking qualified small businesses capable of carrying out certain OST support services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 069 - PAI Corp v US.doc, Paragraph with 'The Rule of Two': In response to the Sources Sought Synopsis notice, DOE received twenty responses from interested bidders. After reviewing their statements of capability, DOE determined that two or more small businesses were capable of performing the required services as outlined by the performance work statement. DOE then designated the proposed procurement as a \total small business set-aside\ pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 069 - PAI Corp v US.doc, Paragraph with 'The Rule of Two': DOE received nine timely proposals from small businesses, including ITP, PAI, and Advanced Technologies and Laboratories International, Inc. (\ATL\). ITP\rquote s proposal announced its intention to partner with Wackenhut, the incumbent for the OST support services contract, to perform the current OST contract. The contracting officer conducted an initial review of the proposals to determine whether they included all information required by the solicitation. The contracting officer also ensured that the organizational conflict of interest disclosures submitted by the bidders revealed no actual or potential conflicts. On December 22, 2008, the Source Selection Authority selected ITP as the bidding offeror that provided the best value to the government in terms of cost and technical capabilities. On December 29, 2008, the contracting officer awarded the contract to ITP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor that was awarded prior contract to provide credit reports to Air Force filed bid protest challenging Air Force\rquote s procurement decision to exit small business program, under Small Business Act, and instead purchase credit reports from larger business via General Services Administration (GSA) Federal Supply Schedule (FSS), after declining to exercise option to extend incumbent contractor\rquote s contract. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent small business contractor\rquote s claims challenging Air Force\rquote s alleged statutory and regulatory violations by exiting small business program and instead procuring credit reports using General Services Administration (GSA) Federal Supply Schedule (FSS), after declining to exercise option to extend credit reports contract with incumbent contractor, involved \procurement,\ within meaning of Tucker Act provision governing bid protest jurisdiction, since claims did not concern administration of prior contract, but rather, concerned new FSS procurement of credit reports that allegedly should have been obtained through small business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent small business contractor challenging Air Force\rquote s alleged statutory and regulatory violations, by exiting small business program and instead procuring credit reports using General Services Administration (GSA) Federal Supply Schedule (FSS), was \interested party,\ within meaning of Tucker Act\rquote s bid protest jurisdictional provision, as required for contractor\rquote s standing as \actual or prospective bidder\ for work being performed by larger contractor via FSS, although contractor had been successfully awarded prior contract that Air Force declined to exercise option to extend and although contractor was not FSS bidder, since contractor\rquote s claims were not related to prior contract, but prior contract provided link to FSS procurement that harmed contractor\rquote s economic interests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The plaintiff, K\u8211LAK Corp. (\K\u8211LAK\) was an incumbent contractor providing credit reports at a cost of $3.80 each to the United States Department of the Air Force (\Air Force\) under a one-year contract (No. FA 3089\u821108\u8211P\u82110018, effective October 1, 2007 through September 30, 2008) awarded as a direct sole-source contract under the Small Business Association (\SBA\) 8(a) Business Development Program (\8(a) program\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': it had decided not to exercise the option to extend its contract because K\u8211LAK was \unable to provide the product at a fair market price.\ (Compl.Ex. 1.) K\u8211LAK protested the Air Force\rquote s decision not to procure from a small business to the SBA. (Administrative Record (\AR\) 392.) The Air Force nonetheless decided not to extended K\u8211LAK\rquote s contract under the option clauses either explicit in or incorporated by reference into its contract with the Air Force. Thus K\u8211LAK\rquote s contract expired at the end of September 2008. Finding no other 8(a) program businesses that met a fair market price as determined by the Air Force\rquote s research conducted pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': In response to the government\rquote s motion, the plaintiff clarified that it does not seek review of the Air Force\rquote s decision not to exercise its contract option, but instead seeks review only of the Air Force\rquote s procurement decision to exit the small business program and instead purchase credit reports from Equifax. The plaintiff further argues that it has standing to bring its claim because only an eligible small business can challenge the Air Force\rquote s decision to leave the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . Here, the government argues, the \procurement\ decision the plaintiff challenges concerns the decision not to use a small business contract. The government contends that the plaintiff cannot obtain the relief it seeks by challenging the Air Force\rquote s decision to obtain credit reports using the GSA FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': In response, the plaintiff argues that the government has mischaracterized its claims. The plaintiff argues that it is challenging the government\rquote s violation of various small business-related statutes and regulations arising from the Air Force\rquote s decision to procure credit reports from Equifax via the FSS. The plaintiff argues that its claims are not claims regarding contract administration, but claims regarding violations of statutes and regulations in connection with the procurement and are thus within the court\rquote s bid protest jurisdiction under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The court agrees with the plaintiff in that to the extent its claims relate to the Air Force\rquote s decision to exit the small business 8(a) program and instead procure credit reports using the GSA Schedule, this court has jurisdiction to hear the case. In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': applies to this case as well. The plaintiff\rquote s challenge here is in connection with the Air Force\rquote s procurement of credit reports through the GSA schedule rather than through the small business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , the GAO examined the merits of a plaintiff\rquote s protest challenging an agency decision to cancel a pre-solicitation notice of intent to procure services under a small business set-aside and to instead solicit quotations from the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The government, ignoring the Air Force\rquote s decision to use the FSS to procure credit reports, argues that the plaintiff is not an actual or prospective bidder because the plaintiff was the awardee of the only \contract\ to obtain credit reports\u8212the contract that expired in September 2008. Similarly, the government argues that because the plaintiff was a successful bidder, it cannot establish the prejudice required for standing. In response, the plaintiff again points to the government\rquote s erroneous characterization of its claims as objections to the Air Force\rquote s decision not to exercise the option in its contract. K\u8211LAK argues that it has standing to challenge the Air Force\rquote s decision to procure credit reports via the FSS because the decision to procure from the FSS and not from a small business affected its direct economic interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': in which the Comptroller General, without specifically addressing standing, reached the merits of a plaintiff\rquote s contention that an agency improperly cancelled a pre-solicitation notice of intent to procure services under a small business set-aside, opting instead to solicit quotations from the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The 8(a) program is designed to give small businesses owned and controlled by socially and economically disadvantaged individuals access to the federal procurement market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': at 473. The competition procedures in FAR Parts 13, 14, 15 and the Small Business Program rules in FAR Part 19 do not apply to orders placed against and fully within the scope of existing FSS contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (2) May consider the effect on small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (iii) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (3) If SBA declines to accept the offer and releases the requirement, it will recommend to the procuring activity that the requirement be procured as a small business or, if authorized, [a Small Disadvantaged Business] set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 072 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (no statute or regulation required the agency to consider small businesses in lieu of purchasing from the FSS); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 074 - Todd Construction LP v US.doc, Paragraph with 'The Rule of Two': (noting that to address the concerns of \especially the small business community\ that they \might be excluded from a competition on the basis of incorrect past performance information that they have not had the opportunity to address,\ the final rule required that prior to exclusion from the competitive range, the offeror \shall be granted the opportunity to explain situations that contributed to an adverse past performance rating to which they have not had a previous opportunity to respond\). The OFPP further believed that \suits [might] occasionally arise\ challenging past performance ratings. OFPP, Best Practices for Collecting and Using Current and Past Performance Information at 6 (May 2000), available at http://gsa.gov/graphics/fas/Best_Practice_for_PP.pdf (\Best Practices\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 075 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed post-award protest, challenging award to competing bidder, pursuant to Small Business Act (SBA), of federal contract to perform internet-related support services for Department of Housing and Urban Development (HUD). The Court of Federal Claims, Lettow, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 075 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest filed by the incumbent contractor, Infiniti Information Solutions, LLC (\Infiniti\), challenged the award of a contract to Ideogenics, LLC (\Ideogenics\) to provide internet-related support services for the Department of Housing and Urban Development (\HUD\). That contract had been awarded pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Small business contractor filed post-award bid protest challenging Army Corps of Engineers\rquote (COE) award of HUBZone set-aside contract to allegedly ineligible HUBZone small business contractor for construction of family housing at Army\rquote s proving ground. Contractor moved to supplement administrative record and to take discovery as to location of awardee\rquote s principal office at time of offer and award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Although affidavits of owner of property at which awardee of HUBZone set-aside contract had allegedly maintained principal office were not proper vehicles for supplementing administrative record for post-award bid protest, challenging awardee\rquote s eligibility as qualified HUBZone small business contractor due to lack of principal office in HUBZone at time of offer and award, affidavits could be used for limited purpose of facilitating deposition of owner, since deposition testimony was warranted due to controversy surrounding owner\rquote s affidavit asserting that awardee did not conduct business from property in HUBZone and that awardee\rquote s lease was backdated, awardee then claimed that affidavit was obtained under duress, and so owner executed second affidavit averring that he signed first affidavit willingly while represented by counsel. Small Business Act, \u167 2[3](p)(5)(A)(i)(I), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Discovery regarding alleged misrepresentations by awardee of HUBZone set-aside contract as to principal office at time of offer and award was necessary, in post-award bid protest, challenging awardee\rquote s eligibility as qualified HUBZone small business contractor due to lack of principal office in HUBZone during relevant timeframe, since deciding protest on inaccurate administrative record would perpetuate error and prevent effective judicial review, and requested information would not typically be found in Small Business Administration\rquote s (SBA) award record, and was relevant to whether award contravened terms of solicitation and statutory mandate of HUBZone set-aside program and whether SBA acted rationally in determining location of awardee\rquote s principal office based on unverified self-serving documents and site visit conducted two months later. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[3](p)(5)(A)(i)(I), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Where there is reason to believe an awardee of a HUBZone set-aside contract may not be HUBZone compliant, it is appropriate to permit a bid protestor to test the accuracy of the awardee\rquote s self-certification to ensure that award has been made to a qualified entity. Small Business Act, \u167 2[3](p)(5)(A)(i)(I), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[31](b)(2); HUBZone Act of 1997, \u167 601, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': In this post-award bid protest, Plaintiff challenges the award of a HUBZone set-aside contract for the construction of family housing at the Army\rquote s Dugway Proving Ground in Utah. Plaintiff alleges that the awardee, Raass Brothers, Inc. (\RBI\), was not eligible for award because it was not a qualified HUBZone small business contractor as it did not have its principal office in a HUBZone at the time of offer and award in September 2009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Given the uncertainty and inconsistencies in this record regarding the location of RBI\rquote s principal office at the time of offer and award and the fact that this location is dispositive in ascertaining whether RBI was a qualified HUBZone small business contractor eligible for award here, such discovery is clearly warranted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff and RBI were the only offerors that submitted timely offers in response to the Corps\rquote solicitation on September 10, 2009. AR 2, 475. In its offer, RBI listed the 192 Tooele address, represented that it was a qualified HUBZone small business concern, and indicated that no material change in its principal office had occurred since it was last certified as HUBZone-qualified by SBA on January 18, 2006. AR 2, 20; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': On October 14, 2009, Plaintiff filed a protest with the Contracting Officer (\CO\) alleging that RBI did not meet the requirements for SBA certification as a qualified HUBZone small business concern because RBI\rquote s principal office was not in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Proceedings in this case were delayed while the Government considered, at the Court\rquote s request, whether SBA would voluntarily reopen its examination of RBI. Def.\rquote s Status Report & Mot. Enlarg. Time 1, May 14, 2010. Although the Department of Justice relayed the Court\rquote s request to SBA, on May 28, 2010, the Government filed a status report, stating \the Small Business Administration has decided not to request a voluntary remand of this case.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': In order to be considered a qualified HUBZone small business concern, a business is required to have its \principal\ office located within a HUBZone and to have 35 percent of its employees residing in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': the applicable regulations clearly contemplate that, on occasion, a contractor that self-reports as a HUBZone [small business concern] may sometimes be disqualified by the SBA. If the disqualification occurs post contract award, however, that award will not be disturbed; the disqualified contractor would only be ineligible for future awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': In essence, the Government argues that even if SBA were to conclude that the awardee were not HUBZone-eligible, it nonetheless could perform a $65 million contract obtained under false pretenses simply due to the happenstance that SBA did not issue its determination on the protest until after award. Allowing a noncompliant entity to perform this HUBZone set-aside contract would contravene both the terms of the solicitation and the statutory mandate of the HUBZone set-aside program. Such an illegal award would run afoul of both the Small Business Reauthorization Act of 1997, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': In sum, although this Court does not lightly order discovery in a bid protest, discovery is necessary here to ascertain whether RBI accurately represented its status as a HUBZone small business contractor at the time of offer and award. Deciding this protest \upon an AR which does not reflect what actually transpired would perpetuate error\ and prevent effective judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': 6. Counsel for Defendant is ordered to serve a copy of this Opinion on the Inspector General of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': , a small business concern seeking to maintain its HUBZone status must recertify its continued eligibility to SBA every three years. The effective date of RBI\rquote s most recent recertification was January 18, 2006. AR 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': restricted to qualified HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 076 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 078 - HB Rowe Co Inc v Tippett.doc, Paragraph with 'The Rule of Two': For example, the State\rquote s Small Business Enterprise Program favors small businesses for highway construction procurement contracts of $500,000 or less. This program permits the Department to waive the institutional barriers of bonding and licensing requirements on such contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Subfactor: Small Business Participation Approach (100 Points) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': SB1\u8212Small Business Subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Participation Approach Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': On January 5, 2009, NASA appointed a re-constructed Source Evaluation Board, comprised of five voting members: a Chair, Ms. Monica Green, the Deputy of Institutional Services at Langley Research Center; the Contracting Officer (\CO\), Mr. Ron Sepesi of the Glenn Research Center; two Co\u8211Chairs from the Technical Committee, Mr. Charles Lombard, Director of the Security Management Division, and Mr. Larry Allen, the NPS Contract Program Manager from NASA Headquarters; and the Chair of the Management Committee, Mr. Lloyd Potts, Business Manager for the Protective Services Office at the Marshall Space Flight Center (collectively referred to herein as the \2009 SEB\). AR Tab 4, at 119, 126\u821139. The 2009 SEB was to be supported by: the Technical Committee, the Management Committee, and the Small Business Committee. AR Tab 4, at 119\u821121; AR Tab 86, at 24990. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': the Technical Approach, Management Approach, and Small Business Subfactors of the Mission Suitability Factor), but using the same weighted numerical scoring method as the SEB in 2008. AR Tab 6, at 174. Thereafter, the 2009 SEB was required to prepare and present findings to a new SSA (\2009 SSA\). AR Tab 6, at 174. The SEP Addendum, however, went further than the court\rquote s instructions by directing the 2009 SEB not to engage in any trade-off judgments, either as to individual offerors or evaluation factors. AR Tab 6, at 172 (\The re-constructed SEB will not make recommendations for selection to the newly appointed SSA.\) In addition, the SEP Addendum provided: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': 3) Failure to provide the required rationale for not meeting or exceeding NASA\rquote s recommended subcontracting goals for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': The 2009 SEB made no changes to the prior scores of either offeror or the adjectival ratings for the Management Approach Subfactor. AR Tab 95, at 25483. In addition, both the offerors eliminated their prior \weaknesses\ in the Small Business Participation Subfactor, with CIS and WSI receiving \very good\ and \good\ ratings respectively. AR Tab 95, at 25484\u821185. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': The 2009 SSA also discerned \no discriminators\ under the Small Business Approach Subfactor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 98, at 25571. The 2009 SEB rated CIS\rquote s Small Business Approach as \very good,\ whereas WSI\rquote s was rated \good,\ but the 2009 SSA decided this difference was \primarily due to the fact that [CIS] greatly exceeded the goals in two sub-categories of small business.\ AR Tab 98, at 25571. In addition, he weighed WSI\rquote s past performance in meeting small business goals against the \significant strengths\ that CIS received for the Small Business Approach. AR Tab 98, at 25571\u821172. Based on this comparison, the 2009 SSA concluded that: \the differences in the subfactor for Small Business were not meaningful for purposes of selection.\ AR Tab 98, at 25572. Likewise, in the Health & Safety Subfactor, the proposals were deemed \equally effective.\ AR Tab 98, at 25572. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': As for the Past Performance Factor, the 2009 SSA rated WSI as \slightly superior.\ AR Tab 98, at 25572. Although WSI and CIS received \very good\ ratings, the 2009 SSA was impressed with WSI\rquote s strengths in Past Performance for high quality service and meeting small business goals, and found that this strength provided \a meaningful difference that distinguished the Offerors with regard to Past Performance [that] favored [WSI].\ AR Tab 98, at 25572. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': at \u182 229. Third, the 2009 SSA engaged in \disparate treatment\ in failing to mention in the Source Selection Statement that CIS had a significant strength in Small Business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': The 2009 SSA also ignored CIS\rquote s \significant strength\ in Small Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': This was the only factor where the 2009 SEB gave one offeror a higher adjectival rating than the other, but the 2009 SSA stated that he \did not find any discriminators with regard [t]o the Offerors\rquote Small Business Participation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': (quoting AR Tab 98, at 25571). This admission evidences the \disparate treatment of the offerors\ by the 2009 SSA, and \undermines the importance of the small business goals set in the RFP.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': In addition, the 2009 SSA properly considered CIS\rquote s \significant strength\ in the Small Business Participation Approach Subfactor. Gov\rquote t Cross Mot. at 42. Here, CIS received a \Very Good\ rating, but WSI missed a \Very Good\ rating, by only one point. AR Tab 97, 25527. The difference was attributed to the fact that CIS greatly exceeded the goals in two sub-categories of Small Business Participation and WSI only met or exceeded all of the sub-category goals. Accordingly, the Administrative Record evidences that both proposals were fairly rated. AR Tab 98, at 25571. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Finally, the 2009 SSA did not \completely ignore\ CIS\rquote s significant strength regarding the Small Business Participation Subfactor, because no discriminators were found. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': at 40\u821141. In fact, there is only a 1% difference in the overall proposed small business goal; that is not a compelling basis for a discriminator. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': at 41. For this additional reason, the 2009 SSA did not act in an arbitrary or capricious manner in concluding there was no meaningful distinction between the proposals as to the Small Business Participation Subfactor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Finally, the Government mischaracterizes CIS\rquote s \very good\ rating for the Small Business Participation Subfactor. The margin between the two proposals was not, as the Government contends, \small.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': at 26. Likewise, WSI\rquote s focus on the 1% difference between the proposals\rquote Small Business Participation Subfactor scores, ignores the fact that the 2009 SEB found that CIS had \appreciably exceeded\ NASA\rquote s aggressive small-business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': goals, and \significantly exceeded\ two sub-category goals. AR Tab 97, at 25524. On the other hand, WSI only \moderately exceeded\ these goals. AR Tab 97, at 25556. As a result, the 2009 SSA unreasonably minimized the difference between the proposals on the Small Business Participation Subfactor, without any justification. Pl. Resp. at 27. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Finally, although CIS scored 75 to WSI\rquote s 69 in Small Business Participation, this represented only a small piece of the overall assessment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': With regard to the Small Business Participation Subfactor, both offerors proposed the same percentage of small business participation, although the distribution of small business dollars among the subcategories did not have any great significance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': Contrary to CIS\rquote s third argument, the 2009 SSA also did not \completely ignore\ CIS\rquote s significant strength in the Small Business Approach Subfactor. In fact, the 2009 SSA concurred with the 2009 SEB that CIS\rquote s proposal warranted a \significant strength.\ AR Tab 98, at 25567. The 2009 SSA, however, did not find this \significant strength\ to be a discriminator for two reasons: (1) CIS greatly exceeded the goals in two sub-categories, and (2) any advantage to CIS must be evaluated in light of WSI\rquote s demonstrated past performance in achieving Small Business goals. AR Tab 98, at 25571\u821172. Therefore, the 2009 SSA found that both proposals exceeded the Small Business Approach Subfactor by similar percentages and concluded there was little risk that either offeror would not meet or exceed the Small Business objectives. AR Tab 98, at 25571\u821172. Again, CIS also failed to demonstrate how this decision caused CIS prejudice. Even if the 2009 SSA simply accepted the 2009 SEB\rquote s findings, without identifying discriminators, the overall scoring under the Mission Suitability Factor would remain unchanged. Therefore, the 2009 SSA\rquote s tradeoff analysis still would have compared \[CIS]\rquote s lower price against [WSI]\rquote s superior proposal relative to Mission Suitability and slightly better Past Performance.\ AR Tab 98, at 25572. In addition, the 2009 SSA, however, identified and thoroughly explained the benefits of WSI\rquote s proposal that warranted paying a higher price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with 'The Rule of Two': (\Although the rationale for the selection decision must be documented, that documentation need not quantify the tradeoffs that led to the decision.\). Although the 2009 SSA valued some strengths and weaknesses more than others, that does not render his decision arbitrary and capricious. The 2009 SSA provided a sufficient and reasonable rationale for the business judgments and tradeoffs that he made in deciding that the offerors\rquote Small Business Approach was not a discriminator. No more is required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': market research conducted by the contracting officer was not inadequate and contracting officer\rquote s set-aside decision, which limited the acquisition of medical trainers to certified small businesses, was not unreasonable; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor had standing to bring bid protest; although contractor was not an \actual bidder\ because it did not have the opportunity to bid, once the agency made the decision to set aside the contract under the small business program, contractor was prevented from competing for the contract, which it would have had a \substantial chance\ of receiving but for alleged errors in the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Given the regulatory guidance and the discretion afforded agencies and contracting officers in making procurement-related determinations, market research conducted by the contracting officer was not inadequate and contracting officer\rquote s set-aside decision, which limited the acquisition of medical trainers to certified small businesses, was not unreasonable; contracting officer had a reasonable expectation that at least two eligible and responsible certified small businesses would submit offers and that award could be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Since bid protester was not a certified small business at the time of the set-aside, and was thus ineligible for either a competitive or a sole-source small business contract award, protester could not rely on any alleged violation of regulations relating to the administrative processing of competitive and sole-source small business awards to establish competitive harm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Staff members within the contracting office did not commit a Procurement Integrity Act (PIA) violation in setting aside a request for proposals (RFP) for a competitive small business procurement. Office of Federal Procurement Policy Act, \u167 27, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The agency chose not to exercise the one-year option under the contract because the total number of required contract personnel had decreased significantly. Def.\rquote s JAR Mot. 4; AR 196. Because of the change in the scope of the requirement, the agency contracting office decided to conduct market research to determine if two or more 8(a)-certified companies were capable of meeting the agency\rquote s needs. AR 196. On July 17, 2009, the agency posted a \Sources Sought\ notice on the Federal Business Opportunities website, the online point-of-entry for federal government procurement opportunities, requesting responses from certified 8(a) small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': AR 273. The Sources Sought notice stated, \The United States Army Special Operations Command (USASOC) is seeking to identify 8(a) certified small business sources capable of providing instruction in the Special Operations Forces (SOF) Medical Courses offered by [JSOMTC].\ AR 274. The Sources Sought notice further explained, \The Contractor shall teach all classes identified as contractor taught in strict accordance with the Program of Instruction (POI) and lesson plans approved by the government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': On September 28, 2009, the agency Contracting Officer e-mailed the Small Business Administration (SBA), stating that the agency \would like to offer the subject requirement to the SBA for consideration under the 8(a) program.\ AR 198. The e-mail explained that the agency had received nine responses-four of which were certified 8(a) small businesses\u8212\but only one firm, Decypher, demonstrated a capability to perform the required services and had relevant past performance.\ AR 198, 200. The Contracting Officer requested the SBA\rquote s input on whether the agency \should proceed as a competitive 8(a) or as an exception to the 8(a) ... sole source award threshold.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': the market research documentation attached to her e-mail to the SBA, the Contracting Officer also explained that she had conducted additional (to the Sources Sought notice) market research to determine if the training services could be procured as commercial items and to determine the availability of commercial sources capable of meeting the requirements. AR 199. The additional market research consisted of a search on the SBA Dynamic Small Business website, a search of the Central Contractor Registration database, and a general Internet search. AR 199\u8211200. Based on the submissions received in response to the Sources Sought notice and the determination that only Decypher had the capabilities to meet the contract requirements, the Contracting Officer indicated the agency\rquote s intent to offer the contract as a sole-source award, as an exception under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': On October 2, 2009, the SBA representative responded by e-mailing to the Contracting Officer the name of another 8(a) company, CSBS, that had expressed an interest in providing the requested services in response to the SBA representative\rquote s inquiry. AR 202\u821103. The SBA representative stated his belief that CSBS was \capable to fulfill [the agency\rquote s] requirements\ and thanked the Contracting Officer for providing him with \an opportunity to participate in [the agency\rquote s] search for sources.\ AR 202. On October 5, 2009, the Contracting Officer e-mailed the SBA representative, stating that \[t]he proposed set-aside is competitive 8(a).\ AR 205, 208\u821109. The Small Business Coordination Record, dated October 5, 2009, identifies the requirement as a competitive 8(a) set-aside with an estimated total value of approximately $8.9 million. AR 193. On October 8, 2009, the agency posted a \Presolicitation Notice,\ which advised that the competitive procurement would be restricted to 8(a) small businesses and provided the same description of the required training services as that given in the Sources Sought notice. Compl. \u182\u182 12\u821113. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': because, if ATSCC is successful in challenging the 8(a) set-aside decision, it could compete under a subsequent small business set-aside or full and open competition). ATSCC was not an \actual bidder\ because it did not have the opportunity to bid. Once the agency made the decision to set aside the contract under the 8(a) program, ATSCC was prevented from competing for the contract. ATSCC has established that it was the incumbent contractor providing the medical training services at issue and that it would have competed for the award had the agency competed the contract to small businesses or held an unrestricted procurement. Compl. \u182\u182 4, 15, 33\u821135; Pl.\rquote s PI Mot. 2\u82113, 12\u821113, 21; Pl.\rquote s JAR Mot. 29, 33. As a small business and the incumbent contractor, ATSCC has established that it had a \substantial chance\ of receiving the award but for the alleged error in the procurement process. Compl. \u182\u182 5, 15, 28, 33\u821135, 44; Pl.\rquote s PI Mot. 2\u82113, 12\u821113, 21; Pl.\rquote s JAR Mot. 33. If plaintiff\rquote s bid protest is sustained because the procurement was not in accordance with law and the government is obligated to compete the contract to small businesses or to hold an unrestricted procurement, plaintiff could compete for the contract. Plaintiff is therefore a prospective bidder. Under these circumstances, plaintiff has a \substantial chance\ of receiving the award, an economic interest, and standing to challenge the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Defendant contends that \the Government acted rationally and complied with all statutory and regulatory provisions when it decided to limit the acquisition of medical trainers to 8(a) certified small businesses.\ Def.\rquote s JAR Mot. 3. Defendant emphasizes that agencies and contracting officers are entitled to exercise discretion during the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': AR 273. The Sources Sought notice stated, \The United States Army Special Operations Command (USASOC) is seeking to identify 8(a) certified small business sources capable of providing instruction in the Special Operations Forces (SOF) Medical Courses offered by [JSOMTC].\ AR 274. The Sources Sought notice further explained, \The Contractor shall teach all classes identified as contractor taught in strict accordance with the Program of Instruction (POI) and lesson plans approved by the government.... Examples of the required support include[ ] advanced medical instructors, paramedic instructors, veterinarian, logistics, engineering (IT/AV), and personnel/administrative functions.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The Contracting Officer conducted additional market research consisting of a search on the SBA Dynamic Small Business website, a search of the Central Contractor Registration database, and a general Internet search. AR 199\u8211200. The Contracting Officer also contacted the SBA representative, who provided the name of an additional company and stated that he believed the company to be capable of fulfilling the requirement. AR 202\u821103. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Defendant asserts that the Sources Sought notice \set forth the essential elements of the planned work procurement,\ including a general description of the type of work and personnel that would be required under the RFP. Def.\rquote s JAR Mot. 18. Defendant argues that the Contracting Officer needed only a reasonable expectation that two or more eligible and responsible 8(a) companies would submit offers in response to the RFP and that the Sources Sought notice was not intended to qualify Decypher, or any other company, for the procurement. Def.\rquote s Resp. 5. Defendant contends that the market research\u8212the responses to the Sources Sought notice, the search on the SBA Dynamic Small Business website, a search of the Central Contractor Registration database, and a general Internet search\u8212along with the assistance from the SBA representative, permitted the Contracting Officer to conclude that there was a reasonable expectation of receiving Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff seeks both declaratory and injunctive relief in this case. Specifically, plaintiff requests that the court \declare the actions of the [a]gency in setting aside the RFP for a competitive 8(a) procurement to be unlawful,\ \declare the actions of the [a]gency to be in violation of the Procurement Integrity Act,\ and \order [d]efendant, through its executive agency, the Army, to conduct a proper survey of qualified 8(a) contractors, and if fewer than two are presently available, to conduct this procurement as a small business set[-]aside or an unrestricted procurement.\ Compl. 10. Plaintiff also requests that it be awarded \reasonable attorney fees and costs, and such further relief as [the court] deems fair and just.\ Compl. 11. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The 8(a) program, run by the Small Business Administration (SBA), was established through an amendment to the Small Business Act on October 24, 1978, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': ). The stated purposes of the program include \promot[ing] the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals\ and \clarify[ing] and expand[ing] the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . Assessment and Training Solutions Consulting Corporation (ATSCC or plaintiff) qualifies as a small business but is not a certified 8(a) small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 087 - Assessment and Training Solutions Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . SBA regulations permit a contract that has a value above the price threshold to be offered on a sole source basis to an 8(a) small business \owned and controlled by an Indian tribe or an ANC ... if SBA has not accepted the requirement into the 8(a) BD program as a competitive procurement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Whether the federal agency has rationally justified its procurement decision to limit competition to small businesses is protestable under the Tucker Act\rquote s category of bid protest jurisdiction for challenges to alleged violation of statute or regulation in connection with a procurement or a proposed procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . The Air Force referred the responsibility issue to the Small Business Administration (\SBA\), which issued a certificate of competency finding Magnum Medical to be responsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': the plaintiff, a small business, challenged the Air Force\rquote s decision to obtain services supporting weapons systems development through an existing contract with a large business rather than soliciting a small business set-aside follow on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The court rejected this argument because \plaintiff does not anchor jurisdiction on the allegation that the work added to the ... contract materially departed from the scope of the original procurement,\ but instead that the Air Force\rquote s justification not to use a small business set-aside was irrational, and thus a new procurement should have been conducted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': requires the agency to provide written justification for its decision to procure goods and services through less than full and open competition (that is, to limit competition to only small businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': is \part of the standard of competitiveness required before an acquisition may be set aside for small business\) (quotation omitted). In this case, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (concluding pre-award protestor possessed standing because it was \a prospective bidder if the Solicitation were issued as a SDVOSB or small business set-aside, and because plaintiff\rquote s direct economic interest has been affected by the DVA\rquote s decision to conduct the Solicitation as full and open competition/unrestricted\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In this case, however, there is neither an award nor a solicitation setting forth the terms of the competition. Magnum Opus stated at oral argument that the reason it sued without its joint venture partner was that the mentor/protege agreement between Sterling Medical and Magnum Opus had expired, and thus the joint venture could no longer be classified as a \small business\ under SBA regulations. Oral Arg. Tr. at 13\u821114. The original contract was set aside for small businesses. If it were re-competed, the contract might again be set aside for small businesses; if that were so, the joint venture would not be eligible to compete in any re-solicitation of the work. At a hearing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': however, the Deputy Director of the Air Force Medical Service Commodity Council, Joseph Mirrow, testified that he was \not necessarily convinced\ the contract should be a small business set-aside if it were subjected to re-competition. April 22, 2010 Evidentiary Hearing Transcript at 77 (\Evid. Hearing Tr.\) (docket entry 84, filed April 23, 2010). If that were the case, then Magnum Medical would be eligible to compete notwithstanding the expiration of the mentor/protege agreement. Moreover, Magnum Opus argues that it \has a long history of providing health care personnel to the Federal Government,\ Magnum Opus\rquote s Supplemental Brief Regarding Standing at 2 (\Magnum Opus\rquote s Supp. Standing Br.\) (docket entry 59, March 29, 2010), and that because Magnum Opus is in the business of staffing medical service providers, it is a qualified competitor. Oral Arg. Tr. at 13. Magnum Opus\rquote s position is that it has \the requisite experience to bid on this type of work.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . If the SBA already found the protestor to be \other than small,\ the protestor lacks standing if any small business has submitted a proposal, because the protestor has no chance of receiving a contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Set\u8211Asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs also suggest that the Air Force might fulfill some of its need for health care services through the use of section 8(a) Small Business set-asides. Evid. Hearing Tr. at 19\u821120. But, as Mr. Mirrow correctly testified, an 8(a) set-aside \is not a [contracting] vehicle.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': at 20. A section 8(a) Small Business set-aside permits the agency to limit competition for certain acquisitions to businesses designated as minority-owned small businesses pursuant to \u167 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': FAR subpart 19.8. Using an 8(a) or any other type of small business set-aside would not relieve the Air Force of its obligation to perform the acquisition planning and market research required by the FAR. The availability of small business set-asides thus does little to lessen the hardship to the Air Force from an immediate injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Evid. Hearing Tr. at 67. Magnum Opus challenges Mr. Mirrow\rquote s assessment on the ground that it was based upon his review of CSAs prior to the adoption of the ID/IQ contracts, but fails to identify any reason that his conclusion should have changed since that time. Magnum\rquote s Second Supp. Br. at 13. Mr. Mirrow also explained that using the CSAs would detract from the Air Force\rquote s ability to meet its small business goals, because the TRICARE contractors are not small businesses. Evid. Hearing Tr. at 67. Using CSAs would potentially reduce the Air Force\rquote s ability to hold contractors responsible for their performance, because TRICARE contractors report directly to the TRICARE Management Activity, not the Air Force. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , entitled \Total small business set-asides\ reserves, with exceptions, certain acquisitions for small businesses if the agency finds that \(1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ...; and (2) award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . This section therefore permits (and requires) the agency to limit competition to small businesses under specific circumstances. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Whether the agency has rationally justified its decision to limit competition to small businesses is protestable under the third category of the court\rquote s bid protest jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder, as small business concern, filed post-award bid protest challenging decision of Army Communications-Electronics Life Cycle Management Command (CECOM) to exclude bidder from competitive range for award of indefinite delivery/indefinite quantity (IDIQ) contracts, under which awardees would have opportunity to compete for future task orders involving equipment and services. Parties cross-moved for judgment on administrative record, and bidder moved for permanent injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder for contracts awarded by Army Communications-Electronics Life Cycle Management Command (CECOM) to provide range of equipment and services was \interested party,\ within meaning of jurisdictional statute governing bid protests, as required for bidder\rquote s standing to challenge CECOM\rquote s award of contracts, since bidder would have had substantial chance of receiving contract award as small business concern, as bidder would have been eligible for competitive range absent alleged procurement error in evaluating bidder\rquote s sample task response that resulted in bidder\rquote s unacceptable rating in technical factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Decision of Army Communications-Electronics Life Cycle Management Command (CECOM) to exclude bidder, as small business concern, from competitive range for award of contracts to provide equipment and services had rational basis, since evaluators followed rating definitions from source selection evaluation plan (SSEP) in finding that bidder\rquote s sample task response was unacceptable for failing to meet requirement that second training class be presented by bidder in particular time frame and that correction would require major rewrite or revision, and provided reason relating to proposal and solicitation in finding that bidder\rquote s proposal was deficient due to shifting responsibility for presenting second training class to government personnel trained in first class rather than bidder filling duty and failing to schedule second training class. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': AR at 1. It contemplated awards of up to ten contracts, with four reserved for small businesses whose proposals were found acceptable\u8212including one disadvantaged business under section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': , and another that is a Service Disabled Veteran Owned Small Business (\SDVOSB\) concern. AR at 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': The offerors were directed to submit proposals consisting of five volumes. AR at 106. The first volume was for technical files, and was to contain the offerors\rquote responses to three sample tasks\u8212including narratives of up to twenty pages in length, and schedules. AR at 107, 109. The second volume was a listing of relevant government contracts, with information organized into seven sections, for purposes of performance risk analysis. AR at 106\u821111. The third volume was the Small Business Participation Plan (\SBPP\), with information pertaining to seven specific elements. AR at 106, 108, 112\u821116. Volume IV was to contain price information, spreadsheets Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Step three concerned the small business reservations. Only small businesses in the competitive range were further considered. If any small business offerors remained in the competitive range, reserve awards would be made to them in the following sequence: first, to the SDVOSB offeror with the best overall proposal; second, to the section 8(a) offeror with the best overall proposal; third, to the two offerors remaining in any small business category with the best overall proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Small business offerors that qualified in more than one small business category would be considered for an award in each such category, if not already selected for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': contract to a small business offeror in any category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Five of the businesses awarded R2\u82113G contracts were large businesses: Raytheon Company, Lockheed Martin Integrated Systems Inc., Booz Allen Hamilton, Computer Sciences Corporation, and General Dynamics Global Force, LLC (offerors B, R, S, J and X, respectively). AR at 11172, 11214, 11252, 11302. Under the third step of the process, two small businesses (offerors A and AA) were awarded R2\u82113G contracts: Adams Communications & Engineering Technology, Inc. (\ACET\) and R4, Inc. (\R4\). AR at 11172, 11215, 11252, 11302. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': AR at 11199\u821111201. One of the latter group, offeror AA, was, like USfalcon, a Service Disabled Veteran Owned Small Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': Since the Solicitation reserved up to four contract awards for small businesses with acceptable proposals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': AR at 3\u82114, 118, and only two small businesses were included in the competitive range (and thus received awards), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': at 11172, 11201, 11252, inclusion in the competitive range would almost certainly have resulted in a contract award to USfalcon, as a small business concern. A substantial chance of receiving a contract award has thus been established. Moreover, as a result of other bid protests, this post-award protest is in an unusual posture\u8212as a corrective action has terminated the seven awarded contracts, and all eighteen offerors whose proposals were deemed technically acceptable are now being considered for up to eighteen contract awards, under Amendment 0012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': competitive range includes four small businesses (offerors A, C, Z and AA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': AR 11172, 11199\u8211201, competing for four contracts reserved for small businesses, and for fourteen contracts for businesses of any size. Ex. 1 to Pl.\rquote s Mot. to Supp. (Docket No. 37) at 9, 12. Compared to the six offerors in the revised competitive range with \Acceptable\ ratings for the Technical Factor (C, G, T, Y, Z and AA), USfalcon has the same Performance Risk rating as each of them, a better SBPP rating than five of them, and a lower price than four of them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'The Rule of Two': AR at 7027, and was given a rating of \Acceptable\ for the SBPP Factor. AR at 11129, 11166, 11173, 11195. USfalcon\rquote s proposed price of $9,806,649,558 was the second lowest among the ten small business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 095 - Benefits Consulting Associates LLC v US.doc, Paragraph with 'The Rule of Two': (Small Business Subcontracting Plan). AR at 76\u821177. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Remand was required for further agency explanation as to whether source selection authority (SSA) performed legally sufficient trade-off analysis or usurped authority of contracting officer and Small Business Administration (SBA) by making de facto non-responsibility determination rather than proper trade-off analysis, in awarding contract with National Aeronautics and Space Administration (NASA) to provide cargo transportation to and from International Space Station (ISS) to bidder with technically superior but significantly higher-priced proposal, where SSA recognized that unsuccessful bidder had lower overall price than awardee\rquote s proposal, but did not discuss magnitude of price difference between competing proposals, and indicated that no \typical\ trade-off analysis was conducted. Small Business Act, \u167 2[8](b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Where responsibility-type concerns preclude a comparative or trade-off analysis in evaluating proposals for a federal government contract, a de facto non-responsibility determination has been made and, in the case of a small business, referral to the Small Business Administration (SBA) is required. Small Business Act, \u167 2[8](b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims is without jurisdiction to make an initial size determination regarding a self-certified small business offeror for a federal government contract. Small Business Act, \u167 2[8](b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': proposals were to be evaluated on the basis of two evaluation factors: (1) mission suitability and (2) price. AR 2089. The mission suitability evaluation factor was more important than price and included three subfactors: (a) technical approach (550 points), (b) management plan (400 points), and (c) small business utilization (50 points). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Orbital, and Space\u8211X were the only contractors to submit initial proposals in response to the RFP. AR Tabs 68\u821180. Of the three, only plaintiff represented that it was a small business. AR 10303. Plaintiff was also the only offeror to propose a teaming arrangement, which consisted of itself, Lockheed Martin, Boeing, and Alliant Techsystems, Inc. AR 10235\u821140, 10455. Under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Utilization Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': If the SSA selects a small business as the presumptive contract-awardee, then special rules and considerations apply. \Congress passed the Small Business Act of 1953, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': ). To those ends, the Small Business Act assigns the United States Small Business Administration (\SBA\) ultimate authority to decide whether a small business is responsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': . Accordingly, if a contracting officer determines that a small business\rquote otherwise acceptable offer is to be rejected due to a finding of non-responsibility, then \the contracting officer shall refer the matter to the [SBA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Should the SBA issue the Certificate of Competency, the small business is conclusively deemed responsible for the purposes of the procurement in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': non-responsibility determination has been made and, in the case of a small business, referral to the SBA is required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': (\Where ... a finding that a small business offeror\rquote s proposal is unacceptable under a responsibility-type criterion precludes such a comparative or tradeoff analysis, it is tantamount to a nonresponsibility determination.\). As such, the key inquiry for the court in this case is whether responsibility concerns so permeated the SSA\rquote s decision that it cannot be said that the SSA performed a proper trade-off analysis at all. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Defendant-intervenor Space\u8211X argues that plaintiff is not entitled to relief under count (1) because plaintiff is not a small business under the SBA\rquote s \ostensible subcontractor\ rule, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Space\u8211X Resp. 24\u821129. However, this court is without jurisdiction to make an initial size determination regarding a self-certified small business offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 098 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': (\Plaintiff\rquote s argument that Torres is not a small business lacks merit because neither the contracting officer nor the SBA has determined that Torres is not a small business, and this court lacks authority to entertain a size protest.\ (citation omitted)); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'The Rule of Two': The award was to be made to the offeror whose proposal was determined to be most beneficial to the government, with appropriate consideration given to four evaluation factors, listed in descending order of importance: Managed Services Solution, Performance Risk, Price and Small Business Participation. The RFP indicated that, when combined, the non-price factors\u8212Managed Services Solution, Performance Risk and Small Business Participation\u8212were significantly more important than Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'The Rule of Two': The Managed Service Solution factor contained four sub-factors, listed in descending order of importance: Technical Approach, Management Plan, Key Personnel, and Sample Task Response. The Performance Risk factor contained two sub-factors, in descending order of importance: Past Performance and Corporate Experience and Capabilities. The Price and Small Business Participation factors did not have sub-factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful offeror filed bid protest action alleging that United States, acting through Defense Intelligence Agency (DIA), acted arbitrarily and capriciously in excluding offeror, as qualified small business teaming with six other small businesses, from competitive range determination (CRD) for indefinite delivery/indefinite quantity (IDIQ) contract to provide information technology (IT) services and capabilities to intelligence community. Parties cross-moved for judgment on administrative record regarding offeror\rquote s request for permanent injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': The agency will award to about four large businesses and four small businesses an indefinite delivery/indefinite quantity (\IDIQ\) contract. Administrative Record (\AR\) 1286. The proposals for the large and small businesses are reviewed separately. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': On October 7, 2009, the Source Selection Authority (\SSA\), based on the rankings and recommendations compiled by the Source Selection Advisory Council (\SSAC\), submitted a CRD consisting of six small and six large businesses. He explained his decision regarding the small businesses as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': The SSA decision to select 6 proposals and to exclude [ ....] and all other Small Business proposals from the competitive range with a rating of red (unacceptable) in the most important evaluation factor, Technical Management, is because even when considering any with more favorable cost, no better cost scores could overcome these lower acceptable Tech/Mgt score and thus the overall value to the Government was lower and at a natural break for all proposals outside of the top 6 proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': Hyperion, a qualified small business teaming with six other small businesses for its proposal, was not one of the six selected. Hyperion received a debriefing from the DIA on October 26, 2009, in which it learned that its proposal was given, inter alia, an \Unacceptable (Red)\ rating in the Technical/Management Factor and an \Acceptable (Green)\ rating in the Past Performance factor. Hyperion\rquote s overall proposal ranked [ ] out of the eighteen small business offerors. Hyperion filed this protest on November 6, 2009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 004 - Hyperion Inc v US.doc, Paragraph with 'The Rule of Two': Finally, Hyperion takes issue with its weakness in Acquisition and Property Management Services. The evaluation team assessed that rating because Hyperion \did not demonstrate adequate acquisition and property management services experience\ and \failed to demonstrate acquisition and property management services experience in relation to its proposed team.\ AR 12689. Hyperion argues that the Solicitation does not require it to demonstrate experience in relation to its team. Hyperion joined with other small businesses precisely because it did not have its own expertise in certain areas within the SOO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': agency\rquote s release of \draft statement of work\ to bidders violated Small Business Administration (SBA) regulation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor did not waive its right to challenge award of contract to perform internet and intranet services for federal agency by failing to file bid protest until after award, even though it was ambiguous as to whether contract was to be awarded on competitive or sole-source basis, where contractor argued that what agency did in its subsequent actions to determine awardee contravened Small Business Administration\rquote s (SBA) regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Federal agency\rquote s release of \draft statement of work\ to bidders in connection with market research process for contract to perform internet and intranet services constituted \statement of work,\ rather than synopsis of procurement requirement, in contravention of Small Business Administration (SBA) regulation allowing informal assessments of participants\rquote capabilities to perform specific requirement, rather than formal competition, \so long as the statement of work for the requirement is not released to any of the Participants being assessed,\ and thus contract award had to be set aside, where \draft statement of work\ did not differ in any material respect from work statement included in contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': This is a post-award protest of a contract to perform internet and intranet services for the Department of Housing and Urban Development (\HUD\), Office of Public and Indian Housing (\PIH\), issued pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Act Requirements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': The Small Business Act was enacted to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals\ and to \clarify and expand the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Section 8(a) authorizes the Small Business Administration (\SBA\) to enter into procurement contracts with other federal agencies and to subcontract performance of these contracts to disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': . The \offering letter\ must contain certain information, notably: (1) \[a] statement that prior to the offering no solicitation for the specific acquisition has been issued as a small business set-aside, or as a small disadvantaged business set-aside ..., and that no other public communication (such as a notice in the Commerce Business Daily) has been made showing the procuring activity\rquote s clear intent to use any of these means of procurement\; and (2) an \[i]dentification of all Participants which have expressed an interest in being considered for the acquisition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': , including where \[t]he procuring activity ... expressed publicly a clear intent to reserve the procurement as a small business or small disadvantaged business (SDB) set-aside prior to offering the requirement to SBA for an award as an 8(a) contract,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Effective January 30, 2007, SBA entered into a Partnership Agreement with HUD that provided for delegation of SBA\rquote s authority to enter into prime contracts under Section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': AR Supp. 16\u8211000562 (E-mail from Ideogenics to Ms. Adams (May 27, 2009)) (\I understand that this is going to be an 8a direct award, correct?\). However, Infiniti\rquote s protest is not based on this aspect of the notices; rather, Infiniti argues that what HUD did in its subsequent actions to determine the awardee contravened SBA\rquote s regulations. Infiniti had no reason to question HUD\rquote s notices because it qualified under Section 8(a) and was a SDVO Small Business. Accordingly, Infiniti did not waive its right to mount a challenge based upon SBA\rquote s regulations to an award made under Section 8(a) to a non-SDVO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Section 8(a) authorizes the creation of a Minority Small Business and Capital Ownership Development program (\8(a) BD\ program). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': To be eligible for admission to the 8(a) BD program, a business concern must be \a small business which is unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character and citizens of the United States, and which demonstrates potential for success.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'The Rule of Two': AR 9D\u8211000358 (Partnership Agreement, \u182 IV.B.2); Hr\rquote g Tr. 58:8\u821121. This responsibility includes the obligation of the contracting officer to \consider setting aside the requirement for HUBZone, 8(a) or SDVO SBC participation before considering to set aside the requirement as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 010 - Metropolitan Van and Storage Inc v US.doc, Paragraph with 'The Rule of Two': after a contract award, the United States Department of Housing and Urban Development decided voluntarily to implement corrective action. The corrective action taken by the government, however, did not include one of the disappointed bidders in the small business tiers, despite a determination by the Small Business Administration that the disappointed bidder was, in fact, a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Incumbent set-aside contractor, providing Department of Army with information technology (IT) support services, as participant in Small Business Administration\rquote s (SBA) business development program, under Small Business Act, filed protest of Army\rquote s proposed sole-source award of follow-on contract to Alaska Native corporation participating in business development program, after increasing value of contract in excess of competitive threshold, without affording incumbent contractor opportunity to compete as qualified historically underutilized business zone (HUBZone) small business, under Small Business Reauthorization Act. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Although incumbent contractor was not \actual bidder\ for follow-on contract to provide information technology (IT) services to Department of Army, as Army\rquote s interpretation of procurement statute prevented contractor from competing for sole-source contract award to Alaska Native participant in Small Business Administration\rquote s (SBA) business development program, incumbent contractor had economic interest based on substantial chance of receiving award but for Army\rquote s allegedly erroneous interpretation of procurement statute, as required for standing to bring bid protest, where incumbent contractor was both participant in business development program and qualified historically underutilized business zone (HUBZone) small business pursuant to HUBZone statute, under which Army would be obligated to compete contract upon successful bid protest. Small Business Act, \u167 2[8](a), (a)(1)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Historically underutilized business zone (HUBZone) program had priority over business development program and over service-disabled veteran-owned (SDVO) business concern program, under Small Business Act provision governing HUBZone small businesses, mandating that, \notwithstanding any other provision of law,\ contract opportunity \shall be awarded\ on basis of competition restricted to qualified HUBZone small business concerns upon satisfying \rule of two,\ providing for competition among qualified HUBZone small businesses where reasonable expectation was that not less than two such qualified businesses would submit offers and award could be made at fair market price, since plain meaning of \notwithstanding\ phrase included other provisions in Small Business Act that governed business development program and SDVO businesses, and HUBZone mandatory statutory language contrasted with discretionary statutory language for business development program and SDVO businesses. Small Business Act, \u167\u167 2[8](a)(1)(A), (a)(1)(D)(I), 2[31](b)(2)(B), 2[36](b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Department of Army\rquote s award to Alaska Native corporation, as participant in business development program, of follow-on sole-source contract to provide information technology (IT) services, without first complying with rule of two by determining whether there was reasonable expectation that no less than two qualified historically underutilized business zone (HUBZone) small business concerns would submit offers and that award could be made at fair market price, failed to comply with plain meaning of HUBZone provision that had priority over provision governing business development program, under Small Business Act. Small Business Act, \u167\u167 2[8](a)(1)(A), 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor would suffer irreparable harm in absence of permanent injunction against Department of Army\rquote s unlawful sole-source award to Alaska Native corporation, as participant in business development program, of follow-on contract to provide information technology (IT) services, without complying with historically underutilized business zone (HUBZone) small business concerns provision that had priority over provision governing business development program, under Small Business Act, since incumbent contractor was not given opportunity to compete for contract that it had reasonable chance of being awarded as HUBZone small business, and would not be entitled to compete for any analogous contract. Small Business Act, \u167\u167 2[8](a)(1)(A), 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored permanent injunction against Department of Army\rquote s unlawful sole-source award to Alaska Native corporation, as participant in business development program, of follow-on contract to provide information technology (IT) services, without complying with historically underutilized business zone (HUBZone) small business concerns provision that had priority over provision governing business development program, under Small Business Act, since incumbent contractor was irreparably harmed by inability to compete for contract as HUBZone small business, but government\rquote s alleged harm from continued understaffing and delayed release of software applications was not hardship appropriate for bid protest. Small Business Act, \u167\u167 2[8](a)(1)(A), 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Public interest in ensuring that government procurement contracts were awarded in accordance with law supported grant of permanent injunction against Department of Army\rquote s unlawful sole-source award to Alaska Native corporation, as participant in business development program, of follow-on contract to provide information technology (IT) services, without complying with historically underutilized business zone (HUBZone) small business concerns provision that had priority over provision governing business development program, under Small Business Act. Small Business Act, \u167\u167 2[8](a)(1)(A), 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Plaintiff Mission Critical Solutions (MCS), an entity which is both an 8(a) program participant and a qualified Historically Underutilized Business Zone (HUBZone) small business, is the incumbent contractor providing Information Technology (IT) support services for the Office of the Judge Advocate General, United States Department of the Army (Army)-the requirement at issue in this case. Pl.\rquote s Mot. 1, 2; AR 83. Prior to January 2008, a large business, IBM, had provided the IT support services. AR 83. In December 2007 the Army requested an acceptance letter from the Small Business Administration (SBA) approving the nomination of MCS as the service provider. AR 85. The Army had determined that the requirement for IT support services was appropriate for set-aside under the SBA\rquote s 8(a) program and, with the SBA\rquote s concurrence, intended to issue a sole-source contract to MCS. AR 85\u821186. The SBA accepted the requirement into the 8(a) program and authorized the Army to negotiate directly with MCS. AR 87. The Army awarded the one-year contract, Contract No. W91WAW\u821108\u8211C\u82110035, for just under $3.5 million to MCS on January 31, 2008. Compl. \u182 8; AR 83. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': As both an 8(a) program participant and a qualified HUBZone small business, MCS argued that the Army should have competed the requirement among HUBZone small businesses under the HUBZone statute. AR 1\u82113, 26\u821128. At GAO\rquote s request, the SBA responded to the issue raised in the protest. AR 209. The Army filed two motions to dismiss the protest, both of which GAO denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': SBA\rquote s 8(a) program was established through an amendment to the Small Business Act on October 24, 1978, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Its stated purposes include \promoti[ng] the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals\ and \clarify [ing] and expand[ing] the program for the procurement by the United States of articles, supplies, services, materials, and construction work from small business concerns owned by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . According to the statute, \[t]he [g]overnment-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': It shall be the duty of the [Small Business] Administration and it is hereby empowered, whenever it determines such action is necessary or appropriate\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (B) to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns....; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (C) to make an award to a small business concern owned and controlled by socially and economically disadvantaged individuals.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The HUBZone program was established by the Small Business Reauthorization Act of 1997, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . The program provides federal contracting assistance to qualified small business concerns operating in HUBZones through contracts awarded on a sole-source basis, contracts awarded on the basis of competition restricted to qualified HUBZone small business concerns, and a ten-percent bid adjustment for contracts awarded through full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . The statute provides that a \Government[-]wide goal for participation by qualified HUBZone small business concerns shall be established at ... not less than 3 percent of the total value of all prime contract awards for fiscal year 2003 and each fiscal year thereafter.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The HUBZone statute establishes the HUBZone program within the SBA: \There is established within the [Small Business] Administration a program to be carried out by the Administrator to provide for Federal contracting assistance to qualified HUBZone small business concerns in accordance with this section.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , \a contracting officer may award sole source contracts under this section to any qualified HUBZone small business concern\ if certain criteria are met, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , \a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns\ if certain criteria are met, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , \the Administrator [of the SBA] may notify the contracting officer of the intent to appeal the contracting officer\rquote s decision, and ... may file a written request for reconsideration of the contracting officer\rquote s decision with the Secretary of the department or agency head\ should the contracting officer decide \not to award a contract opportunity under this section to a qualified HUBZone small business concern,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (\[I]f the record discloses that the lower court was without jurisdiction [the appellate] court will notice the defect, although the parties make no contention concerning it.\)). MCS was not an \actual bidder\ because it did not have the opportunity to bid. The Army issued a sole-source award based on an interpretation of the law that prevented MCS from competing for the contract. MCS has established that it was the incumbent contractor providing the IT support services at issue and that it would have competed for the award had the contract been competed under the HUBZone statute. Compl. \u182\u182 5, 33\u821134. As an 8(a) program participant, a qualified HUBZone small business, and the incumbent contractor, MCS has established that it had a \substantial chance\ of receiving the award but for the alleged error in the procurement process. Compl. \u182\u182 15, 33\u821134. If plaintiff\rquote s bid protest is sustained because the procurement was not in accordance with law, the government would be obligated to compete the contract under the HUBZone statute, and plaintiff could compete for the contract. Under these circumstances, plaintiff has a \substantial chance\ of receiving the award, an economic interest, and standing to challenge the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The parties and the court are in accord that this case turns on questions of statutory interpretation, in particular whether statutory language provides for the prioritization of the HUBZone program over the 8(a) program or provides for parity between the programs. This statutory interpretation requires an examination of the language of the Small Business Act, in particular the HUBZone and 8(a) statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': B. Interpretation of Relevant Provisions of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': 1. The Purpose of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Because the Small Business Act contains the statutory provisions establishing the HUBZone and 8(a) programs, the court examines the statements of purpose provided by the Small Business Act. Congress set out the policy and goals behind the Small Business Act in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , Congress lists the several types of small business concerns to which the Small Business Act is intended to afford \opportunity.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': and small business concerns owned and controlled by women, shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , Congress set out government-wide participation goals for small business concerns generally and for certain small business concerns in procurement contracts: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The Government-wide goal for participation by small business concerns shall be established at not less than 23 percent of the total value of all prime contract awards for each fiscal year.... The Government [-] wide goal for participation by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': qualified HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': small business concerns owned and controlled by socially and economically disadvantaged individuals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Plaintiff and defendant agree that Congress did not prioritize one small business program over another under either Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': \treats the programs as co-equal,\ the SBA\rquote s regulations providing for parity between the HUBZone and 8(a) programs are permissible. Def.\rquote s Resp. 16\u821117. Plaintiff argues that the Department of Justice \erroneously interprets the fact that Congress chose to not distinguish between the different small business procurement programs [in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Reply 8. Plaintiff asserts that \if Congress did not intend to differentiate between the different small business procurement programs, it would have ensured each program contained identical, or at least similar, statutory language implementing the terms of each program....\ Pl.\rquote s Mot. 13; Pl.\rquote s Reply 8. The court agrees that Congress\rquote s statements of policy and goals do not appear to distinguish between the programs or prioritize one over the other. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (B) a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Plaintiff argues that the meaning of the phrase \notwithstanding any other provision of law\ is plain on its face and \shows that [the statute] was clearly written to supersede other small business contracting rules.\ Pl.\rquote s Mot. 9; Pl.\rquote s Reply 7. Defendant, apparently conceding that the plain meaning of the phrase supports plaintiff\rquote s interpretation, argues that the phrase \notwithstanding any other provision of law\ is not always to be construed literally, Def.\rquote s Resp. 23 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Defendant argues that the SBA has reasonably interpreted the phrase to refer to provisions outside of the Small Business Act, for example, the otherwise applicable requirement that government contracts are awarded on the basis of \full and open competition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). According to defendant\rquote s argument and the SBA\rquote s interpretation, \notwithstanding any other provision of law\ does not refer to provisions found within the Small Business Act, such as those included in the statutory section implementing the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Here, the court examines the language of other sections of the Small Business Act for evidence of Congress\rquote s intent and finds no language that suggests that Congress meant to exclude other unenumerated provisions of the Small Business Act from the application of the phrase \notwithstanding any other provision of law.\ There is, however, a provision in the HUBZone statute Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . Defendant argues that this provision indicates that Congress expressly stated when it was prioritizing a particular noncompetitive provision or program under the Small Business Act. Def.\rquote s Resp. 22. Defendant argues: \[A]lthough this provision clearly establishes the priority of these other contracting preferences, the HUBZone statute does not expressly provide that the HUBZone program be given priority over SBA\rquote s other contract assistance programs. Accordingly, Congress did not clearly intend for the HUBZone program to have such priority.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The \omission\ defendant argues as evidence of lack of clear intent also supports a contrary position, however. Congress could have expressly stated that the phrase \notwithstanding any other provision of law\ refers to provisions outside of the Small Business Act, or that other sections of the Small Business Act are excluded from application of the phrase, if that is, as defendant argues, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': There is no language within the HUBZone statute, or elsewhere in the Small Business Act, that creates a special category of laws that are not applicable to agency actions taken under the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': all federal environmental and natural resource laws] )\ (quoting Rescissions Act \u167 2001(f)(4))). In other words, no other statutory language within the Small Business Act compels the conclusion that Congress intended the phrase \notwithstanding any other provision of law\ to have a more limited meaning than its plain language indicates. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Here, the court is examining two sections within the Small Business Act. Neither party in this case has argued that these two sections are in irreconcilable conflict with one another such that one has been implicitly repealed. Nor does the HUBZone statute reference \other applicable\ state or federal laws. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': In this case, the Small Business Act does not contain two such conflicting provisions as were found within the TRIA in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . The mandatory HUBZone statute has not preempted the 8(a) program, thereby rendering its statutory provisions meaningless. Nor does the HUBZone statute suggest that there is a category of laws that Congress intended to exclude from the application of the phrase \notwithstanding any other provision of law.\ In contradistinction, there is no other statutory language within the Small Business Act that compels the conclusion that Congress intended the phrase \notwithstanding any other provision of law\ to have a more limited meaning than its plain language indicates. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': not begin to run on an Indian tribe\rquote s claims until the claimant has been provided with an accounting). \Any other provision of law\ therefore encompasses provisions found within the Small Business Act, including the provisions implementing the 8(a) program. The operative language of the statute combines the phrases \[n]otwithstanding any other provision of law\ and the directive that the \contract opportunity shall be awarded\ on the basis of competition among qualified HUBZone small business concerns whenever the specified criteria, or \rule of two,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (concluding that the operative language of the statute at issue was \the combination of the phrases \u8216[n]otwithstanding any other provision of law\u8217 and the directive that the statute of limitations \u8216shall not commence to run\u8217 on any claim until an accounting is provided\). The combination of these two phrases supports the conclusion that the statutory language is mandatory and that the plain meaning of the HUBZone statute requires a contract opportunity to be competed among qualified HUBZone small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': concerns whenever the specified criteria are met, notwithstanding other provisions of law-including those found within the Small Business Act itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ] on the basis of competition restricted to qualified HUBZone small business concerns\ if the rule of two is met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Plaintiff argues that \this language is clear on its face that the \u8216shall\u8217 mandates a set-aside for HUBZone small business concerns when the conditions of the HUBZone statute are met.\ Pl.\rquote s Mot. 8. In support of its argument, plaintiff refers to the similar interpretation reached by the GAO in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant argues that the single word \shall\ in one portion of a section of the Small Business Act is not sufficient to establish legislative intent that a statutory provision be mandatory. Def.\rquote s Resp. 19. Defendant cites a Federal Circuit decision noting that \Congress\rquote s use of the two terms \u8216may\u8217 and \u8216shall\u8217 does not end the analysis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Defendant further argues that, even if the use of the word \shall\ does create a priority for HUBZone competition when the rule of two is met, that priority is over HUBZone sole-source awards rather than over 8(a) concerns, which are governed under a separate section of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': sole source contracts under this section to any qualified HUBZone small business concern\ if certain criteria are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The court interprets the language of the HUBZone competition provision\u8212\shall be awarded\\u8212to be mandatory, such that a contract opportunity must be set aside for competition among qualified HUBZone small business concerns whenever the rule of two is met. The court agrees that the \shall\ of the competition provision contrasts with the \may\ of the sole-source provision but does not conclude that the mandatory nature of the HUBZone competition provision is bounded by this relationship. The court concludes that the HUBZone competition provision is properly interpreted as mandatory in relationship to both the sole-source provision and the 8(a) program provisions, and that this interpretation is further supported by the differences in the statutory language providing authority for contract decisionmaking and program administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (emphasis added). The Small Business Administration is then empowered \to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns ... as may be necessary to enable the Administration to perform such contracts\ and \to make an award to a small business concern owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The HUBZone statute does not afford the SBA a similar opportunity for discretion. The statute entrusts the SBA Administrator with carrying out the program, but specifies that it is to be done in accordance with the HUBZone statute: \There is established within the [Small Business] Administration a program to be carried out by the Administrator to provide for Federal contracting assistance to qualified HUBZone small business concerns in accordance with this section.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Plaintiff contends that defendant\rquote s interpretation leads to a \confusing and circular result.\ Pl.\rquote s Mot. 12. According to plaintiff, if one reads \pursuant to this section\ in the manner defendant suggests, \it is as if the HUBZone statute states if the requirements of the statute are met, then the contract award may be set aside for HUBZone small business concerns, in which case, the contracting officer must award to a HUBZone small business concern only if the requirements of the statute are met.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The court has examined the language of the Small Business Act, in particular the HUBZone and 8(a) statutes, to determine whether the statutory language provides for the prioritization of the HUBZone program over the 8(a) program or provides for parity between the programs. The court agrees with both parties in this case that Congress\rquote s statements of policy and goals do not appear to distinguish between the programs or prioritize one over the other. However, the statutory language implementing the HUBZone and 8(a) programs indicate that the HUBZone program takes priority over the 8(a) program whenever the specified criteria found in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': are met. The court has concluded that the phrase \[n]otwithstanding any other provision of law\ encompasses provisions found within the Small Business Act, including the provisions implementing the 8(a) program. The operative language of the HUBZone statute combines the phrases \[n]otwithstanding any other provision of law\ and the directive that the \contract opportunity shall be awarded\ on the basis of competition among qualified HUBZone small business concerns whenever the specified criteria are met. The combination of these two phrases supports the conclusion that the statutory language is mandatory and that the plain meaning of the HUBZone statute requires a contract opportunity to be competed among qualified HUBZone small business concerns whenever the specified criteria are met, notwithstanding other provisions of law\u8212including those found within the Small Business Act itself. The court has concluded that the HUBZone competition provision is properly interpreted as mandatory in relationship to both the sole-source provision and the 8(a) program provisions, and that this interpretation is further supported by the differences in the statutory language providing authority for contract decisionmaking and program administration. Unlike the 8(a) statute and the sole-source provision of the HUBZone statute, the HUBZone competition provision does not afford the contracting officer discretion to decide whether or not to award a contract in accordance with its terms. Instead, the HUBZone statute provides that \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the statutory language of the Small Business Act, and the HUBZone statute in particular, is clear and that therefore the court need not look to legislative history. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mot. 13\u821114; Pl.\rquote s Reply 8\u82119. Plaintiff acknowledges that the legislative branch is appropriately charged with determining the relative priority of the small business programs and may change the statutory language at any time. Pl.\rquote s Mot. 13\u821114; Pl.\rquote s Reply 10. Plaintiff argues that until such time as Congress acts, \the mandatory language contained in the HUBZone statute clearly trumps the discretionary language of the 8(a) and SDVO statutes.\ Pl.\rquote s Mot. 14; Pl.\rquote s Reply 10. Defendant argues that \the \u8216normal understanding of [a statute\rquote s] bare language is not conclusive,\u8217 and can be \u8216overcome by a persuasive showing from the purpose or history of the legislation.\u8217 \ Def.\rquote s Resp. 24 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant argues that the purpose and legislative history of the Small Business Act indicate that \Congress did not intend for the HUBZone program to have priority over the 8(a) program.\ Def.\rquote s Resp. 24, 26. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': that the purpose of the Small Business Act, its legislative history, and congressional acquiescence all support the position that the SBA\rquote s regulations providing for parity between the HUBZone and 8(a) programs represent a reasonable interpretation of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': embody the purpose of the Small Business Act. Def.\rquote s Resp. 25\u821126. Defendant does not point to extrinsic evidence of the statute\rquote s purpose. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Nor is the court persuaded to ignore the plain meaning of the statutory language by the legislative history that defendant cites. The HUBZone statute was introduced as part of the Senate version of the Small Business Reauthorization Act. Def.\rquote s Resp. 26 (citing Small Business Reauthorization Act of 1997, S. 1139, 105th Cong., tit. vi (as reported by S. Comm. on Small Bus., Aug. 19, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (\Both of plaintiff\rquote s legal theories are based on legislative history which is limited solely to the Senate. While plaintiff speaks repeatedly of the intent of Congress, it has at most offered evidence of the intent of the Senate.\). It is not evident that the House members\rquote generalized concern about the impact of the HUBZone program on the 8(a) program requires that the two programs have parity. Contracts may still be placed in the 8(a) program whenever the specified criteria in the HUBZone statute are not met. As plaintiff notes, the 8(a) and HUBZone programs are not mutually exclusive\u8212small business concerns that qualify under one of the other programs can also qualify under the HUBZone program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant also argues that \Congress has acquiesced to the SBA\rquote s parity regulations, and has affirmatively adopted the OLC legal opinion.\ Def.\rquote s Resp. 29. Congress might well be aware of the SBA\rquote s regulations, but it is also aware of the statutory language it used in the Small Business Act and of the canons of construction used in interpreting statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': confirms that Congress supports the SBA\rquote s current regulations and does not agree with the interpretation of the [Small Business] Act offered by MCS in this case.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The conferees note that the Department of Justice has concluded that no change to the Small Business Act is required to ensure that contracting officers of the Department of Defense and other federal agencies have the discretion whether or not to award contracts pursuant to the HUBZone program. The conferees direct the Secretary of Defense to continue to administer the HUBZone program in a manner consistent with the Department of Justice opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': statutory language of the Small Business Act. The court concludes that the language of HUBZone statute is unambiguous and mandatory and that the plain meaning of the HUBZone statute prevails. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Resp. 14, 18, 22, 34\u821135. Defendant suggests that deference is particularly appropriate where the SBA has been granted the discretion to administer the statutory scheme. Def.\rquote s Resp. 14. Defendant further argues that the SBA regulations \constitute a permissible interpretation of the statute at issue, and are consistent with the language, structure, purpose, and legislative history of the Small Business Act.\ Def.\rquote s Resp. 15. Defendant emphasizes that the HUBZone statute provides: \There is established within the Administration a [HUBZone] program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': and adding emphasis). Plaintiff does not dispute \the SBA\rquote s statutory authority to promulgate rules and regulations to enforce the Small Business Act\ but argues that \this authority does not extend to the SBA the right to make rules and regulations that conflict with federal law.\ Pl.\rquote s Mot. 9; Pl.\rquote s Reply 7. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Although it is true, as defendant contends, that the SBA Administrator is entrusted to carry out the HUBZone program, it is also true, as plaintiff points out, that Congress set out the statutory requirements of the program. The full text of the statutory provision, on which the parties differ, reads: \There is established within the Administration a program to be carried out by the Administrator to provide for Federal contracting assistance to qualified HUBZone small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': River without [first] considering whether a set aside for HUBZone small business concerns was required\; by \[o]rder[ing] the Army to make a determination of whether there is a reasonable expectation that at least two qualified HUBZone small business concerns will submit offers, and the award can be made at a fair market price, prior to making any sole source award\; by \[a]ward[ing] MCS its costs and attorney\rquote s fees in this action as allowed by law\; and by \[g]rant[ing] such other and further relief as the [c]ourt deems just and equitable.\ Compl. 6\u82117. Plaintiff asserts that as a result of the Army\rquote s action in awarding the contract to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Plaintiff has succeeded on the merits of this case. The court has examined the statutory language of the Small Business Act and concluded that the mandatory language of the HUBZone statute requires that a contracting officer first determine whether the specified criteria are met before awarding a contract under another small business program or on a sole-source basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . The HUBZone statute provides that \[n]otwithstanding any other provision of law ... a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': River on a sole-source basis without first determining whether there was \a reasonable expectation that not less than [two] qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price\ was not in accordance with law-in particular, the contract award did not comply with the plain meaning of the HUBZone statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': It is in the public interest to grant injunctive relief in this case. The Army\rquote s award of the IT support services contract on a sole-source basis without first determining whether it should set aside the contract for restricted competition among qualified HUBZone small business concerns was not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': River without first determining whether a set-aside for HUBZone small business concerns was required under the HUBZone statute. The court orders defendant to determine whether the criteria of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': are met, such that the contract opportunity at issue in this case must be awarded on the basis of competition among qualified HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': . The court enjoins the United States from awarding the IT support services contract at issue in a manner that is not in compliance with the Small Business Act as the court here interprets it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans ....\ (emphasis added)) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': HUBZone small business concerns ....\ (emphasis added)). The Government Accountability Office (GAO) reached a similar conclusion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The Army argues that because the SBA has not released the contract from the 8(a) program and because Mission Critical Solutions (MCS) sought an injunction against the Army only, and not the SBA, the Army is prevented from competing the contract to HUBZone businesses and is left with no viable vehicle for the required information technology (IT) support services. Def.\rquote s Resp. 35\u821136. Under Small Business Administration (SBA) regulations, the agency cannot set aside a contract to a HUBZone business concern if the contract is then within the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': \The provisions providing for competition among qualified HUBZone small business concerns where the contracting officer has a reasonable expectations that not less than two qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price is often referred to as the \u8216rule of two.\u8217 \ Def.\rquote s Resp. 5. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': In describing the HUBZone program, the Federal Circuit stated: \As required by the [HUBZone] program, \u8216a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone concerns will submit offers and that the award can be made at fair market price.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidders filed transfer complaint challenging Small Business Administration\rquote s (SBA) refusal to consider bidders\rquote joint venture agreement and challenging SBA\rquote s size determination with respect Department of Army\rquote s small business set-aside contract to provide maintenance and repair services at Army post. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims lacks any authority to entertain a size protest, which is an administrative claim before Small Business Administration (SBA) in which a small business entity competing for a small business set-aside procurement objects to the SBA\rquote s determination as to the size of another bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Although unsuccessful bidders challenged procurement decisions of Department of Army only indirectly, by challenging Small Business Administration\rquote s (SBA) refusal to consider bidders\rquote joint venture agreement and SBA\rquote s size determination with respect to another bidder for Army\rquote s small business set-aside contract, bidders\rquote challenges were \in connection with a procurement,\ within meaning of Tucker Act, providing jurisdiction over bid protests, where status of contractors as determined by SBA was essential element of small business set-aside competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Department of Army\rquote s decision to reverse prior award decision and select another bidder for small business set-aside contract to provide maintenance and repair services at Army post rendered moot, under Article III case or controversy requirements, unsuccessful bidder\rquote s challenge to Small Business Administration\rquote s (SBA) size determination regarding bidder whose contract award was reversed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidders for Department of Army\rquote s small business set-aside contract to provide maintenance and repair services at Army post lacked substantial chance of securing contract, precluding bidders\rquote standing to pursue bid protest of contract award to another bidder, based on bidders\rquote claim that Small Business Administration (SBA) erroneously applied affiliations rules in refusing to approve their joint venture agreement, since bidders\rquote eligibility under joint venture rules was not factor in their failure to receive award nor factor in their last place ranking among proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': The following summary provides background information on the procurement and various administrative and judicial challenges pursued to date by the plaintiff and intervenors. The information is gleaned directly from the administrative records filed in this case by the pertinent federal agencies, the Army and the Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': In accordance with the solicitation, proposals were evaluated on price, technical merit and past as well as present performance. This was a 100 percent small business set aside procurement. Pursuant to the approved procurement scheme, therefore, the Army could consider for final award only those contractors who had been approved by the SBA under the SBA Section 8(a) Business Development Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': B. Role of the Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': The Code of Federal Regulations (CFR) governs certain SBA programs designed to aid participation by small business concerns\u8212independently owned and operated businesses which are not dominant in their field of operation\u8212in federal acquisitions. The regulations set forth size requirements for small business concerns, generally, and for eligibility under the 8(a) program, which provides small businesses competitive access to certain government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': 13 C.F.R. Parts 121 and 124. The SBA determines the size of 8(a) concerns in relation to a number of factors, such as average annual receipts and domestic and foreign affiliates. As a general matter, certain business affiliations may undermine the independent ownership or the annual receipts standards applicable to small business. Consequently, these affiliations are scrutinized by the SBA in an effort to determine whether businesses should retain their small business preference despite their partnering agreements with other companies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': ; CSUF \u182 5. As we describe below, there are limited exceptions to this rule which permit 8(a) contractors to enter into project-specific joint venture agreements with companies that do not meet the applicable size standard. If the partnering relationship becomes routine and long-standing, the parties jeopardize their disadvantaged small business status. Accordingly, the SBA monitors these business relationships, and will disapprove a proposed joint venture under certain circumstances where it appears that the relationship is more than it purports to be. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': According to the plaintiffs, White Hawk/Todd qualifies for special treatment under a \mentor/prot\u233g\u233\ joint venture agreement. The mentor/prot\u233g\u233 program is an SBA program designed to encourage an approved mentor\u8212which is not a small business\u8212to provide managerial, financial and technical assistance in order to improve a small business concern prot\u233g\u233\rquote s ability to compete for government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': In a small business set aside procurement such as this, it is only after the procuring agency has evaluated each of the proposals and arrived at a provisional award decision that the contracting officer turns her focus to the small business eligibility of the successful bidder. As the SBA regional office informed the Army early on in this procurement: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': A size protest is a purely administrative claim before the SBA in which a small business concern competing for an 8(a) set aside objects to the size determination of another offeror. The procedures for challenging the SBA\rquote s size determination are spelled out in FAR Subpart 19.3 and Part 121 of Title 13 in the CFR. Despite the similar label, \size protests\ bear no relation to bid protests. It is exclusively the function of the SBA to decide the matter, subject to an administrative appeal process within the agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': On remand, the SBA\rquote s regional office performed another size determination and on March 25, 2008, confirmed DMS\u8211All\u8211Star\rquote s status as a small business concern under the pertinent size standard for this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': As the procedural history of plaintiffs\rquote claims makes clear, White Hawk/Todd challenges the Army\rquote s procurement decisions only indirectly. The plaintiffs\rquote primary objections relate to determinations made by a separate agency, which has no direct role either in the procurement itself or in administering the resulting contract. Because the Army\rquote s solicitation is limited to small businesses, however, the status of the contractors as determined by the SBA is an essential element of the competition. Accordingly, it can be said that the challenged aspects of the SBA\rquote s action are \in connection with\ the Fort Sill JOC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': White Hawk/Todd. Plaintiffs\rquote Objection to SBA\rquote s Motion to Dismiss at 11. The plaintiffs\rquote hyperbole aside, to the extent the Army acknowledged this missing piece of White Hawk/Todd\rquote s small business eligibility, it did not alter the course of events in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 021 - White Hawk Group Inc v US.doc, Paragraph with 'The Rule of Two': Tab 18 at 1152 (\The Joint Venture must obtain the approval of the SBA for this requirement prior to award of an 8(a) contract.\); AAR Tab 35 at 2016 (\White Hawk/Todd does not have their joint venture approved by the Small Business Administration and is not eligible for award.\); AAR Tab 36 at 2021 (\White Hawk/Todd does not have their joint venture approved by the [SBA]. Per Ms. Vanessa Woodfork, SBA Business Development Specialist, the joint venture will not be approved. Without its joint venture approved, White Hawk/Todd is not eligible for award.\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 023 - Red River Holdings LLC v US.doc, Paragraph with 'The Rule of Two': Small business filed post-award bid protest against United States arising from solicitation request for proposals (RFP) for lowest-price, technically acceptable award by Department of Navy, Military Sealift Command (MSC), of charter party of vessel to serve as floating military warehouse for ammunition and other supplies ready to rapidly respond to global needs of military troops as part of MSC\rquote s prepositioning program. Court granted summary judgment in part for plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 027 - DMS All-Star Joint Venture v US.doc, Paragraph with 'The Rule of Two': at 220. The solicitation contemplates a negotiated procurement process in which participation is limited to Small Business Administration (SBA) 8(a) business concerns located in Oklahoma or having a bona fide office within Oklahoma. AR at 218. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder filed bid-protest action, challenging Army Corps of Engineers\rquote (COE) award of multiple contracts set aside for service disabled veteran owned small businesses (SDVOSB) to provide emergency temporary roof repairs in support of disaster response for several states in coastal areas. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Although source selection authority (SSA) considered ratings of single-state source selection evaluation plan (SSEP) in evaluating all-state SSEP ratings, in reevaluating bidder\rquote s proposal for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response, SSA was authorized to consider information outside four corners of proposal, under SSEP, permitting consideration of germane and relevant information outside of proposals, since single-state SSEP information was germane and relevant by suggesting that all-state evaluation criteria could have been misapplied, due to wide discrepancy among ratings that justified SSA\rquote s requested reevaluation of both single-state and all-state proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Bidder\rquote s top reevaluation rating, but not highest rating, for experience-related technical factors, for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response for several states, was reasonable, where reevaluation focused on bidder\rquote s teaming agreement that extensively relied on subcontractor as teaming partner that held all of bidder\rquote s technical capability and had past experience that bidder lacked. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Bidder\rquote s exclusion from technical/price tradeoff process in best value determination, for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response for several states, was reasonable, under source selection evaluation plan (SSEP), contemplating only examination of technically superior proposal with next best proposal, where bidder had only fourth-rated technical proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Under the terms of the solicitation, COE intended to award one Indefinite Delivery/Indefinite Quantity (\ID/IQ\) contract (known as a Single Award Task Order Contract) in an amount not to exceed $50,000,000, with a minimum guarantee of $5,000. AR 90, 111. The period of performance for this contract consisted of a three-year base period and a two-year option period for a total of a five-year performance period. AR 147. The procurement was set aside for Service Disabled Veteran Owned Small Businesses, AR 95, and provided that the offeror was required to self-perform 30% of the work under the contract. AR 145. The six other concurrent solicitations also concerned installation of blue roofs for regions of the country or individual states. Proposals for the seven solicitations were evaluated by seven different Source Selection Evaluation Boards (\SSEB\ or \Board\). However, the final award decision was to be made by a single Source Selection Authority (\SSA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': AR 1058\u821159. According to the solicitation, \[t]he principal objective of the evaluation process is to make award of a contract to the responsible offeror whose proposal is determined to be the \u8216best value\u8217 to the Government, price and other factors considered in a Service Disabled Veteran Owned (SDVO) Small Business set aside.\ AR 121. The evaluators considered two volumes. Volume I contained the Technical Proposal, and Volume II consisted of the Cost/Price Proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Karen Gordon MILLS, Administrator, U.S. Small Business Administration, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Employee sued the Small Business Administration (SBA) for retaliation under Title VII. SBA moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) articulated a legitimate, non-discriminatory reason for subjecting employee to an investigation by the SBA Office of Inspector General (OIG), shifting burden to employee to show that proffered reason was a pretext for retaliation for her prior Equal Employment Opportunity (EEO) discrimination claims, in violation of Title VII, where SBA explained that the investigation of employee, during course of ongoing contracting fraud investigation, resulted from independent observations of two of employee\rquote s colleagues, who reported that her actions were unusual. Civil Rights Act of 1964, \u167 704(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Investigation of employee by the Small Business Administration (SBA) Office of Inspector General (OIG), and subsequent oral instruction she received, were not materially adverse employment actions, as element of employee\rquote s retaliation claim under Title VII against the SBA, where such actions would not have dissuaded a reasonable worker from complaining of discrimination, absent evidence that the investigation and reprimand injured employee\rquote s reputation or had any effect on conditions or terms of her employment. Civil Rights Act of 1964, \u167 704(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Even if investigation of employee by the Small Business Administration (SBA) Office of Inspector General (OIG), and subsequent oral instruction she received, were materially adverse employment actions, employee failed to show that SBA\rquote s articulated legitimate, nondiscriminatory reason for the actions, namely, independent observations of two of employee\rquote s colleagues, who reported during course of ongoing contracting fraud investigation that her actions were unusual, was a pretext for retaliatory animus, as would support her retaliation claim under Title VII against the SBA. Civil Rights Act of 1964, \u167 704(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': Plaintiff Malda Brown has sued the United States Small Business Administration (\SBA\) for retaliation under Title VII of the Civil Rights Act of 1964 (\Title VII\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 038 - Brown v Mills.doc, Paragraph with 'The Rule of Two': analyst is] assigned on any acquisition policy or procedure which affect SBA\rquote s mission to assist small business concerns.\ (Brown Dep., Ex. 9 at 1 (PCR job description).) A PCR is charged with \effectively represent[ing] small business concerns with procurement officials\ and \counsel[ing] representatives of small business concerns and advis[ing] them how and where to sell their products to the Government.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 043 - Structural Associates IncComfort Systems USA (Syracuse) Joint Venture v US.doc, Paragraph with 'The Rule of Two': Proposals were to be evaluated on the basis of three factors: Performance Capability, Design Technical, and Price and Small Business Utilization, with Design Technical identified as the most important factor, followed by Performance Capability, then Price and Small Business Utilization. The solicitation further advised that \[a]ll evaluation factors, other than price, when combined, are considered significantly more important than the price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 043 - Structural Associates IncComfort Systems USA (Syracuse) Joint Venture v US.doc, Paragraph with 'The Rule of Two': Organization and Technical Approach, Proposed Task Order Duration and Summary Schedule, Specialized Experience, Utilization of Small Business Concerns, and Past Performance. The solicitation provided that the first four subfactors would not be separately rated, but that the fifth subfactor, Past Performance, was to be rated for risk. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 043 - Structural Associates IncComfort Systems USA (Syracuse) Joint Venture v US.doc, Paragraph with 'The Rule of Two': Nor do we believe that the SSA misapplied the solicitation\rquote s weighting system in downgrading plaintiff\rquote s Performance Capability rating from \excellent\ to \good.\ In the solicitation, the Performance Capability factor consisted of four subfactors that were not separately rated\u8212Organization and Technical Approach, Proposed Task Order Duration and Summary Schedule, Specialized Experience, and Utilization of Small Businesses\u8212with the fifth subfactor, Past Performance, rated separately for risk. In addition, under the Specialized Experience subfactor, an offeror\rquote s past projects were judged under the four criteria discussed above (type, scope, magnitude, and complexity). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 049 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': section of chairman\rquote s declaration regarding referral to Small Business Administration (SBA) would be stricken; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 049 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': Section of declaration of contractor\rquote s chairman and co-founder, stating regulatory requirement for referral to Small Business Administration (SBA) and providing background statistics regarding frequency with which SBA overturned federal agency\rquote s determination of non-responsibility, would be stricken as irrelevant in post-award bid protest, since statements said little about SBA\rquote s likely responsibility determination specific to contractor for NASA contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 049 - PlanetSpace Inc v US.doc, Paragraph with 'The Rule of Two': finding of non-responsibility (an inability to perform the proposed contract), then failed to refer the matter to the Small Business Administration (\SBA\), as the Federal Acquisition Regulations require. Compl. \u182\u182 46\u821161; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 050 - Ozdemir v US.doc, Paragraph with 'The Rule of Two': the plaintiff brought a post-award bid protest after not being selected for a research and development award as part of the U.S. Army\rquote s Small Business Innovation Research program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 054 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with 'The Rule of Two': Advising Small Businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': General contractor, as registered service-disabled veteran-owned small business (SDVOSB), filed pre-award bid protest against United States, seeking to permanently enjoin Department of Veterans Affairs (DVA) from soliciting contract in open and unrestricted competition, rather than set-aside procurement, for constructing new surgical suite addition and partial renovation of surgical support area at veterans hospital in Missouri. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business (SDVOSB) general contractor\rquote s excuse that finding \needle in haystack\ on Department of Veterans Administration\rquote s (DVA) complex website by untrained SDVOSBs could be considered discovering previously unavailable evidence, discrediting sufficiency of DVA\rquote s market research for SDVOSBs before opening contract bidding to unrestricted competition, rather than set-aside procurement, was not extraordinary circumstance required for reconsideration of decision of Court of Federal Claims upholding DVA\rquote s solicitation, since evidence on website was manifestly available prior to court\rquote s decision, and contractor\rquote s attorney, not contractor, was responsible for searching DVA website. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business (SDVOSB) general contractor\rquote s transformation of minor reference in briefing to revamped major emphasis on statute establishing priority for contracting preferences did not justify reconsideration of Court of Federal Claims\rquote decision, upholding Department of Veterans Administration\rquote s (DVA) opening of contract bidding to unrestricted competition, rather than set-aside procurement, since court\rquote s determination that DVA did not have reasonable expectation that two or more SDVOSBs would submit offers conclusively precluded any discussion on application of prioritization statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court after briefing on plaintiff\rquote s motion for reconsideration. Plaintiff Totolo/King Joint Venture (\plaintiff\), a Service Disabled Veteran Owned Small Business general contractor (\SDVOSB\), moves pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': ). Plaintiff \had the burden of proving either that the DVA acted without a rational basis when it decided not to solicit a SDVOSB or small business set-aside[ ] or ... \u8216a clear and prejudicial violation of applicable statutes or regulations.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': [A] contracting officer of the [DVA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': to \ \u8216make every reasonable effort\u8217 to locate small business sources,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s recently discovered evidence\u8212the DVA Office of Acquisition and Material Management Information Letter 049\u821106\u82111 (Dec. 26, 2005), titled \Increasing Opportunities for Awards to Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses\ (\IL 049\u821106\u82111\)\u8212was manifestly available prior to the June 15, 2009 decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Although plaintiff admits that IL 049\u821106\u82111 was available on the DVA website, it suggests that \finding a needle in a haystack can be considered unavailable [to justify a motion for reconsideration].\ Pl.\rquote s Br. filed July 21, 2009, at 1. Plaintiff contends that \it should come as no surprise that a private small business owner looking for documents might have difficulty finding a Federal document on a website ... for which the small business private owner has received no training or mandate in searching, and no knowledge that the document even exists.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': \u8212Preferences for awarding contracts to small business concerns shall be applied in the following order of priority: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': ] to small business concerns owned and controlled by veterans with service-connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': ] to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': (A) section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': (4) Contracts awarded pursuant to any other small business contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': ) [,] ... [and] FAR. 19.10 falls under the last priority category as \u8216any other small business contracting preference.\u8217 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': ....\). The section was deemed inapplicable because the contracting officer did not have \a reasonable expectation that two or more small business concerns owned and controlled by veterans [would] submit offers.\ 31 U.S.C. \u167 8127(d); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': VetBiz.gov is a federally controlled database that houses information about service-disabled or veteran small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Were the court to consider IL 049\u821106\u82111 on its merits, IL 049\u821106\u82111 would fail to justify plaintiff\rquote s motion for reconsideration. IL 049\u821106\u82111 \provides guidance to contracting officers on awarding contracts to small business concerns owned and controlled by veterans and by service-disabled veterans.\ Pl.\rquote s Br. filed June 29, 2009, Ex. A at 1. Further, \[i]n order to place greater emphasis on the award of contracts to [Veteran Owned Small Business general contractors (\u8216VOSBs\rquote )] and SDVOSBs,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 062 - Kevcon Inc v US.doc, Paragraph with 'The Rule of Two': , challenging a June 19, 2009 Navy Solicitation, No. 62473-09-R-1009, by requesting that the court issue a judgment declaring that Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Prior contract awardee filed sealed complaint, pursuant to Tucker Act and Contract Disputes Act (CDA), seeking injunction requiring National Guard Bureau (NGB) to disqualify subsequent contract awardee and terminate subsequent contract for total service-disabled veteran-owned small business set-aside contract for child and youth training, after prior awardee was disqualified from prior contract due to size protest, and requesting lost profits or, alternatively, reinstatement of prior contract. Government moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Prior contract awardee that was subsequently disqualified as \other than small\ contractor, resulting in National Guard Board\rquote s (NGB) termination of total service-disabled veteran-owned small business set-aside contract for child and youth training, was not \interested party,\ within meaning of Tucker Act, as required for prior awardee\rquote s standing to protest NGB\rquote s re-award of subsequent contract to qualified contractor, since prior award was not entitled to presumption of validity due to timely size protest, and prior awardee lacked substantial chance of obtaining valid award due to size determination that was effective immediately and that prior awardee failed to appeal before NGB issued subsequent valid award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, an award of a government contract based on a size determination by the Small Business Administration (SBA) is presumptively valid, unless the contracting officer receives notice of an appeal to the SBA\rquote s Office of Hearing and Appeals (OHA) prior to the award of the contract; this presumption of validity is conclusive on SBA size determination grounds and is not rebuttable. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Prior awardee lacked standing to protest National Guard Board\rquote s (NGB) alleged bad faith termination of prior award for total service-disabled veteran-owned small business set-aside contract for child and youth training, on grounds that prior awardee was not \interested party\ objecting to government contract in connection with \procurement,\ within meaning of Tucker Act, since prior awardee\rquote s complaint did not challenge award of prior contract to another contractor or failure to award contract at all. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Appeal of size determinations by the Small Business Administration (SBA) and the SBA\rquote s Office of Hearing and Appeals (OHA) is not justiciable by the Court of Federal Claims, under the Tucker Act, if the government contract becomes presumptively valid by virtue of an award prior to the contracting officer being notified of an appeal to the OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Prior contract awardee\rquote s claim for injunctive relief, seeking review of decision by Small Business Administration\rquote s (SBA) Office of Hearing and Appeals (OHA) affirming SBA size determination that awardee was disqualified as \other than small\ for National Guard Board\rquote s (NGB) total service-disabled veteran-owned small business set-aside contract to provide child and youth training, and ordering SBA to cease reliance on allegedly improper OHA decision and to remove any bar to prior awardee self-certifying as small for procurements of different size standard, was not ripe, since alternative administrative remedy was available to address prior awardee\rquote s concerns about future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Electronic mail communication to National Guard Board (NGB) from prior contract awardee\rquote s counsel, claiming lost profits, damages, and attorney fees, under CDA, for alleged breach of contract should NGB move to terminate small business set-aside contract due to allegedly improper Small Business Administration (SBA) size determination, was not claim, as \matter of right,\ for \sum certain,\ within meaning of regulatory definition of valid claim filed with contracting officer, pursuant to CDA, where e-mail set forth no sum certain or even estimated amount of damages, and did not demand something due or believed to be due as e-mail recognized that termination of contract was required for CDA claim to arise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': On December 12, 2008, the National Guard Bureau (\NGB\) issued Solicitation No. W9133L\u821109\u8211R\u821100007 for \Child and Youth training management, program assessment, curriculum development, supervision and assessment to the 54 States and Territories\ (the \Solicitation\). Gov\rquote t App. at 2. The Solicitation was a Total Service\u8211Disabled Veteran\u8211Owned Small Business Set\u8211Aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': On January 30, 2009, VETS filed a size protest with the CO alleging that Plaintiff did not qualify as a small business and was not eligible to be awarded the Contract. Compl. \u182 17; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Gov\rquote t App. at 35. On February 5, 2009, the NGB forwarded VETS\rquote protest to the Small Business Administration (\SBA\) and the SBA ordered Plaintiff to suspend work, pending the SBA\rquote s disposition. Gov\rquote t App. at 15. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': On May 8, 2009, at 4:05 p.m. CST, the NGB issued a decision dismissing Plaintiff\rquote s May 5, 2009 protest, because the SBA determined that Plaintiff was not a small business and therefore not an \interested party,\ as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The May 8, 2009 NGB decision, however, did not address Plaintiff\rquote s potential termination claim. Pl. Ex. 4. At 4:08 p.m. CST that same day, the NGB cancelled the January 25, 2009 contract with Plaintiff and awarded a contract to VETS (\the May 8, 2009 Contract\). Compl. \u182 30. At 5:30 p.m. CST, Plaintiff renewed the May 5, 2009 protest with the NGB and also filed a separate protest with the SBA, challenging VETS\rquote small business representation. Pl. Ex. 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': . Gov\rquote t Mot. at 1, 7. This procurement was a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff responds that it is an \interested party,\ because it was awarded the January 25, 2009 Contract \and its only obstacle to having that [C]ontract reinstated is a wrongly decided [and] inapplicable SBA decision [.]\ Pl. Resp. at 12\u821113. The NGB initially was satisfied that Plaintiff was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': for the proposition that \[i]f an offeror\rquote s small business status is challenged, the SBA[\rquote s] ... determination [ ] will be binding on the contracting officer, as to whether the offeror is a small business,\ the Government fails to recognize that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': provides that: \[i]f an offeror\rquote s small business status is challenged, the SBA will evaluate the status of the concern and make a determination, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Gov\rquote t Reply at 5. The SBA appropriately determined that the January 30, 2009 VETS\rquote size protest was timely and Plaintiff was determined by the SBA to be not a \small business\ for the purposes of the December 12, 2008 Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': In this case, the December 12, 2008 Solicitation was a small business set-aside at a $7 million level. Gov\rquote t App. at 6. A business determined by the SBA to be \other than small,\ does not qualify to compete for the procurement and therefore would not have any chance, much less a \substantial chance,\ of winning the contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': (holding plaintiff lacked standing to challenge small business status of awardee, because plaintiff was not a small business). Therefore, a threshold issue in this case is whether the SBA\rquote s April 28, 2009 decision that Plaintiff was \other than small\ divests Plaintiff of standing to protest the May 8, 2009 award to VETS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The procedures for challenging small business set-aside eligibility are set forth in Part 121 of Title 13 of the Code of Federal Regulations, \Small Business Size Regulations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': \u8211121.1110. These regulations afford \[a]ny offeror whom the contracting officer has not eliminated for reasons unrelated to size\ to protest a small business set-aside procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Size Regulations mandate that a SBA size determination becomes effective immediately and \remains in full force and effect unless and until reversed by OHA.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': (\[i]f an offeror\rquote s small business status is challenged, the SBA [\rquote s] ... determination ... will be binding on the contracting officer, as to whether the offeror is a small business\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': In an attempt to surmount this barrier to standing, Plaintiff argues that the Small Business Size Regulations are not applicable in this case, because they apply only to a \prospective awardee.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': In the alternative, Plaintiff argues that since it was a qualified small business on January 25, 2009, the award on that date was valid, and the Government\rquote s subsequent attack on Plaintiff\rquote s size is both late and moot. Pl. Resp. at 12\u821113. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': [I]t is inconsistent with the integrity of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': iii. Decisions Of The Small Business Administration And Office Of Hearings And Appeals Decisions Are Non\u8211Justiciable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': and remove any bar to [Plaintiff] self-certifying as small.\ Am. Compl. \u182 67(d)(vi). Such relief presumably would allow Plaintiff to self-certify as small for procurements where the size standard is less than $7 million. Am. Compl. \u182 7. Without such relief, Plaintiff contends it has no ability to compete for future small business set-aside contracts that it otherwise would be eligible to receive. Am. Compl. \u182 64. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, however, is not barred from bidding on future procurements. The SBA regulations provide a procedure for re-certification as a small business and an application may be filed \at any time\ and ultimately may be appealed to the OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Because this case concerns proceedings before the National Guard Bureau, the Small Business Administration and the Office of Hearings and Appeals therein, and the United States Court of Federal Claims, a unified chronology is attached hereto as a Court Exhibit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': provides that: \If an offeror\rquote s small business status is challenged, the SBA will evaluate the status of the concern and make a determination, which will be binding on the contracting officer, as to whether the offeror is a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': (2) The SBA Government Contracting Area Director, or designee, will determine the small business status of the questioned concern and notify the contracting officer and the concern of the determination. Award may be made on the basis of that determination. This determination is final unless it is appealed in accordance with paragraph (i) of this section, and the contracting officer is notified of the appeal before award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': the SBA ... will determine the small business status of the questioned concern and notify the contracting officer and the concern of the determination.... This determination is final unless it is appealed in accordance with paragraph (i) of this section, and the contracting officer is notified of the appeal before award. If an award was made before the time the contracting officer received notice of the appeal, the contract shall be presumed to be valid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The SBA Government Contracting Area Director, or designee, will determine the small business status of the questioned concern and notify the contracting officer and the concern of the determination. Award may be made on the basis of that determination. This determination is final unless it is appealed in accordance with paragraph (i) of this section, and the contracting officer is notified of the appeal before award. If an award was made before the time the contracting officer received notice of the appeal, the contract shall be presumed to be valid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 071 - PAI Corp v US.doc, Paragraph with 'The Rule of Two': In support of this mission, DOE issued a solicitation on August 29, 2008, to provide training support services to OST for a range of operational and administrative activities. The solicitation called for an indefinite-delivery, indefinite-quantity, cost-plus-award-fee type contract for a base period of two years, with two 18\u8211month option periods. The guaranteed minimum under the contract was $3 million with an estimated ceiling of $95 million. Although the incumbent contractor for the support services contract, Wackenhut, was a large business concern, DOE limited the instant procurement to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 071 - PAI Corp v US.doc, Paragraph with 'The Rule of Two': On December 31, 2008, Advanced Technologies and Laboratories International, Inc. (\ATL\), another disappointed bidder, filed a protest with the Small Business Administration challenging ITP\rquote s financial and managerial qualifications for the award and asserting that ITP\rquote s subcontractor, Wackenhut, was only an \ostensible\ subcontractor in that Wackenhut, rather than ITP, would be the business entity principally responsible for the management and performance of the contract. The protest was denied on January 28, 2009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 073 - Chamber of Commerce of US v Napolitano.doc, Paragraph with 'The Rule of Two': Government defendants did not fail to comply with the Regulatory Flexibility Act, in implementing Final Rule relating to executive order requiring contractors contracting with executive departments and agencies to agree to use an electronic employment eligibility verification system to verify the employment eligibility of persons hired to perform employment duties within the United States and persons assigned to perform work within the United States on the Federal contract, by failing to account for the significant costs to employers, as the Final Rule contained a discussion of the regulatory flexibility analysis conducted by the government defendants, and in that regulatory flexibility analysis, the government defendants considered the costs that incorrect results produced by the designated system would have on small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 073 - Chamber of Commerce of US v Napolitano.doc, Paragraph with 'The Rule of Two': could have on small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 073 - Chamber of Commerce of US v Napolitano.doc, Paragraph with 'The Rule of Two': It appears to the Court that Defendants complied with the Regulatory Flexibility Act, as the Final Rule contains a discussion of the regulatory flexibility analysis conducted by the Council. In that regulatory flexibility analysis, Defendants considered the costs that incorrect results produced by E\u8211Verify would have on small businesses. Accordingly, Plaintiffs have failed to present a cogent argument as to how Defendants violated the Regulatory Flexibility Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 075 - GEOD Corp v New Jersey Transit Corp.doc, Paragraph with 'The Rule of Two': Generally, approximately $200,000 of the overall Business Diversity budget is designated for race neutral programs. These programs include outreach, small business activities, technical assistance programs, and universal advertising. (Def. Ex. 7, 41\u821147). NJT also sponsors conferences and workshops for small businesses in general. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Decision of Army Corps of Engineers to issue solicitation for proposals for indefinite duration indefinite quantity (IDIQ) multiple-award task order contracts (MATOCs) for dredging, which employed a negotiated format rather than the previously-used competitive sealed bidding format, had a rational basis; Corps asserted IDIQ MATOCs would allow Corps to pick more qualified contractors, reduce procurement time, lower administrative costs, reduce need for emergency procurements, facilitate use of small businesses, and promote national security, each of Corps\rquote s reasons for its action was a legitimate procurement objective, and Corps supplied a reasoned chronicle of its risk assessment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Group II, small business set-aside projects (2\u82117 total MATOC contracts); Group III, shore-protection projects (2\u82117 total MATOC contracts); and Group IV, other projects not listed in any of the other three categories (2\u82117 total MATOC contracts). Each group has an estimated cost of between $440 million and $500 million for the full five-year period. That means that, assuming all four option years are exercised, the total cost of the procurement will be approximately $2 billion. The minimum task order amount is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The Corps will evaluate proposals it receives in response to the solicitation on a \best value\ basis. The evaluation will take into account four factors: (1) technical merit, (2) past performance, (3) price, and (4) utilization of small businesses. The technical merit factor will assess whether a party submitting a proposal possesses dredging equipment. A party\rquote s past performance rating may vary from \very low risk,\ to \very high risk,\ with four intermediate levels. The risk factor will assess a prospective contractor\rquote s competency in performing prior work (rated on a six-level scale), and the relevancy of that work (rated on a three-level scale). As far as price is concerned, the solicitation includes four representative tasks. Each party submitting a proposal in response to the solicitation will submit a bid on one of the tasks, thereby allowing the Corps to evaluate the price factor for that party. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The court then dismissed in summary fashion all other arguments proffered by the government, stating that the record was \devoid of credible evidence\ that competition would increase, that small businesses would benefit, or that national security would be improved through the use of IDIQ MATOCs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': . Specifically, the government contends the Corps is addressing (1) technical merit, (2) past performance, and (3) small business concerns. The solicitation, the government notes, states that \past performance is considered significantly more important than price\ and that \all evaluation factors, when combined, are significantly more important than price.\ Weeks responds that while the Corps states that it will be evaluating non-price factors, and that the solicitation thus falls under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': . The solicitation expressly states that the Corps will consider non-price factors, and that past performance is \significantly more important than price.\ In addition, in the solicitation the Corps explained how it will evaluate technical merit, past performance, and small business factors. Moreover, Weeks acknowledged at oral argument that, its arguments relating to the Corps\rquote s intentions notwithstanding, the Corps has complied with the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': the Corps\rquote s procurement action lacked a rational basis. In making this argument, it contends that the court should not have dismissed the Corps\rquote s reasons for switching to a negotiated procurement scheme. The government argues, as it did in the Court of Federal Claims, that the IDIQ MATOCs will allow the Corps to (1) pick more qualified contractors because it will be able to rely on factors other than price; (2) reduce procurement time; (3) lower administrative costs by an estimated $1.45 million in the next two years; (4) reduce or eliminate the need for emergency procurements; (5) have greater coordination between individual districts of the South Atlantic Division; (6) facilitate the use of small businesses; and (7) promote national security through more timely execution of dredging near military bases. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The government next argues the IDIQ MATOCs will enhance opportunities for small businesses because Group II is a small-business set-aside group, and the Corps will be able to readily evaluate the small business factor because it no longer will be bound by the sealed bidding protocol of only considering price. Appellant\rquote s Br. 42 n. 9; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Acquisition Plan (\[The South Atlantic Division] intends to group the projects which have historically been set aside for small businesses and to solicit these projects under one grouping providing for the maximum practicable number of awards to small businesses in every known category, thereby providing the small business community with the same level of opportunity to compete for dredging projects as in the past.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Next, Weeks disputes the government\rquote s assertion that the IDIQ MATOC scheme will benefit small businesses. First noting that small businesses received $189 million of the $750 million spent on dredging projects over the past two years, Weeks argues that the new plan will actually reduce the ability of small businesses to compete. Group II under the MATOC scheme, the small-business set-aside group, has a bonding requirement that ranges between $10 and $25 million. According to Weeks, this requirement exceeds the minimum bonding requirement the Corps normally requires for small businesses ($10 million). Weeks contends that any small company that can only post a $10 million bond will be precluded from competing for contracts for which it could previously bid under sealed bidding procedures. In essence, Weeks argues that the Corps has raised bonding requirements and has added barriers to entry for small businesses that want to compete for dredging contracts. Appellee\rquote s Br. 36\u821137. As to the Corps\rquote s final rationale, Weeks argues that the Corps has not \provided any evidence that military waterways in the Southeast ever have been imperiled or jeopardized.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 078 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The Corps has presented seven reasons for its new procurement scheme. As seen, through the use of IDIQ MATOCs, the Corps expects to (1) obtain qualified contractors; (2) reduce procurement time; (3) realize savings in administrative costs; (4) reduce or eliminate the need for emergency procurements; (5) allow for greater coordination between the districts in the South Atlantic Division; (6) facilitate the use of small businesses; and (7) be able to address national security needs through more timely execution of dredging near military bases. We think it can hardly be argued that any one of these is not a legitimate procurement objective. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Coast Guard\rquote s issuance of modifications to task order issued pursuant to procurement contract violated \Rule of Two\ relating to evaluation of competition adequacy for a small business set aside; Coast Guard\rquote s issuance of modifications constituted \acquisitions\ under procurement regulations because the work encompassed by modification exceeded the scope of task order, and there was no indication that the Coast Guard engaged in any reasonable effort to determine the likelihood that it would receive offers from at least two responsible small businesses at fair market prices for the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': A contracting officer\rquote s evaluation of competition adequacy for a small business set aside concerns a matter of business judgment within the contracting officer\rquote s discretion that will not be disturbed absent a showing that it was unreasonable; nevertheless, the contracting officer must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses at fair market prices for each contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s obligation to comply with the \Rule of Two\ in evaluation of competition adequacy for a small business set aside is independent of its obligation to issue only in-scope modifications of task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': at 504. Ultimately, after researching nineteen contract vehicles, the Coast Guard determined that the ITOP II contract would \best suit [the] OSC\rquote s needs based on criteria such as the number of eligible [Small Business Administration section] 8(a) companies, available ceiling over a 5\u8211year period, support for a performance based statement of work, suitability in supporting a 5\u8211year contract, references, analysis of labor rates, and customer service.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': However, it was recommended that the Coast Guard not restrict competition to large businesses because the Coast Guard believed it was \going to have some problems with [the] Small Business Administration representative ... since small business[es] could team with a large business and do the work as well.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Taken together, the protests\rquote allegations included that Modifications 30 and 32 were unlawful because they were outside the scope of [the] SETS II [task order] and therefore unlawful under the Competition in Contracting Act, and because in issuing the Modifications the Coast Guard had violated various regulations implemented by the Small Business Administration pursuant to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 7 (alleging that the Coast Guard \conducted a sole-source award in violation of the CICA\ and \failed to set aside the financial systems support work for small business concerns in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': GCE is an \interested party\ with standing to sue under the Tucker Act. GCE is the incumbent contractor currently performing the financial systems work awarded to QSS in Modifications 30 and 32, and has a history of successfully performing this work for the Coast Guard as a small business. Thus, GCE could compete for an award if a competitive procurement is conducted, and would participate in any such procurement. GCE therefore has an economic interest in this procurement and has been prejudiced by the Coast Guard\rquote s decision to award the work to QSS without a competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 56\u821163. Regulations for awarding contracts to small businesses are set forth in Subpart 19.5 of the FAR and implement the requirements of the Small Business Act, Pub.L. No. 85\u8211536, 72 Stat. 384 (1958) (codified as amended in scattered sections of 15 U.S.C.). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , is \part of the standard of competitiveness required before an acquisition may be set aside for small business,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': FAR \Rule of Two\; Requirements for Setting Aside Acquisitions for Small Business, 49 Fed.Reg. 40,135 (Oct. 12, 1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ... and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': . \In other words, the evaluation of competition adequacy for a small business set aside is prospective.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \does not require the use of any particular method for assessing the availability of small business....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': (\The use of any particular method of assessing the availability of small businesses is not required, and measures such as prior procurement history, market surveys, and advice from the [Small Business Administration (\SBA\) ] may all constitute adequate grounds for a contracting officer\rquote s decision not to set aside a procurement.\). Nevertheless, the contracting officer \must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses at fair market prices for each ... contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': (stating that \a contracting officer must make reasonable efforts to ascertain whether it is likely that offers will be received from at least two responsible small businesses at fair market prices, and [the GAO] will review a protest of a contracting officer\rquote s decision in that regard to determine whether the contracting officer made such efforts\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mot. Prelim. Inj. & TRO 28. GCE alleges that because (1) at least two small businesses could perform the work encompassed by Modifications 30 and 32, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 59, and (2) \small business/federal financial systems IT providing services do so at market rates,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \required [the Coast Guard] to determine whether [audit-supporting federal financial management systems] work should have been set aside for small businesses\). GCE alleges that the Coast Guard conducted no such analysis, Compl. \u182 61; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Perm. Inj. Hr\rquote g Tr. 11:7\u821110 (\[I]t\rquote s significant that the government doesn\rquote t ever suggest in this case[ ] that it conducted an inquiry into whether the financial system\rquote s work should be set aside for small businesses[.]\), and suggests that an analysis would have yielded a conclusion that the \Rule of Two\ requirements were satisfied, thereby compelling the Coast Guard to set aside the work encompassed by Modifications 30 and 32 for a small business, Compl. \u182\u182 62\u821163; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mot. Prelim. Inj. & TRO 29 (stating that \had the Coast Guard made the required inquiries assessing the interest and capabilities of small businesses to perform this work, it appears likely that there would have been strong grounds for the Coast Guard to conclude that the \u8216rule of two\u8217 requirements were met\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': QSS advances a similar argument, stating first that the \Rule of Two\ \is inapplicable here and, in any case, the FASA bar on protests of task orders applies here to the same degree that it does with Plaintiff\rquote s CICA claims.\ Def.-Intervenor\rquote s Mot. & Opp\rquote n 31. According to QSS, \if plaintiffs could elude the FASA jurisdictional hurdle by alleging small business regulation violations, then every protest would include such claims, making the statute a hollow shell.\ Def.-Intervenor\rquote s Opp\rquote n & Reply 13. Nevertheless, QSS concedes that \the \u8216rule of two\u8217 would only apply[ ] if modifications were held to be out-of-scope of the contract such that a distinct contract were required.\ Def.-Intervenor\rquote s Mot. & Opp\rquote n 32; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': the protester challenged a decision by the United States Department of the Army (\Army\) to acquire services under Logistical Joint Administrative Management Support Services (\LOGJAMSS\) contracts when those services were previously provided exclusively by small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': After the Army decided to transfer these services to the LOGJAMSS contracts, it solicited proposals from LOGJAMSS contractors and \did not coordinate with, or notify, the SBA of its intent to withdraw ... services from exclusive small business competition and to transfer these services to LOGJAMSS contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': LBM is not challenging the proposed issuance of a task order for these services, but is raising the question of whether work that had been previously set aside exclusively for small businesses could be transferred to LOGJAMSS.... This is a challenge to the terms of the underlying LOGJAMSS solicitation and is within our bid protest jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': and explained that Small Business Act requirements \were applicable to acquisitions prior to the enactment of [the] FASA, and nothing in that statute authorizes the transfer of acquisitions to ID/IQ contracts in violation of those laws and regulations,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': at *5 (determining that because of the \breadth and vagueness of the LOGJAMSS scope of work,\ as well as the fact that the services at issue were exclusively set-aside for small businesses in the past, \LBM cannot reasonably be viewed as on notice that the Army would transfer this work to LOGJAMSS without consideration of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': the GAO sustained a protest on the grounds that the United States Air Force was required to set aside for a small business a task order for travel management services at Travis Air Force Base (\Travis\) that were beyond the scope of the underlying GSA contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': at *5 (concluding that \the small business protesters are mounting a challenge to the terms of the underlying solicitation, and that the limitation on our bid protest jurisdiction in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': the GAO considered \the question of whether the solicitation for the underlying ID/IQ contract properly included Travis despite the claimed independent requirement to reserve the Travis effort for small businesses\ as an independent issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': at *6 n. 2 (\[S]ince we ultimately sustain the small business set-aside challenge for the four small business protesters, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \makes clear that ... a small business set-aside claim is logically independent from a beyond the scope claim.\ Perm. Inj. Hr\rquote g Tr. 11:22\u821125. The government disagrees, arguing that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Competitions for task and delivery orders are the stage when holders of multiple-award ID/IQ contracts offer prices and solutions to meet specific agency needs. This is therefore the most meaningful stage for a Rule of Two analysis, in which the contracting officer needs to judge the likelihood of receiving at least two fair-market priced submissions from small businesses for the services or supplies being acquired under a specific solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': should have been set aside for small businesses.\ Pl.\rquote s Mem. 22; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': the initial award, the subsequent procurement of that work\u8212via task order or modification\u8212violates the Rule of Two.\). That assessment, according to GCE, \could have been performed when [the] SETS II [task order] was issued.... [I]f the Coast Guard had[,] at that time[,] determined that no two small businesses would have competed for the financial systems work, it would not have been required to set it aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Cross\u8211Mot. & Mot. Perm. Inj. 26\u821127 (stating that \an agency can easily avoid [bidding every minor modification] by properly designating small business set-asides at the outset of a procurement\ and that \the Coast Guard\rquote s decision to award the financial systems work through [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': ]\rquote s requirements were satisfied\ and, \[m]ore importantly, neither the Government nor QSS contests GCE\rquote s claim that, had the analysis been performed, the Rule of Two requirements would have been satisfied, mandating that the work be set aside for small businesses.\ Pl.\rquote s Cross\u8211Mot. & Mot. Perm. Inj. 25; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Perm. Inj. Hr\rquote g Tr. 13:3\u82118 (\[T]he fact remains that the Coast Guard never reviewed this body of work, the financial systems IT work, to determine whether there were small businesses that could perform it. It\rquote s an independent violation of the law.\). Neither the government nor QSS identify any portion of the administrative record that demonstrates that the Coast Guard engaged in such an assessment or made a reasonable effort to ascertain whether it was likely that offers would be received from at least two small businesses capable of performing audit-supporting federal financial management systems services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Instead, the administrative record reflects that Coast Guard officials expressed concern that any competition for the agency\rquote s audit-supporting federal financial management systems not be limited to large businesses because of potential issues with the Small Business Act when the Coast Guard was contemplating issuing a solicitation under the EAGLE vehicle. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': AR 2381 (inquiring \whether you wanted an unrestricted solicitation (large and small vendors) or set-aside for the small vendors only\ and indicating the Coast Guard\rquote s preference for a large vendor because of \[t]he complexity of Federal Financial Oracle Information system development required ... to consolidate IT systems where systems perform duplicate functionality, [to] achieve real time integration of financial IT systems, and to consolidate to a single core accounting system general ledger\), 2380 (anticipating that \we are going to have some problems with [the SBA] representative\ because the preference for a large vendor \is not acceptable since small business[es] could team with a large business and do the work as well\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': It is apparent that the Coast Guard was aware that small businesses could perform this type of work, either individually or through teaming agreements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': there is no evidence of an assessment of, for example, prior procurement history, market surveys, or any other analysis) to determine the likelihood that it would receive offers from at least two responsible small businesses at fair market prices for audit-supporting federal financial management systems services, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Additionally, for the reasons discussed above, the Coast Guard was required to follow the \Rule of Two\ and determine whether it would have reasonably anticipated receiving at least two offers from small businesses. Because the Coast Guard failed to compete or set aside for small businesses the work at issue in this case, the Coast Guard\rquote s transfer of this work to QSS via Modifications 30 and 32 to the SETS II task order was not in accordance with law and must be set aside. Accordingly, GCE\rquote s cross-motion for judgment on the administrative record is granted, the government\rquote s motion and opposition is denied, and QSS\rquote s motion and opposition is denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': by not performing an analysis of whether audit-supporting federal financial management systems work should have been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 4 (alleging that GCE \provides the federal government [with] highly specialized information technology support services for systems that create federal agencies\rquote financial statements of record\). GCE \regularly competes in agency procurements conducted through competitions set aside for small businesses,\ Compl. \u182 4, and employs approximately [ ... ] individuals, Pl.\rquote s App. 1 (Muslimani Decl. \u182 4). Since 2000, GCE \has developed and maintained financial management systems of the United States Coast Guard that create the Coast Guard\rquote s financial statements of record for audits using government-certified financial management systems software.\ Compl. \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': GCE noted that this loss of revenue, which it maintained \would be the result of a transition process that is a de facto sole source acquisition by the government to another contractor,\ was a significant loss for a small business to incur. AR 2863. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Mr. Lucas, GCE\rquote s Chief Strategy Officer, indicates that \GCE knows of two or more small businesses that recently competed for Oracle Federal Financial management systems work similar to that GCE performs for the Coast Guard.\ Pl.\rquote s App. 15 (Lucas Decl. \u182 9); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': at 28 (Lucas Decl. \u182 58 (identifying [ ... ] and [ ... ] as two small businesses qualified to compete for this work)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': LBM, Inc. argued that the Army \should have continued to set aside the ... services ... exclusively for small businesses, and that the Army improperly failed to coordinate with the SBA in deciding to withdraw these services from exclusive small business participation and instead to transfer the services to the LOGJAMSS contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The GAO, however, rejected LBM Inc.\rquote s argument that transferring the services at issue to the LOGJAMSS contracts constituted improper bundling under the Small Business Act: \[W]hile it is true that the Small Business Act requires procuring agencies to cooperate, and consult, with the SBA in carrying out the requirements of the Small Business Act, we find no specific statute or regulation requiring notification of the SBA in this case.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Addressing the small business set-aside issue, the GAO stated that \the record shows that the competitive solicitation\ for travel services at Travis yielded several proposals from small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Consequently, the GAO concluded that \a challenge to the underlying solicitation ... would likely have resulted in a decision that this work should be procured separately and reserved for small businesses,\ and that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \required that the purchase of these services ... be conducted as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': GCE explains that an agency presumably engages in a small business review at the time it conducts an initial procurement in cases where \you\rquote re simply modifying a contract to add on another 50 widgets ... to an original task order that was for 100 widgets,\ thereby obviating the need for another small business review at the time of the modification. Perm. Inj. Hr\rquote g Tr. 12:12\u821119. GCE cautions that it is not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Prelim. Inj. Hr\rquote g Tr. 27:17\u821121 (containing GCE\rquote s position that it is \not arguing that the Coast Guard is forbidden from doing this, although again, depending on the particular work assigned, ... there could be small business problems\). In this case, GCE maintains that \the Coast Guard procured an entirely different line of work than it ever had under [the] SETS II [task order], and it has never considered whether this other line of work needs to be set aside for small businesses.\ Perm. Inj. Hr\rquote g Tr. 12:20\u821124. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The GAO observed that Congress \recognize[d] the possibility of limiting competition for task and delivery orders to small businesses when there is a sufficient number of small businesses to justify doing so.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 085 - Red River Holdings LLC v US.doc, Paragraph with 'The Rule of Two': Small business filed post-award bid protest against United States, arising from solicitation request for proposals (RFP) for lowest-price, technically acceptable award by Department of Navy, Military Sealift Command (MSC), of charter party of vessel to serve as floating military warehouse for ammunition and other supplies ready to rapidly respond to global needs of military troops as part of MSC\rquote s prepositioning program. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 085 - Red River Holdings LLC v US.doc, Paragraph with 'The Rule of Two': Small business, as unsuccessful bidder for charter party with Military Sealift Command (MSC) for vessel to serve as floating military warehouse for global prepositioning program, had standing to protest award as \interested party\ whose direct economic interest was affected by award to bidder whose proposal did not comply with all technical requirements, since small business was significantly prejudiced by procurement errors leading to award, and established that but for errors there was substantial chance of receiving award due to small business\rquote technical compliance with solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 085 - Red River Holdings LLC v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Red River Holdings, LLC (\Red River\) is a Delaware limited liability company with its principal place of business in Rockville, Maryland. Red River, a small business, was awarded a prior contract, and was one of two offerors to respond to the RFP. Red River offered to charter the MV Black Eagle (\Black Eagle\), a self-sustaining cellularized container ship previously under charter to MSC as the MV AIC William H. Pitsenbarger from 2001 to 2008. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 085 - Red River Holdings LLC v US.doc, Paragraph with 'The Rule of Two': The government claims Red River failed to submit information regarding key personnel as required by Past Performance Section M\u82115.1(5). Red River, a small business, supplied the names and experience of its key personnel and generally described the duties and responsibilities of the vessel\rquote s key personnel involved in the operation and management of the Black Eagle, specifically John H. Morris, III, President, responsible for the general management of the company; Timothy P. Tarrant, manager of engineering, ISM/ISO certification, safety and security; and George Crighton, manager of commercial cargoes, additionally Red River \will continue its present policy of selecting engineering, operations, and administrative staff based on previous Maritime and/or Government experience to achieve the most effective ship management organization.\ (AR 641, 815.) Crew lists were to be provided later. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': Small business stated claim against competitor for violation of Virginia Conspiracy Act. Competitor bid on and won project that was federally mandated to only be bid upon by small businesses. Small business protested. Small business alleged that competitor purposefully and intentionally conspired with other businesses to injure small business as retribution for its earlier bid protest. West\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': Under United States Small Business Association (\SBA\) rules, GTSI cannot bid on small business contracts either as a general contractor or in affiliation with a small business. (Countercl.\u182 1.) After Wildflower successfully protested a $165 million contract obtained by GTSI, GTSI set out to, in its own words, \crucify\ and \punish\ Wildflower. (Countercl.\u182 1.) It did so by conspiring with Wildflower\rquote s competitors and other entities to harm Wildflower\rquote s business and tortiously interfere with its business opportunities and existing contracts. (Countercl.\u182 1.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': In September 2007, DHS, through its FirstSource contracting program (\FirstSource Program\), gave eleven small businesses (\FirstSource Businesses\) the ability to bid for certain DHS contracts (\FirstSource Contracts\). (Countercl.\u182 6.) To obtain FirstSource Contracts, a FirstSource Business must certify that it meets the SBA\rquote s small business size regulations as set forth in 13 C.F.R. Part 121. (Countercl.\u182 7.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': , which provides criminal penalties for businesses that knowingly misrepresent their small business size status in connection with a federal procurement program. (Countercl.\u182 7.) SBA regulations and FirstSource Contracts require the FirstSource Businesses to perform the majority of the services required of the prime contractor on each FirstSource Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': The SBA subsequently issued a \size determination\ in which it \determined that Multimax is not a small business concern for this [USCIS] procurement.\ (Countercl .\u182 30.) The USCIS terminated the award to MultimaxArray and reopened the bidding. (Countercl.\u182 31.) Wildflower and GAI, another FirstSource Business, competed for the contract; Wildflower alleges on information and belief that GTSI then affiliated with GAI to bid on the USCIS Contract once again. (Countercl.\u182\u182 32\u821133.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': On January 15, 2009, the USCIS awarded the contract to Wildflower. (Countercl.\u182 35.) GAI then filed a \size protest\ with the SBA and a separate protest with the Government Accountability Office (the \GAO\) against Wildflower, both related to the USCIS Contract. (Countercl.\u182\u182 36\u821137.) The GAO dismissed the allegations against Wildflower, and the SBA determined that Wildflower was a legitimate small business eligible for the USCIS Contract. (Countercl.\u182\u182 37\u821139.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 086 - GTSI Corp v Wildflower Int'l Inc.doc, Paragraph with 'The Rule of Two': GTSI\rquote s argument that this case should have been brought before the SBA also fails to support dismissal at this time. Citing the statute authorizing the SBA to designate certain businesses as \small business concerns,\ GTSI claims that Wildflower is seeking damages for GTSI\rquote s alleged violations of federal business size and business affiliation rules, and that no private cause of action allows a failed bidder to sue a third party for violations of such rules in district court. (Pl.\rquote s Mem. in Supp. 4\u82115 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers\rquote (COE) inconsistent evaluation of bidders\rquote subcontracting plans by penalizing debris removal contractor for failing to indicate small business designation or type of work to be performed by subcontractors, while not penalizing competing contractor\rquote s subcontracting plan that suffered from same deficiency, was arbitrary, capricious, and unfair, in best value procurement for acquiring critical emergency debris removal services in anticipation of natural or man-made disasters. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': argues that the agency\rquote s evaluation of subcontracting plans was arbitrary and capricious in three respects. AshBritt, which received the second highest rating of \Good,\ alleges that it received lower scores on its small business subcontracting plan than another offeror with a comparable plan, that discussions concerning subcontracting goals for Historically Black Colleges and Universities / Minority Institutions (\HBCU/MIs\) were unequal and misleading, and that AshBritt received no credit for revisions made to its subcontracting plan. Second, AshBritt argues that the agency engaged in unequal and misleading discussions regarding the prices for several contract line item numbers (\CLINs\) and claims that these discussions induced AshBritt to offer higher prices than its competitors in relation to the Independent Government Estimate (\IGE\). Third, AshBritt submits that the agency revised the IGE without advising offerors or reopening discussions. Fourth, AshBritt contends that the agency conducted inadequate discussions regarding the pricing of an automated ticketing and tracking system to be employed during debris removal. Fifth, AshBritt argues that the agency departed from the terms of the solicitation by failing to evaluate price in its selection of reach back assignments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation established five evaluation factors: (1) Past Performance, (2) Management/Operations Plan, (3) Small Business Subcontracting Plan, (4) Technical Approach to Sample Task Order, and (5) Price. AR at 318\u821119. As to the relative importance of the five evaluation factors, the solicitation stated, \[t]he evaluation factors, other than cost or price, when combined, are significantly more important than cost or price. The relative importance of each of the non-cost factors is comparatively equal. The sub-factors of each non-cost factor are comparatively equal.\ AR at 318. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': The small business subcontracting plan was to \be evaluated for compliance with AFARS, Appendix DD\\u8212the Army\rquote s Subcontracting Plan Evaluation Guide\u8212\and the goals presented in section L of the Solicitation.\ AR at 318. AFARS Appendix DD provided a methodology for uniform and consistent evaluation of subcontracting plans within the Army and was designed to facilitate compliance with statutory requirements to increase opportunities for small and small disadvantaged businesses. AR at 738. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Section L of the solicitation set forth the small business subcontracting goals as a percentage of dollars to be subcontracted to each of the following small business designations: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Small Business (SB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Women\u8211Owned Small Business (WOSB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': HUBZone Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Veteran\u8211Owned Small Business (VOSB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Neither list included information about the small business designation of the listed subcontractors or what type of work each subcontractor would perform. However, AshBritt\rquote s subcontracting plan included a list of the various small business categories and the type of work which each category might perform. AR at 1439. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AshBritt\rquote s revised subcontracting plan also included new sections entitled \Small Business Participation Challenges: Past & Present\ and \Small Business Goal Achievement,\ which discussed AshBritt\rquote s past experiences with subcontractors during Hurricane Katrina debris removal operations and stated that AshBritt had exceeded the small business utilization goal of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % utilization mark. AR at 1449\u821151. AshBritt also included a Standard Form 295 Summary Subcontract Report which listed AshBritt\rquote s past performance in meeting utilization rates for special small business designations: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % women-owned small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % veteran-owned small business, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AshBritt\rquote s small business subcontracting plan received a score of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AR at 1198. In response to discussions, AshBritt added a lengthy list of subcontractors detailing key personnel and equipment quantities and added two new sections to its proposal to address historic small business participation, goals and achievement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': in the past performance category\u8212which asked offerors to detail the \[e]xtent to which the company has historically been successful in establishing realistic, yet challenging, [small business] goals and achieving them.\ AR at 1188. In response to the agency\rquote s notification during discussions that \[s]mall business goal achievement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': was not discussed in [AshBritt\rquote s initial] proposal,\ AshBritt\rquote s revised proposal included sections entitled \Small Business Participation Challenges: Past & Present\ and \Small Business Goal Achievement,\ which discussed AshBritt\rquote s past experiences with subcontractors during Hurricane Katrina debris removal operations and pointed out that AshBritt had exceeded the small business utilization goal of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % small business utilization mark on AshBritt\rquote s previous debris removal contract with the agency, as well as the utilization rates for special small business designations: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % women-owned small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': % veteran-owned small business, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': During discussions, the agency told AshBritt that subcontractors were not identified in sufficient detail in the plan. In the final proposal revision, AshBritt included a very long list of subcontractors. This lengthy list appeared to be a \dump\ from a database of small businesses. The list failed to specify the type of work these subcontractors could perform. The SSEB could not confirm that these small businesses would be able to contribute to the debris mission. This weakness was a primary consideration in the SSEB\rquote s decision to rate the Small Business Subcontracting Plan as \Good.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AR at 1485, 1489. Crowder Gulf\rquote s list did not include any information as to the type or quantity of equipment each subcontractor could utilize. AR at 1485\u82111529. A coversheet for each region indicated the total number of subcontractors for that region and the number of subcontractors within that region who identified themselves as small business, women-owned, veteran-owned, service-disabled veteran-owned, HubZone, or small disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AR at 1485, 1489. The list did not identify which individual contractors satisfied which of these small business subcontracting goals, nor did the list identify what type of work each subcontractor would perform. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': AR at 1485\u82111529. However, a matrix included in Crowder Gulf\rquote s subcontracting plan listed the types of work that Crowder Gulf expected to assign to each category of small business subcontractors. AR at 1474. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Defendant contends that supplementation of the AR is necessary for this Court to review AshBritt\rquote s claims of prejudice and its entitlement to injunctive relief. Defendant seeks to supplement the AR with the Contracting Officer\rquote s testimony to refute AshBritt\rquote s claims that it suffered prejudice as a result of unequal and misleading price discussions and the improper evaluation of its small business subcontracting plan. In general, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': ). That said, where an evaluation scores two virtually identical proposals differently, such an inconsistent evaluation is quintessentially arbitrary, capricious and unfair. Here, although AshBritt and Crowder Gulf both missed the mark in describing what their small business subcontractors would do, AshBritt was penalized, but Crowder Gulf was not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': While AshBritt\rquote s plan failed to indicate the small business designation or type of work to be performed by each individual subcontractor, Crowder Gulf\rquote s plan was deficient in this same regard, providing only a name and location for each subcontractor. Although Crowder Gulf\rquote s plan included a matrix which coupled small business categories with the type of work that subcontractors in each category would perform, this matrix provided no details as to the contribution of each Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': out of a possible 10 points in the past performance category\u8212which asked offerors to detail the \[e]xtent to which the company has historically been successful in establishing realistic, yet challenging, [subcontracting] goals and achieving them.\ AR at 1188. During discussions, the agency advised AshBritt: \Small business goal achievement was not discussed in the proposal. No reference in proposal on problems encountered and solutions.\ AR at 459. In response, AshBritt included a discussion of its past experience in the Hurricane Katrina cleanup\u8212addressing safety and labor issues AshBritt encountered during that operation and stating that AshBritt exceeded the small business utilization goal of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': The above-quoted excerpt from the Source Selection Plan expressly indicated, by way of example, that the \second-ranked\ offeror in a given region would win the reach back assignment for that region so long as it had won the primary contract for a different region. Price was to be used in determining the second-ranked offeror in each region. The selection of the second-ranked offeror in each region was to be made as part of a best value tradeoff for the primary contract and could not have ignored price. Rather, the solicitation prescribed that reach back assignments would be selected based on the same criteria as primary contracts\u8212past performance, management/operations plan, small business subcontracting plan, technical approach to sample task order, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': . Defendant and Intervenors posit that AshBritt could not have been awarded additional contracts even if the alleged unequal discussions and unequal evaluation of the small business subcontracting plan had not occurred. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': more important than price. The evaluators were to consider the technical qualities on a proposal-by-proposal basis and on a region-by-region basis. This competition anticipated 10 prime contracts and up to 10 reach back assignments with a host of technical, small business and regional considerations. As the Federal Circuit recognized in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Crowder Gulf\rquote s matrix listed categories of work, and for each of these categories, indicated which categories of small business subcontractors\u8212e.g., veteran-owned small businesses or small disadvantaged businesses\u8212Crowder Gulf expected to perform such work. AR at 1474. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Section M.5 of the solicitation, listing the evaluation factors, stated that \[t]he small business subcontracting plan will be evaluated for compliance with AFARS, Appendix DD and the goals presented in Section L of the solicitation.\ AR at 318. AFARS Appendix DD is a \Subcontracting Plan Evaluation Guide\ used by the Army to provide a methodology for uniform and consistent evaluation of subcontracting plans. AR at 738. \It is designed to facilitate compliance with the mandates of Public Law to increase opportunities for small and small disadvantaged businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'The Rule of Two': Neither the Government nor ECC has attempted to rebut this argument. Ceres argues that the Appendix DD scoring was within the agency\rquote s discretion and characterizes AshBritt\rquote s revised proposal as providing only \blanket statement[s]\ with \no specific useful information.\ Ceres\rquote Br. at 11. However, Ceres overlooks the small business utilization percentages which AshBritt provided on its Standard Form 295 Summary Subcontract Report\u8212showing AshBritt\rquote s past performance in achieving small business subcontracting goals on a debris removal contract with the agency. AR at 1452. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Small business general contractor filed pre-award bid protest against government, seeking to enjoin United States Army Corps of Engineers from proceeding with negotiated procurement for award of indefinite delivery/indefinite quantity (IDIQ) contract for design and construction of various types of military facilities in southeastern United States. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': restrictions in Small Business Act and military procurement statute did not apply to Corps\rquote procurement; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Corps was not obligated to seek waiver of statutory restrictions barring set-asides for small businesses that were contrary to its needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Even if restrictions in Small Business Act and military procurement statute on bundling of contract requirements, so as not to foreclose small business participation, were applicable to general construction work, those restrictions did not apply to procurement by Army Corps of Engineers for award of indefinite delivery/indefinite quantity (IDIQ) contract for design and construction of various military facilities, where, on basis of comprehensive advice provided by construction industry, Corps determined that bundling was necessary and justified. Small Business Act, \u167\u167 2[2](j)(3), 2[3]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers set aside portion of construction project for certain statutorily preferred small business and decided, based on construction industry consensus, that it was necessary and justified to consolidate remaining aspects of procurement, and thus it was not obligated to seek waiver of statutory restrictions barring set-asides for general small business concerns that would have been contrary to its needs. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': B. The appellant, Tyler Construction Group (\Tyler\), which described itself in its complaint as \a small business general contractor,\ did not submit any proposal in response to the solicitation. Instead, it filed the present suit in the Court of Federal Claims seeking injunctive and declaratory relief against the solicitation. It challenged the Corps\rquote use of IDIQ contracts for this procurement on various grounds, including the claims that such use was not authorized by the Federal Acquisition Regulation (\FAR\) and that it violated statutory and regulatory provisions that favor and protect small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': The Court of Federal Claims also rejected Tyler\rquote s alternative contention that \the scope of the solicitation, as measured by both its dollar amount and the geographic distribution of its construction work, is of a magnitude that impermissibly forecloses small business participation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': at 100 (footnote omitted). Tyler relied on the anti-bundling provision of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': , which requires \each Federal agency\ to \avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors,\ and the similar limitation on \consolidation\ of procurement in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': A. Tyler also contends that in using this type of procurement, the Corps violated statutory and regulatory provisions designed to aid and protect small businesses and to insure that they receive a fair and adequate share of government contracts and business. It relies primarily on the anti-bundling provision of the Small Business Act, which in pertinent part requires \each Federal [acquiring] agency\ to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': \avoid unnecessary and unjustified bundling of contracts requirements that precludes small business participation in procurements as prime contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': . According to Tyler, the Corps\rquote combination (or \bundling\) of procurement of military facilities under a single contract resulted in a procurement whose dollar amount was beyond the financial capacity of small business firms, who could and would have competed for constituent individual components of smaller size. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': B. Tyler makes an alternative argument challenging the combination or bundling of these procurements, based on the requirements of the Small Business Competitiveness Demonstration Program Act of 1988, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': note, that relate to set-asides of government contracts for small business. The Court of Federal Claims stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': \As explained in the Act\rquote s introductory findings, traditional efforts to implement the mandate for small business participation in federal procurements have resulted in an over-concentration of small business participation in a limited number of industry categories, while at the same time failing to expand small business participation in certain other categories. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': note, \u167\u167 702(3)(A), (B). FAR \u167 19.1007(b), the regulation implementing the Act, thus prohibits solicitations in certain designated contract categories from being subject to small business set-asides, except for those set-asides mandated for socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Tyler concedes that it is not such a disadvantaged small business and that the statute would prohibit the Corps from awarding it a contract under a small business set-aside. It argues, however, that because the Army had not met its total small business set-aside requirement for the year involved, the Corps on its own should have requested the Department of Defense to waive the foregoing statutory limitation on set-asides for non-disadvantaged small businesses. It contends that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': Tyler does not state that it requested the Corps to seek such a waiver, that the Department of Defense had any administrative procedure for doing so, or that if a waiver had been sought it likely would have been granted. Nor is it clear exactly what precise waiver was sought. Since Tyler contends that the combination of the individual construction projects produced a contract whose dollar amount exceeded the financial capacity of small businesses, it would not have aided Tyler if the entire contract project had been set aside for small business: The contract still would have been beyond Tyler\rquote s financial capacity. What Tyler must have sought, therefore, was the breaking down of this large contract into its component parts and separate procurements for each part, for which Tyler would have had the financial capacity to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': C. In evaluating Tyler\rquote s contention that the Corps\rquote handling of this procurement was inconsistent with, if not contrary to, the statutory and regulatory provisions involving the federal commitment to aiding small business participation in government procurement, it is important to consider the Corps\rquote action here in helping small businesses to participate in this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': In its \National Acquisitional Strategy\ plan for this major military construction, the Corps directed that regional acquisition plans \must strike a balance between achieving economies of scale and meeting small business and other social-economic goals, as well as small-business considerations when unrestricted acquisitions are necessary.\ The Acquisition Plan that covered this procurement provided that 20 percent of the contract dollars be set aside for small business, including 100 percent of the dollar amount for certain types of facilities and for projects valued at less than $15 million. The solicitation in the present case provided that: \All offerors (both large and small businesses) will be evaluated on the level of small business commitment they demonstrate for the proposed acquisition, and their prior level of commitment to utilizing small businesses in performance of prior contracts.\ The Corps established \reasonable and achievable\ subcontracting goals for the utilization of small businesses, including a goal that 70 percent of subcontracted work should be performed by small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 090 - Tyler Const Group v US.doc, Paragraph with 'The Rule of Two': The Corps endeavored, as far as practicable, to comply with the statutory and regulatory requirements and policies for small business participation in government procurement. It cannot properly be faulted for failing to do so because it did comply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 092 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor, as small business, filed suit seeking post-award permanent injunctive relief to prevent Defense Logistics Agency (DLA), Defense Supply Center (DSCC), from proceeding with performance on contract to supply shifter forks used in military trucks and seeking declaration ordering agencies to conduct trial installation of protestor\rquote s as-equal replacement part. Protestor moved for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 092 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor, as small business, seeking preliminary injunction to prevent Defense Supply Center (DSCC) from proceeding with performance on contract awarded for supply of shifter forks used in military trucks, did not have likelihood of success on merits of bid protest regarding as-equal replacement shifter forks, since government had argument regarding jurisdiction and standing, and protestor asserted violations of applicable procurement regulations but failed to argue such violations in brief beyond citing regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 092 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor, as small business, would not likely suffer irreparable harm absent preliminary injunction to prevent Defense Supply Center (DSCC) from proceeding with performance on contract awarded for supply of shifter forks used in military trucks, since protestor\rquote s alleged bid preparation costs would be recoverable upon establishing that agency did not act in good faith in considering offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 092 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': This bid protest is before the court after argument on Plaintiff\rquote s Motion for Preliminary Injunction filed on June 8, 2009. A small business concern, plaintiff seeks post-award preliminary injunctive relief to enjoin the U.S. Defense Logistics Agency (the \DLA\), Defense Supply Center (the \DSCC\), Columbus, OH, from proceeding with performance on Order No. SPM7L3\u821109\u8211M\u82111305 (\Order 1305\), resulting from the award of a contract under Request for Quotation (\RFQ\) No. SPM7L309T2194 (\RFQ\u8211194\), until the court issues a final ruling on plaintiff\rquote s complaint filed on June 8, 2009, seeking declaratory and permanent injunctive relief. Complementary to an injunction preventing performance by the awardee, plaintiff also asks the court to order the DSCC and the agency conducting the evaluation of equal items to conduct a trial installation of plaintiff\rquote s replacement part. This would complete the required testing of plaintiff\rquote s replacement part and enable plaintiff to be eligible for contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': General contractor, as registered service-disabled veteran-owned small business (SDVOSB), filed pre-award bid protest against United States, seeking to permanently enjoin Department of Veterans Affairs (DVA) from soliciting contract in open and unrestricted competition, rather than set-aside procurement, for constructing new surgical suite addition and partial renovation of surgical support area at veterans hospital in Missouri. Parties cross-moved for judgment on agency record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': General contractor, as service-disabled veteran-owned small business (SDVOSB), had standing as \interested party\ to invoke Court of Federal Claims\rquote jurisdiction, under Tucker Act, for pre-award bid protest seeking to enjoin Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract by open competition, rather than set-aside procurement, since contractor would be prospective bidder if solicitation were issued as SDVOSB or small business set-aside, and had direct economic interest affected by DVA\rquote s decision to conduct open and unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Procurement regulation governing demonstration program, for assessing ability of small businesses to compete successfully in procuring government contracts without restriction of competition by small business set-asides, does not preclude a service-disabled veteran-owned small business (SDVOSB) from participating or bidding on contracts, but rather, the regulation merely opens competition to an unrestricted rather than restricted basis; thus, the general duties and requirements under the demonstration program regulation and statute governing the set-asides for an SDVOSB are not mutually exclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': General contractor, as service-disabled veteran-owned small business (SDVOSB), would be allowed to supplement administrative record with affidavit from contractor\rquote s president explaining why Department of Veterans Affairs (DVA) unreasonably failed to specify bond estimate in sources sought notice (SSN), in soliciting bids for veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since reviewing court would not rely on affidavit to support decision, and contractor did not attempt to supplement record with numerous documents altering record, but merely provided evidentiary support for reasonable inferences drawn and arguments made from existing record facts to identify to court whether contracting officer did or did not do something so that determination could be made as to whether officer acted arbitrarily or capriciously. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Despite statutory preferences for service-disabled veteran-owned small businesses (SDVOSBs), contracting officer\rquote s ad hoc superficial market research for qualified SDVOSBs, and eleven other sources sought notices (SSNs) in which Department of Veterans Affairs (DVA) included bond estimates for small businesses to make informed business decisions whether to place contract bids, DVA\rquote s market research and SSN excluding bond estimate in soliciting bids for veterans hospital construction project in open and unrestricted competition, rather than set-aside procurement, were neither unreasonable nor constituted prejudicial violation of procurement laws, since DVA had discretion to exclude bond estimate from SSN to maintain confidentiality of project estimate, cursory market search was insufficient to render unreasonable contracting officer\rquote s other actions to identify SDVOSBs, and assertions that officer could have better performed his duties in alerting and searching for SDVOSBs did not rise to level of prejudicial violation of procurement laws. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': General contractor, as service-disabled veteran-owned small business (SDVOSB), would be irreparably harmed in absence of permanent injunction barring Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since contractor\rquote s pre-award bid protest would only allow recovery of bid preparation costs, but not loss of anticipated profits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Balance of hardships did not favor permanent injunction barring Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since financial harm to general contractor, as service-disabled veteran-owned small business (SDVOSB), in absence of injunctive relief, did not overcome contractor\rquote s failure to succeed on merits of challenge to DVA\rquote s winnowing process for determining availability of qualified SDVOSBs as unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Public interest in providing fair opportunities for qualified service-disabled veteran-owned small businesses (SDVOSBs) to bid on government contracts would not be served by permanently enjoining Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since SDVOSB general contractor had not established that DVA\rquote s winnowing process for determining availability of qualified SDVOSBs was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court after argument on the parties\rquote cross-motions for judgment on the administrative record. Totolo/King Joint Venture (\plaintiff\), a Service Disabled Veteran Owned Small Business general contractor, seeks permanently to enjoin the Department of Veterans Affairs (the \DVA\) from soliciting a contract for the construction of a new surgical-suite addition and the partial renovation of surgical support area at the Harry S. Truman Veterans Memorial Hospital in Columbia, Missouri (the \Project\), as an open and unrestricted competition. The issue presented is whether the DVA conducted a meaningful winnowing process to determine the availability of eligible, capable veteran-owned small-business contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': The Administrative Record (\AR\) is the source of the following facts, unless otherwise noted. The court also draws on several agency documents that the parties provided with their briefs, inexplicably not included in the administrative record. Plaintiff is a registered Service Disabled Veteran Owned Small Business (\SDVOSB\) general contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Complaint filed Feb. 19, 2009, \u182 12. Plaintiff is registered under North American Industry Classification System (\NAICS\) Code 236220, which meets the size standards for Solicitation Number: VA\u8211101\u821108\u8211RP\u82110257 (the \Solicitation\), and is a bondable Small Business contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': to identify \potential small bondable and experienced businesses\ that were interested in the proposed Solicitation. AR at 3. The SSN specified that the estimated cost of the project would be between $20 and $50 million. The SSN designated NAICS code 236220 as the applicable code for the Solicitation, which established a small-business size standard of $33.5 million. The deadline to submit a response was October 3, 2008. The SSN specified that \Interested Bondable small businesses\ responding to the SSN should include the following information: general background and contact information for the business; the \[b]usiness size determination and qualifying small business status\; the business\rquote s bonding capacity; information regarding construction experience on similar projects in the same size and scope; and the \Sources Sought Announcement number and specific project location.\ AR at 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Mr. Clemons only provided a cursory review of the basis for his recommendation, stating that three small companies responded to the SSN and that a search of VetBiz.gov (a federally controlled database that houses information about service-disabled or veteran small businesses) did not identify any small businesses demonstrating the requisite bonding capability or experience. The OSDBU approved Mr. Clemons\rquote s recommendation on October 30, 2008. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': the SSN, for the identification of potential small bondable and experienced businesses interested in the proposed Solicitation; and (2) by arbitrarily and in violation of applicable statutes and procurement regulations failing to follow the practice of stipulating bond requirements when conducting market research, thereby discouraging small businesses from responding to its SSN. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Mr. Clemons first elaborated on the results of and the steps taken in evaluating the responses to the SSN that was issued in Federal Business Opportunities (Fedbizzopps.gov) on September 20, 2008. He explained that the SSN targeted six small business categories, including SDVOSBs, as the \purpose of the Sources Sought was to solicit responses from small bondable businesses capable of performing the work\ that is the subject of the Solicitation. AR at 5. Three small businesses responded to the SSN indicating interest in the Project: 1) plaintiff; 2) an \8(a) small business\; and 3) Alaska Native Corporation/8(a). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Next, Mr. Clemons searched VetBiz.gov by NAICS code 236220. He stated that the search results identified many service-disabled veteran and veteran-owned small businesses; however, he concluded that these businesses were not qualified because they either lacked bonding capability or experience working on projects of similar size. Mr. Clemons also searched the VetBiz registry for small businesses under NAICS code 236220. His search yielded a list of 1,113 general and non-general contractors. Mr. Clemons investigated the first ten companies and also performed a random search, among the 1,113 listed contractors, for qualified small businesses. He reported that both of these searches were unsuccessful in identifying qualified small businesses, noting that \only one SDVOSB had responded to the Sources Sought ad. Consequently, [he] did not expect that two or more responsible SDVOSB firms would submit offers.\ AR at 6. Mr. Clemons offered the aforementioned processes and findings as justification for concluding that the construction and renovation services should be solicited as full and open competition/unrestricted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': purpose of the SSN is to give \the contracting community [ ] notice that the DVA is considering setting aside a construction project for small business only participation, and to attract responsible SDVOSB general (prime) contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff next argues that the DVA violated applicable statutes and procurement regulations by using the incorrect standard when searching for, and determining whether to set the Solicitation aside for, SDVOSBs. The DVA only must have a \reasonable expectation\ that at least two responsible small businesses will submit offers. Pl.\rquote s Br. filed Apr. 16, 2009, at 4 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': ). Finally, plaintiff argues, in the alternative, that, if the court determines that the DVA used the correct standard, the DVA failed to perform sufficient market research required by the agency\rquote s \policies, rules and regulations to make a rational Small Business Set Aside Determination.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': During oral argument held on May 5, 2009, the court questioned defendant why the contracting officer researched only one small business before determining not to set the procurement aside pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': AR at 5\u82116 (Mr. Clemons\rquote s Justification for Procurement stating that he \checked the qualifications of one of 8(a) firms that responded and determined that it did not have the bonding capability. Thus, because we wanted to compete this procurement, [the contracting officer] decided to forgo an 8(a) set-aside.\) Defendant explained that this procurement falls under the provisions of the Small Business Competitiveness Demonstration Program Act (the \Demonstration Program\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': at 3. Plaintiff emphasizes that the issue relates to the DVA\rquote s failure to provide contracts to SDVOSB, a specific subset of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff has standing to pursue this action because it is a prospective bidder if the Solicitation were issued as a SDVOSB or small business set-aside, and because plaintiff\rquote s direct economic interest has been affected by the DVA\rquote s decision to conduct the Solicitation as full and open competition/unrestricted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': ). Therefore, plaintiff has the burden of proving either that the DVA acted without a rational basis when it decided not to solicit a SDVOSB or small business set-aside, or plaintiff must show \a clear and prejudicial violation of applicable statutes or regulations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': ability of small businesses to compete successfully in certain industry categories without competition being restricted by the use of the small business set-asides.\ Def.\rquote s Br. filed May 8, 2009, at 3; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (stating that purpose of program is to \[a]ssess the ability of small businesses to compete successfully in certain industry categories without competition being restricted by the use of small business set-asides.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': . This subpart of the FAR also provides that \[a]cquisitions in the designated industry groups must continue to be considered for placement under ... the Service\u8211Disabled Veteran\u8211Owned Small Business Procurement Program (see Subpart 19.14).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': . Plaintiff emphasizes that this is the first time that the DVA has raised FAR 19.10 as authority to avoid conducting the procurement as a small business set-aside. Plaintiff urges that the Demonstration Program is not applicable to this case; rather, this acquisition should be evaluated under the authorities promulgated by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': The Veterans First Program was enacted to achieve goals similar to those under the Small Business Act, but with a focus on increasing contracting opportunities by the DVA for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (a) Contracting goals.\u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (A) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (B) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': [A] contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': set-aside acquisitions ... for competition restricted to service-disabled veteran-owned small business concerns,\ FAR 19.1405(a) (emphasis added), when the contracting officer has a reasonable expectation that the agency will receive offers from two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Insofar as the DVA is permitted to cancel the Solicitation, plaintiff has not explained why the DVA \has not ... met the requirements of the program ..., [and] has not properly noticed and solicited this procurement pursuant to requirements of the\ Demonstration Program. Pl.\rquote s Br. filed May 14, 2009, at 4. Addressing plaintiff\rquote s principal complaint, the court concludes that a contracting officer still can give priority placement consideration to veteran-owned small businesses under FAR subpart 19.10 and still can encourage veteran-owned small businesses to participate in a solicitation. FAR subpart 19.10 does not preclude veteran businesses from participating or bidding; instead, it merely opens competition to an unrestricted rather than restricted basis. The general duties and requirements under each respective statute are not mutually exclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that the purpose of the SSN is to provide notice to the contracting community that the DVA is considering whether to set aside the Project for small businesses and to alert responsible SDVOSB general contractors of government contracting opportunities. Plaintiff cites to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': in support of its argument, which stipulates that \agencies must make notices of proposed contract actions available,\ as the \primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities.\ Pl.\rquote s Br. filed Apr. 16, 2009, at 2\u82113 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s president asserts that the bond amount for a project is a \crucial factor\ for a small business in making an informed business decision on whether to respond to the SSN. Aff. of William Totolo, Apr. 16, 2009, \u182 7. Because the typical amount for a bond is 100% of the contract, plaintiff concludes that the \only reasonable assumption\ was that a $50 million bond would be required for the Project. Pl.\rquote s Br. filed Apr. 16, 2009, at 4. Plaintiff surmises that these actions evidence the DVA\rquote s failure to provide proper notice and illustrate the DVA\rquote s arbitrary implementation of this SSN, compared to the eleven other notices issued by the agency. In making the latter comparison, plaintiff charges that the DVA neglected its statutory obligation to conduct business with \integrity, fairness, and openness\ and to treat bidders fairly. Pl.\rquote s Br. filed Apr. 16, 2009, at 4 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': ). \Arbitrarily changing the solicitation method of notifying small business[es] of the need to respond to potential set asides via different Source Sought Notices is unfair.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Reasonableness of agency\rquote s efforts to encourage participation of small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': to the extent practicable, encourage maximum participation by small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in acquisitions by taking the following actions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (a) Before issuing solicitations, make every reasonable effort to find additional small business concerns, unless lists are already excessively long and only some of the concerns on the list will be solicited. This effort should include contacting the SBA procurement center representative (or, if a procurement center representative is not assigned, see 19.402(a)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': In furtherance of the goal in finding small business concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': provides techniques to be used in promoting \early exchange of information,\ such as industry or small business conferences; public hearings; market research; presolicitation notices; and use of vendor databases, including www.vetbiz.gov. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Congress has provided preferences for small businesses and specifically for veteran-owned small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (discussing contracting goals and preferences for small business concerns owned and controlled by veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (locating small business sources); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': by requiring the contracting officer to obtain \a non-binding written expression of interest from two or more small businesses in order to set-aside an acquisition....\ Pl.\rquote s Br. filed Apr. 16, 2009, at 4. Plaintiff relegates its own search of the VetBiz registry, which purportedly identified more than 40 SDVOSB \contractors with suitable bonding capacity,\ as evidence that Mr. Clemons did not apply the \reasonable expectation\ standard in making his determination to conduct the procurement as a full and open competition/unrestricted. Pl.\rquote s Br. filed May 1, 2009, at 9. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Instead of responding directly to plaintiff\rquote s argument, defendant compares the minimal burden on a contractor in responding to the SSN with the substantial burden of preparing a bid and obtaining a bond. Defendant reasons that it is \entirely reasonable for the contracting officer to conclude that it was unlikely that two or more small businesses\ would bid on the Project. Def.\rquote s Br. filed Apr. 24, 2009, at 12\u821113. Mr. Clemons\rquote s \brief search of the VetBiz web site\ did not reveal small businesses with the requisite bonding capacity and experience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': database, and the Small Business Specialist\rquote s review of the contracting officer\rquote s recommendation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff discounts Mr. Clemons\rquote s research of the VetBiz Registry, stating that \no objective contemporaneous records of this search, no results sheets, no physical evidence that the alleged search ever took place, no parameters of the search, or any other evidence\ substantiate the search for qualified small businesses. Pl.\rquote s Br. filed Apr. 16, 2009, at 5; Pl.\rquote s Br. filed May 1, 2009, at 9. Plaintiff asserts that the criteria used to search the database \[do] not make sense.\ Pl.\rquote s Br. filed May 1, 2009, at 9. If Mr. Clemons searched the database by the NAICS code (Service Disabled Veteran) and by bonding capacity, he would have narrowed the results, thus providing a more \reasonable number of contractors\ to review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': Plaintiff extrapolates that Mr. Clemons did not satisfy the DVA\rquote s burden under applicable regulations. FAR Part 19 states, in relevant part that \[i]t is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': , of small businesses and, before issuing solicitations, \make every reasonable effort\ to locate small businesses sources, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (stating that \[b]efore issuing solicitations, make every reasonable effort to find additional small business concerns, unless lists are already excessively long and only some of the concerns on the list will be solicited\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': does require the contracting officer to \document why a small business set-aside is inappropriate when an acquisition is not set aside for small business....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (stating that it is business judgment within contracting officer\rquote s discretion when deciding not to set aside competition for small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': The public interest in providing fair opportunities for qualified small businesses to bid on government contracts would not be served by enjoining the DVA\rquote s procurement process under the Solicitation, given that plaintiff has not established that the market research conducted by the DVA was unreasonable, or that the Sources Sought Notice was arbitrary, capricious, or otherwise unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': In an effort to \maintain and strengthen the overall economy of the Nation,\ the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (the \SBA\), assists eligible small business concerns by \insur[ing] that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government\ are competed by small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': . Under section 8(a) a small business concern is one \owned and controlled by socially and economically disadvantaged individuals[,]\ and which has participated in the small business and capital ownership development program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': ) (\Veterans First\ or \Veterans First Program\), was enacted to achieve a similar goal, but more specifically to increase contracting opportunities for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': . Similar to provisions applicable to the SBA, \a contracting officer of the Department [of Veteran Affairs] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': (stating that \[t]he contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that [ ] offers will be obtained from at least two responsible small business concerns....\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'The Rule of Two': . In its initial filings, plaintiff alleged that the DVA\rquote s use of a $20\u821150 million range rendered the SSN defective because the range was in \excess of the reasonable ability of Small Business Contractors to both build and bond.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 095 - Akal Security Inc v US.doc, Paragraph with 'The Rule of Two': d. Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 095 - Akal Security Inc v US.doc, Paragraph with 'The Rule of Two': At oral argument plaintiff claimed that FPS considered DECO\rquote s status as a small business, a factor not mentioned in the Indiana RFQ. Oral Argument of May 28, 2009, Argument of Mr. Seth Berenzweig at 3:30:04\u821130:25; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 095 - Akal Security Inc v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Resp. App. 6\u821110. The contracting officer in the Indiana RFQ wrote in the Pre/Post Negotiation Memorandum for Indiana Guard Services that the \[a]ward to a small business, [DECO], assists FPS in meeting established socio-economic goals.\ Def.\rquote s Resp. App. 105. Whether or not this fact may be of any consequence on the merits of plaintiff\rquote s case, there is not enough in the record before the court at this juncture for the statement, taken by itself, to support the granting of a preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 095 - Akal Security Inc v US.doc, Paragraph with 'The Rule of Two': The proposed redactions appear to the court to be over-broad. The court does not perceive, for example, how adjectival ratings by the government of past performance and management approach could be viewed as confidential, proprietary or otherwise protected by the protective order in this case, or how the fact that a company is or was evaluated as a small business could be protected information. Accordingly, the court has accepted some, but not all, of defendant\rquote s proposed redactions. All redactions are indicated by three asterisks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 096 - ViroMed Laboratories Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s evidence of this alleged bad faith included: (1) the declaration of one of its employees containing the hearsay statements of a Navy employee involved in the solicitation; (2) a letter from former Representative Curt Weldon to the Secretary of the Navy encouraging the Navy to designate the \upcoming ... HIV testing services solicitation as a small business set-aside\; (3) a copy of CDD President Carlos Roca\rquote s recent campaign contributions to Rep. Weldon; and (4) newspaper articles tying Rep. Weldon to federal corruption charges. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 097 - Academy Facilities Management v US.doc, Paragraph with 'The Rule of Two': Factor E\u8212Small Business Subcontracting Effort Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 097 - Academy Facilities Management v US.doc, Paragraph with 'The Rule of Two': Both AFM and IAP received [deleted] for [deleted] of the technical evaluation factors. IAP received [deleted] and plaintiff received [deleted]. All other ratings for these two offerors were [deleted]. Both received a [deleted] in Small Business Subcontracting and plaintiff also received a [deleted] for Management. Section M.4 of the solicitation defined Excellent as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 097 - Academy Facilities Management v US.doc, Paragraph with 'The Rule of Two': E: Small Business Subcontracting Effort Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 097 - Academy Facilities Management v US.doc, Paragraph with 'The Rule of Two': E: Small Business Subcontracting Effort Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor filed pre-award bid protest action, seeking declaratory and injunctive relief invalidating Air Force\rquote s decision to use full and open competition, rather than soliciting small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s determination and findings (D & F) for decision to use full and open competition, rather than soliciting small business set-aside follow-on contract after expiration of contract with military contractor providing programmatic services in support of weapon systems development, was not unreasonable on grounds of purported organizational conflict of interest (OCI), where other-than-small-business contractor was not involved in drafting statement of work (SOW) or specifications for sources sought synopsis (SSS) to determine whether follow-on contract was needed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Air Force requirement that bidders for contract to provide programmatic services supporting weapon systems development had to demonstrate that they themselves, rather than subcontractors, could perform 50% of contract, was not prejudicial violation of procurement regulation limiting subcontracting, in support of Air Force\rquote s decision to use full and open competition, rather than soliciting small business set-aside follow-on contract, based on initial responsibility determination that there was no reasonable expectation that two or more small businesses would submit offers for solicitation, since subcontracting limitation was material term that would be included in any small business contract award, and initial responsibility determination did not require referral to Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor would suffer irreparable harm in absence of permanent injunction invalidating Air Force\rquote s decision to use full and open competition, rather than soliciting small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development, since bid protestor could only recover bid preparation costs in action for damages but could not recover loss of anticipated profits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Balance of hardships did not favor permanent injunction invalidating Air Force\rquote s decision to use full and open competition, rather than soliciting small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development, since financial harm to small business military contractor was displaced by harm to Air Force due to contractor\rquote s failure to succeed on merits of claim that Air Force\rquote s decision was unreasonable and violated procurement regulations, and due to grave harm to Air Force by delay in procurement process that would affect national security and defense against weapons of mass destruction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Public interest would not be served by permanent injunction invalidating Air Force\rquote s decision to use full and open competition, rather than soliciting small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development, since Air Force\rquote s decision was rational and complied with procurement regulation, and injunction would hinder Air Force\rquote s ability to perform and procure services concerning national security and defense. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court after argument on the parties\rquote cross-motions for judgment on the administrative record. The United States Air Force (\the Air Force\) decided not to solicit a small business set-aside follow-on contract after the expiration of plaintiff\rquote s contract. Plaintiff challenges this decision as unreasonable Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': RhinoCorps Ltd. Co. (\plaintiff\) is a small business incorporated in New Mexico. Plaintiff filed suit against the United States for problems stemming from acquisition of services that the Air Force had procured from plaintiff under an expired contract (the \ARSS contract\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': awarded Contract No. F29601\u821103\u8211C\u82110203 for programmatic services supporting weapon systems development to plaintiff through a competitive small business set-aside. Compl. \u182 4. The contract incorporated by reference 48 C.F.R. (FAR) \u167 52.219\u821106 (2006), setting aside acquisitions for qualifying small businesses. Also incorporated by reference was FAR 52.219\u821108, which implements a policy to allow qualifying small businesses the maximum opportunity to participate in performing federal contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': applied, as well, and mandates that a contract with the value and performance characteristics of the ARSS contract would be awarded to a small business upon an agency determination that at least two responsible small businesses would be reasonably expected to submit offers. This regulation is the centerpiece of this litigation. Plaintiff, with the highest rated technical proposal and the lowest proposed price, secured award. Plaintiff agreed to a two-year contract term with three one-year option periods. The ARSS contract expired on May 29, 2008. Compl. \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': On January 28, 2008, Joan Fulkerson, Director of Small Business Programs, Air Force Research Laboratory (\AFRL\) & Kirtland Air Force Base, e-mailed Roger Shinnick, Division Chief at AFRL contracting, requesting an update about the ARSS contract, questioning \where the work [was] going\ and whether a large contractor was going to be performing the remaining work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': On February 22, 2008, following plaintiff\rquote s submission of a Freedom of Information Act (\FOIA\) request probing the Air Force\rquote s decision not to recompete the requirements covered by the ARSS contract, representatives of plaintiff and the Air Force met regarding a possible follow-on to the ARSS contract. Plaintiff alleges that the Air Force stated that \it was not unhappy with [plaintiff\rquote s] performance,\ but that \it was not required to maintain the work that is the subject of the ARSS Contract as a small business set-aside.\ Compl. \u182 19. Following another FOIA request, the parties met on March 19, 2008. Plaintiff alleges that the Air Force had a legal obligation to continue this procurement through the small business set-aside program. The Air Force disagreed, explaining that the ARSS requirements had changed. According to plaintiff, this was the first notice by the Air Force that change-of-circumstances prompted the decision not to solicit a follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': AR at 17. To allow small business contractors to compete, the ARSS would conduct market research by means of a \Sources Sought Synopsis\ (sometimes referred to as the \Sources Sought\ or the \SSS\) to determine whether a follow-on contract was needed. Plaintiff was encouraged to respond to the Sources Sought Synopsis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': AR at 12\u821113. The report then summarized the \Market Research\ that had examined entities that potentially could provide needed technical support. AR at 13. The report grouped the companies into three categories: Small Businesses; Technical Research Centers; and Large/Other Companies that Can/Have Supported 709 ARSS. It was determined that ITTAES was the only \viable option for 709 ARSS Support.\ AR at 14. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': the Air Force specified that, after plaintiff\rquote s contract expires on May 29, 2008, its \Immediate Support\ strategy is to serve its needs \through existing tasks under the current DTRIAC contract.\ AR at 574. The report also bulleted a number of items labeled as \Current Strategy,\ which contemplated the repercussions of a \legal injunction\ and included plans to issue a Sources Sought evaluating whether two or more small businesses could complete the Air Force\rquote s remaining contract requirements. AR at 575. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': One of the things we are going to have to do is send out a \sources sought\ synopsis to determine if there are two or more small businesses that can perform the effort. I am working on a draft of the synopsis and will contact you tomorrow to discuss. I will need you to review the capability statements submitted in response to the synopsis, and assess capabilities.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': AR at 884. Mr. Watt later served as one of the three evaluators, who scored the Statement of Capabilities submitted by each of the three small businesses respondents. He replied on the next date: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u8212if two or more small businesses are identified, how do we proceed? Will DTRA still support us in acquiring these services or do we need to prep a different contracting office? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff commenced this action on June 3, 2008, marshaling an array of charges to indict the Air Force\rquote s decision not to solicit small businesses for a follow-on contract to the ARSS contract as contrary to law. Compl. \u182 37. Plaintiff\rquote s primary contention was that diverting the duties of the ARSS contract violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which requires contracting officers to set aside acquisitions over $100,000.00 for small business participants upon an agency determination that at least two responsible small businesses would be reasonably expected to submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182\u182 39(a), (b). Plaintiff leveled the charge that the Air Force did not announce that the ARSS requirements had changed until after plaintiff confronted the Air Force with the \legal authority concerning its obligation to maintain the small business set-aside program represented by the ARSS Contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': AR at 405\u821107. The D & F concluded in its overall evaluation that plaintiff\rquote s personnel did not have the experience necessary to support modeling and simulation activities required by the contemplated contract. The resumes submitted by plaintiff exemplified that its employees lacked \core technical analyses and design qualifications required to support the 709 NSS technical support requirements.\ AR at 406. The D & F reported that most of plaintiff\rquote s employees were technical managers, which complemented an effort no longer required. Similarly, the D & F found [ ] Statements of Capabilities insufficient. Based on the foregoing, Ms. Lindom determined, \[a]s the Contracting Officer,\ that she did not have a reasonable expectation that the NSS would receive offers from two or more responsible small businesses. AR at 407. Shortly thereafter, on October 6, 2008, the NSS announced that it planned the acquisition for the 709th NSS requirement as a full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': In defendant\rquote s supplemental brief filed on November 17, 2008, defendant offered the D & F as evidence that plaintiff\rquote s claims relating to the violation of small business procurement regulations were moot because the Air Force had complied with the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , determining that no reasonable expectation existed that the Air Force would receive offers from at least two responsible small businesses. Therefore, Contracting Officer Lindom determined that \[i]t is in the best interest of the government to have full and open competition for this acquisition.\ AR at 407. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff disputed the factual basis for the Air Force\rquote s conclusion in the D & F and advanced that this report merely was submitted in an attempt to cover up the fact that the Air Force either failed to initiate timely a small business follow-on process or determined that ITT\u8211AES could perform the services cheaper than a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': ). Therefore, plaintiff has the burden of proving either that the Air Force acted without a rational basis when it decided not to solicit a small business set-aside or it must show \a clear and prejudicial violation of applicable statutes or regulations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': when determining not to solicit a small business follow-on contract. Defendant submits that plaintiff has failed to show that the Air Force has acted arbitrarily, capriciously or in violation of any law; moreover, what the record demonstrates, according to defendant, is the Air Force\rquote s full compliance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \because it undertook the required small business analysis Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff rejoins that the Air Force did not make the required determination before deciding to issue the work to ITT\u8211AES, and it was not until after plaintiff prodded the Air Force about the legality of its actions that the Air Force proceeded to issue the SSS. Moreover, plaintiff was prejudiced because the \untimely analysis conducted by the Air Force contributed to the production of an unreasonable D & F.... [T]he D & F was assembled to justify the Air Force\rquote s prior decision to abandon the small business set-aside program without considering whether at least two responsible small businesses could perform a follow-on contract.\ Pl.\rquote s Br. filed May 4, 2009, at 8. Consequently, the small business program was eliminated, as was plaintiff\rquote s opportunity to compete for a follow-on contract that plaintiff argues it had a substantial chance of being awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': e-mails should be considered in light of the Air Force\rquote s desire to direct the work that plaintiff previously performed to ITT\u8211AES. Plaintiff imputes to ITT\u8211AES every motive to assist in the drafting of the SSS as a means to limit the number of small businesses that could successfully respond to the SSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': 1. Have the TAT 168 RFP to ITT specify a small business requirement to cover the work that RhinoCorps is currently performing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': 2. Finish TAT 168 with the agreement that the 709th will create a small business set-aside to cover the work that Rhino Corps is currently performing.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The inclusion of these e-mails in the administrative record crystallizes an initial question: if these e-mails are not relevant to the SSS at issue in this litigation, why is this one-way communication included in the record? Defendant, during oral argument, represented that plaintiff asked defense counsel to include in the record any communication by the Air Force with ITT\u8211AES that referenced \small business.\ This certainly goes beyond the twenty-one types of information included in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': 5. The senior leadership of the 709 NSS conducted an analysis to determine if there were potential small businesses that could successfully perform these new requirements in compliance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , Limitation on Subcontracting, which requires at least 50% of the cost of contract performance incurred for personnel shall be expended for employees of the small business. They concluded that there were no small businesses that possessed adequate resources in the breadth of technical disciplines required by the 709 NSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': and applied the 50% rule in making the determination that there is not a reasonable expectation that two or more small businesses would submit offers for a solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': would be included in any contract award because the limitation on subcontracting is a material term of a small business contract. As a consequence, defendant argues, the Air Force properly considered the limitation on subcontracting in evaluating the Statements of Capabilities because it was assessing whether small businesses could satisfy the material terms of the procurement and submit \technically acceptable offers.\ Def.\rquote s Br. filed May 4, 2009, at 8. The Air Force anticipated that some of its technical support would be made on an as-needed and short-term basis, sometimes within hours or days, as substantiated by Capt. Norman. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': As a general matter, an agency\rquote s judgment as to whether a small business offeror will comply with the subcontracting limitation is a matter of responsibility, and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': is distinguishable because the technical evaluation of proposals was undertaken after a solicitation. However, defendant\rquote s point is well taken in the context of an agency\rquote s determining whether it is reasonable to expect responsible small businesses to submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': requires a small business to adhere to the limitations on subcontracting, a contracting officer\rquote s finding that a small business cannot comply with the limitation shall be treated as an element of responsibility and shall be subject to the COC process....\ (Emphasis added.) The first observation made when reviewing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': is that section (d) plainly refers to nonresponsibility determinations following the issuance of a solicitation for a small business concern. Moreover, when faced with a similar issue on appeal, the Federal Circuit made this distinction, finding that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , inherently includes an initial responsibility determination, as the regulation provides that \[t]he contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that [ ] offers will be obtained from at least two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': small business concerns ....\ (emphasis added). As defendant emphasizes, plaintiff has not explained why a preliminary determination under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': If plaintiff had identified its employees, as opposed to those of its subcontractor, defendant maintains that undefined tasks would not preclude the Air Force from evaluating the capabilities of the small business on a reasonable basis. Given that the Air Force was required to make an affirmative determination under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': It appears from an e-mail sent by Tammie Johnson to nine Air Force personnel (including Michael A. Watt, CXD Division Chief for the Air Force\rquote s 709th NSS) that there was confusion about which contracting office was involved in the possible small business follow-on contract: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The D & F did not exist when plaintiff filed its complaint and was not provided to plaintiff, or the court, until defendant filed its supplemental brief on November 17, 2008. Following the issuance of the D & F, the general claim made by plaintiff attacking the reasonableness of the Air Force\rquote s decision not to solicit a small business set-aside developed with more precision, and, predictably even more so, following the filing of the administrative record. The OCI claim is merely another argument made by plaintiff attacking the reasonableness of the D & F and the Air Force\rquote s compliance with applicable procurement regulations, i.e., the Air Force\rquote s justification for not soliciting a small business follow-on contract. Defendant is not in any manner prejudiced by consideration of this argument based on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 003 - DataPath Inc v US.doc, Paragraph with 'The Rule of Two': In addition, the J & A provided that the contract was a \competitive small business set-aside among all authorized third party resellers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 003 - DataPath Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation was designated as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 003 - DataPath Inc v US.doc, Paragraph with 'The Rule of Two': April 28, 2009 Gov\rquote t Ex. 1. Consequently, the Government now has challenged DataPath\rquote s standing to protest the March 23, 2009 Solicitation, as a \small business\ set-aside. DataPath responds that the designation of this procurement as a \small business\ set-aside is unlawful, since L\u82113 Global is the real party at interest, as evident by the April 7, 2009 intervention. If the \small business\ set-aside is unlawful, DataPath has standing to challenge whether the Government violated the Competition in Contracting Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 003 - DataPath Inc v US.doc, Paragraph with 'The Rule of Two': 2009\u8211082 (Project No. D2008\u8211D000AS\u82110085.000) at 4. (\Of the 133 task orders valued at $2.1 billion that we reviewed, 39 valued at $469.3 million were not awarded based on adequate competition ... [Competition was restricted in part because the program manager] deviated from the FAR by not ensuring contracting officers performed adequate market research on small business set-aside task order contracts.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'The Rule of Two': . Valor has five (5) days from the date of this Order to show cause or to dismiss those Defendants. Finally, the Court instructs both Valor and Healthstar VA to provide briefing on the issue of whether the Arkansas Supreme Court would permit use of the federal Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'The Rule of Two': (Small Business Act did not preempt state law claims of unjust enrichment, intentional interference with economic advantage, and fraud asserted by unsuccessful bidder); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'The Rule of Two': Valor has five (5) days from the date of this Order to show good cause for its failure to serve Joe Doe Defendants 1\u82115. Finally, Valor and Healthstar VA have ten (10) days from the date of this Order to provide briefing on the issue of whether the Arkansas Supreme Court would permit use of the federal Small Business Act as the standard for determining fraud and tortious interference with prospective advantage. This case remains set for trial on July 6, 2009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'The Rule of Two': The Court also notes that Valor has set forth a res judicata argument under Arkansas state law. It suffices to say that to the extent that Healthstar VA seeks review of the Small Business Administration\rquote s size determination, Healthstar VA has not provided the Court with any jurisdictional authority permitting such review. However, the Court finds Valor\rquote s res judicata argument to be largely moot in light of our determination that the Court lacks subject matter jurisdiction over federal bid challenges. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor brought action against the United States, seeking declaratory and injunctive relief invalidating decision of the Air Force not to solicit a small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development granted to contractor through a competitive small business set-aside. United States moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor was an \interested party\ in connection with procurement or proposed procurement, as required under the Tucker Act for contractor to have standing to bring bid protest in the Court of Federal Claims, where it had direct economic interest in competing for solicitation for small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development, granted to it through a competitive small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor stated claim for permanent injunctive relief by alleging that Air Force acted arbitrarily or capriciously, or that it prejudicially violated an applicable procurement regulation, in deciding not to solicit a small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development granted to contractor through a competitive small business set-aside, where it pleaded sufficient facts that rose above a speculative level to establish that Air Force\rquote s determination and findings, in fulfillment of regulation governing setting aside of acquisitions for qualifying small businesses, was unreasonable, and it adequately presented facts that it was prejudiced by Air Force\rquote s action because its determination and findings precluded contractor from bidding on any contract for the services that it formerly provided. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': . Plaintiff seeks declaratory and injunctive relief invalidating the decision of the United States Air Force (\the Air Force\) not to solicit a small business set-aside follow-on contract after the expiration of plaintiff\rquote s contract. Plaintiff labels this decision as unreasonable and in violation of applicable procurement law. Argument on the jurisdictional issue of standing is deemed unnecessary, although argument should inform the proceedings in connection with plaintiff\rquote s challenge to the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The following facts are drawn from the complaint. RhinoCorps Ltd. Co. (\plaintiff\) is a small business incorporated in New Mexico. Plaintiff filed suit against the United States for problems stemming from acquisition of services that the Air Force had procured from plaintiff under an expired contract (the \ARSS contract\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': On May 29, 2003, what is now called the 709th Armament System Squadron (the \ARSS\), an agency of the Air Force, awarded the ARSS contract for programmatic services supporting weapon systems development to plaintiff through a competitive small business set-aside. Compl. \u182 4. The contract incorporated by reference Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (2000), setting aside acquisitions for qualifying small businesses. Also incorporated by reference was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which implements a policy to allow qualifying small businesses the maximum opportunity to participate in performing federal contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': applied, as well, and mandates that a contract with the value and performance characteristics of the ARSS contract would be awarded to a small business upon an agency determination that at least two responsible small businesses would be reasonably expected to submit offers. This regulation is the centerpiece of this litigation. Plaintiff, with the highest rated technical proposal and the lowest proposed price, secured award. Plaintiff agreed to a two-year contract term, with three one-year option periods. The ARSS contract expired on May 29, 2008. Compl. \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 16 (quoted source not cited in original). On February 22, 2008, following plaintiff\rquote s submission of a Freedom of Information Act (\FOIA\) request probing the Air Force\rquote s decision not to recompete the requirements covered by the ARSS contract, representatives for plaintiff and the Air Force met regarding a possible follow-on to the ARSS contract. Plaintiff alleges that the Air Force stated that \it was not unhappy with [plaintiff\rquote s] performance,\ but \it was not required to maintain the work that is the subject of the ARSS Contract as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 19. Following another FOIA request, the parties met again on March 19, 2008. Plaintiff alleges that the Air Force had a legal obligation to continue this procurement through the small business set-aside program. The Air Force disagreed, explaining that the ARSS requirements had changed. According to plaintiff, this was the first notice by the Air Force that change-of-circumstances prompted the decision not to solicit a follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 26(d). To allow small business contractors to compete, the ARSS would conduct market research by means of a \Sources Sought Synopsis\ to determine whether a follow-on contract was needed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that transferring duties from the original ARSS small business contract to the pre-existing other-than-small business contract with ITT\u8211AES was an \improper transfer[ ] of work from a small business set-aside program to ... an other-than small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff marshals an array of charges to indict the Air Force\rquote s decision not to solicit small businesses for a follow-on contract to the ARSS contract as contrary to law. Compl. \u182 37. Plaintiff\rquote s primary contention is that diverting the duties of the ARSS contract violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which requires contracting officers to set aside acquisitions over $100,000.00 for small business participants upon a determination that a reasonable expectation exists that at least two responsible small business concerns will submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182\u182 39(a),(b). Plaintiff levels the charge that the Air Force did not announce that the ARSS requirements had changed until after plaintiff confronted the Air Force with the \legal authority concerning its obligation to maintain the small business set-aside program represented by the ARSS Contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s ARSS contract (the similarity of the programmatic services provided thereunder to the prospective solicitation) demonstrates plaintiff\rquote s direct economic interest in the subject matter of a small business set-aside covering such programmatic services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': designates certain awards as small business set-asides and conditions award of a contract as a small business set-aside on a finding that the potential for set-aside is present: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ... and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Total small business set-asides shall not be made unless such a reasonable expectation exists Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': the Air Force improperly diverted work from a small business set-aside under the ARSS contract to an other-than-small-business contractor on the DTRIAC contract; (2) the Air Force determined that a small business did not have the ability to continue the work before soliciting a follow-on contract to ARSS; and (3) the Air Force decided not to extend the ARSS contract until it awarded a follow-on contract or decided that one could not be satisfactorily performed by a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff characterizes its objection to the transfer of work from the ARSS contract to the DTRIAC contract as \a challenge to the underlying solicitation for the DTRIAC contract.\ Pl.\rquote s Br. filed Nov. 17, 2008, at 6. Plaintiff\rquote s \protest does not seek to challenge merely the addition of work to an existing contract but rather the improper diversion of work from a small business set-aside program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': . LBM, a small business concern, protested the Air Force\rquote s efforts to acquire transportation motor pool services as a follow-on requirement to a Logistical Joint Administration Management Support Services (\LOGJAMSS\) contract, which was a multiple-award, indefinite-delivery, indefinite-quantity (\ID/IQ\) task-order contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The protestor argued that these services\u8212previously performed exclusively by small businesses for over ten years\u8212should continue to be small business set-asides: \[T]he Army improperly failed to coordinate with the SBA in deciding to withdraw these services from exclusive small business participation and instead to transfer the services to the\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': makes it clear that a protest objecting to the diversion of work from a small business set-aside program to a contract being performed by an other-than-small[-business] contractor is a challenge to the terms of the underlying solicitation of the large contract and thus within [this court\rquote s] bid protest jurisdiction.\ Pl.\rquote s Br. filed Aug. 6, 2008, at 5. Plaintiff sees three aspects to this protest: the diversion of work from ARSS to DTRIAC; the Air Force\rquote s decision not to solicit a follow-on ARSS contract before inquiring whether a small business had the ability to satisfy ARSS requirements; and the timing of the analysis required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': at 7\u82118. In sum, plaintiff contends that the Air Force cannot \abandon a small business set-aside program without first complying with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff cites the D & F itself as deficient in two respects: first, the D & F does not establish that the Air Force properly diverted work from a small business set-aside program to an other-than-small business contractor. Pl.\rquote s Br. filed Dec. 5, 2008, at 3\u82114. Second, plaintiff disputes the factual basis for the D & F\rquote s finding \that there is not a reasonable expectation that offers will be obtained from at least two responsible small businesses capable of satisfying\ the Air Force\rquote s stated requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': at 6. Plaintiff labels the contracting officer\rquote s rationalization that the Air Force decided not to solicit a small business follow-on contract because its requirements changed \a pretext and a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , indisputably a procurement regulation, is implicated because it requires a D & F (or like record of finding) before an agency abandons a small business set-aside and declines to solicit a follow-on contract. The regulation requires the contracting officer to issue the D & F to memorialize that a small business set-aside does not meet its needs before the Air Force initiates a new solicitation that is not a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The timing of the D & F is one factor in plaintiff\rquote s arsenal of arguments that the decision itself is not reasonable. Defendant does not dispute plaintiff\rquote s allegations that the work performed previously by plaintiff now is being performed by ITT\u8211AES. As defendant concedes, the Air Force issued a Sources Sought Synopsis and \planned to conduct[ ] market research to determine how to best meet its future contracting needs, and to what extent small businesses may be able to fill those needs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not foreclose jurisdiction in the case at bar, the decision does not recognize plaintiff\rquote s claim regarding diversion of work from the ARSS contract or for failure to award a small business set-aside follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not contemplate the claim that plaintiff lodges concerning diversion of work from an on-going contract. Rather, the GAO expressly recognized the distinction between issuance of a task order for services covered by a small business set-aside contract and a decision of the procuring agency not to continue to set aside those services for small businesses. The Court of Federal Claims\rquote bid protest jurisdiction does not extend to an allegation that work within the scope of a protestor\rquote s non-requirements contract has been diverted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': While jurisdiction is not present to examine as a bid protest how the Air Force managed the ARSS contract, the determination that a small business cannot satisfy the Air Force\rquote s requirements, as explicated in its D & F, does not foreclose as moot plaintiff\rquote s challenge to the reasonableness of the D & F. The parties disagree about the legal consequences of the facts, but the facts themselves are undisputed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Because the FAR contemplates issuance of a valid D & F before the Air Force can abandon a prior small business set-aside covering the same programmatic services, the issuance of the D & F itself does not moot plaintiff\rquote s challenge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that the Air Force acted contrary to law by assigning the work plaintiff previously performed under the ARSS contract to an other-than-small business without first performing the analysis set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not obligate the Air Force to perform a small business analysis before allowing plaintiff\rquote s contract to expire. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (stating that contracting officer must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (finding that agency required to make reasonable efforts to determine whether two small businesses are capable of performing contract). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': and rendering plaintiff\rquote s claim moot. Defendant insists that the Air Force has made the determination required by regulation that it will not award any follow-on contract to a small business set-aside, because no reasonable expectation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': is present that it would receive offers from at least two responsible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff advances the position that this report is submitted in an attempt to cover up the fact that the Air Force either failed to initiate timely a small business follow-on process or determined that ITT\u8211AES could perform the services cheaper than a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor filed suit, seeking declaratory and injunctive relief invalidating Air Force\rquote s decision not to solicit small business set-aside follow-on contract after expiration of its contract for programmatic services supporting weapon systems development. Contractor moved for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored preliminary injunction invalidating Air Force\rquote s decision not to solicit small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development; contractor would incur increased litigation expense and lost opportunity cost, while delay to procurement would not unduly prejudice Air Force. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Public interest supported grant of preliminary injunction invalidating Air Force\rquote s decision not to solicit small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development, since injunction would ensure that Air Force would follow mandatory procurement procedure that initially Air Force deemed inapplicable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The United States Air Force (\the Air Force\) decided not to solicit a small business set-aside follow-on contract after the expiration of plaintiff\rquote s contract. Plaintiff challenges this decision as unreasonable and in violation of applicable procurement law. This is another iteration in an old pre-award bid protest filed in June 2008; transferred to the undersigned on September 19, 2008; and subject to aging and deferred ruling due to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (May 15, 2009), slip op. at 2\u82114. RhinoCorps Ltd. Co. (\plaintiff\) is a small business incorporated in New Mexico. Plaintiff filed suit against the United States for problems stemming from acquisition of services that the Air Force had procured from plaintiff under an expired contract (the \ARSS contract\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': On May 29, 2003, what is now called the 709th Armament System Squadron (the \ARSS\), an agency of the Air Force, awarded the ARSS contract for programmatic services supporting weapon systems development to plaintiff through a competitive small business set-aside. Compl. \u182 4. The contract incorporated by reference Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (2006), setting aside acquisitions for qualifying small businesses. Also incorporated by reference was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which implements a policy to allow qualifying small businesses the maximum opportunity to participate in performing federal contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': applied, as well, and mandates that a contract with the value and performance characteristics of the ARSS contract would be awarded to a small business upon an agency determination that at least two responsible small businesses would be reasonably expected to submit offers. This regulation is the centerpiece of this litigation. Plaintiff, with the highest rated technical proposal and the lowest proposed price, secured award. Plaintiff agreed to a two-year contract term, with three one-year option periods. The ARSS contract expired on May 29, 2008. Compl. \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 16 (quoted source not cited in original). On February 22, 2008, following plaintiff\rquote s submission of a Freedom of Information Act (\FOIA\) request probing the Air Force\rquote s decision not to recompete the requirements covered by the ARSS contract, representatives for plaintiff and the Air Force met regarding a possible follow-on to the ARSS contract. Plaintiff alleges that the Air Force stated that \it was not unhappy with [plaintiff\rquote s] performance,\ but \it was not required to maintain the work that is the subject of the ARSS Contract as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 19. Following another FOIA request, the parties met again on March 19, 2008. Plaintiff alleges that the Air Force had a legal obligation to continue this procurement through the small business set-aside program. The Air Force disagreed, explaining that the ARSS requirements had changed. According to plaintiff, this was the first notice by the Air Force that change-of-circumstances prompted the decision not to solicit a follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 26(d). To allow small business contractors to compete, the ARSS would conduct market research by means of a \Sources Sought Synopsis\ to determine whether a follow-on contract was needed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff marshaled an array of charges to indict the Air Force\rquote s decision not to solicit small businesses for a follow-on contract to the ARSS contract as contrary to law. Compl. \u182 37. Plaintiff\rquote s primary contention was that diverting the duties of the ARSS contract violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which requires contracting officers to set aside acquisitions over $100,000.00 for small business participants upon a determination that a reasonable expectation exists that at least two responsible small business concerns will submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182\u182 39(a), (b). Plaintiff leveled the charge that the Air Force did not announce that the ARSS requirements had changed until after plaintiff confronted the Air Force with the \legal authority concerning its obligation to maintain the small business set-aside program represented by the ARSS Contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': finding that no reasonable expectation existed that the Air Force would receive offers from at least two responsible small businesses. Def.\rquote s Br. filed Nov. 17, 2008, at 4. Therefore, Contracting Officer Shirley D. Lindom determined that \[i]t is in the best interest of the government to have full and open competition to for this acquisition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff disputed the factual basis for the Air Force\rquote s conclusion in the D & F and advanced that this report was merely submitted in an attempt to cover up the fact that the Air Force either failed to initiate timely a small business follow-on process or determined that ITT\u8211AES could perform the services cheaper than a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': conditions award of a contract as a small business set-aside on a finding that the potential for set-aside is present: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ... and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': is factually distinguishable from this case. Plaintiff in the case at bar protested the Air Force\rquote s decision to not solicit a small business for the NSS procurement, and \[t]he Air Force\rquote s decision to issue a solicitation providing for full and open competition is precisely what the protest was intended to prevent. Unlike Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Having moved for injunctive relief prior to the Solicitation\rquote s due date for submission of proposals, plaintiff seeks to enjoin the Air Force from evaluating the one response to the Solicitation. Plaintiff summarizes its position stating that it filed its protest months before the Solicitation was issued and before the Air Force issued its \after-the-fact D & F. This protest properly laid the axe at the root of the problem\u8212the Air Force\rquote s failure to continue to procure the services at issue using a small business set-aside, follow-on contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , arguing that plaintiff\rquote s decision not to respond to the Solicitation should not be viewed as evidence supporting the reasonableness of the decision by the Air Force not to solicit a small business set-aside contract. As articulated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': it is reasonable for a small business to decide not to compete with large-business contractors for work in an unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , whether it has a reasonable expectation that a small business will participate in a set-aside competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 015 - Blackwater Lodge And Training Center Inc v US.doc, Paragraph with 'The Rule of Two': AR 67. The Technical Understanding factor contained three subfactors: (1) course understanding, (2) technical references, and (3) program risk. AR 67\u821168. The Technical Capability factor included five subfactors: (1) instructor qualifications, (2) equipment support, (3) recruitment and retention, (4) mobilization plan, and (5) transition plan. AR 68. Finally, the Management/Management Structure factor contained five subfactors: (1) management experience, (2) organizational structure, (3) instructor management, (4) small business participation plan, and (5) subcontracting plan. AR 69. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 028 - White Hawk Group Inc v US ex rel US Small Business Admin.doc, Paragraph with 'The Rule of Two': The UNITED STATES OF AMERICA ex rel U.S. SMALL BUSINESS ADMINISTRATION, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 028 - White Hawk Group Inc v US ex rel US Small Business Admin.doc, Paragraph with 'The Rule of Two': Christopher James McClintock, Small Business Administration\u8211DC, Washington, DC, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 028 - White Hawk Group Inc v US ex rel US Small Business Admin.doc, Paragraph with 'The Rule of Two': Plaintiffs White Hawk Group, Inc., Todd Construction, LP, and White Hawk/Todd, A Joint Venture (\White Hawk/Todd\) bring this suit against the United States under the Administrative Procedures Act (\APA\), challenging various decisions of the Small Business Administration (\SBA\). The court previously stayed the action pending completion of related administrative proceedings. The case was reopened after the SBA issued its final decision. The defendant has now filed a motion to dismiss, asserting the court lacks subject matter jurisdiction to consider the plaintiffs\rquote claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': , and the plaintiff\rquote s cross-motion for judgment upon the administrative record. In its amended complaint and its cross-motion for judgment on the administrative record, the plaintiff asserts that the Department of Energy (\DOE\) violated its duties under the Federal Acquisition Regulations (\FAR\) to conduct business with integrity, fairness, and openness and to set aside procurements for exclusive participation of small business concerns and breached its \implied-in-fact contract\ to consider federal procurement proposals fairly and honestly when it cancelled a solicitation for deactivation and decommissioning of the Fast Flux Test Facility (\FFTF\) reactor at the Hanford Nuclear Reservation (\Hanford\ or \Hanford Site\) in Richland, Washington. The government has moved to dismiss the suit on the grounds that the plaintiff has not identified any violation of a mandatory, enforceable regulatory requirement and that the court lacks jurisdiction over implied-in-fact contract claims in the bid protest context. In the alternative, the government argues that, even if the court finds that it has jurisdiction over the plaintiff\rquote s claims, the administrative record demonstrates that DOE\rquote s decision to cancel the solicitation was rational and made in good faith, thereby warranting judgment in the government\rquote s favor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': In 2003, a strategy was developed to implement the FFTF closure project, including both the ongoing deactivation and any decommissioning of the facility, through a small business set-aside acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': In December 2003, DOE issued a Request for Proposals (\RFP\) (Solicitation Number DE\u8211RP06\u821104RL 14600) as a small business set-aside, to complete deactivation and decommissioning (entombment) of the FFTF. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': AR 4. The SSO memo stated that \EM has examined a full range of options for consideration,\ each of which was \analyzed using decision criteria of mission success, funding availability, NEPA, regulator stakeholder interests, cost and schedule, acquisition objectives, and small business interests.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': The SSO memo recommended that \the best path forward [was] to cancel the FFTF Project Closure solicitation, get the facility to a lower risk deactivated status, and put the facility in a long-term, low-cost [S & M] mode.\ AR 6. The memo further recommended that the \incumbent site contractor proceed with the minimum work required to bring the facility to a low risk status for a long term and low cost [S & M] mode.\ AR 2. Mr. Frei explained that the decision was not \reached casually or lightly,\ stating that, \[i]n making this recommendation, the SSO has considered the costs expended by the small businesses that have participated in this procurement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': Mr. Frei also noted that \[u]ntil very recently, the SSO fully expected to select one of those small businesses for award....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': that \[t]he contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': In its cross-motion for judgment on the administrative record, the plaintiff contends that the record in this case demonstrates that DOE did not treat the bidders with integrity, fairness, and openness, because DOE did not have a rational basis for cancelling the small business set-aside solicitation and instead authorizing the large business incumbent to perform the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': Next, the court turns to the question of whether it has jurisdiction to consider the plaintiff\rquote s implied-in-fact contract claim. The plaintiff claims that an implied-in-fact contract of good faith and fair dealing, under which the government was obligated to consider the plaintiff\rquote s proposal fairly and honestly, arose when FRC submitted a proposal in response to DOE\rquote s solicitation and that this implied contract was breached when DOE, without a rational basis, decided to cancel the small business set-aside solicitation while continuing to purchase the required services from a large business concern. The government argues that the plaintiff\rquote s implied-in-fact contract theory is barred in the bid protest context because, following the passage of the ADRA, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': provides that the CO \shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.\ Here, the plaintiff alleges that DOE violated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': when it cancelled the small business set-aside solicitation and allowed the incumbent large business contractor to perform the work that had been included therein. The government argues that this court lacks jurisdiction to consider the alleged violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': because the provision \does not mandate termination of contracts already being performed[, in this case, the large business incumbent\rquote s contract,] to resolicit the same work from small businesses,\ and because the provision \addresses only the decision to set aside acquisitions,\ not the decision to cancel, which the government argues is the only agency decision at issue in this case. Def.\rquote s Mot. at 15. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': Determining whether the provision prohibited the government\rquote s conduct in deciding to cancel the small business set-aside and instead allow the large business incumbent to complete the work requires a resolution on the merits of the plaintiff\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': Likewise, the plaintiff contends that the administrative record provides no support for the agency\rquote s determination that, by the time an award was made on the amended solicitation, \the residual work scope and period of performance [would have been] so small as to be not cost effective for award.\ AR 6. The plaintiff argues that any of the small business offerors would have been more cost-effective, as evidenced by the fact that their proposed prices were less than the government\rquote s estimate of the cost of the original solicitation of $350 million. The plaintiff asserts that, \[i]ndeed, a four-year (to date) performance period cannot reasonably be considered small and an offer to perform at two-thirds of the government estimate cannot reasonably be considered not [to] be cost effective when a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': motions for judgment of the administrative record focuses on the alleged lack of a rational basis for the agency\rquote s decision, the plaintiff\rquote s allegation that \what is present in this case is an apparent decision to go with the big contractor to the direct detriment of small businesses and the taxpayer, while creating the illusion that a fair and open decision was made,\ Pl.\rquote s Reply at 12, hints at an argument that the cancellation decision was pretextual in some way. An agency\rquote s explanation for its decision to cancel may not be \merely a pretense\ for another, improper motivation for cancelling, including those \ \u8216reflecting personal predilections of administrative officials, whether ascribable to whim, misplaced zeal, or impermissible influence,\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': In this case, the plaintiff has not put forth any evidence to show that the agency acted with improper motives in cancelling the solicitation and continuing with the incumbent contractor. To the contrary, the record in this case demonstrates that DOE, in addition to having a rational basis for its actions, considered the impacts that cancellation would have on the bidders. The SSO memo explained that the decision to cancel was not \reached casually or lightly\ and stated that, \[i]n making this recommendation, the SSO has considered the costs expended by the small businesses that have participated in this procurement.\ AR 6. The Acquisition Objectives/Small Business Interests section of the FFTF Decision Table expressly contemplated that there would be a \large financial impact on small business offerors (bid and proposal costs, lost revenue).\ AR 15. The SSO memo stated that, \[u]ntil very recently, the SSO fully expected to select one of those small businesses for award....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': , which, as noted above, requires the CO to \set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ...; and (2) award will be made at fair market prices.\ The court finds that where, as here, the decision to cancel the solicitation and allow the incumbent to continue working under an existing contract was rationally supported, and the plaintiff has not put forth any evidence that the decision was a pretext to avoid contracting with small businesses, the agency did not violate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': by not setting the work aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': 1. The Decision to Cancel the Small Business Set\u8211Aside and Continue with the Incumbent Contractor Was Rational Given the Diminished Scope of Work Remaining. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': As discussed at length above, the court finds that the agency\rquote s decision to cancel the solicitation in this case and continue with the incumbent contractor was supported by a rational basis, notwithstanding the fact that the solicitation was a small business set-aside and the incumbent contractor was a large business, because the agency determined that the scope of the work remaining would be too small to make awarding a new contract cost effective. The agency in this case did not decide to cancel the small business set-aside and resolicit the work to award it to a large business contractor under a new contract, which would have given rise to a concern that the new contract should have been set aside for small businesses, depending on the circumstances. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': was not violated when an agency cancelled a solicitation that was set aside for small businesses and issued a new solicitation on an unrestricted basis because it rationally determined that there was only one small business manufacturer who could be expected to submit a proposal). Rather, the agency in this case simply continued to allow the large business incumbent to complete some of the work included in the solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': does not mandate that existing contracts be retracted and given to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': \only governs whether a procurement will be issued as a small business set aside. It has no impact on issued solicitations.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': simply requires that, if the government decides to go forward with a new procurement, it must be done as a small business set-aside in certain specified circumstances. Here, the agency decided Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': 2. The Plaintiff Has Not Put Forth Any Evidence that the Decision to Cancel Was a Pretext to Avoid Contracting with Small Businesses and Continue with the Large Business Incumbent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': The court reiterates that this is not a case in which the plaintiff has put forth any evidence to show that agency\rquote s actions were a mere pretext for some improper motivation, such as to avoid contracting with small businesses in favor of a large business, which would undermine the goal of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': to set certain procurements aside for small businesses. Similar to the court\rquote s evaluation of the agency\rquote s decision under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': that the record shows that DOE considered its obligations to the small business community in weighing its options, finding that continuing with the incumbent contractor would not \meet ... major small business objective[s],\ thereby \plac[ing] greater pressure for small business opportunities in future acquisitions,\ AR 15, but determining that that downside did not outweigh the numerous reasons in favor of cancelling. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': As noted above, the SSO memo explained that the decision to cancel was not \reached casually or lightly\ and stated that, \[i]n making this recommendation, the SSO has considered the costs expended by the small businesses that have participated in this procurement,\ AR 6\u8212a \large financial impact\ including \bid and proposal costs, [and] lost revenue.\ AR 15. Thus, the record shows that, far from being a pretext to avoid contracting with small businesses and shirk its obligations under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': , the agency\rquote s decision to cancel the small business set-aside was made in a good faith attempt to balance numerous competing concerns in the face of unforeseen delays and significantly reduced funding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': The evaluated (adjusted) prices in the draft final report for the three offerors were as follows: EPW at $[price redacted]; SCA at $[price redacted]; FRC at $[price redacted]. AR Ex. D at ES\u82112. The plaintiff argues that each of these offers were well under the government\rquote s $350 million cost estimate, but the government counters that that estimate was made before the solicitation was amended and split into two separate CLINs. The government also argues that DOE\rquote s FFTF Decision Table reflected that the cost of finishing CLIN 1 and then going to surveillance and maintenance would be the same for either the incumbent contractor or the winning small business: $46 million per year from 2008\u82112010. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': The administrative record contains an \FFTF Decision Table,\ dated November 28, 2005, indicating that four FFTF Options were considered: (1) Amend RFP\u8212Continue CLIN 1 and CLIN 2; (2) Amend RFP\u8212Continue CLIN 1, Cancel CLIN 2, Go to Surveillance and Maintenance (\S & M\); (3) Cancel RFP\u8212Incumbent Contractor Completes CLIN 1 Scope, Go to S & M; and (4) Cancel RFP\u8211Discontinue Project in FY 2007, Go to S & M. AR 12\u821115. According to the decision table, the pros and cons of each option were evaluated in terms of: Mission Success, NEPA Approach, Regulator/Stakeholder Interests, Cost and Schedule, and Acquisition Objectives/Small Business Interests. AR 12\u821115. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': Of particular note, the Acquisition Objectives/Small Business Interests section of the FFTF Decision Table reflected the determination that continuing with the incumbent contractor would not \meet ... major small business objective,\ thereby \plac[ing] greater pressure for small business opportunities in future acquisitions,\ and that there would be a \large financial impact on small business offerors (bid and proposal costs, lost revenue).\ AR 15. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': was not violated when an agency cancelled a solicitation that was set aside for small businesses and issued a new solicitation on an unrestricted basis because it rationally determined that there was only one small business manufacturer who could be expected to submit a proposal). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with 'The Rule of Two': With regard to the plaintiff\rquote s argument that the small business offerors would have been more cost effective because their proposals were priced lower than the government\rquote s $350 million estimate, the court agrees with the government that the $350 million estimate, which was developed before the solicitation was amended to consist of two separate CLINs, AR 3, cannot meaningfully be compared to the proposals submitted in response to the amended solicitation. Moreover, the FFTF Decision Table reflects that the cost of completing only CLIN 1 would have been the same for a small business offeror as for the incumbent contractor: $46 million per year from 2008\u82112010. AR 12. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 033 - Software Engineering Services Corp v US.doc, Paragraph with 'The Rule of Two': 3: Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 033 - Software Engineering Services Corp v US.doc, Paragraph with 'The Rule of Two': The Air Force received eleven offers in response to the RFP, including proposals from SES, BAH, ITT, and CSSS.Net. AR 251. While SES was ranked within the six lowest-priced offers for Factor 1, AR 253, the Air Force found SES to be technically unacceptable under Factor 2, AR 254\u821155, 7345. The technical evaluation team concluded that SES passed the Program Management and Small Business Participation Sub-factors but that SES\rquote s proposal failed to demonstrate the minimum requirements to support the Command in three of the nine mission areas under Sub-factor 2: Combating Weapons of Mass Destruction, Global Strike, and Strategic Deterrence. AR 7344\u821145. The evaluators determined that SES demonstrated only its ability to provide information technology (\IT\) services in those mission areas, rather than an ability to provide management, analyses, or engineering support to the Command. AR 7344\u821145. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency acted rationally in reopening discussions and soliciting revised proposals on services contract as corrective actions based on determination by Government Accountability Office (GAO) that contract awardee\rquote s proposal was unacceptable for failure to comply with limitation on subcontracting (LOS) clause contained in solicitation, notwithstanding awardee\rquote s contention that it agreed to comply with LOS clause when it submitted its proposal because proposal was in response to solicitation as supplemented by later-retracted policy memorandum that purported to allow bidders to combine efforts with small business subcontractors to satisfy LOS requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The ARDTEAS procurement was a small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , a party may not be awarded a contract as a small business concern unless it agrees that, \in the case of a contract for services (except construction), at least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': 1. FAR Clause 52.219\u821114, Limitations on Subcontracting (Dec. 1996), which applies to ... small business set-aside contracts, states the small Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': business prime contractor must perform specified minimum amounts of work, when the contract has been set aside for [a] small business.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': 2. [W]ithin [Air Force Material Command], we interpret the clause at 52.219\u821114 to mean that the minimum amounts of work can be performed by the collective efforts of either small business members of a formal joint venture or a small business prime contractor together with the first tier small business subcontractor(s), when the circumstances outlined in attachment 1 are present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': at 566\u821167 (quoting the Policy Memorandum (footnotes omitted)). Attachment 1 to the Policy Memorandum stated that \[p]rime-subcontractor teams could be a mix of large business and small business subcontractors [so long as] performance of work requirements [was] met by the cooperative efforts of the small prime contractor and the small business members of the subcontractor group.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . In short, according to the Policy Memorandum, a small business prime contractor could meet the requirements of the LOS clause if at least 50 percent of the cost of contract performance incurred for personnel was based upon the work of employees of the small business prime contractor alone, or in combination with the work of employees of small business subcontractors with which the prime contractor entered into a cooperative effort. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Centech proposed to apportion the work between its own employees and those of subcontractors, including a large and a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': More specifically, relying on the Policy Memorandum in structuring its proposed cost/price model, Centech planned to incur itself 43.2 percent of the total cost of contract personnel using its own employees. The proposal indicated, however, that Centech would combine the efforts of its own employees and small business subcontractor employees so that the resulting combined personnel costs would exceed 50 percent of the personnel costs incurred in performing the contract work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Memorandum, because the collective efforts of the personnel from Centech and its small business subcontractors would exceed 50 percent of the cost of contract performance for personnel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': After receiving Tybrin\rquote s supplemental protest, GAO sought the views of the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , a small business receiving a set-aside contract must agree to meet by itself the requirements of the LOS clause. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The SBA\rquote s regulation states that a small business must agree that, \[i]n the case of a contract for services (except construction), the concern will perform at least 50 percent of the cost of the contract incurred for personnel with its own employees.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': On September 15, 2006, the Air Force referred the matter of Centech\rquote s \responsibility\ to the SBA under the SBA\rquote s Certificate of Competency (\COC\) Program. The COC Program is authorized by the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . A COC is a written instrument issued by the SBA to a government contracting officer. It certifies that a small business concern possesses the responsibility to perform a specific procurement contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . By regulation, \[w]hen a solicitation requires a small business to adhere to the limitations on subcontracting, a contracting officer\rquote s finding that a small business cannot comply with the limitation shall be treated as an element of responsibility and shall be subject to the COC process.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . In its decision, GAO began its analysis by stating that, \[a]s a general matter,\ an agency\rquote s judgment as to whether a small business offeror will be able to comply with a subcontracting limitation presents a question of responsibility for review by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': provides that a concern may not be awarded a contract as a small business contractor unless it agrees to perform at least 50 percent of the cost of personnel with its own personnel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The court continued: \As such, Centech\rquote s proposal violated the mandate of the Small Business Act, which makes the prime contractor\rquote s agreement to perform 50 percent of the labor costs itself a prerequisite to obtaining the award.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': at 20\u821121. This meant, Centech asserts, that GAO and the Air Force \should have deferred to the SBA, and its exclusive area of jurisdiction under [the Small Business Act,] to render small business responsibility determinations as part of its COC review process.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': GAO noted that, \[a]s a general matter, an agency\rquote s judgment as to whether a small business offeror will comply with the subcontracting limitation is a matter of responsibility, and the contractor\rquote s actual compliance with the provision is a matter of contract administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . The former provides that \[w]hen a solicitation requires a small business to adhere to the limitations on subcontracting, a contracting officer\rquote s finding that a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': 19 C.F.R. \u167 19.601(d) (referring to \a contracting officer\rquote s finding that a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 034 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': . We are not prepared to read this statement as being contrary to the settled rule that, in order for a proposal to be acceptable, the proposal must reflect agreement to provide what is required by the request for proposals, especially since the regulation simply refers to \compliance\ with the clause. Moreover, the statement is in a subsection of the SBA regulation that states a small business \must agree\ to comply with the LOS clause. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Military contractor brought action against the United States, seeking declaratory and injunctive relief invalidating decision of the Air Force not to solicit a small business set-aside follow-on contract after expiration of contract for programmatic services supporting weapon systems development granted to contractor through a competitive small business set-aside. United States moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': . Plaintiff seeks declaratory and injunctive relief invalidating the decision of the United States Air Force (\the Air Force\) not to solicit a small business set-aside follow-on contract after the expiration of plaintiff\rquote s contract. Plaintiff labels this decision as unreasonable and in violation of applicable procurement law. Argument on the jurisdictional issue of standing is deemed unnecessary, although argument should inform the proceedings in connection with plaintiff\rquote s challenge to the reasonableness of the agency determination required by regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The following facts are drawn from the complaint. RhinoCorps Ltd. Co. (\plaintiff\) is a small business incorporated in New Mexico. Plaintiff filed suit against the United States for problems stemming from acquisition of services that the Air Force had procured from plaintiff under an expired contract (the \ARSS contract\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': On May 29, 2003, what is now called the 709th Armament System Squadron (the \ARSS\), an agency of the Air Force, awarded the ARSS contract for programmatic services supporting weapon systems development to plaintiff through a competitive small business set-aside. Compl. \u182 4. The contract incorporated by reference Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (2000), setting aside acquisitions for qualifying small businesses. Also incorporated by reference was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which implements a policy to allow qualifying small businesses the maximum opportunity to participate in performing federal contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': applied, as well, and mandates that a contract with the value and performance characteristics of the ARSS contract would be awarded to a small business absent a determination of the agency. This regulation is the centerpiece of this litigation. Plaintiff, with the highest rated technical proposal and the lowest proposed price, secured award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': original). On February 22, 2008, following plaintiff\rquote s submission of a Freedom of Information Act (\FOIA\) request probing the Air Force\rquote s decision not to recompete the requirements covered by the ARSS contract, representatives for plaintiff and the Air Force met regarding a possible follow-on to the ARSS contract. Plaintiff alleges that the Air Force stated that \it was not unhappy with [plaintiff\rquote s] performance,\ but \it was not required to maintain the work that is the subject of the ARSS Contract as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 19. Following another FOIA request, the parties met again on March 19, 2008. Plaintiff alleges that the Air Force had a legal obligation to continue this procurement through the small business set-aside program. The Air Force disagreed, explaining that the ARSS requirements had changed. According to plaintiff, this was the first notice by the Air Force that change-of-circumstances prompted the decision not to solicit a follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182 26(d). To allow small business contractors to compete, the ARSS would conduct market research by means of a \Sources Sought Synopsis\ to determine whether a follow-on contract was needed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that transferring duties from the original ARSS small business contract to the pre-existing other-than-small business contract with ITT\u8211AES was an \improper transfer[ ] of work from a small business set-aside program to ... an other-than small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff marshals an array of charges to indict the Air Force\rquote s decision not to solicit small businesses for a follow-on contract to the ARSS contract as contrary to law. Compl. \u182 37. Plaintiff\rquote s primary contention is that diverting the duties of the ARSS contract violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , which requires contracting officers to set aside acquisitions over $100,000.00 for small business participants, absent conducting a prior analysis to support its decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': \u182\u182 39(a),(b). Plaintiff levels the charge that the Air Force did not announce that the ARSS requirements had changed until after plaintiff confronted the Air Force with the \legal authority concerning its obligation to maintain the small business set-aside program represented by the ARSS Contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s ARSS contract (the similarity of the programmatic services provided thereunder to the prospective solicitation) demonstrates plaintiff\rquote s direct economic interest in the subject matter of a small business set-aside covering such programmatic services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': designates certain awards as small business set-asides and mandates that certain acquisitions be set aside as small business awards. In fact, the regulation that mandates a prior finding before an award not be set aside is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (a) Each acquisition of supplies or services that has an anticipated dollar value exceeding $3,000 ($15,000 for acquisitions as described in 13.201(g)(1)), but not over $100,000 ($250,000 for acquisitions described in paragraph (1) of the Simplified Acquisition Threshold definition at 2.101), is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , in contrast, conditions award of a contract as a small business set-aside on a finding that the potential for set-aside is present: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ... and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Total small business set-asides shall not be made unless such a reasonable expectation exists .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': acquisition automatically and exclusively must be reserved for a small business unless the \reasonable expectation\ determination called for in subsection (b) does not support the use of a small business. The court refers to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': the Air Force improperly diverted work from a small business set-aside under the ARSS contract to an other-than-small-business contractor on the DTRIAC contract; (2) the Air Force determined that a small business did not have the ability to continue the work before soliciting a follow-on contract to ARSS; and (3) the Air Force decided not to extend the ARSS contract until it awarded a follow-on contract or decided that one could not be satisfactorily performed by a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': contract but rather the improper diversion of work from a small business set-aside program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': No. B\u8211290682, CPD \u182 157 (Sept. 18, 2002). LBM, a small business concern, protested the Air Force\rquote s efforts to acquire transportation motor pool services as a follow-on requirement to a Logistical Joint Administration Management Support Services (\LOGJAMSS\) contract, which was a multiple-award, indefinite-delivery, indefinite-quantity (\ID/IQ\) task-order contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': at 2. The protestor argued that these services\u8212previously performed exclusively by small businesses for over ten years\u8212should continue to be small business set-asides: \[T]he Army improperly failed to coordinate with the SBA in deciding to withdraw these services from exclusive small business participation and instead to transfer the services to the\ large ID/IQ contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': makes it clear that a protest objecting to the diversion of work from a small business set-aside program to a contract being performed by an other-than-small[-business] contractor is a challenge to the terms of the underlying solicitation of the large contract and thus within [this court\rquote s] bid protest jurisdiction.\ Pl.\rquote s Br. filed Aug. 6, 2008, at 5. Plaintiff sees three aspects to this protest: the diversion of work from ARSS to DTRIAC; the Air Force\rquote s decision not to solicit a follow-on ARSS contract before inquiring whether a small business had the ability to satisfy ARSS requirements; and the timing of the analysis required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': at 7\u82118. In sum, plaintiff contends that the Air Force cannot \abandon a small business set-aside program without first complying with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff cites the D & F itself as deficient in two respects: first, the D & F does not establish that the Air Force properly diverted work from a small business set-aside program to an other-than-small business contractor. Pl.\rquote s Br. filed Dec. 5, 2008, at 3\u82114. Second, plaintiff disputes the factual basis for the D & F\rquote s finding \that there is not a reasonable expectation that offers will be obtained from at least two responsible small businesses capable of satisfying\ the Air Force\rquote s stated requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': at 6. Plaintiff labels the contracting officer\rquote s rationalization that the Air Force decided not to solicit a small business follow-on contract because its requirements changed \a pretext and a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': , indisputably a procurement regulation, is implicated because it requires a D & F (or like record of finding) before an agency abandons a small business set-aside and declines to solicit a follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': The regulation requires the contracting officer to issue the D & F to memorialize that a small business set-aside does not meet its needs before the Air Force initiates a new solicitation that is not a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': itself is not reasonable. Defendant does not dispute plaintiff\rquote s allegations that the work performed previously by plaintiff now is being performed by ITT\u8211AES. As defendant concedes, the Air Force issued a Sources Sought Synopsis and \planned to conduct[ ] market research to determine how to best meet its future contracting needs, and to what extent small businesses may be able to fill those needs.\ Def.\rquote s Br. filed June 20, 2008 at 3; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not foreclose jurisdiction in the case at bar, the decision does not recognize plaintiff\rquote s claim regarding diversion of work from the ARSS contract or for failure to award a small business set-aside follow-on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not contemplate the claim that plaintiff lodges concerning diversion of work from an on-going contract. Rather, the GAO expressly recognized the distinction between issuance of a task order for services covered by a small business set-aside contract and a decision of the procuring agency not to continue Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': to set aside those services for small businesses. The Court of Federal Claims\rquote bid protest jurisdiction does not extend to an allegation that work within the scope of a protestor\rquote s non-requirements contract has been diverted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': While jurisdiction is not present to examine as a bid protest how the Air Force managed the ARSS contract, the determination that a small business cannot satisfy the Air Force\rquote s requirements, as explicated in its D & F, does not foreclose as moot plaintiff\rquote s challenge to the reasonableness of the D & F. The parties disagree about the legal consequences of the facts, but the facts themselves are undisputed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Because the FAR contemplates issuance of a valid D & F before the Air Force can abandon a prior small business set-aside covering the same programmatic services, the issuance of the D & F itself does not moot plaintiff\rquote s challenge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that the Air Force acted contrary to law by assigning the work plaintiff previously performed under the ARSS contract to an other-than-small business without first performing the analysis set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': does not obligate the Air Force to perform a small business analysis before allowing plaintiff\rquote s contract to expire. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': (stating that contracting officer must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B271071 (May 20, 1996) (finding that agency required to make reasonable efforts to determine whether two small businesses are capable of performing contract). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': and rendering plaintiff\rquote s claim moot. Defendant insists that the Air Force has made the determination required by regulation that it will not award any follow-on contract to a small business set-aside, because no reasonable expectation is present that it would receive offers from at least two responsible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff advances the position that this report is submitted in an attempt to cover up the fact that the Air Force either failed to initiate timely a small business follow-on process or determined that ITT\u8211AES could perform the services cheaper than a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': Company brought action protesting size determination made by Small Business Association\rquote s (SBA) Office of Hearings and Appeals (OHA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': that found that it did not qualify as small business for purposes of solicitation issued by Environmental Protection Agency (EPA). Parties filed cross-motions for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': Determination by Small Business Association\rquote s (SBA) Office of Hearings and Appeals (OHA) that company\rquote s letter of intent (LOI) to purchase another business was agreement in principle, rather than agreement to continue negotiations, and thus that company did not qualify as small business for purposes of solicitation issued by Environmental Protection Agency (EPA), was not arbitrary and capricious, even though company had not completed purchase as of date it submitted bid, and LOI stated that it was \non-binding agreement,\ where LOI was signed by both parties, stated that company was \pleased to confirm its intent to purchase\ other business, and set forth essential terms of agreement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, WRS Infrastructure and Environment, Inc. (WRS) is before this Court protesting the size determination made by the Small Business Association\rquote s (SBA) Office of Hearings and Appeals (OHA) that found that WRS did not qualify as a small business for the purposes of a solicitation issued by the U.S. Environmental Protection Agency (EPA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': On September 25, 2007, the EPA issued RFP No. PR\u8211R5\u821107\u8211100098 (RFP) which solicited offers to provide emergency and rapid response services in support of EPA Regions 5\rquote s hazardous waste removal program. AR 597\u8211897. The Contracting Officer (CO) issued the solicitation as a small business set-aside and designated North American Industry Classification System (NAICS) code 562910, Environmental Remediation Services, with a 500 employee standard. Offers were due on October 29, 2007, and on that date WRS submitted its offer and self-certified as a small business. AR 303. WRS was awarded the contract and on July 8, 2008, the CO informed the unsuccessful offerors that the award was made to WRS. AR 910. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': On July 16, 2008, Environmental Restorations, Inc. (ER) protested WRS\rquote s size as of October 29, 2007, claiming that WRS was not a small business when WRS submitted its offer because WRS has more than 500 employees. AR 33. The CO provided ER\rquote s protest to SBA\rquote s Office of Government Contracting, Area II (Area Office), on August 4, 2008. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': At the time WRS submitted its bid, on October 29, 2007, it certified that it was a small business as a formal merger had not yet occurred between WRS and Compass. It was not until November 19, 2008 that WRS and Compass formally merged. WRS argues that because the merger had not yet been Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': executed, the LOI could not be considered an agreement in principle nor could it be considered \affiliated with Compass\ because there was still the possibility that the merger might not go through. Therefore, it is WRS\rquote s contention that at the time it submitted the bid, it was still a small business. However, even though the actual merger had not been executed as of the date of the LOI, this will not automatically preclude the agency from concluding that an LOI is an agreement in principle and be given its present effect. Instead \a firm becomes affiliated with another when it reaches an agreement in principle to acquire the other by the date of self certification, even if the merger or acquisition has yet to be executed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 048 - WRS Infrastructure And Environment Inc v US.doc, Paragraph with 'The Rule of Two': . Even though the Plaintiffs argue that some negotiations took place after this letter, the LOI set forth the essential terms of an agreement. The additional negotiations related to the \confirmatory due diligence\ which is normal; as it is addressed in paragraph 4(a) which states \Buyer shall be entitled to complete its due diligence investigation of Compass.\ AR 474. Thus, some due diligence had already been performed and affirms the Holding Company\rquote s intent to purchase Compass prior to the certification that WRS was a small business. Third, the LOI set forth the exact purchase price and its intent to purchase all of the outstanding shares of stock. Lastly, the LOI set forth several other specific transactional dates and amounts, clearly indicating an intent by WRS to purchase Compass. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Participation Approach (100 Points) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': SB1\u8212Small Business Subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Participation Approach Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': c. Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Goals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': Okay. Now, we have the same problem, but to a lesser extent, in the small business factor score. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': You didn\rquote t ... [explain] why those scores jumped so significantly in that area and in the small business area, and that\rquote s what made the difference in the ratings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': For the reasons discussed herein, the court has determined that the SEB and SSA violated FAR regulations and the APA. Accordingly, the SSA\rquote s May 20, 2008 award of a contract to CIS, pursuant to the September 14, 2007 FPP NO. NNX077040R Solicitation, is enjoined and set aside. NASA is hereby ordered to appoint a re-constructed SEB, specifically to include new SEB members to evaluate the Final \Technical Approach\ Subfactor, \Management Approach\ Subfactor, and \Small Business\ Subfactor of the \Mission Suitability\ Factor, with particular emphasis on explaining the SEB\rquote s reasons for arriving at final adjectival ratings, point scores, and any increase thereof. The SEB will then issue reconsidered Final Findings. In addition, NASA is hereby ordered to appoint a new SSA to evaluate the reconsidered Final Findings and, on or before March 2, 2009, to issue a reconsidered Source Selection Authority Final Decision explaining, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': The Administrative Record also evidences that five elements of the \Small Business\ Subfactor were rated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': AR at 26356. CIS\rquote s \Small Business\ rating was increased from \[deleted]\ to a final rating of \[deleted].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': AR at 26357. The \Small Business Goal\ element also was increased from a \Significant Weakness\ to a \Regular Weakness.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 049 - Wackenhut Services Inc v US.doc, Paragraph with 'The Rule of Two': AR at 26356. WSI\rquote s Complaint does not allege any claim as to the SEB\rquote s Evaluation of the \Small Business\ Subfactor of the \Mission Suitability\ Factor, however, the court has determined that the same deficiencies identified with regard to other aspects of the \Mission Suitability\ Factor are applicable to this Subfactor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': Bidders filed bid protest against the United States alleging that contracting agency acted arbitrarily when it rejected all bids and canceled a solicitation issued as a competitive set-aside for Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) offerors. Parties filed cross-motions for judgment on the administrative record. Plaintiffs also moved for an order to refer bidders to the Small Business Administration (SBA) for a certificate of competency (COC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency did not act arbitrarily or capriciously in canceling solicitation set aside for Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) offerors, where solicitation expressly stated that agency was not obligated to award a contract, and contracting officer reasonably determined that cancellation of solicitation was in the best interests of the government because the acquisition strategy failed to elicit any SDVOSB prime contractors with relevant past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': Pending before the court in this bid protest action are the parties\rquote cross-motions for judgment upon the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (\RCFC\) and the motion by the plaintiffs, DCMS\u8211ISA, Inc. (\DCMS\u8211ISA\), L & R Security Forces, Inc. (\L & R\) (also known as Integrated Security Forces, Inc. (\ISF\)), the Whitestone Group, Inc. (\White stone\), and R & D Training and Technical Services (\RDTTS\) (collectively, \plaintiffs\), for an order directing the defendant, the United States (\defendant\ or \government\), to refer the Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) proposers in this case to the Small Business Administration (\SBA\) for a Certificate of Competency (\COC\). In their complaint, the plaintiffs assert that the Department of Homeland Security (\DHS\ or \agency\) acted arbitrarily, capriciously, and not in accordance with law when it rejected all bids and canceled a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': L & R, an SDVOSB, entered into a teaming arrangement with C & D Security, Inc. (\C & D\), a small business, and Engineering and Professional Services (\EPS\), another SDVOSB, for purposes of responding to the solicitation. AR 733\u821134, 822\u821129, 1829. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': On April 25, 2008, Ms. Weindel briefed the Head of Contracting Activity (\HCA\), the ICE Office of Acquisition Management Small Business Representative, and the DHS Office of Small and Disadvantaged Business Utilization (\DHS OSDBU\) on her findings regarding the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': \Notice of Total Service Disabled Veteran-owned Small Business Set\u8211Aside\, the SDVO[S]B concern must agree that in performance of the contract, [\]at least 50% of the cost of personnel for contract performance will be spent for employees of the concern ...\. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': ], and as recommended by the DHS OSDBU, the SDVOSB set-aside shall be withdrawn and set aside for small business concerns, as and if appropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': In May 2008, prior to canceling the solicitation, FPS conducted market research to determine the availability of capable sources and the viability of a small business set-aside for the resolicitation. AR 1852. Based on this research, FPS determined that the new solicitation would be awarded under Federal Supply Schedules and would include a \socio-economic factor targeting small businesses,\ which would be \assigned more importance\ than any other evaluation factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': This conclusion is reinforced by various GAO decisions in which the GAO has rejected protests from small business offerors on the grounds that they did not have sufficient past experience without relying on subcontractors and held that it was reasonable to conclude that the primes themselves must have adequate relevant experience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Accordingly, just as this court now finds in the SDVOSB context in the instant case, the GAO has found that it is not unreasonable for an agency to conclude, given the requirements of the FAR regarding personnel costs under small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': and the requirement, if still valid, set aside for small business concerns, as appropriate.\ FAR 19.1405(c) (emphasis added). Here, Ms. Weindel determined that no offers were received from SDVOSB prime contractors with relevant past performance, and based on that lack of acceptable offers from SDVOSB concerns, she determined that the solicitation should be withdrawn and resolicited using a different acquisition strategy, designed to give small businesses a competitive advantage. As such, her decision to withdraw the SDVOSB set-aside was in compliance with FAR 19.1405(c). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': , provides that \[i]f a small business concern\rquote s offer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': to be nonresponsible, refer that small business to the SBA for a possible COC ....\ (emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'The Rule of Two': In this case, however, no small business concern\rquote s offer was selected as an \apparent successful business offeror,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': (\Section 1207\), which, in relevant part, (1) sets a \goal\ that five percent of federal defense contracting dollars for each fiscal year be awarded to certain entities including small business concerns owned and controlled by \socially and economically disadvantaged individuals\; (2) incorporates the Small Business Act\rquote s presumption that Black Americans, Asian Americans, Hispanic Americans, and Native Americans are socially disadvantaged individuals; and (3) provides that the Department of Defense shall give specified forms of assistance to the listed entities and may, when practicable and necessary to achieve the five percent goal, make advance payments to those entities and award contracts to them at prices up to ten percent above fair market cost. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': Section 1207, relevant sections of the Small Business Act, pertinent regulations, and their history are set out in detail in the district court\rquote s thorough opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': a goal of 5 percent of the amount of [DOD procurement, R & D, military construction, and maintenance contracts] shall be the goal of the Department of Defense in each of fiscal years 1987, 1988, and 1989 for the total combined amount obligated for contracts and subcontracts entered into with [inter alia,] small business concerns, including mass media, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': (as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': Section 8(d) of the Small Business Act and relevant regulations, in turn, provided at that time that Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities were presumed to be \socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': [t]o the extent practicable and when necessary to facilitate achievement of the 5 percent goal described in subsection (a), the Secretary of Defense may enter into contracts using less than full and open competitive procedures (including awards under section 8(a) of the Small Business Act), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': clearly indicates that nondisadvantaged small business concerns in such industry category are generally being denied a reasonable opportunity to compete for contracts because of the use of that percentage in the application of this paragraph.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': Third, a person who is economically disadvantaged but is not a member of one of the minority groups listed in the Small Business Administration (\SBA\) regulations may nevertheless pursue SDB status if the person can \establish individual social disadvantage Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': with no competition, to include awards under section 8(a) of the Small Business Act; (3) advance payments; (4) assistance as provided in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': testimony by small business owners before the House Small Business Committee in 2001 and 2004, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': and three reports from the Small Business Administration\u8212two from 2005 and one from 2000\u8212regarding the ownership and success rates of small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': (noting that the 2000 State of Small Business Report \found that minority-owned businesses \u8216make [up] 9 percent of the business population of the United States, but small minority-owned businesses won just 6 percent of the award dollars in FY 1998 and 1999\u8217 \). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': 499 F.Supp. at 866\u821167. The House Small Business Committee also heard in hearings about the difficulties faced by minority business owners in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': and cited the Small Business Committee\rquote s conclusion that \much work remains to be done\ in \increasing access to capital and federal procurement markets for minority entrepreneurs,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 058 - Rothe Development Corp v Department of Defense.doc, Paragraph with 'The Rule of Two': In a letter dated October 23, 2008, DOD counsel brought to the Court\rquote s attention the recent publication by the Small Business Administration (\SBA\) of an interim final rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': AR 4\u821179 (Solicitation\u8211Request for Proposal). In assessing an offeror\rquote s mission capability, the Air Force listed five subfactors for consideration: depot maintenance, supply chain management, transition, program management, and small business. AR 4\u821179 (Solicitation\u8211Request for Proposal). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': On the date the sale was announced, Pemco Aviation\rquote s Chief Financial Officer sent an e-mail to the Administrative Contracting Officer for the KC\u8211135 contract and to the head of the local Defense Contract Management Agency, alerting them of the change. Hr\rquote g Tr. 76:19\u821125; PX 4. On September 19, the sale of Pemco World Air was completed and the purchaser acquired the exclusive right to the Pemco name. Hr\rquote g Tr. 32:11 to 33:3, 33:8 to 33:13. The names of Pemco Aircraft and Pemco Aeroplex consequently were changed to Alabama Aircraft and to Alabama Aircraft Industries, Inc.-Birmingham, respectively. Hr\rquote g Tr. 33:14\u821125. At that point, Alabama Aircraft became a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': In its analysis of the competing offers, the Air Force awarded Boeing and Alabama Aircraft the same ratings for depot maintenance, transition, program management, and small business. AR 5\u821122 (Source Selection Decision Document (Sept. 7, 2007)) (\Decision Document\). The Air Force concluded that Boeing\rquote s proposal offered the lowest total evaluated price and superior supply chain management, while Alabama Aircraft\rquote s proposal had a better past performance record. AR 5\u821122 (Decision Document). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': The Air Force and Boeing seize upon Alabama Aircraft\rquote s new status as a small business to argue that Alabama Aircraft \is an entirely different entity,\ Intervening Def.\rquote s Mot. to Dismiss at 8, and thus \does not have a valid proposal before the Air Force.\ Def.\rquote s Mot. to Dismiss at 13\u821114. The position asserted by Boeing and the Air Force is not supportable. A change in size does not automatically equate to a company becoming a \new\ entity. Here, it is undisputed that at the time the final bids were submitted, Alabama Aircraft was a large business. AR 16\u82111840 (Pemco\rquote s Second Proposal). The fact that Alabama Aircraft\rquote s parent company sold one of its subsidiaries after the close of bidding and changed its name does not establish that Alabama Aircraft and Pemco Aeroplex are different entities. The subsidiary that was sold had a different business, maintaining civilian aircraft, at a different location, Dothan, Alabama, and had a completely separate roster of employees. As detailed above, the only effects of the completion of the sale on the entity that submitted a bid for the KC\u8211135 contract were the change in the entity\rquote s name and a material improvement in its financial resources. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': Boeing claims the perceived financial shortcomings of Alabama Aircraft and its status as a small business preclude it from having an economic interest in the instant contract because Alabama Aircraft Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': that \Pemco Aeroplex\rquote s name has changed to Alabama Aircraft Industries, Inc.-Birmingham\ and that Alabama Aircraft was now classified as a small business. PX 1 (E-mail from Glenn Hess, Alabama Aircraft, to Colonel Nally (Dec. 12, 2007)); PX 2 (E-mail from Hess to Spicer (Dec. 12, 2007)). In addition to his role overseeing all KC\u8211135 PDM work, Colonel Nally was a member of the Source Selection Advisory Council for this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': However, the Air Force and Boeing\rquote s strongest objection to Alabama Aircraft\rquote s ability to perform the KC\u8211135 PDM contract is the company\rquote s financial position. Def.\rquote s Mot. to Dismiss at 2 (Alabama Aircraft \does not have the financial resources to perform.\); Intervening Def.\rquote s Mot. to Dismiss at 10 (Alabama Aircraft \does not have the financial resources necessary to perform the KC\u8211135 PDM contract[;] ..., [a] small business cannot possibly be deemed a responsible contractor to perform the instant contract.\). The claims of Boeing and the government that the financial posture of Alabama Aircraft would preclude it Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with 'The Rule of Two': When we look at our mission capability subfactors trying to\u8212trying to pigeon hole that whole issue into that was a little problematic. How do I fit Darlene Druyun into transition or program management or small business? It didn\rquote t\u8212the closest it would ever reach would be program management, and that would be a far cry, especially considering the way we evaluated program management against each individual offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': agency improperly evaluated small business participation factor in its rating of two successful offerors; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency improperly evaluated small business participation factor in its rating of two successful offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Although contracting agency treated offeror disparately when evaluating its actual 2006 small business participation, the error was harmless, where agency\rquote s failure to assign offeror a strength for its 2006 small business participation had a rational basis in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Best value tradeoffs made by source selection authority (SSA) were arbitrary, capricious, and not in accordance with law, where tradeoffs were based on agency\rquote s irrational evaluations of technical/management and small business participation factors, SSA did not adequately document her best value tradeoffs in source selection decision document, and SSA inflated technical portions of low-price offerors\rquote proposals and downplayed technical superiority of higher-priced offerors\rquote proposals, thereby according more weight to price factor than permitted by solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Army Improperly Evaluated the Small Business Participation Factor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Army Properly Evaluated Data Systems\rquote 2006 Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': were to be awarded to small business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Prospective offerors were required to submit their proposals in six separate volumes, with the following titles: (I) Corporate Capability; (II) Performance Risk; (III) Technical/Management; (IV) Price; (V) Small Business Participation; and (VI) Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The contract performance metrics included: (1) meeting or exceeding small business participation goals ninety-five percent of the time; (2) participation in at least fifty percent of the task order competitions; and (3) receiving ninety-five percent of comments from clients expressing overall satisfaction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': All offerors, regardless of their size, were required to submit Volume V, Small Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 356. Offerors were required to have overall small business participation of at least twenty percent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Offerors were also presented with the following \non-mandatory objectives for participation\: Small Disadvantaged Business participation of six percent; Woman\u8211Owned Small Business participation of five percent; Service\u8211Disabled Veteran\u8211Owned Small Business participation of three percent; Veteran\u8211Owned Small Business participation of three percent; HUBZone Small Business participation of one percent; and a positive goal for Historically Black Colleges and Universities/Minority Institution (\HBCU/MI\) participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Offerors were instructed to identify the names of the qualifying small businesses and the supplies or services that they would provide. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Further, large business offerors were \required to submit the small business goals for fiscal year 2006 and the goals for fiscal year 2006 that were actually achieved\ in a table provided in an appendix to the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 377 (containing the required table that allowed the offeror to input its \Fiscal Year 2006 Small Business Subcontracting Goal\ and \Fiscal Year 2006 Small Business Subcontracting Actually Achieved\ for each of the seven small business participation categories). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': In Volume VI, Contract, offerors were required to submit the contractual documents, corporate agreements, and, for large business offerors, small business subcontracting plans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Risk; (3) Technical/Management; (4) Price; and (5) Small Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': , to include a preference for HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Finally, for the Small Business Participation factor, the Army would assess \the Offeror\rquote s approach to meeting or exceeding Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': the Government\rquote s minimum mandatory requirement for overall Small Business participation and the non-mandatory objectives ... for participation by Small Disadvantaged Business, Woman\u8211Owned Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, Veteran Owned Small Business, HUBZone Small Businesses, and HBCU/MI in the performance of the ... contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Army indicated that it would consider \[t]he amount by which the proposed percentage exceeds the overall small business category percentage and the amount by which the proposed percentages exceed the small business subcategory percentages....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Army would also assess (1) \the extent to which [small businesses] are specifically identified in the proposals\; (2) \the extent of commitment to use [small businesses]\; (3) \the extent of participation of [small businesses] in terms of the value of the total acquisition\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': ; and (4) for the large business offerors, small business participation goals for fiscal year 2006 for the DoD and other federal government agencies, as well as the \actual goals achieved.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 399\u8211400. For the Small Business Participation factor, the following ratings were to be used: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 5079\u821180. Of the aforementioned thirteen offerors, only TAPE, Savantage, Binary, and [...] submitted proposals as small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': In addition to identifying the strengths of each proposal, the Source Selection Evaluation Board outlined each of the offeror\rquote s specific small business participation goals. The following table summarizes the goals of the large business offerors: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 10573. Under the \portion of the procurement reserved for small business,\ the Source Selection Authority found that the proposals of Savantage and Binary were \the best value and most advantageous to the Government....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': (noting that agencies have broad discretion in determining the scope of evaluation factors). While those factors may include technical excellence, management capability, personnel qualifications, prior experience, past performance, and small business participation, agencies must identify price as a factor that they will consider. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': In the instant solicitation, the Army described five factors upon which each proposal would be evaluated, in descending order of importance: Corporate Capability, Performance Risk, Technical/Management, Price, and Small Business Participation. AR 379. The Army also indicated that the Corporate Capability factor had two unequally weighted subfactors\u8212Knowledge and Experience being more important than Performance Capability\u8212and that the Technical/Management factor had two equally weighted subfactors\u8212Understanding Support and Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Next, the court addresses the contentions of L\u82113 Services that the Army (1) impermissibly considered the strengths of subcontractors in areas where the solicitation only allowed the performance of the offeror to be evaluated; (2) improperly failed to award it a strength for the on-site decision-making authority of its program managers; and (3) improperly failed to perform a crosswalk between the offerors\rquote proposals and the solicitation. Third, the court addresses the argument advanced by both L\u82113 Services and BearingPoint that the Army unreasonably credited Systems Research with the uncommitted resources of its parent and affiliate corporations. The court then addresses the argument made by L\u82113 Services, Data Systems, and BearingPoint that the Army erred in evaluating the Small Business Participation factor with respect to Wyle and Booz Allen. Finally, the court addresses Data Systems\rquote argument that the Army improperly failed to credit it with a strength for its 2006 small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 8613. Of course, this cannot actually be the case because Systems Research, not SRA Int\rquote l, is the offeror. Thus, the court does not read these two references as an intent to invoke the resources of SRA Int\rquote l. For the same reason, the court sees no problem with Systems Research using the logo of SRA Int\rquote l in the Small Business Participation volume. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 6. The Army Improperly Evaluated the Small Business Participation Factor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Next, L\u82113 Services, Data Systems, and BearingPoint all object to the ratings that the Army assigned to Wyle and Booz Allen for the Small Business Participation factor. L\u82113 Services Mot. 49\u821152; Data Systems Mot. 19\u821121; BearingPoint Mot. 23\u821127. The following table summarizes the relevant information from the Army\rquote s evaluations: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': AR 10160 (Data Systems), 10219 (L\u82113 Services), 10293 (Wyle), 10329 (BearingPoint), 10348 (Booz Allen). Also relevant to plaintiffs\rquote argument are the following definitions from the Source Selection Plan that apply to the Small Business Participation factor: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Based upon the proposed levels of small business participation and the rating definitions included in the Source Selection Plan, plaintiffs argue that because Wyle did not exceed any participation goals, it should have received a [...] rating instead of a [...] rating. L\u82113 Services Mot. 49\u821150; Data Systems Mot. 19; BearingPoint Mot. 25\u821126. Plaintiffs further argue that because Booz Allen did not exceed all of the participation goals, it should have received a [...] rating instead of an [...] rating. L\u82113 Services Mot. 51\u821152; Data Systems Mot. 20\u821121; BearingPoint Mot. 26\u821127. Moreover, L\u82113 Services and Data Systems contend that because the Army did not assign the correct, lower ratings to Wyle and Booz Allen, the Army\rquote s best value tradeoff was skewed in favor of Wyle and Booz Allen. L\u82113 Services Mot. 50\u821153; Data Systems Mot. 19, 21. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': to the small business solicitation percentages.\ Def.\rquote s Mot. 70; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The threshold question is whether the Source Selection Plan was inconsistent with the solicitation. The solicitation indicated that the Army would evaluate the Small Business Participation volume of the offerors\rquote proposals by assessing, in relevant part, the following criteria: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Government will evaluate the Offeror\rquote s approach to meeting or exceeding the Government\rquote s minimum mandatory requirement for overall Small Business participation and the non-mandatory objectives ... for participation by Small Disadvantaged Business, Woman\u8211Owned Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, Veteran Owned Small Business, HUBZone Small Businesses, and HBCU/MI in the performance of the PMSS2 contract. The amount by which the proposed percentage exceeds the overall small business category percentage and the amount by which the proposed percentages exceed the small business sub-category percentages will be considered. The assessment will include the extent to which such firms are specifically identified in the proposals; the extent of commitment to use such firms (for example, enforceable commitments are more significant than nonenforceable commitments); the extent of participation of such firms in terms of the value of the total acquisition; and, for large businesses only, an assessment of the Offerors\rquote Small Business goals for FY 2006 for the DoD and other Federal Government agencies and the actual goals achieved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': With regard to an offeror\rquote s proposed small business participation goals, the Source Selection Plan merely translated the solicitation\rquote s indication that the Army would consider \[t]he amount by which the proposed percentage exceeds the overall small business category percentage and the amount by which the proposed percentages exceed the small business sub-category percentages,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 382, into more explicit criteria. The Army logically determined that to receive a higher rating on this factor, an offeror would have to exceed or significantly exceed some or all of the small business participation goals. Moreover, the rating definitions in the Source Selection Plan were broad enough to address the remaining criteria described in the solicitation that the Army was required to consider. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Thus, the court concludes that the Army erred in its evaluation of the Small Business Participation volumes of Wyle and Booz Allen; the maximum rating available to Wyle was [...] and the maximum rating available to Booz Allen was [...]. The Army\rquote s \departure from the Source Selection Plan ... shows unequal treatment of the offerors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Accordingly, the court finds that the Army\rquote s Small Business Participation evaluations lacked a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 7. The Army Properly Evaluated Data Systems\rquote 2006 Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': In another challenge to the Army\rquote s evaluation of the Small Business Participation factor, Data Systems contends that the Army misapplied its evaluation scheme when it evaluated Data Systems\rquote 2006 small business participation. Data Systems Mot. 21\u821122. As noted previously, large business offerors were \required to submit the small business goals for fiscal year 2006 and the goals for fiscal year 2006 that were actually achieved\ in a table provided in an appendix to the solicitation. AR 356; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 377 (containing the required table that allowed the offeror to input its \Fiscal Year 2006 Small Business Subcontracting Goal\ and \Fiscal Year 2006 Small Business Subcontracting Actually Achieved\ for each of the seven small business participation categories). Then, when evaluating the proposals under the Small Business Participation factor, the Army would assess the goals that were proposed and achieved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 10275 (describing the proposal of [...] ). Thus, each of the four offerors provided a substitute measure by which to compare the small business participation levels it actually achieved in 2006. Data Systems and Systems Research suggested that the Army [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 10275. All of the offerors except Data Systems provided data in the required table by inputting their substitute goals under the column titled \Fiscal Year 2006 Small Business Subcontracting Goal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': In its evaluation of the Small Business Participation factor, the Source Selection Evaluation Board addressed how well each of the four offerors performed in 2006 when Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 10180\u821181 (Systems Research), 10329\u821130 ( [...] ), 10275\u821176 ( [...] ). Specifically, with respect to Systems Research, the Source Selection Evaluation Board identified a [...] strength for the offeror\rquote s meeting or exceeding all of the percentages listed in the solicitation except those for service-disabled, veteran-owned small business and HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The Source Selection Evaluation Board took a different approach when evaluating Data Systems\rquote proposal. It did not duplicate Data Systems\rquote required table in its Consensus Evaluation Document, as it had done with the other three offerors without 2006 small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Based upon the above-referenced facts, Data Systems contends that \[t]he Army\rquote s scoring and analysis of this requirement was disparate and unreasonable, thus resulting in significant errors....\ Data Systems Mot. 21. Specifically, argues Data Systems, \[...] was improperly used against [Data Systems] in comparison with other offerors.\ Data Systems Resp. 28. Defendant counters that the Army\rquote s \evaluation of [Data Systems]\rquote s [...] was commensurate with the information provided by [Data Systems] in its proposal.\ Def.\rquote s Mot. 76. Particularly, defendant notes that \of the seven areas for overall small business participation and the small business subcategories, [Data Systems]\rquote s 2006 data [...].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The court finds that the Army treated Data Systems disparately when evaluating its actual 2006 small business participation. The Army should have acknowledged, as it did for Systems Research, [...], and [...], that Data Systems\rquote actual 2006 small business participation met or exceeded some of its substitute goals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Accordingly, because the Army\rquote s failure to assign Data Systems a strength for its 2006 small business participation has a rational basis in the administrative record despite the Army\rquote s disparate evaluation process, the court concludes that the Army\rquote s error was harmless and nonprejudicial to Data Systems. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The [Source Selection Authority] began by comparing [Systems Research] against all other offerors, even though it was not the least expensive, but because it had the highest ratings and an attractive price. She concluded that [Systems Research] offered the best value. She then turned to [Booz Allen], because it had relatively strong ratings and the lowest price, and determined that it represented best value. Next, she compared L\u82113 to Wyle to see which of the two was the better value, despite the fact that Savantage and Binary Group were less expensive. Then, she compared Wyle to the remaining offerors (other than [Systems Research], [Booz Allen], and L\u82113) and determined that it was the best value. Finally, she compared the small business offerors and selected Savantage and Binary Group as the best value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Finally, under the Small Business Participation factor, L\u82113 Services argues that the Source Selection Authority\rquote s conclusion that L\u82113 Services was [...] to Wyle is based on Wyle\rquote s improperly high adjectival/color rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 32. L\u82113 Services emphasizes that while Wyle [...] all of the small business participation goals, L\u82113 Services [...] all of the small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Finally, under the Small Business Participation factor, L\u82113 Services argues that the Source Selection Authority \did not give any consideration to [its] advantages in the small business subcategory percentages.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': For several reasons, the court agrees with L\u82113 Services, Data Systems, and BearingPoint that the Source Selection Authority\rquote s best value tradeoffs were arbitrary, capricious, and not in accordance with the law. As a threshold matter, the Source Selection Authority\rquote s tradeoffs were based upon the Army\rquote s irrational evaluations of the Technical/Management and Small Business Participation factors. Because a reevaluation of these factors would, at a minimum, lower the ratings of two contract awardees, the possibility exists that the Source Selection Authority\rquote s tradeoffs would change. However, even if all of the Army\rquote s evaluations were proper, there is ample evidence in the Source Selection Decision Document that the Source Selection Authority\rquote s tradeoffs were improper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 10534 (\[...].\), 10537 (\[...].\), 10545 (\[...].\). Further, with respect to the three examples cited in support of the last proposition, the court has already held that the Army improperly rated Booz Allen on the Small Business Participation factor, rendering these examples meaningless. Thus, from the Source Selection Authority\rquote s statements in the Source Selection Decision Document, it appears that when comparing proposals on a nonprice factor, she strived to praise the merits of lower-rated proposals when they were lower-priced, but steadfastly declined to praise the merits of lower-rated proposals when they were higher-priced. To put it differently, whenever a lower-priced proposal received a better rating for a factor, it was never a close call as to that proposal\rquote s superiority on that factor. But, when a higher-priced proposal received a better rating for a factor, it was often the case that the lower-priced proposal was found to be of almost equal quality. This clearly represents unequal treatment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The court has concluded that the Army erred in evaluating the proposals within the competitive range in two ways, by (1) improperly evaluating the Small Business Participation factor and (2) failing to consistently evaluate the on-site decision-making authority of the offerors\rquote program managers. The court has also concluded that the Source Selection Authority accorded the Price factor more weight than permitted by the Army\rquote s solicitation, resulting in best value tradeoffs of the proposals within the competitive range, except for the proposals of Savantage and Binary, that were arbitrary, capricious, and not in accordance with the law. By elevating Price over the more highly rated nonprice factors, whether it be the three more highly rated nonprice factors taken individually or the four nonprice factors taken collectively, the Source Selection Authority violated the express provisions of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The first letter in the Item for Negotiation number indicates the evaluation team that prepared the Item for Negotiation: \K\ for Corporate Capability, \P\ for Performance Risk, \T\ for Technical/Management, \C\ for Price, and \S\ for Small Business Participation. The second letter indicates the reason that the Army issued the Item for Negotiation: \D\ for a deficiency, \W\ for a weakness and \O\ for another issue. The third and fourth characters constitute the unique two-character code assigned to the offeror by the Army for evaluation purposes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': at 8625, the only other specific reference to SRA Int\rquote l in the proposal is in a table identifying the \SRA Team\ in the Small Business Participation volume: the logo of SRA Int\rquote l was placed beside a description beginning, \SRA is the prime contractor leading this effort,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': The court notes that [...] actually [...] the goal for Service\u8211Disabled Small Business and [...]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': 5: Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Savantage and Binary were awarded contracts under the portion of the solicitation reserved for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': AR 10573. Of the five plaintiffs, only TAPE was a small business with standing to challenge the Army\rquote s small business contract awards, but it was unsuccessful in its challenge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'The Rule of Two': Parts III.A, C, D.1. Further, in addition to lacking standing to challenge the Army\rquote s small business contract awards, none of the four large business plaintiffs made such a challenge. Accordingly, the court will not set aside these contract awards. Thus, the court excludes Savantage and Binary from its conclusions that the Army improperly evaluated the proposals within the competitive range and that the Source Selection Authority improperly performed the best value tradeoffs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 068 - Klinge Corp v US.doc, Paragraph with 'The Rule of Two': hopefully with the result that two or more small businesses would be capable of meeting the agency\rquote s needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 073 - The Grove Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': , the Secretary of Transportation may approve an airport development project grant application provided the airport operator assures that at least ten percent of the businesses selling consumer products or services to the public are small businesses owned and controlled by socially and economically disadvantaged individuals. A firm seeking to be part of that ten percent must apply for certification for each airport at which it wishes to operate a concession from the appropriate state agency. For the Seattle\u8211Tacoma International Airport (the Airport), the state agency that certifies applicants is the State of Washington\rquote s Office of Minority and Women\rquote s Business Enterprises (the Washington Office). Applicants denied certification can appeal to the United States Department of Transportation (Department). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 073 - The Grove Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': On September 12, 2005, The Grove applied to the Washington Office for certification at the Airport. This was The Grove\rquote s third application for certification, after submitting and withdrawing applications in 2003 and 2004. The Washington Office twice denied The Grove certification. The first, dated November 30, 2005, listed five grounds for denial: (1) Mrs. Dukler\rquote s contribution of capital in The Grove was not \real and substantial;\ (2) Mrs. Dukler\rquote s unencumbered assets exceeded the $750,000 personal net worth limit; (3) The Grove is intertwined with Star Foods and does not operate as an \independent business;\ (4) Mrs. Dukler does not control the operations of The Grove; and (5) The Grove operates as a family owned and operated business. This decision also stated that the record was insufficient to determine whether The Grove qualified as a small business. On June 28, 2006, in response to The Grove\rquote s request for informal review, the Washington Office issued a decision affirming on all grounds. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': plaintiff\rquote s failure to comply with solicitation\rquote s disallowance of pricing reflecting purchase of open-market items not on the General Services Administration (GSA) schedule was not an issue of responsibility referable to the Small Business Administration (SBA), but an issue of compliance with the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': Offeror\rquote s failure to comply with solicitation\rquote s disallowance of pricing reflecting purchase of open-market items not on the General Services Administration (GSA) schedule was not an issue of responsibility referable to the Small Business Administration (SBA), but an issue of compliance with the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': The MCC had issued a Request for Information inviting vendors under the GSA Federal Supply Schedule (\FSS\) 70, SIN 132 51 to submit offers. A small business under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': \u182\u182 56\u821160. The fifth and final count alleges that the MCC violated the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': ), for failing to refer the issue of plaintiff\rquote s responsibility to the Small Business Administration (the \SBA\) after excluding plaintiff from the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': be awarded only to responsible contractors and that, \[i]n the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility.\) and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': (discussing applicability of responsibility standards). Because plaintiff is a qualified as a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': (discussing general background of Small Business Act). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 074 - Dyonyx LP v US.doc, Paragraph with 'The Rule of Two': (stating that FAR Part 19 (Small Business Programs) do not apply to FSS contracts). Defendant relies on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 077 - Precision Pine And Timber Inc v US.doc, Paragraph with 'The Rule of Two': , U.S.Code Cong. & Admin.News 1980, p. 4984 (Congressional purpose in enacting EAJA was to prevent individuals and small businesses from failing to \defend [ ] against unreasonable governmental action because of the expense involved in securing the vindication of their rights\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 079 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': improperly circumvented SBA, Competition in Contracting Act (CICA), and federal acquisition regulations (FAR), since RFI was beginning of process for determining type of software to be acquired. Small Business Act, \u167 2[2](j)(3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 079 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Small business general contractor filed pre-award bid protest against the United States seeking to enjoin the United States Army Corps of Engineers from proceeding with a negotiated procurement for the award of an indefinite delivery/indefinite quantity (IDIQ) contract for the design and construction of various types of military facilities in the southeastern United States. Parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Corps was rational in overriding restrictions in the Small Business Act and military procurement statute on the bundling of contract requirements; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Corps was not obligated to seek a waiver of statutory restrictions barring set-asides for general small business concerns that would have been contrary to its needs; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Corps did not overstate its needs to the detriment of the ability of small businesses to participate in the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Even if the restrictions in the Small Business Act and military procurement statute on the bundling of contract requirements so as not to foreclose small business participation are applicable to general construction work, they do not apply when, on the basis of comprehensive advice provided by the construction industry, the procuring agency determines that bundling is necessary and justified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2](j), 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers was rational in determining that consolidation of contract requirements was necessary and justified in contract for the design and construction of various types of military facilities in the southeastern United States, thus overriding restrictions in the Small Business Act and military procurement statute on the bundling of contract requirements so as not to foreclose small business participation, where Army relied construction industry\rquote s consensus that successful completion of the construction program would require the Corps to forsake its traditional method of acquisition of individual projects built one at a time and managed by the Corps on an individual district basis, in favor of a standardized approach to contract administration and contractor performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2](j), 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': A procuring agency is not required to seek a waiver of statutory restrictions barring set-asides for general small business concerns when the agency\rquote s needs require participation by contractors that are able to support construction projects generally exceeding small business revenue standards. Small Business Act, \u167 2[15] note, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Where Army Corps of Engineers set aside a portion of construction project for certain statutorily preferred small business and decided, based on construction industry consensus, that it was necessary and justified to consolidate remaining aspects of the procurement, it was not obligated to seek a waiver of statutory restrictions barring set-asides for general small business concerns that would have been contrary to its needs. Small Business Act, \u167 2[15] note, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Procuring agency did not overstate its needs to the detriment of the ability of small businesses to participate in the solicitation when the regulations barred disclosure of the government price estimate and task orders were identified in terms of minimum and maximum dollar values. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Plaintiff, a small-business general contractor, sues here to enjoin the United States Army Corps of Engineers (\the Corps\) from proceeding with a negotiated procurement for the award of an Indefinite Delivery/Indefinite Quantity (\IDIQ\) contract for the design and construction of various types of military facilities in the southeastern United States. Plaintiff contends that the procurement is unlawful in two fundamental respects: first, because the use of IDIQ procurement procedures for major construction is not permitted by law or regulation, and second, because the solicitation violates a statutory prohibition against consolidating projects that would otherwise be available for competitive award to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': As noted above, plaintiff challenges the instant procurement on the grounds that the use of IDIQ procurement procedures for major construction is not permitted by law or regulation and that the consolidation of separate construction projects suitable for small businesses constitutes \bundling\ and is therefore prohibited by statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Consistent with these contentions, plaintiff asks the court to enter the following relief: (i) a declaratory judgment holding that the Federal Acquisition Regulations (\FAR\) do not authorize the use of IDIQ procedures for the acquisition of large design/build military construction projects or for major construction projects generally; (ii) a declaratory judgment holding that the instant solicitation violates the prohibition on bundling as provided by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': , and therefore impermissibly restricts participation by small business concerns; and (iii) an order permanently enjoining the Corps from awarding a contract under the instant solicitation and directing that the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Corps may proceed with the procurement of the facilities identified in the solicitation only through individual project solicitations that provide appropriate opportunities for participation by small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s case breaks down into four distinct but related arguments. Plaintiff asserts first that the use of an IDIQ contract to procure construction services is not authorized by the FAR and is thus an impermissible exercise of the FAR\rquote s IDIQ authority, FAR Subpart 16.5 (48 C.F.R.). Second, plaintiff maintains that the solicitation improperly consolidates projects appropriate for general small business concerns, effectively foreclosing their participation in the procurement in violation of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': . Third, plaintiff contends that given this result, the Corps should have sought a waiver allowing it to set aside a portion of the contract for small businesses not already the subject of statutory preferences and that its failure to do so was an abuse of discretion. Finally, plaintiff argues that the solicitation does not satisfy a number of the statutory and regulatory requirements applicable to design/build contracts. We address these arguments in turn below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': procedures, we turn next to plaintiff\rquote s second argument\u8212that the scope of the solicitation, as measured by both its dollar amount and the geographic distribution of its construction work, is of a magnitude that impermissibly forecloses small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': This argument draws upon the requirements of two essentially similar statutes: the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': , each of which addresses the importance of safeguarding the opportunity for small businesses to participate in government procurements and the need to confine the use of contracts that involve so-called bundling or consolidation of requirements to instances in which the benefits of such an acquisition strategy \substantially exceed\ alternative contracting approaches. Specifically, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': In complying with the statement of congressional policy expressed in subsection (a) of this section, relating to fostering the participation of small business concerns in the contracting opportunities of the Government, each Federal agency, to the maximum extent practicable, shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': (1) comply with congressional intent to foster the participation of small business concerns as prime contractors, subcontractors, and suppliers; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': (2) structure its contracting requirements to facilitate competition by and among small business concerns, taking all reasonable steps to eliminate obstacles to their participation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': (3) avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': simply do not apply. Defendant additionally notes that the Small Business Administration\u8212the agency charged with the protection of small business concerns\u8212has defined a \new requirement\ in its regulations as \one which has not been previously procured by the relevant procuring activity,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': . Finally, defendant observes that the United States House of Representatives passed the Small Business Fairness in Contracting Act, H.R. 1873, 110th Cong. (2007), on May 11, 2007, a bill that would expand the definition of bundling in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Despite our finding that the Corps\rquote decision to consolidate the contract requirements was rational, however, plaintiff argues that it was nevertheless incumbent on the Corps, given the consolidation\rquote s stifling effect on participation in the procurement by small businesses, to set aside a portion of the project for small businesses not otherwise subject to statutory preferences. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Although plaintiff acknowledges that such a set-aside would not ordinarily be permitted under the Small Business Competitiveness Demonstration Program Act of 1988, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': plaintiff observes that in a June 2, 2008, memorandum, the Department of Defense concluded that during the 12\u8211month period ending on September 30, 2007, the Department of the Army had attained less than a 35 percent small business participation rate in the \Construction of Buildings\ subsector and, based on that finding, directed that \all subsequent contracting opportunities in excess of the amount reserved for emerging small businesses ... shall be solicited through competition restricted to eligible small businesses.\ In light of this memorandum, plaintiff contends that it was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': an abuse of discretion for the Corps not to seek a waiver of the prohibitions against small business set-asides and that its failure to do so unlawfully denied plaintiff an opportunity to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': By the memorandum\rquote s terms, however, the reinstatement of the set-aside program is prospective only\u8212directed to \subsequent contracting opportunities\\u8212and thus has no effect on the instant procurement, first issued on October 30, 2007. Until the issuance of this directive, the Corps was bound to honor the restriction against small business set-asides required under the Small Business Competitiveness Demonstration Program. As discussed above, the Corps set aside a portion of the project to certain statutorily preferred small businesses and decided, based on industry consensus, that it was necessary and justified in consolidating the remaining aspects of the procurement. Beyond that necessary and justified finding, the Corps had no obligation to seek a waiver\u8212and thereby implement a set-aside program\u8212that would have been contrary to its needs. We are therefore unable to conclude that the Corps in any way abused its discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': Plaintiff maintains that while a small business operating without the benefit of a set-aside is able to compete successfully within targeted geographic regions close to its place of business, such a business cannot possibly submit an offer as a prime contractor for $300 million worth of work in an eight-state region over a three-year period under the current, consolidated solicitation. Indeed, plaintiff argues that only the largest construction companies in the United States have the resources to set up shop temporarily in a multitude of remote locations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': The Secretary of Defense shall require the Secretary of each military department, the head of each Defense Agency, and the head of each Department of Defense Field Activity to ensure that the decisions made by that official regarding consolidation of contract requirements of the department, agency, or field activity, as the case may be, are made with a view to providing small business concerns with appropriate opportunities to participate in Department of Defense procurements as prime contractors and appropriate opportunities to participate in such procurements as subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': ] of the Small Business Act.\ H.R.Rep. No. 110\u8211111, pt. 1, at 6\u82117 (2007). The report explained this change as follows: \Under the current definition, a contract may only be considered bundled if it has been previously performed. This provision expands the definition to include construction and other new work.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': small business concerns entitled to competition-restricted preferences under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': (the \Service\u8211Disabled, Veteran\u8211Owned Small Business Procurement Program\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': As explained in the Act\rquote s introductory findings, traditional efforts to implement the mandate for small business participation in federal procurements have resulted in an over-concentration of small business participation in a limited number of industry categories, while at the same time failing to expand small business participation in certain other categories. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': note, \u167 702(3)(A), (B). FAR \u167 19.1007(b), the regulation implementing the Act, thus prohibits solicitations in certain designated contract categories from being subject to small business set-asides, except for those set-asides mandated for socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'The Rule of Two': note, \u167\u167 713(a), 717(a), (b), 718(a). Plaintiff is a small business concern whose industry classification (commercial and institutional building construction) is among those designated industry groups for which non-preferential set-asides were prohibited as of the date of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 087 - Tip Top Const Inc v US.doc, Paragraph with 'The Rule of Two': (c) If the contracting officer determines that no individual surety in support of a bid guarantee is acceptable, the offeror utilizing the individual surety shall be rejected as nonresponsible, except as provided in 28.101-4. A finding of nonresponsibility based on unacceptability of an individual surety, need not be referred to the Small Business Administration for a competency review. (See 19.602-1(a)(2)(i) and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 089 - Evers v Astrue.doc, Paragraph with 'The Rule of Two': . Eventually, Evers and SSA agreed that SSA should have nonetheless referred his quotes to the Small Business Administration (SBA) before determining that he was not a responsible bidder; the GAO dismissed the protests based on SSA\rquote s representation that it would refer the quotes to SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 090 - Appleton v Intergraph Corp.doc, Paragraph with 'The Rule of Two': Plaintiff also alleges that the absence of her IDE product from the market damaged the ability of other small businesses to compete for Government contracts because the product itself was designed to increase competition. This allegation is, however, incompatible with a basic theme of her Complaint, i.e., that her ideas were developed by her competitors after they were stolen from her, and that they were used to fulfill Government contracts that were not available to her. Thus, Plaintiff may have been unable to profit personally, but there was still access in the market to products that employed her ideas. Although she was harmed, the market was not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': AR 1481\u821182, 1486. The March 31, 2006 Solicitation stated that the fixed price contract would be awarded as a 100% small business set aside, to an offeror that submitted the lowest priced, technically acceptable proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': On June 27, 2006, the CO notified TAL that it was the successful offeror, but that other offerors had until July 5, 2006 to challenge TAL\rquote s small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': AR 2173. On July 7, 2006, the United States Small Business Administration (\SBA\) notified TAL that Sealift challenged TAL\rquote s small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': . In addition, a contractor awarded a small business set-aside contract for services must show that at least 50 percent of the labor costs incurred will be performed by the company\rquote s own employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': , Limitations on Subcontracting, \in solicitations and contracts for supplies, services and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $100,000.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': (Definitions). The Small Business Subcontracting Plan, however, defines a \subcontract\ as \any agreement ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': (determining that a two-year delay was not a material change)). Moreover, Sealift\rquote s Small Business Administration protest delayed the contract award by at least 16 days. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 093 - Sealift Inc v US.doc, Paragraph with 'The Rule of Two': Sealift\rquote s website, www.sealiftinc. org. Sealift also is classified as a small business, pursuant to the Small Business Administration regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': Amend. Compl. \u182 1. NCLN20 qualifies as a \minority business enterprise,\ under the Small Business Administration\rquote s (\SBA\) Section 8(a) Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': Gov\rquote t App. at 1\u82112. This Solicitation was set aside for award through the Small/Disadvantaged Business Development Program of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': Our review showed that FPS: (i) did not grant NCLN20 a start-up period consistent with the terms of the contract; (ii) did not give NCLN20 10 days to respond to its cure notice as required by the FAR; (iii) may have exposed the Government to increased costs by not exercising a valid Option to Extend Services clause; (iv) did not give the Small Business Administration advance notice of the contract termination as required; (v) may not have administered NCLN20\rquote s claim for mistake in bid in a manner consistent with the FAR; and (vi) appeared to be inconsistent in treatment of NCLN20 as compared to other guard services contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': , provides that: \[i]t shall be the duty of the Administration and it is hereby empowered, whenever it determines such action is necessary or appropriate ... to make an award to a small business concern owned and controlled by socially and economically disadvantaged individuals which has previously completed its period of Program Participation[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 002 - NCLN20 Inc v US.doc, Paragraph with 'The Rule of Two': . A business may participate in the Program if it is \a small business which is unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character and citizens of the United States and [demonstrate] potential for success.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 005 - EBI-Detroit Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': \Bid equalization\ is a process that allows a government body to give preference to bidders with certain characteristics by adjusting the bidder\rquote s bid according to an equalization table. DWSD gives bidders an \equalization allowance\ of between 1% and 5%, depending on the contract size, to Detroit-based businesses or to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 018 - ACE Const Inc v US.doc, Paragraph with 'The Rule of Two': This result is not surprising, given that the Corps\rquote solicitation for construction of the Ammo Hot\u8211Load Facility was designated as a \100% Small Business Set\u8211Aside Solicitation,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 018 - ACE Const Inc v US.doc, Paragraph with 'The Rule of Two': and ACE was a qualified small business at the time of its bid and the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 021 - Infrastructure Defense Technologies LLC v US.doc, Paragraph with 'The Rule of Two': (holding disqualified bidder waived objection to procurement small business set-aside by not filing protest during bid period); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 023 - California Industrial Facilities Resources Inc v US.doc, Paragraph with 'The Rule of Two': On May 24, 2007, the Air Force issued a Request for Quotation (\RFQ\) for a firm fixed price contract to provide seven \Alaska Extreme 1836[sic] Shelter (Tan) Including Electircal/Lighting [sic] Kits, Plenum, One Piece Liner, Vinyl Floor and Soft Bag Carrying System, Part # AK\u821118EXT\u821126\u82112 [sic], Brand Name or Equal.\ AR 8. The requirement was a 100% Small Business Set\u8211Aside for GSA Schedule holders. AR 1. Five GSA Schedule holders were solicited, including ASI, which manufactured the brand name product. AR 85. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 023 - California Industrial Facilities Resources Inc v US.doc, Paragraph with 'The Rule of Two': On June 18, 2007, the Air Force amended existing documentation for the procurement from \Set\u8211Aside for GSA Schedule Holders\ to \100% Small Business Set\u8211Aside Open Market.\ AR 86. The Air Force posted a combined synopsis and solicitation on FedBizOpps on June 22, 2007. The closing date for bids was June 28, 2007, six days later. AR 86. The solicitation called for quotations to supply \Brand Name or Equal Alaska Extreme 1836[sic] Shelter (Tan) including Electrical/Lighting Kits, Plenum, one piece liner, Part # AK\u821118EXT\u821126\u82112 [sic], quantity of 9 each,\ an increase from the seven shelters sought in the GSA Schedule solicitation. AR 10. The open market solicitation perpetuated the two typographical errors that had Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 024 - Serco Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation also generally required the submission of a subcontract plan; various certifications; evidence of a top secret facility clearance; information concerning any teaming arrangements; and documentation of the offeror\rquote s achievement of small business subcontracting goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 024 - Serco Inc v US.doc, Paragraph with 'The Rule of Two': Under the quality of service subfactor, GSA was to evaluate the offeror\rquote s ability to provide high-quality technological services. The agency was to consider whether, in past contracts, performance risk factors had been identified, mitigated, and managed. Offerors that employed \innovative and unique quality assurance tools and methodologies to ensure efficient and effective design, development and implementation of quality solutions\ were to be more highly rated. For the schedule subfactor, the agency evaluated an offeror\rquote s \ability to meet all schedule goals related to completion of the contract, task orders, milestones, delivery schedules and administrative requirements.\ With regard to cost control, the agency evaluated the offeror\rquote s \ability to deliver a service at the agreed to price/cost to include their ability to effectively forecast, manage and control contract costs, as well as report and analyze variances.\ Under the business relations subfactor, the offeror needed to demonstrate its ability to \integrate and coordinate all activity needed to execute the contract\ and to be an \effective business partner,\ including such things as the timeliness, completeness, and quality of problem identification; corrective action plans; quality of proposals, change orders, and task order requests; and the contractor\rquote s history of cooperative behavior and customer satisfaction. Finally, the Solicitation indicated that the agency would evaluate the offeror\rquote s \ability to select, trace and manage subcontractors\ and whether they had \met their small business utilization goals in the past.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 024 - Serco Inc v US.doc, Paragraph with 'The Rule of Two': (describing the procurement process under the Clinger\u8211Cohen Act). According to the record, Alliant and a related GWAC for small businesses are the successors to two existing contracts: (i) Applications \u8216n Support of Widely\u8211Diverse End User Requirements (ANSWER); and (ii) Millenia, due to expire in December 2008 and April 2009, respectively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 030 - South Florida Chapter of Associated General Contractors v Broward County F.doc, Paragraph with 'The Rule of Two': This program arises from Congress\rquote enactment of the Transportation Equity Act for the 21st Century (\TEA\u821121\), which provides that \[e]xcept to the extent that the Secretary [of Transportation] determines otherwise, not less than 10 percent of the amounts made available for any program under titles I, III, and V of this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 031 - Biltmore Forest Broadcasting FM Inc v US.doc, Paragraph with 'The Rule of Two': Simmons v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': bid protestor who was disqualified from contract award because it was determined to be other than a small business lacked standing to contest subsequent award of contract to another bidder; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': protestor waived objection to term of solicitation designating procurement as a small business set aside by failing to object prior to contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor who was disqualified from contract award because it was determined to be other than a small business lacked standing to contest subsequent award of contract to another bidder, as there was no chance, much less a substantial chance, that protestor would be awarded the contract if the award was set aside, and thus it was not an \interested party.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor who was disqualified from contract award because it was determined to be other than a small business lacked standing to seek recompetition of the contract after it was awarded to another bidder on ground that none of the bidders were small businesses who qualified for a small business set aside solicitation, and thus contract should be rebid using full and open competition; to obtain such relief, contract award would first have to be set aside, and protestor was not an \interested party\ who could request such relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor waived objection to term of solicitation designating procurement as a small business set aside by failing to object prior to contract award, despite being fully aware of the 100 percent set aside for small businesses and despite submitting a bid as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Issue whether the Small Business Administration (SBA) incorrectly determined contract awardee to be a small business and issue whether contracting agency improperly awarded contract to a bidder that was not a small business were nonjusticiable; contracting officer was authorized to award contract based on a formal size determination, and did so without any notice that an appeal was pending before the SBA, and thus there could be no postaward size determination that would apply to the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182\u182 7\u82118. In addition, the solicitation was \100 percent set aside for small business using North American Industry Classification System (\u8216NAICS\rquote ) code 5419[3]0 (Translation and Interpretation Services), with a size standard of $6.5 million.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 12. Five days later, plaintiff, defendant-intervenor, and Torres filed size protests with the Army\rquote s contracting officer, contending that Thomas was not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 13. On January 8, 2007, the Small Business Administration (\SBA\) issued a size determination in response to the three size protests that found Thomas \to be other than small because its average annual receipts exceeded $6.5 million.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': About a week after the Army\rquote s contract award to plaintiff, both defendant-intervenor and Torres filed size protests with the Army\rquote s contracting officer, contending that plaintiff \was not a small business because of its affiliation with WorldWide Language Resources, Inc. (\u8216WWLR\u8217) and based on its undue reliance on WWLR under the ostensible subcontractor rule.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 19. The SBA also noted that \with a size standard of $6.5 million, it is not surprising that a small business would be forced to rely heavily on its larger subcontractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182\u182 24\u821125. Plaintiff argued that defendant-intervenor was not a small business because it exceeded \the relevant receipts standard\ and because it was affiliated with Science Applications International Corporation (\Science Applications\), \a large business with revenues of $8.3 billion in fiscal year 2007,\ which served as the ostensible subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 24. Plaintiff then argued that Torres was not a small business because it \exceeded the relevant receipts standard\ and because it was affiliated with L\u82113 Communications, \a large business,\ which served as the ostensible subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182\u182 26\u821127. Torres then filed a size protest with the Army\rquote s contracting officer on October 18, 2007, asserting that defendant-intervenor was not a small business because it \exceeded the relevant receipts standard\ and it \was affiliated with several additional entities based solely upon the appearance of the name of [defendant-intervenor\rquote s] Chief Executive Officer in Ohio Secretary of State records.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': The SBA then issued another size determination on November 2, 2007, apparently in response to Torres\rquote s size protest of defendant-intervenor, finding that defendant-intervenor was a small business under the solicitation\rquote s size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': , and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': , \awarded the contract to an offeror that was \u8216other than a small business,\u8217 and thereby undermined one of the basic tenets of the Small Business Act, the regulations promulgated thereunder, and FAR Part 19.\ Compl. \u182 37. As remedies, plaintiff requested a preliminary injunction, a declaration that the contract award to defendant-intervenor was improper and violated the FAR and the Small Business Act and its implementing regulations, an order directing the Army to recompete the contract under full and open competition, and reasonable costs, attorney\rquote s fees, and proposal costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': respectively, failed, despite their knowledge, to consider whether defendant-intervenor had an ostensible subcontractor that disqualified it as a small business and rendered it ineligible for contract award. Compl. \u182\u182 33, 35. Accordingly, plaintiff seeks the cancellation of the contract award to defendant-intervenor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 39. Count III, read in conjunction with the Request for Relief, alleges that the Army awarded the contract to a business that was not a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 37, and requests that the court direct the Army to recompete the solicitation under full and open competition because \there is no qualified small business capable of providing the required linguist services,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u182 40. Implied in the latter allegation is plaintiff\rquote s belief that the solicitation was not reasonable as a set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': at 2, 20. As such, plaintiff contends that it \is not challenging the SBA\rquote s size determination of [defendant-intervenor] on an isolated basis,\ and instead characterizes its protest as challenging any award to defendant-intervenor or Torres \because neither is a small business when evaluated in conjunction with their ostensible subcontractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': In support of this request, plaintiff contends in Counts I and II that the Army and the SBA knowingly failed to consider defendant-intervenor\rquote s ostensible subcontractor during the procurement process. However, plaintiff is not an \interested party\ entitled to pursue either claim because under the facts of this case, there is no chance, much less a substantial chance, that plaintiff could be awarded the contract in the event that the Army\rquote s contract with defendant-intervenor is set aside. Assuming, arguendo, that the SBA and the Army improperly considered defendant-intervenor to be a small business, plaintiff itself is not a small business and there remains a small business in the competitive range\u8212Torres\u8212that would be awarded the contract if the award to defendant-intervenor is set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': not a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': at 2, 12\u821117, 20, lacks merit because neither the contracting officer nor the SBA has determined that Torres is not a small business, and this court lacks any authority to entertain a size protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': E. Plaintiff Cannot Challenge the Designation of the Solicitation as a Small Business Set Aside Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': The ultimate goal articulated by plaintiff is to have the contract recompeted under full and open competition. However, because the solicitation was 100 percent set aside for small businesses, full and open recompetition would require an amendment to the solicitation. Thus, despite its assertion to the contrary, Opp\rquote n 25, plaintiff is not attacking the Army\rquote s evaluation of the proposals, but the terms of the solicitation itself. A recent Federal Circuit decision confirms that plaintiff\rquote s proposed course is impermissible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': defendant contends that this waiver rule should be applied to plaintiff\rquote s complaint because despite being fully aware of the 100 percent set aside for small businesses and despite submitting a bid as a small business, plaintiff \did not protest the small business set aside until after the solicitation was closed and the contract was awarded to [defendant-intervenor].\ Mot. 15. Defendant-intervenor is even more emphatic: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': [Plaintiff] has known since at least June 2006 that this procurement was being set aside exclusively for small businesses, yet it never filed any protest against the Solicitation with the Agency, at [the] GAO, or the Court until November 28, 2007, and now gives no reason or excuse for its delay in bringing its challenge to this Court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': (holding that plaintiff could have objected to an amendment to \the solicitation during the bidding process, and in not doing so, waived its right to do so before this court\). Most recently, the Court of Federal Claims applied the waiver rule to foreclose a protestor\rquote s allegation that \the solicitation should have been set aside for small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': . Similarly, in this case, the waiver rule precludes plaintiff from challenging whether the solicitation should have been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': In its complaint, plaintiff alleges that the SBA incorrectly determined defendant-intervenor to be a small business and that the Army improperly awarded the contract to a bidder that was not a small business. Compl. \u182\u182 33, 35, 37, 39. Defendant argues that even if plaintiff is an \interested party,\ the court is unable to \supply relief to [plaintiff] because, in light of the procedural posture of its appeal to the SBA, any new determination as to [defendant-intervenor]\rquote s status as a small business would not affect the existing award of the contract.\ Mot. 10. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Protests of a bidder\rquote s status as a small business are governed by FAR subpart 19.3 and title 13, parts 121 and 134, of the Code of Federal Regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': Although true that the Tucker Act provides this court with the authority to fashion appropriate equitable relief, it cannot provide the relief requested by plaintiff in this case. Congress has delegated to the SBA the authority to promulgate rules and regulations necessary to administer the Small Business Act, Pub.L. No. 85\u8211536, 72 Stat. 384 (1958) (codified as amended at 15 U.S.C. ch. 14A). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': . Included within this delegation is the authority to establish size standards for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': \u167 632. Pursuant to this authority, the SBA has promulgated 13 C.F.R. part 121, \Small Business Size Regulations,\ which includes specific procedures that must be followed to protest SBA size determinations and details the consequences of not complying with those procedures. The court cannot, and will not, ignore these regulations. Here, the contracting officer was authorized to award a contract based on a formal size determination, and did so without any notice that an appeal was pending before the OHA. Consequently, there can be no postaward size determination of defendant-intervenor or Torres Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 034 - International Management Services Inc v US.doc, Paragraph with 'The Rule of Two': at 15 (\Yet [nowhere] in the complaint does [plaintiff] even attempt to set forth any facts demonstrating how the Agency\rquote s decision to set-aside the procurement for small businesses was flawed.\). Citing the proposition that \a \u8216court may not assume that ... defendant has violated laws in ways that plaintiff has not alleged,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 035 - Precision Images LLC v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency was reasonable in taking corrective action based on determination of the Government Accountability Office (GAO) that contract awardee\rquote s proposal was unacceptable because it failed to comply with Limitations on Subcontracting (LOS) clause contained in solicitation, which required that small business perform at least 50 percent of the labor cost of contract by using its own employees, as opposed to those of its subcontractors, notwithstanding awardee\rquote s contention that compliance with clause was not a mandatory solicitation requirement, and that clause could be satisfied post award as a matter of contract administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': This procurement was a small business set-aside, and Tybrin contended in the GAO protest that Centech failed to comply with the Limitations on Subcontracting (LOS) clause, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , which requires that a small business perform at least 50 percent of the labor cost using its own employees, as opposed to those of its subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': In a Policy Memorandum provided to offerors, the Air Force misinformed offerors that compliance with the LOS clause\rquote s 50 percent requirement could be achieved collectively by small business members of an informal joint venture or by a small business prime and first-tier subcontractor. Two of the four offerors, including Centech, relied upon this mistaken direction in formulating Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Centech won the original award, but Centech\rquote s purported compliance with the LOS clause under the Air Force\rquote s mistaken Policy Memo ignited bid protest proceedings at the GAO and a Certificate of Competency (COC) determination at the Small Business Administration (SBA). Although the SBA determined that Centech could comply with the LOS clause and found Centech to be a responsible small-business offeror, GAO deemed compliance with the LOS clause to be a matter of proposal acceptability, not responsibility, and found that Centech\rquote s proposal did not meet the 50 percent requirement. Recognizing that Centech had understood its proposal would comply with the LOS clause due to the Air Force\rquote s flawed Policy Memorandum, GAO found that Centech had been deprived of meaningful discussions. GAO therefore recommended that the agency reopen discussions, reevaluate proposals and make a new source selection decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Applying the deferential abuse of discretion standard, the Court concludes that the Air Force\rquote s corrective action was not arbitrary, capricious, or in violation of law or regulation, and that no injunctive or declaratory relief is warranted. Plaintiff\rquote s proposal violated both the Small Business Act and the LOS clause because Plaintiff did not offer to perform 50 percent of the personnel costs itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': That is not to say, however, that no relief whatsoever could be forthcoming. The Air Force admitted that it erred in issuing its Policy Memorandum which erroneously notified offerors that they could comply with the LOS clause on a collective basis with their subcontractor small businesses. Due to its reliance on this erroneous directive, Centech may be entitled to recover some of its bid and proposal preparation costs, if it can demonstrate that such costs were wasted. As such, the Court remands this matter to the Air Force for its consideration of Centech\rquote s claim for bid and proposal preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The RFP provided for the award of a \hybrid\ cost reimbursement and fixed-price contract depending upon the service being provided. Specifically, the RFP sought advisory and assistance services on a cost-plus-award-fee basis, direct costs such as travel and materials on a cost reimbursement basis, and phase-in services on a fixed-priced-award-fee basis. Award was to be made to the proposal offering the best value considering four evaluation factors: (1) Mission Capability, (2) Proposal Risk, (3) Past Performance, and (4) Cost/Price. The RFP was a 100 percent set-aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': 1. FAR Clause 52.219\u821114, Limitations on Subcontracting (Dec.1996), which applies to 8(a) and small business set-aside contracts, states the small business prime contractor must perform specified minimum amounts of work, when the contract has been set aside for 8(a) or small business. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': offers a valid interpretation and allows the minimum amounts of work to be performed by formal and informal joint ventures. The context and history of the entire 13 CFR 125 and 103 coverage of this matter provide for a reasonable interpretation of \informal joint venture\ to mean a prime contractor and its subcontractors when the contract is reserved for 8(a) or small business.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': 2. Accordingly, within AFMC, we interpret the clause 52.219\u821114 to mean that the minimum amounts of work can be performed by the collective efforts of either small business members of a formal joint venture or a small business prime contractor together with the first tier small business subcontractor(s), when the circumstances outlined in attachment 1 are present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Centech\rquote s Proposal Centech proposed to subcontract the work to [ ] a large business, [ ] a small business. AR, Tab 12 at 001144\u821146. Centech\rquote s proposal included [ ] experienced personnel, software tools, and past performance. AR, Tab 12 at 001087\u82111112. Centech\rquote s [ ] AR, Tab 12 at 001155\u821167, 001192\u82111228, 001322\u821128. Centech\rquote s proposal reflected that its employees would be assigned to [ ] different labor classifications and that the employees of its subcontractors would be assigned to [ ] different labor classifications, including acquisition managers, budget analysts, environmental engineers, system engineers, and other technically skilled specialties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The four small business concerns who submitted proposals were included in the competitive range. AR, Tab 83 at 005169. The Air Force conducted discussions with offerors from September 6 through December 1, 2005. During discussions with Centech, the Air Force did not question Centech\rquote s ability or commitment to comply with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': On July 10, 2006, the Air Force responded to Tybrin\rquote s Supplemental Protest and conceded that under Centech\rquote s proposal, only 43.2 percent of the cost of contract performance would be provided by Centech personnel. AR, Tab 131 016933\u821139; Tab 132 at 016941\u821154. The Air Force contended Centech\rquote s proposed use of subcontractors complied with the LOS clause as interpreted by the Policy Memorandum, because the collective efforts of Centech and its small business subcontractors would exceed 50 percent of the cost of contract performance for personnel. AR, Tab 131 at 016934; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': In considering Tybrin\rquote s supplemental protest, GAO requested the views of the Small Business Administration (SBA) on the Limitations on Subcontracting clause. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': On August 2, 2006, the SBA rendered an opinion to GAO, concluding that the Air Force\rquote s interpretation of FAR clause 52.219\u821114 was incorrect, and advised GAO that the SBA possessed the exclusive jurisdiction to determine Centech\rquote s compliance with FAR Clause 52.219\u821114 under its COC Program. AR, Tab 146 at 017226. SBA advised that contrary to the Air Force\rquote s Policy Memorandum, \in general, a small business receiving a prime contract award as a result of a solicitation set aside for SBCs must meet the subcontracting limitation set forth in statute and regulations itself.\ AR, Tab 146 at 017227. The SBA stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': In the present case, we do not have a complete record to determine whether or not CENTECH and its small business subcontractors have an informal or formal joint venture relationship ... Nonetheless, we believe that this is not an issue to be resolved in the course of a GAO protest, but is to be resolved in a COC [\Certificate of Competency\] proceeding. The Small Business Act provides in pertinent part that SBA is empowered, whenever it determines such action is necessary: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': to certify to Government procurement officers, ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The SBA made a formal size determination that Centech was a small business on November 13, 2006, and on December 4, 2006, certified that Centech possessed the responsibility to perform the contract. AR, Tab 158 at 017328\u821131; Tab 189 at 017945\u821152. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': submitted its proposal with the understanding that it would be found to meet or exceed the subcontracting limitation requirement, given the AFMC memorandum that allowed for the performance of work requirement imposed by the Limitation on Subcontracting clause to be met by the \cooperative efforts\ of CENTECH and its small business subcontractors. Additionally, although discussions were held with the four offerors that had submitted proposals, the matter of CENTECH\rquote s proposal\rquote s compliance with the requirements of the Limitation on Subcontracting clause was never raised with CENTECH during discussions because of the Air Force\rquote s reliance on the AFMC memorandum. Accordingly, CENTECH was deprived of meaningful discussions regarding its proposal\rquote s failure to comply with the requirements of the Limitation on Subcontracting clause ... We recommended that the Air Force reopen discussions and request and review revised proposals, evaluate those submissions consistent with the terms of the solicitation, and make a new source selection decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns, is applicable to your proposal. (See Section L, paragraph 3.7.4 & Section M, paragraph 6.2.3) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s theory cannot succeed here for two reasons. First, the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , provides that a concern may not be awarded a contract as a small business unless it agrees that at least 50 percent of the cost of contract performance incurred for personnel Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , plainly requires the small business prime contractor to agree to perform at least 50 percent of the cost of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': personnel with its own personnel. It is undisputed that Centech\rquote s proposal, on its face, did not do that. As such, Centech\rquote s proposal violated the mandate of the Small Business Act, which makes the prime contractor\rquote s agreement to perform 50 percent of the labor costs itself a prerequisite to obtaining the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': (\a contractor awarded a small business set-aside contract for services must show that it will incur at least fifty percent of its labor costs on the contract from its own employees\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': The original solicitation, evaluation and award were premised on legal error\u8212that a small business could meet the LOS clause collectively with its subcontractors. As such, that original award is illegal, void ab initio and a nullity, and cannot be reinstated by the Court. Nor can Centech with a wink and a nod alter its proposal after the evaluation during a responsibility assessment to change a material proposal term, recognizing that it had to meet the 50 percent requirement itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': (a) In order to be awarded a full or partial small business set-aside contract, an 8(a) contract, or an unrestricted procurement where a concern has claimed a 10 percent small disadvantaged business (SDB) price evaluation preference, a small business concern must agree that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': We interpret that teams formed with prime contractor and subcontractor relationships are included in the CFR\rquote s use of the sentence \A joint venture may or may not be in the form of a separate legal entity\ i.e., an informal joint venture. Prime-subcontractor teams may be a mix of large business and small business subcontractors but the performance of work requirements must be met by the cooperative efforts of the small prime contractor and the small business members of the subcontractor group. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Therefore, the performance of work requirements (i.e., limitation of subcontracting) apply to the cooperative efforts of either a formal joint venture which is classified as a small business or a small business prime contractor and its small first tier subcontractors ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns.\ AR, Tab 4 at 000220. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 037 - Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': (1) A concern may not be awarded a contract under subsection (a) of this section as a small business concern unless the concern agrees that\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 038 - Thomas v City of St Paul.doc, Paragraph with 'The Rule of Two': Any failure by city or its prime contractors to give African\u8211American business owners an explanation for their rejected bids did not violate city\rquote s vendor outreach program (VOP) ordinance designed to assist minority and other small business owners in competing for city contracts, and thus did not amount to unlawful conduct that would support business owners\rquote claims that they were discriminated against in the awarding of publicly-funded contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 038 - Thomas v City of St Paul.doc, Paragraph with 'The Rule of Two': Defendant, City of St. Paul (\the City\), has adopted a Vendor Outreach Program (\VOP\) designed to assist minority and other small business owners in competing for City contracts. Plaintiffs, at all relevant times, were VOP-certified minority business owners. Each contends the City engaged in racially discriminatory illegal conduct when awarding contracts for publicly-funded projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 038 - Thomas v City of St Paul.doc, Paragraph with 'The Rule of Two': The City adopted a policy to \promote increased participation by qualified, minority-owned, women-owned, and economically disadvantaged small businesses in public contracting that is comparable to their availability in the Saint Paul marketplace.\ (City of St. Paul, Minn., Administrative Code ch. 84.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': In 1999, Section 15(g)(1) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': by Congress to require the President to establish a \[g]overnment-wide goal for participation by small business concerns owned and controlled by service-disabled veterans ... at not less than 3 percent of the total value of all prime contract and subcontract awards for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Veterans Entrepreneurship and Small Business Development Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': This goal for contractual awards to service-disabled, veteran-owned small businesses (\SDVOSBs\) is implemented through non-mandatory agency programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation; Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': (\[S]pecifying the 3 percent service-disabled veteran-owned small business goals in the FAR is inappropriate in that only the goal negotiated with SBA [\Small Business Administration\] is relevant to [each] agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act was further amended in 2003, when Section 36 was added by Congress to give federal agency contracting officers the discretion to use sole-source contracts and contracts awarded on the basis of restricted competition to SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation; Procurement Program for Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': (\contracting officer may award a sole-source contract\), 657f(b) (\contracting officer may award contracts on the basis of competition restricted to small businesses owned and controlled by service-disabled veterans\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': on October 20, 2004, requiring agencies to \more effectively implement section[s] 15(g) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': AR 16\u821150 (GSA, VETS (Veterans Technology Services) Business Case For a Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Government\u8211Wide Acquisition Contract (GWAC) (Feb. 3, 2005)) (\Business Case\). GSA described the VETS GWAC as \a streamlined acquisition vehicle\ through which GSA would \offer a pre-qualified group of SDVOSB information technology [\IT\] firms the opportunity to compete for government IT services orders from [government agencies].\ AR 18 (Business Case). GSA stated that \[e]valuation criteria [would], at a minimum, focus on technical expertise, successful past performance and price.\ AR 21 (Business Case). GSA ascribed importance to \building brand awareness\ by \forg[ing] strategic partnerships with the SBA [and] VA [\Veterans Administration\]\ and noted that \frequent and consistent messaging by GSA and any strategic partners (SBA, Veterans Administration, and Department of Defense) is mandatory in order to properly explain the recent statute and Executive Order in addition to managing the expectations of both industry and federal communities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , which requires the agency to \u8216establish a Government-wide Acquisition Contract reserved for participation by service-disabled veteran businesses.\u8217 \ AR 92\u821193 (OMB Designation, Encl. B). OMB also made the designation subject to certain terms, reporting requirements, and understandings. AR 90 (OMB Designation, Encl. B). Specifically, the designation was granted with \the expectation that contracts under this GWAC w[ould] be awarded to the most highly qualified service-disabled veteran owned small businesses. Potential contractors should not be excluded from being GWAC holders based on their lack of experience as a government contractor.\ AR 93 (OMB Designation, Encl. B). Thirteen months later, in August 2006, OMB extended the executive-agent designation until the completion of the VETS GWAC contract period. AR 96, 99 (Letter Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': (addressing the distinction between executive orders issued as housekeeping measures and those issued pursuant to statutory authority). The Small Business Act requires the President to establish and implement the minimum goal for SDVOSBs of three percent, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': was issued as a consequence of the enactment of amendments to provisions of the Small Business Act, thus making it necessary to look at the statute and Executive Order in tandem. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': First, the government seeks leave to supplement the administrative record with the declaration of Mary Parks, the signatory of GSA\rquote s remand determination. Def.\rquote s Mot. for Leave to Supp. the Admin. Record (\Def.\rquote s Mot. to Supp.\) at 1. In her declaration, Ms. Parks advises that she located three documents upon which she had relied in answering the question posed by the court\rquote s remand order of March 28, 2007, which documents were not appended to the Remand Determination. Decl. of Mary Parks, Director, Small Business GWAC Center, Federal Acquisition Service, GSA (Sept. 13, 2007) (\Parks Decl.\) at \u182\u182 7, 9, 11. The three documents consist of a list of the SDVOSB prime contractors and subcontractors, the Final Report for the SDVOSB Set\u8211Aside Contract Vehicle Survey, and the VETS GWAC sales figures for task order awards. Parks Decl., Ex. 1, 2, 3. Because GSA relied upon these documents when making its remand determination, but omitted to attach them to the remand determination, the government\rquote s motion is granted and the administrative record shall be supplemented with these records. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': SBA\rquote s spreadsheet of how agencies scored in meeting small business contracting goals for Fiscal Year 2006). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': GSA\rquote s remand determination emphasizes that development of the VETS GWAC began well before the pertinent amendments in 2003 to the Small Business Act or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . GSA explains that its initial approach was based upon countering a preexisting preference for contract bundling, based upon a strategic study released in October 2002 by OMB\rquote s OFPP entitled \Contract Bundling: A Strategy for Increasing Federal Contracting Opportunities for Small Businesses.\ Remand Determination at 2 & Attachment 1. Contract bundling is defined as \consolidating two or more procurement requirements for goods or services previously provided or performed under separate, smaller contracts into a solicitation of offers for a single contract that is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': unlikely to be suitable for award to a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Attach. 1 at 2 (emphasis added). OMB\rquote s OFPP directed federal agencies to develop more opportunities for small businesses, including mitigating the effects of contract bundling by facilitating the development of small business teams and joint ventures. Remand Determination at 2. Amendments to the FAR, published in the Federal Register on October 20, 2003, required agencies to consider small businesses in their acquisition plans and to review procurements that are considered to be bundled requirements. Remand Determination at 3; Attach 8 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': On March 17, 2004, in preparation for the business case for a SDVOSB set-aside, GSA\rquote s Small Business GWAC Center (\Center\) issued a \sources sought\ notice in FedBizOpps for Service\u8211Connected Disabled Veteran Small Business Concerns in the IT area to participate in a focus group. Remand Determination at 5. The additional market research was employed to determine if there was demand for a SDVOSB GWAC, or if existing vehicles like the GSA Federal Supply Schedule 70 already addressed the matter from a procurement perspective. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Overall, the amplified record generated by the remand shows that GSA had a reasoned basis in experience with other GWACS for its method of structuring CPP2 in this solicitation. GSA\rquote s rationale for focusing on broad experience for CPP2 in the VETS GWAC reflects its general preference as a matter of policy that GWACs should address broad requirements, in contrast to IT 70 Multiple Award Schedules which can be more specific and targeted to particular services. Recognizing that this general policy preference runs counter to OMB\rquote s strategy for avoiding contract bundling, which can operate to the detriment of small businesses, including SDVOSBs, GSA endeavored to ameliorate these potential harms by encouraging the use by SDVOSBs of business teams and joint ventures, even ventures with large businesses. Remand Determination at 13, 22. The decision by GSA in the face of these competing policy considerations belongs to the agency, not the court. \Th[e] court is acutely aware that it may not [substitute] its judgment for that of the agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': The Committee adopted an annual goal of 3% and sees this goal as an incentive to Federal agencies to undertake a major effort to make their procurement activities more accessible to veterans who sacrificed their health and limbs for our Nation. In addition, the Committee included the requirement that the Office of Federal Procurement Policy ([\]OFPP [\]) collect data to be reported annually to Congress on the number and dollar value of contracts and subcontracts awarded by Federal agencies to veteran-owned small businesses and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Prior to Congress\rquote amendment of Section 15(g) of the Small Business Act to include this new contracting goal, the President issued a Memorandum for the Director of OMB delegating to OMB the President\rquote s authority to establish annual goals for contract awards to small business concerns and small disadvantaged businesses as required by Section 502 of the Business Opportunity Development Reform Act of 1988, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . The President took this action pursuant to \the authority vested in [him] as President by the Constitution and laws of the United States, including [S]ection 15(g) of the Small Business Act, as amended, and [S]ection Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': The President\rquote s delegation to OMB of the authority to establish annual goals under Section 15(g) remains in place and has continuing effect, thus operating with respect to all subsequent amendments to the statute including the 1999 amendment adding the contracting goal of \not less than 3%\ for contractual awards to small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Government-wide Small Business and Small Disadvantaged Business Goals for Procurement Contracts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': \u821198 (Mar. 20, 1991). The policy letter established government-wide contracting goals for both small business concerns and \small business concerns owned or controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': In addition, the policy letter established a requirement for Federal agencies to report to the Small Business Administration their achievement of these goals to fulfill the requirement in Section 503 of the Business Opportunity Act of 1988 to make that information available to the President for inclusion in his State of Small Business Report. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': 99\u82111 on Small Business Procurement Goals, rescinding OFPP Policy Letter 91\u82111. 64 Fed.Reg. 54,918 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': \u821120 (Oct. 8, 1999). The policy letter contained guidance on implementing statutory changes made in 1994 and 1997, recognized a five percent goal for women-owned small businesses, recognized an increase in the government-wide goal for awards of prime contracts to small business concerns from \not less than 20 percent\ to \not less than 23 percent,\ and recognized a three percent contracting goal for HUBZone small businesses to be phased in over a five year period. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': 99\u82111,\ SBA implemented the requirement to establish a goal for prime contract and subcontract awards \to be made to small businesses owned and controlled by service-disabled veterans.\ SBA, Guidance On Goal Setting Under Procurement Preference Programs: Fiscal Year 2001, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': http://www.sba.gov/idc/groups/public/documents/sba_ program_office/ goals_fy01_goalsetting_pdf.pdf (Oct. 24, 2000). SBA recognized the government-wide \statutory goal[ ]\ of awarding not less than \3 percent of prime and subcontracts [to] service-disabled veteran-owned small businesses,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': These documents are (i) a memorandum dated April 12, 2007 from Kenneth Krieg of the Department of Defense regarding GSA\rquote s GWAC for SDVOSBs in Information Technology; (ii) a memorandum from Paul A Denett, Administrator of OFPP, GSA, dated July 10, 2007; (iii) SBA\rquote s spreadsheet report of how agencies scored on progressing toward meeting small business contracting goals for Fiscal Year 2006; and (iv) an article from Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': stating that GSA received a failing score for its small business contracting efforts. Pl.\rquote s Mot. at 10\u821111, Encl. 1, 2; First Supp. to Pl\rquote s. Mot. at 3\u82114, Encl. 3, 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': protestor waived its right to protest solicitation on ground it should have been set aside for small business; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor waived its right to protest solicitation on ground it should have been set aside for small business by failing to raise its small business set-aside argument prior to the closing date for submission of proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s decision to cancel original solicitation that was set aside for small businesses and issue new solicitation on an unrestricted basis was rationally based and in compliance with the \Rule of Two,\ where agency determined that there was only one small business manufacturer who could be expected to submit a proposal, rather than at least two, as required by rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': In order to constitute \bundling,\ a solicitation must: (1) consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract, and (2) likely be unsuitable for award to a small business. Small Business Act, \u167 2[3]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s solicitation for two different types of combat knives for the military was a not a \bundled procurement,\ where solicitation clearly provided for two separate awards, and procurement history demonstrated that a single contract for the knives would have been suitable for small businesses. Small Business Act, \u167 2[3]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': As amended, Benchmade\rquote s challenge to the Gerber award consists of three alleged improprieties: (1) that the solicitation should have been set aside for small businesses; (2) that the agency\rquote s decision to bundle the purchase of two types of knives in one solicitation was arbitrary, capricious, and contrary to law; and (3) that the agency\rquote s acceptance of Gerber\rquote s alternate offer as technically acceptable lacked a rational basis. Defendant filed the Administrative Record on August 21, 2007. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': For the reasons stated below, the Court finds that Benchmade\rquote s protest is without merit. Benchmade\rquote s small business set-aside and bundling allegations are untimely, and should have been raised before proposals were submitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': On August 2, 2006, DSCC\rquote s Contracting Officer issued Solicitation No. SP0750\u821106\u8211R\u82114308 to acquire two types of combat knives. Administrative Record (\AR\) 60\u821196. DSCC referenced the knives by National Stock Numbers (\NSN\) 1095\u821101\u8211456\u82114457 and 1095\u821101\u8211466\u82118569. AR 67\u821168. NSN \u82114457 is an automatic or \switchblade\ knife, and NSN \u82118569 is a fixed blade knife. AR 54, 159. DSCC issued this solicitation as a total small business set-aside, based upon the Contracting Officer\rquote s market research that at least two small business manufacturers could be expected to submit proposals. AR 1\u821120, 55\u821156. The solicitation indicated that Benchmade, a small business, had provided these knives to DSCC in the past. AR 63. Proposals were due not later than September 2, 2006. AR 60. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': On August 7, 2006, Gerber sent a letter to the Contracting Officer objecting to the total small business set-aside on the basis that one of the two approved small business manufacturers had discontinued making the knives and was no longer a small business. AR 97\u821198. The Contracting Officer confirmed this information, and determined that there was only one approved small business manufacturer, Benchmade, for the knives to be procured. The Contracting Officer concluded that she no longer had a reasonable expectation of receiving offers from at least two small business concerns offering the products of different small businesses, and she canceled the solicitation on August 29, 2006. AR 106\u821107. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': On August 6, 2007, Benchmade filed this action in our Court. As amended, Benchmade makes the following allegations regarding the award to Gerber: (1) the agency\rquote s solicitation should have been a small business set-aside; (2) the agency should not have bundled the requirements for a fixed blade knife and an automatic \switchblade\ knife in one procurement; and (3) the agency\rquote s decision to accept the alternate product offered by Gerber was arbitrary and capricious. Also pending are Benchmade\rquote s motions to supplement the Administrative Record with various post-decision documents not considered by the agency in awarding to Gerber. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Benchmade\rquote s Small Business Set\u8211Aside Allegations are Untimely and Lack Merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Benchmade contends that DSCC\rquote s determination not to set aside the solicitation for small businesses was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law. The Federal Circuit recently held that challenges to the terms of a solicitation containing a patent error must be raised prior to the close of the bidding process, or the ability to raise such a challenge is waived. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': decision, Benchmade waived its right to protest the terms of the solicitation by failing to raise its small business set-aside argument prior to the closing date for submission of proposals. Accordingly, the Court dismisses Benchmade\rquote s small business set-aside argument as untimely. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': , known as the \Rule of Two,\ requires the Government to set-aside acquisitions over $100,000.00 for small businesses \when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small businesses concerns offering the products of different small business concerns; and (2)[the] award will be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': made at fair market prices.\ Benchmade relies on the \Rule of Two\ for its argument that \two small business concerns,\ as used in the FAR, simply means any two small business entities, including resellers who offer the same product of a single manufacturer. Benchmade claims that the Rule of Two was met here because at least two resellers could be expected to offer the Benchmade knife called for in the solicitation. Pltf\rquote s Motion at 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': The Contracting Officer originally issued the solicitation at issue as a total small business set-aside, based upon the Contracting Officer\rquote s market research that at least two small business manufacturers could be expected to submit proposals. AR 1\u821120, 55\u821156. However, after Gerber\rquote s objection that one of the two approved small business manufacturers, Masters of Defense, had discontinued making the knives and the Contracting Officer\rquote s subsequent confirmation that Benchmade was the only manufacturer of the NSN \u82114457 knives, the Contracting Officer canceled the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': AR 106\u821107. After again attempting to identify more sources for the required knife and finding no other small businesses approved to manufacture the required knife, the Contracting Officer reissued the solicitation on an unrestricted basis. AR 21\u821153, 113\u821154. The Small Business Administration (\SBA\) agreed with the Contracting Officer\rquote s decision to proceed with the procurement of NSN \u82114457 on an unrestricted basis. AR 113. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': The FAR\rquote s \Rule of Two\ clearly states that a contracting officer must expect offers from at least two responsible small businesses offering \the products of different small business concerns\ before setting aside the procurement. As applied to the facts here, the FAR required the Contracting Officer to identify at least two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': small business knife manufacturers of NSN \u82114457 or its equivalent, in order to set aside the solicitation. The decision not to set aside a solicitation for small business concerns is a matter of business judgment within the contracting officer\rquote s discretion and, as such, must be upheld unless the Court finds the decision to be \arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, Benchmade has not shown that the solicitation here meets the statutory definition of bundling. In order to constitute bundling, a solicitation must: (1) consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract, and (2) likely be unsuitable for award to a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Turning to the second prong of the definition of bundling, the Court agrees with Defendant that the procurement history for NSNs \u82114457 and \u82118569 demonstrates that a single contract for the two NSNs would have been suitable for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 042 - Benchmade Knife Co Inc v US.doc, Paragraph with 'The Rule of Two': Def\rquote s Reply at 24. Benchmade itself is a small business, and has performed every contract for these same NSNs since September 2000. AR 516\u821128. Benchmade responded affirmatively to the market survey for the planned solicitation for both NSNs, and at no point indicated an inability to perform, if awarded one or both of the contracts. AR 9\u821110; Def\rquote s Reply at 24\u821125. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 043 - Masai Technologies Corp v US.doc, Paragraph with 'The Rule of Two': at Fort Detrick, Maryland, issued Request for Quotation (\RFQ\) W81XWH\u821106\u8211T\u82110285, a HubZone Small Business set aside to procure commercially available computer and technical support for the Army\rquote s new medical logistics information system, the Theater Wide Enterprise Logistics System (\TEWLS\). Administrative Record (\AR\) 28. The RFQ describes TEWLS, a multi-phased development effort, as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 049 - Aeroplate Corp v Arch Ins Co.doc, Paragraph with 'The Rule of Two': On July 8, 2005, Aeroplate filed a declaratory and injunctive relief action (\bid protest action\) in the U.S. Court of Federal Claims (\Claims Court\) to dispute USPFO\rquote s determination that Aeroplate\rquote s bid was non-responsive and that Aeroplate was not a responsible bidder. The Claims Court issued an August 5, 2005 decision to stay award of the project pending the Small Business Administration\rquote s (\SBA\rquote s\) investigation into Aeroplate for issuance of a certificate of competency (\COC\) to Aeroplate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 049 - Aeroplate Corp v Arch Ins Co.doc, Paragraph with 'The Rule of Two': No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility. (If Section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 049 - Aeroplate Corp v Arch Ins Co.doc, Paragraph with 'The Rule of Two': (2) If the contracting officer determines and documents that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures in subpart 19.6. When a certificate of competency is issued for a small business concern (see subpart 19.6), the contracting officer may accept the factors covered by the certificate without further inquiry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 049 - Aeroplate Corp v Arch Ins Co.doc, Paragraph with 'The Rule of Two': (1) A notice that a small business concern has been determined to be nonresponsible, specifying the elements of responsibility the contracting officer found lacking; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 049 - Aeroplate Corp v Arch Ins Co.doc, Paragraph with 'The Rule of Two': To certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern ... to receive and perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence preclude any small business concern ... from being awarded such contract without referring the matter for a final disposition to the [Small Business] Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': ; 2) Preliminary Project Concept Statement; 3) Organizational Capabilities, and 4) Small Business Utilization Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': The SSAC consensus evaluation rated Forest City\rquote s proposal overall as \exceptional minus.\ AR 1032. Forest City received a rating of \exceptional\ for the evaluations factors of Organizational Capability and Small Business Utilization Plan. AR 1047, 1052. For the Project Finance and Preliminary Project Concept Statement evaluation factors, Forest City received a rating of \exceptional Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': minus.\ AR 1034, 1041. GMH received an overall rating of \exceptional\ on its SSAC consensus evaluation, with \exceptional\ ratings on the Project Finance, Preliminary Project Concept Statement, and Organizational Capabilities factors and \exceptional plus\ on the Small Business Utilization Plan factor. AR 1327, 1329, 1336, 1477. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': Forest City\rquote s proposal is separated into four sections that correspond with the four evaluation factors: Project Finance, Preliminary Project Concept Statement, Organizational Capabilities, and Small Business Utilization Plan. AR Tabs 25, 26, 27, 28. Within the Project Finance section of Forest City\rquote s proposal, Forest City organizes its proposal according to the six Project Finance evaluation subfactors. AR Tab 25. Forest City submitted its revised proposal on January 26, 2007. Pl.\rquote s Facts \u182 27. Under Project Finance subfactor five, Forest City\rquote s proposal opens with three paragraphs which include the word \guarantee\ only in connection with the purchase of insurance. AR 491. Forest City\rquote s proposal states that it is [xxx]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': at 1093, and rated Forest City on the factors of Preliminary Project Concept Statement, Organizational Capabilities, and Small Business Utilization, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': the following excerpts which touch on financing, cost structure, master planning, historic preservation, and small business utilization: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 051 - Forest City Military Communities LLC v US.doc, Paragraph with 'The Rule of Two': GMH and [another offeror] made the most persuasive small business presentation. GMH described a very proactive small business plan that included specific contractual obligations in subcontracts over $500,000 and active review of subcontracts over $100,000 for small business goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 052 - Frazier v US.doc, Paragraph with 'The Rule of Two': Plaintiffs have not shown how the bonus points allotted to a bid offering to manage more than one concession area violate any laws, regulations, agency policies, manuals, or decisional documents, or, how these bonus points are irrational. Plaintiffs cite no laws or regulations in connection with this argument. Instead, plaintiffs cite to a website announcing the prospectus which suggests that interested small business concerns are invited to bid. Compl. \u182 84 (citing Pls.\rquote Mem.App. at 69). Plaintiffs have proved no violation of regulation or policy in the Bureau\rquote s act of inviting small and large bidders to bid on a prospectus. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Over the last two years, SAD has excelled in program execution on behalf of its dredging and shore protection customers. During this timeframe, SAD awarded 121 contracts for maintenance dredging and 20 contracts for shore protection projects (for a total of 141 contracts) which combined were worth more than $750 million. These totals include 69 projects worth more than $189 million that were awarded to small business entities. In addition, over the past three years, 10 of these maintenance dredging projects worth more than $18 million were considered emergencies and procured using other than full and open competition in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': AR 10, 50\u821151. From this paragraph and an accompanying chart, the Acquisition Plan confirms that, during the past two years, SAD has awarded $189 million of its total $750 million to small business concerns, or 25.2 percent of total procurement dollars. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Maintain opportunities for small businesses in the dredging/ shore protection mission. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Group II consists of small business set-aside projects, Groups III consists of shore protection projects, and Group IV was for other projects. Each group contained estimated costs of projects over a five-year period between $440,000,000 and $500,000,000, for a total value of $1,864,000,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The agency conducted market research for the solicitation. SAD issued a \Sources Sought Synopsis\ through the \FedBizOpps\ internet service to seek information regarding the capability and availability of contractors to perform the planned task orders. AR 20, 57\u821159. Ten contractors, including Weeks, indicated their interest. AR 58. Of those ten contractors, eight had \significant\ previous dredging experience, six possessed the hopper dredging equipment necessary to compete for Group I projects, and three qualified as small businesses for Group II projects. AR 21, 58, 426. Weeks was one of only three contractors that had \unlimited\ bonding capability, Group I capability, and significant dredging experience. AR 58. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Under the terms of the solicitation, the agency plans to evaluate IDIQ proposals on a \best value\ basis using four evaluation factors: technical merit, past performance, price, and utilization of small business concerns. AR 148\u821152. The technical merit factor simply requires that the offeror possess dredging equipment. AR 127. After offerors without dredging equipment are eliminated, SAD proposes an evaluation method with past performance significantly more important than price, and utilization of small business concerns significantly less important than past performance and price. AR 148. Past performance ratings consist of six categories ranging from \very low risk\ to \very high risk.\ AR 154. The price factor would be based on an offeror\rquote s proposed price for one of four task order projects (one for each group) included in the solicitation. AR 93\u821194. Offerors may submit proposals for more than one group, and an offeror\rquote s price rating could vary for each group. AR 93. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Prospective contractors submitted hundreds of questions and SAD amended the solicitation ten times from June through September 2007. Five contractors, including Weeks, submitted letters to SAD detailing how the solicitation would negatively impact the industry. For example, Cottrell Contracting Corporation explained how the solicitation overlooked the needs of small businesses, and would exacerbate scheduling and equipment allocation problems. AR 1938\u821139. Great Lakes Dredge & Dock Company reasoned that the solicitation was \detrimental to both the dredging industry and to the Corps\ because \an open and transparent bidding and award system is critical to the integrity and success of the low bid procurement process.\ AR 1947. Manson Construction Company expressed its strong disagreement with the solicitation, reminding SAD that sealed bids had proven very successful in the past and that task order contracting only made sense for emergency dredging projects. AR 1959\u821164. Mike Hooks, Inc. informed SAD that it would be unable to submit a bid on any of the four initial task orders because none of the four projects was a local project in the Mobile District. AR 1972\u821173. Mike Hooks expressed concern that it could be denied future local task orders if it submitted an initial high proposal. AR 1972\u821173. Finally, Weeks voiced its concern over the negative impact that the solicitation would have on the industry. AR 1977\u821182. This judicial action followed when Weeks filed its Complaint for declaratory and injunctive relief on September 28, 2007. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': The record contains references to three other reasons for SAD\rquote s change to IDIQ task order contracting: increased competition, promoting small business participation, and protecting national security. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Similarly, the Administrative Record is devoid of credible evidence that the IDIQ task order method is in the best interests of small businesses. Over the past two years using sealed bidding, SAD has awarded 25 percent of total procurement dollars to small businesses. AR 10, 50\u821151. If anything, the small business bonding requirement in the new solicitation may eliminate some small businesses from participating. The Court notes, for example, that two of the five small businesses that responded to the agency\rquote s market research inquiry could not satisfy a $10 million bonding requirement. AR 14. With the agency already achieving commendable small business results, it is not apparent how the new solicitation will improve upon small business objectives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 053 - Weeks Marine Inc v US.doc, Paragraph with 'The Rule of Two': Finally, the Court acknowledges the public interest in fostering increased small business participation. SAD already was achieving commendable small business goals while employing the sealed bid method for the past two years. AR 10, 51 (showing 25.2 percent of all procurement expenditures going to small businesses). While small business is a separate group under the proposed IDIQ procurement, SAD actually is restricting small business participation by imposing a burdensome $10 million bonding requirement that only three small businesses can meet. AR 21, 426. In contrast, the continued use of sealed bidding best accomplishes full small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest against the United States challenging its disqualification based on determination of the Small Business Administration (SBA) that it was not a qualified Historically Underutilized Business Zone (HUBZone) small business concern. Competing bidder intervened as defendant. Parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': With regard to regulation defining term \employee\ for purposes of determining that a business is a qualified Historically Underutilized Business Zone (HUBZone) small business concern, interpretation of regulation by the Small Business Administration (SBA) excluding those individuals who work for deferred compensation from definition of \employee\ was not inconsistent or plainly erroneous, and thus was entitled to substantial deference. Small Business Act, \u167 2[3](p)(3)(A), (p)(5)(A)(i)(I), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': Statute which requires contracting agencies to evaluate proposals based only on factors set forth in relevant solicitation was not violated when the Small Business Administration (SBA) disqualified contractor from bidding on contract set aside for Historically Underutilized Business Zone (HUBZone) small business concerns, where SBA\rquote s decision did not retroactively create a new eligibility requirement but instead represented the SBA\rquote s enforcement of one of the requirements already in place. Competition in Contracting Act of 1984, \u167 2711(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': Decision of the Small Business Administration (SBA) to resolve protests challenging eligibility of bidder for an Historically Underutilized Business Zone (HUBZone) contract award through adjudication rather than formal rulemaking was reasonable, even though it involved issue of first impression in interpreting SBA regulation defining term \employee\ for HUBZone purposes, where protests required agency to evaluate specific facts related to bidder and its relationship with employee who was receiving deferred compensation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': , United States Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court on cross-motions for judgment on the administrative record filed under Rule 52.1 of the Rules of the United States Court of Federal Claims (RCFC). In this case, plaintiff Aeolus Systems, LLC (Aeolus) challenges the United States Small Business Administration\rquote s (SBA) determination that Aeolus was not a qualified Historically Underutilized Business Zone (HUBZone) small business concern. The SBA\rquote s decision led to the cancellation of a contract awarded to Aeolus by the United States Department of the Army (Army) in 2006, which the Army intends to award shortly after this opinion is issued. Plaintiff argues that the SBA\rquote s decision was improper and must be overturned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': HUBZone small business concerns. AR at 79. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': , which requires that at least 35% of a HUBZone small business concern\rquote s employees reside in a HUBZone. In the decision, the AA/HUB explained that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': Initial offers for the subject contract were submitted on August 21, 2006, and final offers were submitted on September 26, 2006. Aeolus claims that it did not have a payroll from August 21 through November due to a lack of funds. Aeolus claims that beginning in August both Aeolus employees deferred their compensation, and that each was eventually compensated in December. While SBA has considered owners who work 30 hours or more for a concern to meet the HUBZone definition of an employee even though they do not receive salary or wages, we decline to allow non-owners who defer compensation to be counted as employees under the HUBZone definition. It is certainly understandable that an owner of a small business would work for the business entity without receiving a salary or wages. The owner has an expectation that his or her work will increase the value of his or her ownership interest in the entity, and the owner may also be compensated in other ways, such as through dividends or distributions. However, we find it implausible that a non-owner would work for several months or more without compensation. In this case, the individual in question agreed to defer his compensation for over a year, although Aeolus claims that this was not necessary and the individual received the deferred compensation in December, 2006. In our view, allowing a non-owner individual who works for deferred compensation to be counted as an employee for HUBZone program purposes would open the HUBZone program up to potential abuse. We have no way to verify whether such employees are ever actually paid. Further, the concept of employees who defer compensation is directly contrary to the intent and purpose of the HUBZone definition program, which is to increase gainful employment in HUBZones, not speculative promises of future compensation that may not be paid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': , and other scattered sections of the United States Code). According to the statute\rquote s implementing regulations, \[t]he purpose of the HUBZone program is to provide federal contracting assistance for qualified SBCs [(small business concerns)] located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': (\By statute, in order to be certified as a qualified HUBZone SBC, a small business must be exclusively owned and controlled by United States citizens, have its principal office located in a HUBZone, and at least 35% \u8216of its employees\rquote must reside in a HUBZone.\) (citing and quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': (citations omitted). Congress has further charged the SBA with responsibility for establishing \procedures relating to[ ] the filing, investigation, and disposition by [the SBA] of any challenge to the eligibility of a small business concern to receive assistance under\ the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': \through the notice-and-comment rule making procedures of the Administrative Procedure Act,\ pursuant to its congressionally mandated authority to administer the provisions of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'The Rule of Two': However, that statute addresses the manner in which a procuring agency (here, the Army) must evaluate proposals received in response to a solicitation, and not the manner in which the SBA must determine eligibility for small business preferences or set-asides. In addition, the claim is factually unsupportable. The solicitation issued in this case clearly stated that the Army contract was structured as a 100% set-aside for HUBZone small business concerns. AR at 79. The record is uncontroverted that plaintiff was on notice of that fact, as well as on notice of all of the requirements for HUBZone program eligibility, including the 35% residency requirement. The SBA\rquote s decision in this case did not retroactively create a new eligibility requirement, but instead, represented the SBA\rquote s enforcement of one of the requirements already in place. Plaintiff\rquote s claim is therefore without merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 059 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': Geo\u8211Seis sought $961,426.51 in bid preparation and proposal costs in its initial application, specifically seeking to recover $58,256.77 in labor costs, $5,427.80 in direct costs, and $897,741.94 for the cost of obtaining a binding helicopter lease option agreement. Pl.\rquote s Application for Award of Proposal Costs (\Pl.\rquote s Application\) at 9. The government opposed the costs of both the helicopter lease agreement and labor costs associated with a protest GeoSeis filed against Presidential Helicopters before the Small Business Administration on October 7, 2006. Def.\rquote s Opp\rquote n to Pl.\rquote s Application for Award of Proposal Costs (\Def.\rquote s Opp\rquote n to Pl.\rquote s Application\) at 2. Geo\u8211Seis subsequently withdrew its request for those specific costs and now seeks recovery only for its direct costs and its reduced labor costs, totaling $61,954.46. Pl.\rquote s Reply to Def.\rquote s Opp\rquote n to Pl.\rquote s Application for Award of Proposal Costs (\Pl.\rquote s Reply\) at 2. These costs are both unopposed by the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 064 - Westech Intern Inc v US.doc, Paragraph with 'The Rule of Two': On April 18, 2005, the DOE/NNSA issued \a small business set-aside competitive solicitation,\ Solicitation Number DE\u8211RP52\u821105NA99344 (\Solicitation\ or \RFP\), for a contract to provide Security System Services for the NNSA/NSO. AR 1903. The \scope of work include[d] the Nevada Test Site (NTS), NSO Las Vegas metropolitan owned and/or leased facilities, and other facilities as assigned by NSO.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': The RFQ stated that each proposal received would be evaluated on four factors: technical capability, past performance, price, and a socioeconomic factor (which was to allow the government to \give consideration to small businesses and to large businesses which plan to utilize small businesses\). AR 273, 278. According to the RFQ, these factors would be used to evaluate proposals to determine which proposal offered the government the best value. AR 277. The technical capability factor was to be evaluated using three subfactors: management approach, technical capabilities, and successful completion of comparable work, with \the superior plan\ to be considered preferable \[a]mong proposals that are technically acceptable.\ AR 278. Each bidder\rquote s past performance was to be evaluated on the basis of information submitted by the bidders regarding contracts awarded to them in the past 24 months, and the government reserved the right to obtain further past performance information from other sources. AR 275\u821176. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': After the original RFQ was issued, the government amended it on four occasions. The first amendment, on January 4, 2007, merely extended the deadline to respond to the RFQ from December 22, 2006, to January 25, 2007. AR 271. Amendment 2, on January 12, 2007, replaced the Statement of Work (\SOW\) in the original RFQ with a completely new document. AR 61\u8211270. This amendment also contained more detailed information on how the government would evaluate the socioeconomic factor. Specifically, when a bidder planned to have a small business (either the bidder itself or one or more of its subcontractors) perform 90 percent or more of the work, the government would give that bidder\rquote s proposal a rating of \excellent\ on this factor; bidders planning for less than 24 percent of the work to be performed by a small business would receive a rating of \poor.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': The fourth and final factor evaluated by FPS was a socioeconomic factor designed to ensure \maximum small business participation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Excellent: \When 90 percent or more of the project will be performed by a small business.\ AR 545. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Very Good: \When at least 75 percent but not more than 89 percent [of the project] will be performed by a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Good: \When at least 50 percent but not more than 74 percent of the project will be performed by a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Fair: \When at least 25 percent but not more than 49 percent [of the project] will be performed by a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Poor: \When less than 24 percent of the project will be performed by a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': FPS noted that the percentages of work performed by small businesses for purposes of determining the socioeconomic factor rating would be expressed in terms of \a percentage of the overall total quote in dollars.\ AR 545. Based on the planned award from RFQ 62949 against the successful vendor\rquote s GSA Federal Supply Schedule contract, the \GSA\rquote s determination of [a] proposed vendor[\rquote s] classification\ was used to determine whether each vendor (and/or their proposed subcontractors) qualified as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': HWA\rquote s proposal was assigned a rating of \excellent\ on this factor, because HWA \is a small, veteran-owned, SBA-certified small business\ and because HWA planned to subcontract to Johnson Security, a \Black American-owned, DOT-certified, disadvantaged business located in a labor surplus area.\ AR 546. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': HWA, a small business, received a \Satisfactory\ technical rating, but included several weaknesses. Overall, the technical evaluation team found the HWA quote lacked sufficient information to determine its eligibility. In addition, [the] HWA quote was $[* * *] higher than WSI. HWA past performance, although rated \Excellent,\ [was based on] references [that] were for requirements significantly smaller in scope and not relevant to the size of this requirement. Given the critical nature of this requirement, it is not in the Government\rquote s best interest to award to HWA. Based on the evaluation criteria, the ratings for technical, past performance, and price combined are more important than the socio-economic rating. WSI[\rquote s] combined ratings for technical, past performance, and price are significantly superior to the other offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': WSI was rated higher [than HWA] on every element of the proposal with the exception of the Socio\u8211Economic Factor. The intention of that factor was to provide an element to favor a similarly rated Small Business in making a Best Value tradeoff. In this case, however, there was no need for such a trade-off since WSI received higher ratings on Technical, Past Performance, and Price. Consequently, WSI was considered the overall best value for the instant acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': In evaluating the proposals, FPS discussed the socioeconomic factor extensively. Each proposal was evaluated to determine whether the contractor and/or any proposed subcontractors were General Services Administration small businesses. AR 544\u821147. In addition, in making the final award decision, the contracting officer noted WSI\rquote s \poor\ rating on the socioeconomic factor but still noted that \WSI offers the best value to the Government\ in light of WSI\rquote s high ratings on the other three factors. AR 548. Given the extensive discussion of the socioeconomic factor during the evaluation and award decision, it is clear that the record does not support HWA\rquote s argument that the socioeconomic factor was \simply ignored\ by FPS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'The Rule of Two': Other ratings were available in addition to \excellent\ and \poor\; these ratings were to be given for various levels of small business involvement in between those described here. AR 62. The additional available ratings, none of which were ultimately assigned to either HWA or WSI, are explained below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': contracting agency\rquote s decision to set aside solicitation for small business complied with standard set forth in section of Federal Acquisition Regulation (FAR) governing small business set-asides in procurements; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor had standing to file pre-award bid protest of solicitation for follow-up contract based on its allegation that solicitation\rquote s small business set-aside, which rendered contractor ineligible to did, violated the Competition in Contracting Act (CICA); given that plaintiff was the incumbent contractor, and implicitly able to adequately perform in the future, allegation of agency illegality fulfilled reasonableness requirement, and thus was enough to demonstrate that plaintiff was prejudiced by the procurement process. Competition in Contracting Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s decision to set aside solicitation for small business complied with standard set forth in section of Federal Acquisition Regulation (FAR) governing small business set-asides in procurements; procurement history showed that agency\rquote s expectation of at least two responsive small business bidders was reasonable, and contracting officer conducted sufficient market research and acquisition planning before issuing the solicitation as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': This is a pre-award bid protest. Plaintiff McKing Consulting Corporation (\McKing\) challenges the December 22, 2006 Human Resources and Services Administration (\HRSA\) issuance of Request for Proposals No. TA SERVICES MCHB\u8211DLC (the \Solicitation\), and seeks to permanently enjoin the performance of the contract. HRSA is part of the federal government\rquote s Department of Health & Human Services (\DHHS\). McKing is an incumbent contractor with HRSA, currently providing oral health consulting services. The Solicitation seeks bidders for oral health technical assistance support services\u8212essentially the same work as McKing\rquote s existing contract. McKing secured its existing contract through a 2004 small business set-aside solicitation. Their existing contract\rquote s expiration prompted the challenged Solicitation. McKing asserts the Solicitation should not be a small business set-aside, and brings three claims\u8212violation of the Competition in Contracts Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . The Court held a hearing to address the motions on March 29, 2007. Because the government did not act contrary to law when soliciting the procurement as a small business set-aside, the Court denies plaintiff\rquote s request for injunctive relief and for its motion on the record. The Court grants defendant\rquote s motion for judgment on the record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': McKing\rquote s contract was scheduled to expire on September 28, 2006, prompting the issuance of the Solicitation. Pl. Amend. Cmpl. McKing continues to provide dental health consulting services to HRSA pursuant to their expired contract, pending the outcome of this litigation. At the time of the old contract award, McKing was a certified small business under the Small Business Administration\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The original contract was awarded pursuant to a 100% small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': It is undisputed that McKing was no longer eligible to bid as a small business when the Solicitation was issued. Pl. Amend. Cmpl. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': HRSA also transmitted its fiscal year 2006 procurement needs to the Office of Small and Disadvantaged Business Utilization (\OSDBU\) in a report entitled \Forecast of HHS\rquote Contracting Opportunities for FY 2006.\ AR 608\u821118; 2613\u821119. The report, a forecast of business opportunities made for informational and marketing purposes, was published on September 28, 2005, and posted on the OSDBU website for the entire fiscal year. AR 608, 618. The procurement that is the subject of the Solicitation that McKing now challenges is listed in the Forecast as a small business set-aside that HRSA planned to solicit in the forth quarter of FY 2006. AR 614. During their evaluation of their existing contracts, HRSA recognized the need to solicit a follow-up contract for the expiring McKing oral health services consulting contract. AR 608, 614. HRSA attempted to solicit bidders for the follow-up contract three times, the final attempt being the Solicitation now subject to this lawsuit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Garcia also noted that McKing, the incumbent contract holder, was identified on the GSA schedule database as a MOBIS schedule contract holder and as a small business. AR 621, 633. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': On December 1, 2006, a draft statement of work was sent to the GSA Acquisition Management Center for review. AR 621, 635. Then, on December 7, 2006, Ms. Patricia Waddell, a GSA contracting officer for the MOBIS schedule, confirmed in a phone conversation with Ms. Coger that the MOBIS schedule holders could provide the services sought by HRSA, as long as the labor categories requested were offered by the vendors. AR 621, 623. Thus, on December 8, 2006, the second solicitation attempt was posted online on \e-Buy,\ a government contract online listing site accessible to GSA schedule contract holders. AR 649\u8211679. HRSA contends that the MOBIS schedule was chosen after the contracting officer\rquote s research identified 1053 small business schedule contract holders. AR 621. All the same, within a few hours of the second solicitation attempt\rquote s posting, HRSA received 55 responses from potential bidders stating they could not adequately respond to or bid on the project for various reasons, including insufficient time to respond, or not offering the services required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': AR 622. Ms. Garcia also determined through market research that while a number of small businesses chose not to offer the necessary labor categories under their GSA schedule contracts, they did offer the required services, and therefore would be able to respond to a solicitation issued under a FAR Part 15 solicitation. AR 621. Thus, the MOBIS solicitation attempt was cancelled on the same day of its issuance, December 8, 2006. AR 749. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': thereafter, four small businesses expressed interest in the Solicitation\u8212Epipeline Inc. (\Epipeline\) on December 12, 2006, Alliance for Quality Education Inc. (\AQE\) on December 14, 2006, Rivera Sierra & Co. (\Rivera\) on December 17, 2006, and Capital Consulting Corporation (\CCC\) on January 9, 2007. On January 22, 2007, HRSA received proposals from three small businesses\u8212AQE, Rivera and CCC. McKing is a subcontractor on CCC\rquote s bid. AR 1145. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': On December 14, 2006, after pre-solicitation notice for the third attempt was posted online, but before the Solicitation itself was posted, McKing notified contract specialist Ms. Coger that because McKing no longer qualified as a small business, McKing believed that it was inappropriate to restrict the procurement to small businesses as doing so would prohibit McKing\rquote s participation. AR 979. Nevertheless, given the procurement history, HRSA determined the solicitation should remain a small-business set aside and on December 22, 2006, the contracting officer posted the Solicitation online. AR 751. In response to formal posting of the Solicitation, on December 29, 2006, McKing\rquote s counsel sent a letter to Ms. Coger reiterating McKing\rquote s objection. In the letter, McKing\rquote s counsel again challenged HRSA\rquote s decision to continue to set-aside the procurement for small businesses, because McKing no longer qualified as a small business and would be unable to compete for the contract. AR 1067\u82111068. On January 12, 2007, Ms. Garcia sent a letter to McKing stating that HRSA was treating McKing\rquote s letters of December 14, 2006 and December 29, 2006 as an agency-level protest, subject to the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': On January 20, 2007, in light of McKing\rquote s protest of the small business set-aside, Garcia e-mailed Malda Brown, the SBA\rquote s procurement center representative seeking guidance on the set-aside. Ms. Brown responded that the \SBA recommends the task remain in the small business arena,\ and further, warned that \the SBA will file a Form 70 to stop this action if you proceed with a full-open requirement.\ AR 1100. Based on this interaction and the history of the procurement, the Solicitation was maintained as a small business set-aside. AR 751. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': an alleged violation of that statute suffices to supply jurisdiction). Specifically, McKing asserts that HRSA violated CICA by improperly issuing the Solicitation as a small business set-aside, and violated the PIA by improperly assisting Rivera with their bid and publicly disclosing McKing\rquote s proprietary information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Consequently, the Court rejects the government contention that McKing has no standing to assert their PIA claim because the Tucker Act is limited to \actual or prospective bidders or offerors,\ and McKing could not have been a prospective bidder because the Solicitation was designated a small business set-aside and McKing no longer was a small business. Def.\rquote s Cross\u8211Mot for Jdgmt on the Rec. at 35. But this is nothing more than a post hoc rationalization. What establishes standing under the Circuit\rquote s case law is a viable allegation of agency wrong doing, \viability\ here turning on the reasonableness of the likelihood of prevailing on the prospective bid taking the protestor\rquote s allegations as true. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': McKing, as explained below in greater detail, is here challenging the lawfulness of the HRSA\rquote s choice of the small business model. Given that it was the incumbent contractor, and implicitly able to adequately perform in the future, this allegation of agency illegality fulfills the reasonableness requirement and, therefore, is enough to demonstrate that McKing was prejudiced by the procurement process. Additionally, McKing\rquote s PIA allegations (again, these allegations are more fully addressed below) buttress their CICA allegations for standing purposes. If HRSA improperly disclosed McKing\rquote s proprietary information to other bidders, as McKing alleges, or assisted other bidders with their bidding documents, as is also alleged, such behavior certainly would prejudice McKing. Accordingly, McKing sufficiently demonstrates it was prejudiced by the alleged agency errors. The Court does not have to, as the government asserts, initially adjudicate the legal merits of the protestor\rquote s allegation in order find standing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': In order to breach the wall of this very difficult burden, McKing advances three arguments in support of its contention that the agency acted improperly by issuing the Solicitation as a small business set-aside. First, McKing alleges HRSA violated the requirements of CICA and FAR Parts 7 and 10 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': when designating the Solicitation as a small business set-aside and jettisoning the small business model it had successfully used in the past. Second, McKing asserts HRSA acted arbitrarily and capriciously when it issued the Solicitation. Finally, McKing alleges HRSA violated the PIA by intentionally disclosing McKing\rquote s proprietary information to other bidders and by improperly communicating with and assisting Rivera with their proposal. Not surprisingly, the government contends that it did not violate any statutes or regulations when issuing the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Turning to McKing\rquote s first claim, McKing\rquote s theory is predicated upon the contention that HRSA failed to perform mandatory acquisition planning and market research, and that this failure was what directly violated the requirements of CICA and the FAR\rquote s. Pl. Amend. Cmpl. McKing asserts that had HRSA conducted adequate research and planning, HRSA would have realized that the Solicitation should not have been issued as a small business set-aside because there were no qualified small business concerns able to perform the services required by the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': For support, McKing points to the two failed solicitation attempts, as well as the currently challenged Solicitation, and states that their only unifying quality was the fact that they were all small business set-asides, a model that to McKing was no longer viable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': McKing\rquote s third and last argument, the PIA claim, breaks down into two alleged illegalities\u8212first, McKing contends that HRSA intentionally and improperly disclosed a proprietary list of dental consultants to other prospective bidders in order to ensure that HRSA would receive enough responsive small business concern bids, and second, McKing maintains that HRSA improperly communicated with and assisted Rivera to make certain that Rivera\rquote s bid would be responsive. Pl. Amend. Cmpl. McKing\rquote s proprietary information contention is based on an inference that the list of dental consultants posted on the Georgetown University website exactly mirrored McKing\rquote s own roster of dental consultants and therefore was illicitly purloined. McKing\rquote s improper communication is based on the following allegations: HRSA sought out Rivera, impermissibly provided Rivera with the names of qualified subcontractors, the names and contact information for McKing\rquote s dental consultants, as well as pay rates for McKing\rquote s consultants, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': and that absent the alleged improper assistance, Rivera would not have been able to bid on the Solicitation, and, finally, that the Solicitation would not have been allowed as a small business set-aside because of the lack of small business bidders, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': In essence, McKing\rquote s three primary contentions, just delineated, overlap because they are based on either the same operative facts or on events that stem from these facts. Thus, McKing\rquote s CICA allegation\u8212the improper designation of the Solicitation as a small business set-aside allegedly in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': and FAR Parts 7 and 10\u8212is directly related to the arbitrary and capricious contention that HRSA purposely chose the small business model as a way to exclude McKing from the bidding on the contract. Further, the PIA claim can be reduced to a variant bad faith allegation\u8212to wit, that this agency unlawfully disclosed McKing\rquote s proprietary information and aided Rivera in the effort to assist Rivera in creating a winning bid. Accordingly, the task for this Court is to search the record for evidence of whether the agency followed proper procedures and, if not, whether this was tantamount Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Did HRSA, then, violate applicable procedures? For if it did not, then McKing\rquote s entire edifice falls. Whether plaintiff\rquote s allegation of governmental animus against McKing rises to the level of arbitrary and capricious conduct depends on whether HRSA followed applicable law and proper procedure, particularly in choosing the small business set-aside model pursuant to the dictates of CICA, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': HRSA issued the Solicitation as a small business set-aside, after evaluating the history of the procurement and consultation with the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The SBA was created in 1953 as an independent agency of the federal government to aid, counsel, assist and protect the interests of small business concerns, to preserve free competitive enterprise and to maintain and strengthen the overall economy of our nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The charter of the SBA stipulated that the SBA would ensure small businesses a \fair proportion\ of government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Because of the SBA, it is the policy of the United States that small businesses, disadvantaged small businesses, women-owned small businesses, and veteran-owned small businesses have the maximum practicable opportunity to participate in the performance of contracts awarded by any federal agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The federal government\rquote s procurement policy, enumerated in the FAR, directly effectuates the general policy of the SBA. While McKing focuses on CICA and FAR parts 7 and 10, the standard for determining whether a procurement is properly set aside for a small business is instead covered in FAR part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': that (1) offers will be obtained from at least two responsible small business concerns (but see paragraph (c) of this subsection); and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists.... Although past acquisition history of an item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Thus, when evaluating HRSA\rquote s set-aside decision, the important question to consider is did HRSA have a \reasonable expectation\\u8212as required by FAR Part 19\u8212that at least two qualified small business bidders existed? The record clearly demonstrates that HRSA did have such a reasonable expectation. To be sure, HRSA\rquote s reasonable expectation was based on a procurement history of successful procurement under a small business set-aside model, as well as sufficient acquisition planning and market research. AR 751. Accordingly, the only rational conclusion that can be drawn is that McKing\rquote s argument that HRSA violated statutory mandates fails because HRSA followed the relevant law that governs small business set asides in FAR part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Turning first to McKing\rquote s main argument in challenging the small business set-aside\u8212that HRSA could not have reasonably expected Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': at least two responsive bidders because of the history of the procurement and its related contracts\u8212the Court finds that the evidence in the record is to the contrary. Given the procurement history, both that of the predecessor contract and of the Solicitation in question here, the contracting officer certainly could have reasonably believed it would receive at least two responsive bids from small business concerns when issuing the Solicitation. Indeed, as pointed out, McKing\rquote s predecessor contract was solicited as a small business set-aside, and successfully bid on and was awarded as a small business set-aside. AR 750, 752. Based on the procurement history of the predecessor contract, HRSA could have reasonably expected to received enough responsive bids to the Solicitation to keep it as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Specifically, the actions of HRSA surrounding the immediate history of the challenged Solicitation lead inexorably to the conclusion that the agency could have reasonably believed that two qualified bidders existed and would respond to an offer. HRSA attempted to procure the follow-up contract to McKing\rquote s expiring contract two times prior to the Solicitation. AR 608, 614, 621. Both of these prior solicitation attempts were issued as small business set-asides, and HRSA received responsive bids on the first attempt, and had a large enough universe of potential bidders to reasonably expect at least two responsive bidders on the second attempt. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Despite HRSA\rquote s ultimately withdrawing both attempts for different reasons, these two prior solicitation attempts provide further evidence that indicate HRSA could have reasonably expected at least two responsive bidders if it what is more the Solicitation as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': After conducting sufficient market research and acquisition planning (the significance of which is discussed immediately below), HRSA issued a pre-solicitation notice of a third solicitation attempt on December 8, 2006. AR 958\u8211960. Within a few weeks of issuing the pre-solicitation notice, HRSA received at least four expressions of interest in the Solicitation, including one expression of interest from CCC, a company for which McKing was a subcontractor. AR 899\u8211906, 909\u8211913, 1145. This history further confirms the reasonableness of HRSA\rquote s expectation that it would receive at least two responsive bids. If four companies expressed interest in the project before the actual Solicitation was even issued, the contracting officer certainly could have reasonably expected that at least two of those companies would submit responsive bids. Given the procurement history of the predecessor contract, as well as the immediate procurement history of both the withdrawn procurement attempts and the actual Solicitation at issue, the Court finds that the decision to issue the Solicitation as a small business set-aside was certainly reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': McKing\rquote s next argument supporting alleged agency illegality\u8212HRSA\rquote s alleged failure to conduct sufficient market research\u8212is equally without merit. The record clearly demonstrates that contrary to McKing\rquote s contention, HRSA did indeed perform adequate market research and acquisition planning, both before and during the procurement process. The follow-up procurement to McKing\rquote s then-existing contract was planned as a small business set-aside as early as September 2005. AR 608\u8211617. And in anticipation of the expiration of McKing\rquote s existing contract, HRSA conducted advanced acquisition planning for fiscal year 2006, and identified its procurement needs through the creation of a procurement plan. AR 608. HRSA evaluated McKing\rquote s existing contract, recognized the need to solicit a follow-up contract, and researched various procurement vehicles which it could use to secure a contract for the procurement need. AR 608, 614. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Furthermore, even after HRSA abandoned the second reprocurement attempt and decided to issue the Solicitation that is subject to this challenge, the contracting officer performed even more acquisition planning and research. AR 751. And before issuing the Solicitation, HRSA communicated with both the OSDBU and the SBA, both of whom were aware of and supported the procurement attempts being issued as a small business set-aside. AR 608\u821118, 1100, 2613\u821119. Given all this, as documented by the contracting officer throughout the \reprocurement\ process, the Court cannot say that HRSA failed its duty to perform sufficient acquisition planning and market research. AR 608, 614, 621, 751. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': After failing to demonstrate that HRSA could not have reasonably expected at least two responsive small business bidders, nor conducted sufficient market research and acquisition planning, as a sort of \backup\ argument, McKing argues that HRSA could not have reasonably believed it would receive at least two responsive small business concern offers because Rivera and AQE did not in fact present valid offers. Pl. Mot. for Jdgmt on the Admin. Rec. With regard to Rivera\rquote s bid, McKing focuses on the fact that Rivera\rquote s list of consultants was identical to McKing\rquote s own list of incumbent contractors\u8212presenting a kind of a \fruit of a poisonous tree\ argument. McKing contends that Rivera obviously was not qualified because it would not have had the required consultant information without improperly obtaining McKing\rquote s list of consultants with the help HRSA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': that it will receive two or more offers from responsive small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The Court therefore finds no basis in the administrative record to find that the contracting officer acted arbitrarily or capriciously when issuing the Solicitation. As stated, the record demonstrates that the contracting officer had multiple reasons for her decision to issue the Solicitation as a small business set-aside. First, the procurement history shows that the expectation of at least two responsive small business bidders was reasonable. Second, the contracting officer conducted sufficient market research and acquisition planning before issuing the Solicitation as a small business set-aside. Additionally, there was nothing in the record to indicate the attempts were made arbitrarily or capriciously. The decision to set-aside the Solicitation for small business follows the standard set forth in FAR part 19, the regulation provision that governs small business set-asides in procurements such as the one subject to this challenge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . For these reasons, the Court finds HRSA\rquote s decision to make the Solicitation a small business set-aside to be rational. Accordingly, McKing fails to meet its burden of showing that HRSA had no rational basis for its decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': (discussing which standard, either \clear evidence to the contrary\ or \well-nigh irrefragable,\ is the proper standard of evidence required to overcome the presumption that a government official acts in good faith). While McKing asserts in their pleadings that the only logical conclusion for having three separate procurements attempts is a conspiracy by the contracting officer to exclude McKing from the follow-up contract, no evidence in the record even begins to provide a basis for such accusations. To the contrary, the administrative record demonstrates that the contracting officer initially believed McKing was eligible to compete for the follow-up contract because McKing was still listed as a small business concern on the GSA\rquote s schedule when the contracting officer conducted her initial research. AR 621. Without any evidence supporting its position, certainly then, McKing\rquote s animus argument fails. The Court finds no evidence that HRSA or the contracting officer acted in bad faith when HRSA issued the Solicitation as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . \Generally, a concern meets the basic requirements for admission to the 8(a) program if it is a small business which is unconditionally owned and controlled by one or more socially and economically disadvantaged individuals who are of good character and citizens of the United States, and which demonstrates potential for success.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': . However, exceptions to this general rule apply and are enumerated in the statute, including the use of small business set-asides in furtherance of other government statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': The Government\rquote s Role in Aiding Small Business Federal Procurement Subcontracting Programs in the United States, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'The Rule of Two': Office of Advocacy, U.S. Small Business Administration, http://www.sba. gov/advo/research/rs281tot.pdf. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 068 - CWTAlexander Travel Ltd v US.doc, Paragraph with 'The Rule of Two': The Information Technology, E\u8211Commerce and Commercial Contracting Center (\ITEC4\) within the United States Army Contracting Agency, which is part of the Department of Defense (\DoD\), issued solicitation number W91QUZ\u821104\u8211R\u82110007 (\solicitation\) on February 13, 2004. AR 1. The solicitation sought proposals from small businesses for the provision of travel management and related services on a point of sale basis \to support official travel activities of authorized Department of Defense (\u8216DoD\u8217) travelers whose duty station is within the Travel Area(s) awarded to the Contractor.\ AR 93. The solicitation specifically sought travel management services for travel originating at various Military Entrance Processing Stations (\MEPS\). MEPS are the locations to which military recruits first report for duty, and from which recruits are sent, in groups, to various military bases to begin basic training. The solicitation was issued during the first phase of a two-phased plan to contract for travel management services for official DoD travelers. Def.\rquote s Resp. at 5. Two solicitations were issued in the first phase: one for travel services at MEPS, and another for travel services in non-MEPS areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 069 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': rescission of its services contract and its decision to reopen discussions and solicit revised proposals\u8212corrective actions the Air Force took to implement a recommendation by the Government Accountability Office (GAO) in a protest filed by Tybrin Corporation (Intervenor). This procurement was a small business set-aside, and Intervenor contended in the GAO protest that Centech failed to comply with the Limitations on Subcontracting (LOS) clause, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 069 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , which requires that a small business perform at least 50 percent of the labor cost using its own personnel. Although the Small Business Administration had determined that Centech complied with this clause and found Centech to be a responsible small-business offeror, GAO deemed compliance with the LOS clause to be a matter of proposal acceptability, not responsibility, and found that Centech\rquote s proposal did not meet the 50 percent personnel requirement. In response to the GAO\rquote s recommendation for corrective action, the Air Force issued Amendment 3 to the solicitation requesting revised proposals. All four offerors, including Centech, submitted revised proposals on July 31, 2007, and these proposals are currently being evaluated. The Air Force intends to make an award in February, 2008. Plaintiff asks this Court to reinstate its original award and declare that the Air Force\rquote s decision to follow GAO\rquote s recommendation and take corrective action was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': This procurement was a small business set-aside, and Tybrin contended in the GAO protest that Centech failed to comply with the Limitations on Subcontracting (LOS) clause, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , which requires that a small business perform at least 50 percent of the labor cost using its own personnel. Although the Small Business Administration (SBA) had determined that Centech complied with this clause and found Centech to be a responsible small-business offeror, GAO deemed compliance with the LOS clause to be a matter of proposal acceptability, not responsibility, and found that Centech\rquote s proposal did not meet the 50 percent personnel requirement. In response to the GAO\rquote s recommendation for corrective action, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Award was to be made to the proposal offering the best value considering four evaluation factors: (1) Mission Capability, (2) Proposal Risk, (3) Past Performance, and (4) Cost/Price. The RFP was a 100 percent set aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': we interpret the clause 52.219\u821114 to mean that the minimum amounts of work can be performed by the collective efforts of either small business members of a formal joint venture or a small business prime contractor together with the first tier small business subcontractor(s), when the circumstances outlined in attachment 1 are present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': Four small business concerns submitted proposals to the Air Force on or about April 1, 2005. Centech disclosed in its proposal that the \team\ of Centech and its small business subcontractors would collectively perform 66.2% of the contract\rquote s personnel costs. Compl. \u182 12. The Air Force conducted discussions with offerors from September 6 through December 1, 2005. Offerors submitted final proposal revisions (FPRs) on or about December 15, 2005, and revised Cost/Price FPRs on or about February 22, 2006. Award was made to Centech in April 2006. Compl. \u182 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': In considering Tybrin\rquote s supplemental protest, GAO requested the views of the Small Business Administration (SBA) on the Limitations on Subcontracting clause. On August 2, 2006, the SBA rendered an opinion to GAO, concluding that the Air Force\rquote s interpretation of FAR clause 52.219\u821114 was incorrect, and advising GAO that the SBA possessed the exclusive jurisdiction to determine Centech\rquote s compliance with FAR Clause 52.219\u821114 under its Certificate of Competency Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': (COC) Program. AR, Tab 146 at 017226. SBA advised that contrary to the Air Force\rquote s memorandum, \in general, a small business receiving a prime contract award as a result of a solicitation set aside for SBCs must meet the subcontracting limitation set forth in statute and regulations itself.\ AR, Tab 146 at 017227. The SBA stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': In the present case, we do not have a complete record to determine whether or not CENTECH and its small business subcontractors have an informal or formal joint venture relationship ... Nonetheless, we believe that this is not an issue to be resolved in the course of a GAO protest, but is to be resolved in a COC [\u8216Certificate of Competency\u8217] proceeding. The Small Business Act provides in pertinent part that SBA is \u8216empowered\u8217 whenever it determines such action is necessary: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': to certify to Government procurement officers, ..., with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer ..., may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': the small business limitation on subcontracting requirement). AR, Tab 255 at 019788. GAO concluded that because Centech\rquote s proposal provided that only 43.2 percent of the cost of personnel would be expended for Centech employees, the Air Force should have evaluated Centech\rquote s proposal as unacceptable instead of referring the matter to the SBA for a COC determination. AR, Tab 255 at 019795. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns, is applicable to your proposal. (See Section L, paragraph 3.7.4 & Section M, paragraph 6.2.3) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 071 - The Centech Group Inc v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns. AR, Tab 4 at 000220. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': at 145. In addition, one contract would be awarded to a business located in a Historically Underutilized Business Zone (HUBZone); one would be granted to a Service Disabled Veteran Owned Business (SDVOB); and twenty would be awarded via the United States Small Business Administration (SBA) to socially and/or economically disadvantaged small businesses, pursuant to section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': The procurement was assigned North American Industrial Classification System (NAICS) code 238160, \Roofing Contractors,\ which provided that businesses which hoped to secure the available small business set-aside awards could have annual profits of no more than $12 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that, at some time in 2005, a representative of EEI contacted the SBA, the federal agency charged with enforcing the provisions of the Small Business Act, and inquired about the size standards applicable to the procurement. Specifically, EEI asked Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': On or about May 16, 2006, plaintiff sent a letter to the SBA which stated that, upon review of ESA South\rquote s protest and the applicable regulations, it appeared that Ironclad did not qualify as a small business, and plaintiff would not oppose ESA South\rquote s size protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': at 419, 423. On the next day, the SBA issued Size Determination No. 3\u82112006\u821158, in which it concluded that plaintiff was not a small business under the applicable size standard, making it ineligible for the SDVOB award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': debriefing regarding its proposal for the unrestricted work. The government responded to that request on May 30, 2006, but explained only that Ironclad had been eliminated from the competitive range because it was not among the five to seven lowest priced offerors for the unrestricted awards. Plaintiff alleges that, on the same day, it sent a letter to the Corps which alleged that RL Campbell was not a small business and thus was not eligible for the section 8(a) award it had received. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': AR at 419. Thus, even if the CO\rquote s decision to terminate Ironclad\rquote s contract had not been mandated by the small business regulations, it was nevertheless appropriate, based on plaintiff\rquote s own conduct. Given the requirements of the small business size regulations and plaintiff\rquote s own admission regarding its SDVOB eligibility, there is no basis on which to conclude that the CO abused his discretion in this instance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': \The SBA\rquote s section 8(a) program was established to promote the viability of socially and economically disadvantaged small business concerns by empowering the [SBA] to enter into contracts with other federal agencies and to arrange for the performance of such contracts by negotiating or otherwise letting subcontracts to small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': NAICS codes are used by government agencies and the SBA to establish size standards governing eligibility for small business preferences under government programs and procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': provides that a service disabled veteran owned small business concern, like Ironclad Services, \may enter into a joint venture agreement with one or more other [small business concerns] for the purpose of performing an SDVO contract.\ There is no question that EEI is a large business. Thus, under the existing small business regulations, the joint venture between Ironclad Services and EEI is not eligible for an SDVOB award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'The Rule of Two': Any claims which are directly related to the NAICS code assigned to this procurement are relevant to the small business awards only. Because Ironclad concedes that it does not have standing to challenge the small business awards made under the solicitation, these arguments are moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 075 - Data Management Services Joint Venture v US.doc, Paragraph with 'The Rule of Two': On December 11, 2006, NARA received five quotations in response to the RFQ. Two companies, Data Management Services, Inc. (a small business in the Small Business Administration\rquote s (\SBA\) 8(a) program) and American Systems Corporation (a large business and parent company of the incumbent contractor, Integrated Computer Engineering), together submitted a quotation as Data Management Services Joint Venture, a partnership under SBA\rquote s mentor-protege program and the plaintiff in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 075 - Data Management Services Joint Venture v US.doc, Paragraph with 'The Rule of Two': The offeror presented a well coordinated team, with a disciplined [Project Manager (\PM\)]. Most of the comments made were focused on one project\u8212IRS, which was a development project, not similar in scope, magnitude or nature to ERA, and not directly relevant to ERA POST needs. Although a very small business, the principals and PM had a good grasp of challenges facing ERA and had records management domain knowledge. Good understanding of technical, budget and communications challenges. The offeror demonstrated recent and relevant corporate experience on work of similar scope, magnitude and nature through their work at TSA, NWS and MDA. Senior staff has experience at hands on PM and worked on several major software programs. The offeror demonstrated good experience in staffing on-site program management support to major systems software development or integration projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 075 - Data Management Services Joint Venture v US.doc, Paragraph with 'The Rule of Two': at 145 (Tab 4). Plainly the agency contemplated that an offeror might have no corporate experience of a similar magnitude to the subject contract. That is particularly understandable, as it gave highest priority to obtaining a small business contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': Contractor\rquote s claims that minority preference policy for government contracts violated equal protection component of Due Process Clause, and that small business set-aside program violated regulations prohibiting disclosure of contractor\rquote s bids to other bidders, were sufficiently related to contract to supply fuel for military uses with economic price adjustment (EPA) clause to bring claims within Contract Disputes Act, where allegedly illegal policies could have affected price term of fuel contract by improperly lowering bid as result of bid disclosure due to set-aside program and as result of 10% price preference for minorities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': These are consolidated appeals from judgments of the United States Court of Federal Claims dismissing the plaintiffs-appellants\rquote claims against the United States. The plaintiffs in the first case are ConocoPhillips, Conoco, Inc., and Phillips Petroleum Company (collectively, \ConocoPhillips\). The plaintiff in the second case is La Gloria Oil and Gas Company. The appeals focus on the application of the economic price adjustment clause in the plaintiffs\rquote contracts to supply fuel to the government for military uses (mostly several kinds of military jet fuel). Because the plaintiffs have not shown that the economic price adjustment clause was unlawful, that there was a material mistake in the formation of the contracts, or that there was a breach of contract, we affirm the trial court\rquote s dismissal of those claims in both appeals. However, we reverse the trial court\rquote s jurisdictional dismissal of La Gloria\rquote s claims that the government\rquote s small business and minority set-aside programs unlawfully reduced the prices of La Gloria\rquote s contracts, and we remand those claims for further proceedings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': The plaintiffs also argued that reformation of the contracts was necessary to compensate them for the effects of alleged constitutional and regulatory violations related to the government\rquote s small business set-aside and minority preference programs. The trial court rejected all the plaintiffs\rquote claims, and the plaintiffs now appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': The plaintiffs argued below that they were entitled to reformation based on alleged illegalities in the bidding process. Their claims related to the implementation of two procurement policies followed by the government. The first policy gives a 10 percent price preference to minorities who bid on the contract. The second sets aside a portion of the contracts for small businesses that are able to match the lowest price submitted by the larger companies; if the small businesses are unable to match that bid, the contracts are awarded to the company that submitted the lowest bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': The plaintiffs allege that the minority preference policy violates the equal protection component of Fifth Amendment\rquote s Due Process Clause, and that the small business policy contravenes Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': and FAR \u167 15.610(d) (1994 ed.), both of which prohibit disclosure of other bidders\rquote bids. Before the trial court, the plaintiffs asserted that they were forced to submit bids that were lower than they otherwise would have been in order to ensure that they would not lose the contracts to minority and small business bidders. As a remedy, they contend that they should be entitled to the higher contract price that they claim they would have obtained in the absence of those two policies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': The trial court decided those issues differently for ConocoPhillips and La Gloria. The court found that ConocoPhillips had waived its small business and minority preference claims, holding that the proper time to address the alleged illegality of those programs was prior to the award of the contract. The court ruled that ConocoPhillips could not \on the one hand remain silent in the face of what they now contend was a facially invalid solicitation and admittedly reduce their [bids] to remain competitive ... and then, on the other hand, seek many years after the fact to challenge the prices they themselves had set.\ In addition, the court held that ConocoPhillips\rquote s challenges to the small business set-aside program failed on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': The trial court also dismissed La Gloria\rquote s minority preference and small business set-aside claims. According to the trial court, those claims were directed to errors in the bidding process. Because La Gloria was not a disappointed bidder, the court found that those claims did not fall within its bid protest jurisdiction. The court also found that those claims did not fall within its jurisdiction under the Tucker Act or the Contract Disputes Act because the claims were not founded on the contract. Accordingly, the court dismissed La Gloria\rquote s minority preference and small business set-aside claims for want of jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': In its brief, La Gloria argues that its claims regarding the minority preference and small business set-aside policies are based on the price clause of the contract or at least relate to the contract, as is required by the Contract Disputes Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': is identical in all material respects to La Gloria\rquote s small business set-aside claim. Nor does there appear to be any material difference between the allegations in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': case and remand for further proceedings with regard to LaGloria\rquote s claims relating to the minority preference and small business set-aside policies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 076 - ConocoPhillips v US.doc, Paragraph with 'The Rule of Two': Conoco does not challenge the disposition of its small business set-aside program claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': Small business which submitted unsuccessful proposal for a Phase II research and development award under the Small Business Innovation Research (SBIR) program filed post-award bid protest against the United States. Defendant filed motion to dismiss, and parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': A research and development award under Phase II of the Small Business Innovation Research (SBIR) program was not a \procurement\ within meaning of the Tucker Act, and thus challenge to such an award by a small business which submitted an unsuccessful award proposal did not come within the bid protest jurisdiction of the Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': In 1982, Congress established the Small Business Innovation Research (SBIR) program to increase small business participation in federal research and development grants. Compl. 2; Administrative Record (AR) 4; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s Statement of Facts (Pl.\rquote s Facts) 1\u82112; Defendant\rquote s Statement of Facts (Def.\rquote s Facts) 1. The purposes of the SBIR program are: \1) to stimulate technological innovation; 2) to use small business to meet Federal research and development needs; 3) to foster and encourage participation by minority and disadvantaged persons in technological innovation; and 4) to increase private sector commercialization innovations derived from Federal research and development.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': Small Business Innovation Development Act of 1982, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': . Moreover, the congressional findings and purposes indicate that the SBIR program purposes are: \1) to stimulate technological innovation; 2) to use small business to meet Federal research and development needs; 3) to foster and encourage participation by minority and disadvantaged persons in technological innovation; and 4) to increase private sector commercialization innovations derived from Federal research and development.\ Small Business Innovation Development Act of 1982, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 080 - R And D Dynamics Corp v US.doc, Paragraph with 'The Rule of Two': . In the certification, LTC Kenneth W. Strayer, Deputy Program Manager, Army Small Business Innovation Research, certified that the documents contained at Tabs 1\u821115 and Tabs 29\u821130 \constitute the record of administrative actions performed by the Army concerning R & D Dynamics\rquote SBIR Phase II [P]roposal for Topic A05\u8211035.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 082 - CHE Consulting Inc v US.doc, Paragraph with 'The Rule of Two': Defendant asserts that the Government\rquote s merger of the maintenance requirements is reasonable and justified. NAVO operates one of DoD\rquote s Major Shared Resource Centers (\MSRCs\) at the Stennis facility, a supercomputing center that acquires and analyzes oceanic and shoreline data for critical defense and civilian needs worldwide. The NAVO MSRC broadly supports Navy fleet operations by providing essential warfighter information 24 hours per day, seven days per week. The NAVO MSRC furnishes such data as ocean current direction and speed, wave height and direction, water salinity, wind speed and direction, and relative humidity. The NAVO databases also include information on ocean depth and floor type. The NAVO MSRC is a key part of DoD\rquote s High Performance Computing Modernization Program, supporting weapons programs such as the Joint Strike Fighter, Unmanned Aerial Vehicles, Medium Tactical Vehicles Requirement, and the Javelin Missile Program. The MSRC must maintain 97 percent availability, and has actually achieved greater than 99 percent availability since 2003. The NAVO MSRC also is the backup Disaster Recovery Center for five other DoD supercomputer centers, including DoD\rquote s three other MSRCs. Due to the size and complexity of the MSRC system, and its mission critical services to the military, NAVO determined that its hardware and software requirements should be awarded to a single contractor. Defendant contends that the merger of the maintenance services does not violate CICA because such action is necessary to meet its minimum needs. Defendant still expects adequate competition from the many authorized maintenance providers for StorageTek software, some of whom are small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 082 - CHE Consulting Inc v US.doc, Paragraph with 'The Rule of Two': There are multiple small business third party maintenance providers with established relationships with the [original equipment manufacturer] that can and do perform both hardware and software maintenance. Many of these vendors have established federal supply schedule (FSS) contracts with [the] General Services Administration (GSA) to provide hardware and software maintenance on Storage Technology (STK)/Sun equipment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 082 - CHE Consulting Inc v US.doc, Paragraph with 'The Rule of Two': This protest does not involve the concept of \bundling\ as defined in the Federal Acquisition Regulation (\FAR\) \u182 2.101. Although Plaintiff uses this term repeatedly in describing the Government\rquote s merger of maintenance services, \bundling\ involves the consolidation of \two or more requirements for supplies or services previously provided or performed under separate smaller contracts, into a solicitation for a single contract that is likely to be unsuitable for award to a small business concern.\ FAR \u182 2\u8211101. Such is not the case here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 084 - Scott v US.doc, Paragraph with 'The Rule of Two': Plaintiff also lists eleven other businesses, mostly small businesses, with which he was partnered in Colorado, Utah, and Arizona in the past three months that \have extended me credit, and I paid them after I got paid by my Federal government customer.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 084 - Scott v US.doc, Paragraph with 'The Rule of Two': Although I believe that these financing arrangements are intended mostly to help small businesses perform government contracts, it is my understanding that federal agencies in Iraq have even made advance payments to large businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': Additionally, the Diplomatic Construction Program is subject to a ten-percent small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': (\Not less than 10 percent of the amount appropriated ... shall be allocated to the extent practicable for contracts with American small business contractors\). The GAO\rquote s interpretation would have the net effect of exempting embassy construction contracts from the small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': If the business volume requirement is read as requiring each individual year to equal the value of the project being bid, no potential offeror qualifying under NAICS code 236220 could qualify under the business volume requirement. The potential offeror would be required to show a business volume in each of the three years of approximately $63 million in order to bid on the smallest project, thus eliminating any small business offerors with business volumes of $31 million or lower. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': . The inclusion of a small business set-aside is further evidence that Congress intended the business volume requirement to be cumulative. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': Defendant argued during the oral argument that the small business preference would not be written out of the statute because it would still apply to smaller contracts under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 086 - Grunley Walsh Intern LLC v US.doc, Paragraph with 'The Rule of Two': -projects \which involve [ ] technical security....\ That is irrelevant. The language of the statute indicates that the small business preference is meant to apply to all contracts under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Congress satisfied requirement that it select narrowly tailored method of achieving racial equality in government contracting, as required to establish its constitutional authority to appropriate funds for defense, when it enacted program establishing goal that five percent of total defense contracts, by amount, be awarded to socially and economically disadvantaged individuals, presumptively including minorities (SDBs), when Congress considered and then rejected as inadequate race neutral approaches to increasing SDB participation, such as measures to assist small businesses generally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': races were still required to make showing of need for SDB benefits, nonminority small business were also eligible for SDB status, and five percent goal was subject to adjustment based on changing circumstances. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The 1207 Program cross-references Section 8(a) and 8(d) of the Small Business Act, 15 U.S.C. \u167 637 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Social disadvantage regulations were amended to lower the burden of proof required for non-minority small businesses to qualify as SDBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Economy: A Report to the President (2005) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The State of Small Business: A Report to the President (2000) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': , which permits the United States Department of Defense (\DoD\) to preferentially select bids submitted by small businesses owned by socially and economically disadvantaged individuals (\SDBs\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In the Act, Congress set a goal that five percent of the total dollar amount of defense contracts for each fiscal year would be awarded to small businesses owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': at 252.219\u82117006(b)(2) (1997). For purposes of the 1997 DFAR regulation, a \small disadvantaged business concern\ was defined as \a small business concern, owned and controlled by individuals who are both socially and economically disadvantaged, as defined by the SBA at 13 CFR part 124, the majority of earnings of which directly accrue to such individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . The Act defines the term \socially and economically disadvantaged\ in accordance with the Section 8(d) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Federal Acquisition Regulation (\FAR\) must provide procedures for contracting officers to set goals for prime contractors that are required to submit subcontracting plans under Section 8(d)(4)(B) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (3) enter into contracts using less than full and open competitive procedures, including awards under section 8(a) of the Small Business Act, and partial set-asides for SDBs, but shall pay a price not exceeding fair market cost by more than ten percent in payment per contract to contractors or subcontractors classified as SDBs (\PEA authorization\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': and (6) prescribe regulations ensuring that current levels in the number or dollar value of contracts awarded under the program established under Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': , and under the small business set-aside program established under Section 15(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': 2. The 1207 Program cross-references Section 8(a) and 8(d) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The term \socially and economically disadvantaged small business concern\ means any small business concern that is at least 51% owned by one or more socially and economically disadvantaged individuals and whose management and daily business operations are controlled by one or more of such individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . In determining whether a group has made an adequate showing that it has suffered chronic racial or ethnic prejudice or cultural bias for the purposes of this section, the SBA must determine that: (1) the group has suffered prejudice, bias, or discriminatory practices; (2) those conditions have resulted in economic deprivation for the group of the type which Congress has found exists for the groups named in the Small Business Act; and (3) those conditions have produced impediments in the business world for members of the group over which they have no control and which are not common to small business owners generally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . The Secretary of Defense is instructed to use the PEA in competitive acquisitions in the authorized North American Industry Classification System (\NAICS\) industry subsector, except acquisitions that are awarded pursuant to the 8(a) Program, set aside for small business concerns, or set aside for HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': As discussed previously, the 1207 Program cross-references Section 8(d) of the Small Business Act. Prior to 1999, a presumption of economic Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': c. Social disadvantage regulations were amended to lower the burden of proof required for non-minority small businesses to qualify as SDBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Current regulations allow non-minority small businesses to prove social disadvantage by a preponderance of the evidence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In support of this finding, the Court noted that the program requires the DoD to make annual reports to Congress on its progress towards reaching the five percent goal, the five percent goal is not a \quota,\ the program was amended to include the PEA suspension provision once the five percent goal was reached, the preferences are available to non-minority small businesses that can demonstrate economic and social disadvantage, the presumption of social and economic disadvantage can be rebutted, and the program contains a sunset provision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Court cited to anecdotal testimony from hearings before the House Committee on Small Business and the House Committee on Armed Services suggesting that small minority owned businesses are subject to discrimination in both the private and public sector, including contracting with the DoD. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Hearing before Committee on Small Business, House of Representatives, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Court interpreted these numbers as illustrating that SDBs represented a significant portion of small businesses, but were unable to compete or receive a significant proportion of the federal dollars available. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': with no competition, to include awards under section 8(a) of the Small Business Act; (3) advance payments; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Nevertheless, the Court stated that it would consider Rothe\rquote s challenge to the entire 1207 Program as coming within the parameters of the current complaint. In its November 10, 2005 Order, the Court reasserted that it would consider Rothe\rquote s challenge to all preferences contained in the 1207 Program, but it would not consider any challenge to the Small Business Act\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The 1207 Program helps to correct these problems of discrimination without imposing an undue burden on White-owned businesses. Small businesses owned by White contractors are eligible to receive the benefits of the program if they are socially or economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The second period covered by the study was Fiscal Year (FY) 1999, during which time Cincinnati had no race or gender-conscious program in place, nor did it have a small business program in place. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The third distinct period covered by the study was FY 2000 through FY 2001, during which time the City put in place a race-neutral Small Business Enterprise (SBE) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The data revealed a substantial contrast between the dollars spent by Cincinnati with minority and female owned firms during the Program Years and the dollars spent with minority and female owned businesses, in 2000, with the race neutral small business enterprise program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The overall disparity index for minority and female firms in construction, for African Americans during FY 2000 is 0.35, suggesting significant under-utilization in the year the City operated its race neutral small business enterprise program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': For the purposes of this study, MGT defined prime contractors as firms that: (1) have performed prime contract work for the Commonwealth in the past; (2) have bid on prime contract work for the Commonwealth in the past; or (3) are registered vendors with certain state agencies. These firms are defined as available prime contractors because they have either performed, or have explicitly indicated their willingness to perform, prime contract work for the Commonwealth. For construction subcontracting availability the study used Census Bureau data. MGT attempted to collect lists from 25 organizations that were identified as potential sources of available vendors and ethnicity information during interviews with Commonwealth personnel. Further sources were also identified during the collection process by staff from these organizations. MGT was successful in collecting vendor information from the following sources: Virginia Regional Minority Supplier Development Council; Metropolitan Business League Minority List; Virginia Community Development Loan Fund; Association of General Contractors; Greater Virginia Contractors Association; Department of Professional and Occupational Regulation; Virginia Chamber of Commerce; Small Business Association; Harris Infosource Vendor Listings; National Indian Business Association; City of Richmond\u8211Department of Economic Development; and National Women Business Owners Corporation. Pgs. 4\u82116 to 4\u82117. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Obama requested that a letter from Carmen Nazario, a Hispanic female small business owner from the state of Washington, be published in the congressional record Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': On Tuesday, February 17, 2004, the Committee on Small Business held a field hearing in Chicago, Illinois to learn from small business owners, especially minority-owned firms, about problems that they were facing in obtaining access to capital and in finding contracting opportunities in the federal government. Summary of Activities, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (Dec. 29, 2004). This oversight hearing provided an opportunity for small businesses to express their views as to the success or failure of the private and public sectors to meet the capital needs of small businesses in the Chicago area, especially the needs of African\u8211American and other minority-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': at 151. The hearing also provided oversight of SBA\rquote s and other federal agencies\rquote efforts to assist small businesses in finding real federal procurement opportunities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': meet the capital needs of African\u8211American small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': felt that the employees of the SBA did care about creating a fair and level playing field in the federal procurement arena, but that SBA lacked the enforcement authority to see that small businesses are in fact fairly treated. Ms. Redditt Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': expressed the view that slow payment by government agencies inhibits the growth of small businesses and their ability to access capital, even with the assistance and backing of SBA. Mr. Montgomery Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': It was suggested that more thought be given to opening the capital markets and sources of venture capital to African\u8211Americans aspiring to start or grow small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Availability of Capital and Federal Procurement Opportunities to Minority-owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Hearing before the House Small Business Committee, 108th Cong., 2d Sess. (Feb. 17, 2004), at 3, 48 (statements of Hon. Danny Davis, noting that in Illinois, less than 2 percent of Federal contracts went to minorities in 2002 and that traditional lending institutions are less likely to provide capital to minority-owned businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': at 4 (statement of Obie Wardlaw, noting the failure of the private and public sectors to meet the capital needs of African\u8211American small businesses and their contracting opportunities.). \In sum, the Committee concluded that while much progress has been made in increasing access to capital and federal procurement markets for minority entrepreneurs, much work remains to be done.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Encouraging the Growth of Minority\u8211Owned Small Businesses and Minority Entrepreneurship, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Field Hearing Before the House Comm. on Small Business, 107th Cong., 1st Sess., Ser. No. 107\u821126 (August 27, 2001); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': see also Procurement Policies of the Department of Defense with regard to Small Businesses\u8211Finding Solutions to Problems that Exist, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Hearings Before the House Comm. on Small Business, 107th Cong., 1st Sess. (Sept. 6, 2001). In the August 27, 2001 hearing, Congress received evidence of the disparity of contracts still awarded to Hispanic contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Congress has specifically examined the effects of the new process of contract bundling on small businesses, including the specific disadvantages faced by small disadvantaged businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': , Congress established the Office of Advocacy in the U.S. Small Business Administration (\SBA\). Under federal law, the Office of Advocacy is required to develop proposals for changes in the policies and activities of any agency of the Federal Government \and communicate such proposals to the appropriate Federal agencies.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': a. The Small Business Economy: A Report to the President (2005) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The 2005 Small Business Economy Report Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': b. The State of Small Business: A Report to the President (2000) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The 2000 State of Small Business Report was undeniably before Congress prior to the 2006 Reauthorization. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Beginning with the Small Business Act of 1953, Congress authorized Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': various programs to \aid, counsel, assist, and protect ... the interests of small-business concerns\ and \insure that a fair proportion of the total purchases and contracts for supplies and services for the government be placed with small-business enterprises.\ Pub.L. No. 163, \u167 202, 67 Stat. 282 (1953). Congress has attempted to address these issues through race-neutral measures. In 1970, to help small businesses obtain surety bonds, SBA was authorized by the Housing and Urban Development Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': , to establish the Surety Bond Guarantee Program, which reimburses surety companies for up to 90 percent of their losses on bonds. In 1972, Congress created a new class of small business investment companies to provide debt and equity capital to small businesses owned by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': program, Congress reviewed and strengthened other programs to assist all small businesses through the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (increased SBA\rquote s loan and surety bond guarantee authority; improved disaster assistance, certificate of competency and small business set-aside programs); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (created pollution control financing program and provided for additional financial assistance for small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (clarified and increased SBA authority to assist small businesses, with special emphasis on firms owned by low-income individuals or located in areas with high unemployment). Congress has authorized contracting set-asides for small businesses generally-minority and non-minority alike-as well as other forms of assistance that are available to all small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (declaration of policy to aid small businesses); 636(a) (loans to small businesses); 644(a), (I) & (j) (small business set-asides); 648(a) (small business development centers). Congress attempted other legislative and executive branch remedies-such as anti-discrimination legislation, executive action to remedy employment discrimination, and federal aid to minority businesses-but determined that these had failed to eradicate the effects of discrimination in federal contracting. Congress\rquote s adoption of race-conscious provisions for the Section 1207 program and the DoD program was justified, in part, by the ineffectiveness of such race-neutral measures in helping minority-owned firms overcome those barriers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . In determining whether a group has made an adequate showing that it has suffered chronic racial or ethnic prejudice or cultural bias for the purposes of this section, the SBA must determine that: (1) the group has suffered prejudice, bias, or discriminatory practices; (2) those conditions have resulted in economic deprivation for the group of the type which Congress has found exists for the groups named in the Small Business Act; and (3) those conditions have produced impediments in the business world for members of the group over which they have no control and which are not common to small business owners generally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': According to its website, the Rothe Companies is \a consortium of small businesses which provide a diversity of service and support to the federal government and the commercial sector.\ This consortium of small businesses includes Rothe Development, Inc., which is advertised as a \Women Owned Small Business,\ Rothe Enterprises, Inc., which is advertised as a \Women Owned HUBZone Small Business,\ Rothe VTran Services, L.L.C., which is advertised as a \Veteran Owned Small Business,\ and Rothe Joint Venture, which is advertised as a \Women Owned Small Business.\ In this case, Rothe does not challenge the preferences it receives from the federal government based on these classifications. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The head of an agency shall adjust the 10% PEA for any industry category if available information clearly indicates that non-disadvantaged small business concerns in such industry category are generally being denied a reasonable opportunity to compete for contracts because of the use of that percentage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Pl\rquote s MSJ, Pg. 15 n.21. The Court takes judicial notice of the fact that the federal government is the single largest consumer of goods and services in the world. 108th Congress\u8211Small Business Record, Report to the House Small Business Committee, Pg. 9 (October 2004). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': These programs include strong enforcement of non-discrimination policies in government contracting, policies intended to enable disadvantaged firms to compete without altering the terms of competition (e.g., outreach, technical assistance, and mentor-prot\u233g\u233 programs), policies that provide small and disadvantaged businesses the resources necessary to compete (e.g., financial assistance), and policies that open previously unattainable contracting opportunities to small businesses (e.g., unbundling), or expand economic potential in underutilized and distressed geographic regions (e.g., the HUBZone program). AA Report, Pgs. 66\u821167. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 088 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': (2006), by failing to restrict competition to HUBZone small business concerns and because the facility requirements were unduly restrictive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 088 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': On April 4, 2007, Plaintiff filed a Complaint (\Compl.\) in the United States Court of Federal Claims, together with a Motion for a Temporary Restraining Order, a Motion for a Preliminary Injunction, and a Memorandum of Points and Authorities in support. Count I of the Complaint alleged that \DHS\rquote s decision not to set aside the Solicitation for HUBZone small business concerns was arbitrary, capricious, and not in accordance with the law and regulation.\ Compl. \u182 13. Count II alleged that DHS erred in failing to accept Plaintiff\rquote s proposal, pursuant to the case law and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 088 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': \u182 58. In addition, the Complaint requested that the court \[d]eclare that the Solicitation should be canceled and reissued as a HUBZone small business set-aside\ or else \declare that DHS should be required to accept [Plaintiff\rquote s] proposal for the small business contract as timely and properly filed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 088 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': ] and secure prospective party status for a subsequent bid protest action.\ (emphasis omitted))). In this case, however, Plaintiff alleged that the contract should be set-aside for competition among HUBZone small businesses only, but was not prohibited from submitting a bid under the Solicitation by improper agency action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 088 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': Pl. Mot. Rec. at 3\u82117 (\Indeed counsel has such a case pending, wherein discrete elements of a government requirement were \u8216bundled\u8217 into a single solicitation. Small businesses that have provided each of four elements of the requirement have protested the \u8216bundled\u8217 solicitation. If they happen to lose at GAO, these four small companies, which could not make a single offer under the \u8216bundled\u8217 solicitation, will be foreclosed from filing in this Court, under the current Opinion and Order, even though they could never have been \u8216actual offerors\rquote under the original, but flawed solicitation.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest against the United States. Contract awardee intervened as defendant. Intervenor filed motion to dismiss plaintiff\rquote s small business claims, and parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': Geo\u8211Seis filed its complaint on March 9, 2007, and Presidential filed a motion to intervene on March 12, 2007, which motion the court granted via an order issued the next day, on March 13, 2007. On March 14, 2007, Geo\u8211Seis filed a motion for a temporary restraining order, and the court held a hearing on that motion on March 16, 2007, denying Geo\u8211Seis\rquote s application for such an order without prejudice to the consideration of injunctive relief on the merits. On March 15, 2007, Presidential filed a motion to dismiss Geo\u8211Seis\rquote s small business claims under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': On October 7, 2006, Geo\u8211Seis challenged the small business status of Presidential, but the Small Business Administration (\SBA\) rejected that protest on November 2, 2006. AR 3346\u821150 (Letter from Browder to Stangler (Oct. 7, 2006)), 3646\u821151 (Facsimile from Mitchell Morand, Area Director, SBA (Nov. 2, 2006)). On November 2, 2006, the Sealift Command awarded Contract No. N00033\u821107\u8211C\u82111004 to Presidential. AR 581 (Contract No. N00033\u821107\u8211C\u82111004 (Nov. 2, 2006)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': Presidential\rquote s motion to dismiss Geo\u8211Seis\rquote s small business claims is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with 'The Rule of Two': The original solicitation included a fourth evaluation criterion, \Socio\u8211Economic Considerations ( [f]or large business offerors),\ but that criterion was eliminated by Amendment 5 to the solicitation. AR 259 (Solicitation \u167 M 2.1), 330\u821131 (Solicitation Amendment 5 (Oct. 27, 2005)). Amendment 5 converted the solicitation to a small-business set-aside in accord with the original solicitation, which mandated the conversion if the Sealift Command received two or more offers from qualified small business concerns. AR 251 (Solicitation \u167 L), 330\u821131 (Solicitation Amendment 5 (Oct. 27, 2005)). Having received five proposals from small business concerns, the Sealift Command converted the solicitation to a small-business set-aside. AR 330\u821131 (Solicitation Amendment 5 (Oct. 27, 2005)), 251 (Solicitation \u167 L), 351 (Source Selection Decision). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 094 - Moore's Cafeteria Services v US.doc, Paragraph with 'The Rule of Two': dated August 29, 2006. This notice is not designed to discourage competition from HUB Zone certified small businesses not eligible for the preference.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 094 - Moore's Cafeteria Services v US.doc, Paragraph with 'The Rule of Two': There have been conversations between the contracting office at Fort Knox and a qualified State Licensing Agency in the State of Kentucky regarding interest in providing the services identified in this solicitation. This notice is not designed to discourage competition from HUB Zone certified small businesses not eligible for the preference.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 094 - Moore's Cafeteria Services v US.doc, Paragraph with 'The Rule of Two': the court was faced with determining whether the DoD or the Small Business Administration (\SBA\) was responsible for enacting regulations to determine Small Disadvantaged Business (\SDB\) eligibility. The SBA did not make a determination regarding which businesses fit into the statutory SDB classification, as required by Congress, so DoD developed its own policy statement to define SDB status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': at 247, 251. Moreover, only one of the eleven responding firms, a Section 8(a) small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': at 247. Nevertheless, the Director of OSDBU and the Director of OPO decided that small businesses were interested in the procurement and could fulfill the requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': at 252. On October 6, 2006, the Director of OPO convened a meeting of senior executives involved with the procurement and each concurred with the decision to set aside the procurement for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': (2006), by failing to restrict competition to HUBZone small business concerns and because the facility requirements were unduly restrictive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': Based upon our analysis of the facts, we believe that the [Solicitation], issued as a small business set aside, should have been set aside for HUBZone businesses and the protest should be sustained.... The evidence that is contained in the Agency report clearly shows that two or more HUBZone business concerns were interested in performing the requirement.... DHS ... argues that the HUBZone SBCs that responded were not capable of performing on the contract due to lack of a DISCO clearance; however DHS fails to provide the quantitative data to support its findings.... The information upon which DHS basis[sic] its conclusion not to set aside for HUBZone is inadequate and appears to be limited to the eleven SBCs that responded to the RFI despite the existence of thirty-three SBCs in the CCR database. Furthermore, a decision as to responsibility (capability) is decided by SBA and is based on the information the concerns submit in their offers, not in response to an RFI or based on information contained in an unidentified database. Additionally, DHS does not provide evidence of how it ascertained that the firms could not meet the requirement by time of award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': On April 4, 2007, Plaintiff filed a Complaint in the United States Court of Federal Claims, together with a Motion for a Temporary Restraining Order, a Motion for a Preliminary Injunction, and a Memorandum of Points and Authorities in Support. Count I of the Complaint alleges that \DHS\rquote s decision not to set aside the Solicitation for HUBZone small business concerns was arbitrary, capricious, and not in accordance with the law and regulation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': \u182 58. In addition, the Complaint requests that the court \[d]eclare that the Solicitation should be canceled and reissued as a HUBZone small business set-aside\ or else \declare that DHS should be required to accept [Plaintiff\rquote s] proposal for the small business contract as timely Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': by failing to set aside the Solicitation for a HUBZone small business concern; DHS violated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': , to \provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': . The United States Small Business Association (\SBA\) is responsible for certifying qualified HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': \u167 19.1303(a). Once HUBZone certified and listed on the SBA\rquote s List of Qualified HUBZone Small Business Concerns, a firm is eligible for HUBZone preferences, either through set-asides, sole source awards, or price evaluation preferences. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': The CCR is a database for searching all small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': (\Contracting officers should use the Central Contractor Registration database (see Subpart 4.11) at http://www.ccr.gov as their primary sources of vendor information.\). According to the SBA, the CCR and the Dynamic Small Business Search are \important sources for conducting market research on SBCs [small business concerns]. Although the CCR website was created primarily for the U.S. Department of Defense, COs from other agencies use CCR and now the Dynamic Small Business Search as part of their market research when determining whether to set-aside an acquisition for SBCs.\ AR at 283. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 097 - Shirlington Limousine And Transp Inc v US.doc, Paragraph with 'The Rule of Two': , authorizes the SBA to enter into procurement contracts with other federal agencies and to subcontract performance of these contracts to socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': government\rquote s first proposed corrective action, which did not include competing offeror in small business tier, was unreasonable and did not support dismissal, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': Determination by Small Business Administration (SBA) that company which submitted bid in competitive procurement qualified as small business applied to procurement, and therefore government\rquote s proposed corrective action in bid protest action arising from procurement, which did not include company in procurement\rquote s small business tier, was unreasonable and did not support government\rquote s motion to dismiss, given that no binding final award had been made at time of SBA\rquote s determination and that government, pursuant to its proposed corrective action, was requesting revised proposal from bid protestor and possibly other offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': This case arises out of a bid protest filed by Chapman in relation to a competitive procurement initiated in August 2003 by the United States Department of Housing and Urban Development (\HUD\) for management and marketing services for single-family housing owned by HUD in Michigan and Ohio. As part of this procurement, HUD employed a \cascading\ procedure in which small businesses were first considered for the contract. Only if there was inadequate competition among small businesses would non-small businesses be considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': Chapman, which competed as a small business, was awarded the contract on September 30, 2005. On April 19, 2006, however, HUD decided to terminate Chapman\rquote s contract for convenience and issue a new competitive solicitation pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': Inc. (\MCB\), the incumbent contractor, and Greenleaf Construction Co., Inc. (\Greenleaf\), a competing offeror for the contract whose small business status was disputed by Chapman, intervened. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': , based on HUD\rquote s decision to implement voluntary corrective action. As part of this corrective action, HUD proposed reinstating Chapman\rquote s contract and the original solicitation, and canceling a proposed \bridge\ contract with MCB. The Court of Federal Claims, however, declined to rule on the United States\rquote motion to dismiss until it received further information regarding the specifics of the proposed corrective action. On May 30, 2006, the United States provided the requested supplemental information in support of its motion to dismiss, indicating that HUD would: (1) reinstate Chapman\rquote s previously awarded contract, but issue a stop work order against the contract so that corrective action could be taken; (2) issue an amendment to all offerors in the competitive range at both small business and unrestricted competition tiers identifying various changes that had occurred since the original solicitation was issued; (3) issue a discussion letter to Chapman to review matters raised in a January 17, 2006, Government Accountability Office (\GAO\) bid protest decision; and (4) request a final proposal revision from Chapman, ostensibly the only offeror in the small business tier, prior to requesting and reviewing proposals submitted by other offerors at the unrestricted tier. The Court of Federal Claims, however, denied the United States\rquote motion to dismiss, finding that the proposed corrective action lacked a rational basis and was contrary to law because, among other things, it did not include Greenleaf in the small business tier despite an intervening determination by the Small Business Administration (\SBA\) that Greenleaf was indeed a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': In response, HUD indicated it would proceed with the reevaluation in the manner suggested by the Court of Federal Claims, including both Chapman and Greenleaf in the small business tier. The United States then renewed its motion to dismiss. Rather than granting the renewed motion to dismiss, though, the Court of Federal Claims instead entered judgment in favor of Chapman and Greenleaf. In doing so, the Court of Federal Claims noted that Chapman and Greenleaf \were instrumental in achieving the final outcome,\ and \[t]hrough their persistence ... [had] materially altered the legal relationship among the parties.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': On appeal, Chapman and the United States both argue that the Court of Federal Claims erred when it determined that the Government\rquote s first proposed corrective action was unreasonable. According to Chapman, the Court of Federal Claims\rquote finding that Greenleaf should be included in the small business tier of the competitive range is in error since the SBA decision that Greenleaf was a small business came after the contract was awarded to Chapman. According to the Government, the Court of Federal Claims erred because the Government\rquote s first proposed corrective action placed the parties in the same positions they occupied prior to the events giving rise to the protest and rendered all of Chapman\rquote s and Greenleaf\rquote s legally cognizable claims either moot or premature. We reject each of these arguments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': First, the SBA determination that Greenleaf was a small business applies to this procurement because there had not been a binding final award. Moreover, the Government was requesting a revised proposal from Chapman and possibly other offerors. Second, the Government\rquote s argument that its first proposed corrective action rendered all of Chapman\rquote s and Greenleaf\rquote s claims moot or premature is also incorrect, as the corrective action effectively left out Greenleaf. Simply put, the Court of Federal Claims\rquote inquiry into the reasonableness of the Government\rquote s first proposed corrective action, and the court\rquote s subsequent determination that the proposed corrective action was not reasonable, were proper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 003 - Chapman Law Firm Co v Greenleaf Const Co.doc, Paragraph with 'The Rule of Two': The Government also cross-appeals the Court of Federal Claims\rquote refusal to dismiss the case in response to the revised proposed corrective action, which included both Chapman and Greenleaf in the small business tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 005 - ARINC Engineering Services LLC v US.doc, Paragraph with 'The Rule of Two': On July 5, 2006, defendant, acting by and through the Army Space and Missile Defense Command (SMDC), issued the final version of the RFP for services related to the COSMIC program. The RFP contemplated the award of a cost-plus-fixed-fee, indefinite delivery/indefinite quantity award term contract to perform systems integration services for the SMDC. The RFP called for proposals to be submitted by July 27, 2006; that time eventually was extended, by amendment, to August 10, 2006. The RFP required the award to be made to the offeror proposing the best value to the government in accordance with the stated evaluation criteria. The RFP contemplated multiple awards, with at least one award set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 005 - ARINC Engineering Services LLC v US.doc, Paragraph with 'The Rule of Two': The RFP identified four evaluation factors: Task Order Plan, Management, Small Business Participation Plan, and Cost. The TOP and Management factors were relatively equal in weight. When combined, the TOP and Management factors were significantly more important than the Small Business Participation Plan and Cost factors. The Small Business Participation Plan factor was slightly more important than the Cost factor. Within the TOP factor, the SMOTE task order was the most important, followed in importance by the HALE and KM task orders. When combined, the HALE and KM task orders were less important than the SMOTE task order. The RFP provided that, to be eligible for award, a rating of no less than \Satisfactory,\ had to be achieved for the Task Order Plan Area, the Management Area and the Small Business Participation Plan. The Cost factor was not rated, but the RFP stated that poor cost realism could result in a lower evaluation of an offeror\rquote s proposal and be viewed as a lack of understanding of the contract requirements. The RFP provided that \[o]fferors submitting cost proposals that are so unrealistically high or low as to preclude a reasonable chance of being selected for award may be excluded from the competitive range.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 005 - ARINC Engineering Services LLC v US.doc, Paragraph with 'The Rule of Two': On September 20, 2006, the SMDC notified offerors of the award of two contracts\u8212one to BAE under full and open competition and one to Quantum, as a small business. ARINC requested and received a debriefing on September 25, 2006. On September 29, 2006, ARINC filed a protest with the GAO alleging that the Army conducted an improper technical and cost evaluation. Later in that proceeding, ARINC alleged that the BAE team had an organizational conflict of interest (OCI) because of its advantage in connection with the FOC\u8211TOC requirement. On October 30, 2006, the Army notified the GAO and ARINC that the contracting officer had decided to take corrective action by documenting the Army\rquote s OCI analysis. On November 1, 2006, GAO dismissed the protest based upon the proposed corrective action. On November 9, 2006, the contracting officer issued a determination and finding in which she determined that BAE did not have unequal access to information relevant to the task orders and that the previous work performed by BAE did not give it an unfair competitive advantage because its previous work was not the same as that under the SMOTE task order. She also found that both ARINC and BAE had experience relevant to the FOC\u8211TOC through their prior contracts, as well as knowledge developed during their performance under the STARS contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 005 - ARINC Engineering Services LLC v US.doc, Paragraph with 'The Rule of Two': Turning to the last factor identified above, the court must consider, in a limited way, prejudice. In this regard, any notion that ARINC\rquote s proposal was rated poorly because of its supposed informational disadvantage is belied by several facts. First, the deficiencies that led to its SMOTE TOP being rated Marginal/High Risk had nothing to do with the claimed informational deficiencies. Rather, it appears that ARINC\rquote s low ratings were attributable to a fundamental misunderstanding of the requirements of the RFP\u8212ARINC largely did not propose to integrate the systems covered by the SMOTE task order, but merely offered to repackage them. It was also rated poorly because it failed to propose enough qualified personnel and an appropriate labor mix\u8212with no indication that these problems had anything whatsoever to do with a lack of information. Second, it is highly revealing that the SMOTE TOP supplied by a third offeror, Quantum, was rated higher than that of ARINC\u8212Satisfactory/Moderate Risk\u8212even though that small business apparently neither had any prior experience with the specific systems involved in the SMOTE task order nor, correspondingly, any information that ARINC and BAE possessed. ARINC has utterly failed to explain how, if its rating was due to a lack of nonpublic information, it was outranked by a firm that also lacked that same information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 007 - Heritage of America LLC v US.doc, Paragraph with 'The Rule of Two': at 1781. In its agency protest, plaintiff alleged five reasons its protest should be sustained: (1) it did not receive preferential evaluation points as a service-disabled veteran-owned small business; (2) in spite of the CCE\u8211ACA\rquote s assertion in the debriefing slides to the contrary, plaintiff did specify program managers and alternates in conformance with the Solicitation; (3) the CCE\u8211ACA did not respond to its request for debriefing in a timely manner; (4) the debriefing did not fully respond to its request; and (5) inasmuch as it appeared equal to the awardees in all technical and other respects, plaintiff should have been awarded the contracts based on its having offered the lowest price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 008 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , by which Order the President sought to effectuate two federal statutes that (1) set a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans and (2) permit certain set-aside and restricted-competition procurements for service-disabled, veteran-owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 008 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . Conceptually, by way of the VETS GWAC, GSA endeavored to select a pool of pre-qualified, service-disabled, veteran-owned small businesses that then would compete for information technology \task orders\ from individual agencies across the federal government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 009 - DynCorp Intern LLC v US.doc, Paragraph with 'The Rule of Two': The solicitation incorporated a price evaluation preference for HUBZone Small Business Concerns pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 009 - DynCorp Intern LLC v US.doc, Paragraph with 'The Rule of Two': . M1 reported to the Air Force that it is a HUBZone small business. AR at 757, 1751. Because of this preference, a price offer from a non-HUBZone concern is evaluated at 110% of its proposed price, while the HUBZone small business concern\rquote s price is evaluated at 100% of its proposed price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 009 - DynCorp Intern LLC v US.doc, Paragraph with 'The Rule of Two': In response to this instruction, M 1 submitted a narrative stating that M 1 was not required to \operate a Government approved accounting system,\ because of its small business status. AR at 1749. Nevertheless, M1 reported that it operated a CAS-compliant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 009 - DynCorp Intern LLC v US.doc, Paragraph with 'The Rule of Two': (2006) (defining the criteria used to determine whether prospective contractors are responsible). The review of M1\rquote s fiscal systems is found in a document titled \Determination of Contractor Responsibility for Contract Award,\ wherein the Air Force found that M1\rquote s accounting capacity was adequate and accepted M1\rquote s explanation that \it is a small business and as such is not required to operate a government-approved accounting system.\ AR at 809, 813. This is a statement extracted from M1\rquote s initial proposal, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 009 - DynCorp Intern LLC v US.doc, Paragraph with 'The Rule of Two': Thus, the Air Force relied on M1\rquote s initial proposal to conclude that its fiscal systems, although lacking a DCMA-approved purchasing system, were adequate. M1\rquote s response to EN P\u82112 gave other reasons why M1 could ably perform the purchasing required for the contract, but there is nothing in the record to suggest that this supplemental information affected the determination of M1\rquote s responsibility. Plaintiff has not pointed to any provision, either in the FAR or the solicitation itself, that would indicate that a small business such as M1 was not excused from having a DCMA-approved purchasing system. Thus, the court accepts the version of events established by the administrative record, wherein the Air Force relied on M1\rquote s initial proposal to excuse M1\rquote s omission of documentation concerning DCMA approval of its purchasing system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 012 - Public Warehousing Co KSC v Defense Supply Center Philadelphia.doc, Paragraph with 'The Rule of Two': (challenge to Small Business Administration code designation that prevented contractor from bidding for two Army solicitations). Thus, although it is true that litigation under the ADRA traditionally has developed around pre- and post-award bid protests, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 013 - Aeolus Systems LLC v Small Business Admin.doc, Paragraph with 'The Rule of Two': Aeolus Systems, LLC v. Small Business Admin., Not Reported in F.Supp.2d (2007) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 013 - Aeolus Systems LLC v Small Business Admin.doc, Paragraph with 'The Rule of Two': SMALL BUSINESS ADMINISTRATION, et al., Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 013 - Aeolus Systems LLC v Small Business Admin.doc, Paragraph with 'The Rule of Two': THIS CAUSE comes before the Court upon Defendants United States of America Small Business Administration, Department of the Army, and Michael McHale\rquote s (collectively, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 014 - Scarborough v Harvey.doc, Paragraph with 'The Rule of Two': Individual surety, construction underwriter, and purported guarantor of surety bonds brought action against the United States Army, the Department of Defense, and the Small Business Administration, seeking damages for alleged violation of the Privacy Act. Defendants moved to dismiss and for summary judgment. Plaintiffs moved for discovery. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 014 - Scarborough v Harvey.doc, Paragraph with 'The Rule of Two': Edmund Scarborough, Larry Wright, and George Gowen (\the plaintiffs\) bring this action against the United States Department of the Army (\Army\), the United States Department of Defense (\DOD\), and the United States Small Business Administration (\SBA\) (collectively \the defendants\), seeking actual and compensatory damages as well as attorneys\rquote fees and costs for multiple alleged violations of the Privacy Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 014 - Scarborough v Harvey.doc, Paragraph with 'The Rule of Two': According to Montes, her responsibilities as a Procurement Center Representative include \increasing the small business share of federal procurement awards by initiating small business set-asides, reserving procurements for competition among small business firms, providing small business sources to federal buying activities, and counseling small firms.\ Defs.\rquote Mot., Ex. 3 (Declaration of Ann H. Montes) (\Montes Decl.\) \u182 2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 018 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': Government contracting officer made reasonable determination that contract awardee was able to meet limitation on subcontracting within contract for aircraft window assemblies for Black Hawk helicopters, notwithstanding documentation furnished subsequent to contract award supporting disappointed bidder\rquote s contention that awardee could not comply with the requirement, where awardee, as a small business bidder, did not submit subcontracting plans prior to the contract award that would have suggested to the contracting officer that it would not comply with the subcontracting limitation requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 018 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': ). Here, the solicitation expressly stated that small business bidders, such as Hawk, were not required to submit a subcontracting plan that would demonstrate their compliance with the limitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': plaintiff did not establish that General Services Administration (GSA) artificially limited awards to 43 offerors in set-aside procurement for service-disabled, veteran-owned small business; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': plaintiff did not establish that General Services Administration (GSA) violated a condition of its \executive agent\ designation by the Office of Management and Budget (OMB) by excluding it from set-aside procurement for service-disabled, veteran-owned small business based on its lack of government contracting experience; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor did not establish that General Services Administration (GSA) artificially limited awards to 43 offerors in set-aside procurement for service-disabled, veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor did not establish that General Services Administration (GSA) violated a condition of its \executive agent\ designation by the Office of Management and Budget (OMB) by excluding it from set-aside procurement for service-disabled, veteran-owned small business based on its lack of government contracting experience, as protestor\rquote s non-selection was not based on its lack of government contracting experience but on its overall lack of experience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff Knowledge Connections, Inc. (\KCI\) lodged this bid protest involving an information-technology set-aside procurement for service-disabled, veteran-owned small businesses. The General Services Administration (\GSA\) administered the procurement, known as the Veterans Technology Services Government-wide Acquisition Contract (\VETS GWAC\), under an \executive agent\ designation bestowed on GSA by the Office of Management and Budget (\OMB\), the overseer of all federal procurement of information technology. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , by which Order the President sought to effectuate two federal statutes that (1) set a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans and (2) permit certain set-aside and restricted-competition procurements for service-disabled, veteran-owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . Conceptually, by way of the VETS GWAC, GSA endeavored to select a pool of pre-qualified, service-disabled, veteran-owned small businesses that then would compete for information technology \task orders\ from individual agencies across the federal government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Following a status conference on November 29, 2006, the court adopted an expedited schedule for submitting the administrative record and for filing cross-motions for judgment on the administrative record. By a motion filed December 15, 2006, KCI sought a temporary restraining order to preclude GSA from completing the VETS GWAC by awarding contracts, until this court ruled on KCI\rquote s pending request for a permanent injunction. On that same day, the court held a hearing on that motion and denied it. Promptly thereafter, on December 18, 2006, GSA awarded contracts to 43 service-disabled, veteran-owned small businesses, including intervenor, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': In 1999, Congress amended Section 15(g)(1) of the Small Business Act to require the President to establish a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Veterans Entrepreneurship and Small Business Development Act of 1999 (the \1999 Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': The FAR does not specify the statutory Government[-]wide goals for any small business category because they have no regulatory purpose for agencies. Statutory goals for small businesses are established on a Government[-]wide basis. Within these Government[-]wide goals, SBA negotiates separate annual goals for each small business category with each agency. The individual agency goals attempt to reflect the agency mission and its contracting requirements, and these individual agency goals may be higher or lower than the Government [-]wide goal. SBA then tracks cumulative agency achievements against the Government[-]wide goal. Accordingly, specifying the 3 percent service-disabled veteran-owned small business goals in the FAR is inappropriate in that only the goal negotiated with SBA is relevant to that agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation; Veterans Entrepreneurship and Small Business Development Act of 1999, 66 Fed.Reg. 53,492, 53,492 (Oct. 22, 2001) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . A further amendment of the Small Business Act was enacted in 2003, when Congress added Section 36 to give federal agency contracting officers discretion to set aside certain procurements for service-disabled, veteran-owned small businesses through the use of sole-source contracts and contracts in which competition was restricted to such businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Federal Acquisition Regulation; Procurement Program for Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, 70 Fed.Reg. 14,950, 14,953 (March 23, 2005) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . The Councils explained that by using the words \may award\ the Veterans Benefits Act of 2003 \established a discretionary, not mandatory, set-aside authority for [service-disabled, veteran-owned small businesses].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': (\contract officer may award contracts on the basis of competition restricted to small businesses owned and controlled by service-disabled veterans\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , the objective of which was to accomplish \more effective[ ] implement[ation]\ of Sections 15(g) and 36 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': In February 2005, responding to the president\rquote s direction, GSA sent OMB a proposal to establish the VETS GWAC, which GSA described as a \streamlined acquisition vehicle\ through which GSA would \offer a pre-qualified group of [service-disabled, veteran-owned small business] information technology firms the opportunity to compete for government [information technology] services orders from [government agencies].\ AR 18\u821119 (GSA, VETS (Veterans Technology Services) Business Case For a Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Government-wide Acquisition Contract (GWAC), Feb. 3, 2005) (\Business Case\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': .\ AR 89, 92 (Letter from Bolten to Perry, Encls. A, B (July 5, 2005)). OMB also included caveats for its designation of GSA as the \executive agent\ for the VETS GWAC: \This designation is granted with the expectation that contracts under this GWAC will be awarded to the most highly qualified service-disabled veteran-owned small businesses. Potential contractors should not be excluded from being GWAC holders based on their lack of experience as a government contractor.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). In August 2006, OMB extended the \executive agent\ designation until the completion of the VETS GWAC contract period. AR 96, 99 (Letter from Rob Portman, Director, OMB, to Lurita A. Doan, Administrator, GSA (Aug. 9, 2006)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': AR 17004\u821112 (E-mail from Bryant S. Banes, Counsel to KCI, to Babcock). GSA referred the challenge to the Small Business Administration (\SBA\), and by a series of decisions issued from September 12, 2006 to December 7, 2006, the SBA ultimately dismissed KCI\rquote s challenges to the small-business size and service-disabled, veteran-owned status of each of the 45 entities. AR 17039\u821140, 17066\u821175, 17095\u8211101, 17103\u821104, 17106\u821107, 17124\u821143, 17158\u821161 (Various letters from the SBA to KCI rejecting KCI\rquote s challenges). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , it makes two claims that were not included in its amended complaint\u8212that the solicitation violated OMB\rquote s condition on not excluding offerors based on lack of government contract experience and that CPP2\rquote s tiering arrangement violated OMB\rquote s further condition that contracts be awarded to the most highly qualified service-disabled, veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': KCI\rquote s argument in this respect is unavailing. KCI complains that GSA\rquote s Business Case \made no mention of any specific limitation on the number of awards\ and that, as a result, GSA obtained the \executive agent\ designation \under false pretenses.\ Pl.\rquote s Mot. at 15\u821117. After reviewing the Business Case, however, OMB placed only two restrictions on its grant of the \executive agent\ designation: (1) that \the most highly qualified service-disabled veteran owned small businesses\ be chosen and (2) that offerors \not be excluded ... based on their lack of experience as a government contractor.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). Making a finite number of awards did not violate either OMB condition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': declared that agencies \shall more effectively implement\ certain statutory provisions that set a government-wide goal of three percent for the participation in federal procurement contracts of service-disabled, veteran-owned small businesses and permitted certain set-aside and restricted-competition procurements for such businesses. 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': . In seeking to implement the executive order, OMB\rquote s grant to GSA of the \executive agent\ designation provided that awardees be \the most highly qualified service-disabled veteran owned small businesses.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). As explained Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': that agencies attempt to meet the government-wide goal of three percent for the participation in federal contracts of service-disabled, veteran-owned small businesses. 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': , which set a government-wide goal of three percent for the participation in federal procurement contracts of service-disabled, veteran-owned small businesses and permitted agencies to establish certain set-aside and restricted-competition procurements for such businesses, 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': the condition that OMB placed on its grant to GSA of the \executive agent\ designation for the VETS GWAC: that GSA must select \the most highly qualified service-disabled veteran owned small businesses.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': was simply identifying service-disabled, veteran-owned small businesses. AR 29\u821130, 33 (Business Case). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': If an offeror failed the \past experience\ element, the contracting officer was required to refer the offeror to the Small Business Administration \for review and possible issuance of a Certificate of Competency.\ AR 266 (Solicitation \u167 M.4.a.). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'The Rule of Two': Federal government agencies do not themselves formally verify whether an offeror is legitimately a service-disabled, veteran-owned small business. Rather, any interested party may protest an apparently successful offeror\rquote s status before the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 021 - Protection Strategies Inc v US.doc, Paragraph with 'The Rule of Two': This invitation to bid presented a new contract set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 021 - Protection Strategies Inc v US.doc, Paragraph with 'The Rule of Two': Bidders were required to submit Competitive Proposals to the NNSA by July 7, 2005. Pl.\rquote s Ex. 3 at 3. Plaintiff, a service-disabled veteran-owned small business that describes itself as a \diversified security support services company,\ submitted a Competitive Proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': modification of awardee\rquote s contract was not subject to Small Business Administration (SBA) regulation requiring a written SBA determination that acceptance of procurement for an 8(a) award will not have an adverse impact on a small business, as modification was within scope of initial contract and was not a separate section 8(a) procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction under the Tucker Act over incumbent contractor\rquote s claim that contracting agency violated regulation by transferring help desk support services performed by incumbent to another contractor without considering adverse impact on incumbent as a small business. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': Modification of section 8(a) contract to provide help desk services for HUD\rquote s Real Estate Assessment Center to include help desk services for HUD\rquote s Public and Indian Housing Information Center was not subject to Small Business Administration (SBA) regulation requiring a written SBA determination that acceptance of procurement for an 8(a) award will not have an adverse impact on a small business, as modification was within scope of initial contract and was not a separate section 8(a) procurement. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': , authorizes the United States Small Business Administration (\SBA\) to enter into procurement contracts with other federal agencies and to subcontract performance of these contracts to socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': On September 8, 2005, HUD issued a Presolicitation Notice for proposed Solicitation No. R\u8211OPC\u821122889, a competitive small business set-aside for a proposed 12 month contract, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': A determination has been made that acceptance of this procurement will cause no adverse impact on another small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (\SBA will not accept a procurement for award as an 8(a) contract if ... SBA has made a written determination that acceptance of the procurement for 8(a) award would have an adverse impact on ... small business[.]\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (c) Adverse impact. SBA has made a written determination that acceptance of the procurement for 8(a) award would have an adverse impact on an individual small business, a group of small businesses located in a specific geographical location, or other small business programs. The adverse impact concept is designed to protect Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': small business concerns which are performing Government contracts awarded outside the 8(a) [Business Development (\BD\)] program, and does not apply to follow-on or renewal 8(a) acquisitions. SBA will not consider adverse impact with respect to any requirement offered to the 8(a) program under Simplified Acquisition Procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (1) In determining whether the acceptance of a requirement would have an adverse impact on an individual small business, SBA will consider all relevant factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (i) In connection with a specific small business, SBA presumes adverse impact to exist where: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (A) The small business concern has performed the specific requirement for at least 24 months; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (B) The small business is performing the requirement at the time it is offered to the 8(a) BD program, or its performance of the requirement ended within 30 days of the procuring activity\rquote s offer of the requirement to the 8(a) BD program; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (C) The dollar value of the requirement that the small business is or was performing is 25 percent or more of its most recent annual gross sales (including those of its affiliates). For a multi-year requirement, the dollar value of the last 12 months of the requirement will be used to determine whether a small business would be adversely affected by SBA\rquote s acceptance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (2) In determining whether the acceptance of a requirement would have an adverse impact on a group of small businesses, SBA will consider the effects of combining or consolidating various requirements being performed by two or more small business concerns into a single contract which would be considered \new\ requirement as compared to any of the previous smaller requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': SBA may find adverse impact to exist if one of the existing small business contractors meets the presumption set forth in paragraph (c)(1)(i) of this section. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': MSSI argues that the \adverse impact\ rule applies to the Modification, because it entailed a consolidation of services being performed by two different small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': (requiring that the value of the services that the small business was performing be 25 percent or more of its most recent annual gross sales). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 022 - Management Solutions And Systems Inc v US.doc, Paragraph with 'The Rule of Two': if\ several circumstances exist, including the determination of an adverse impact on a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': Bidder filed motion for attorney fees and costs pursuant to Equal Access to Justice Act (EAJA) arising out of its bid protest suit challenging contract award on ground that awardee did not qualify as a HUBZone small business concern (SBC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': , J., held that dismissal of bid protest case on ground of mootness after contract awardee was decertified from HUBZone program pursuant to its unilateral request on remand to the Small Business Administration (SBA) did not render bid protestor a \prevailing party\ eligible for a award of attorney fees and costs under the Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': Dismissal of bid protest case on ground of mootness after contract awardee was decertified from HUBZone program pursuant to its unilateral request on remand to the Small Business Administration (SBA) did not render bid protestor a \prevailing party\ eligible for award of attorney fees and costs under the Equal Access to Justice Act (EAJA), as decertification which disqualified awardee was not the result of judicial imprimatur but the decision of one of the parties acting independently of judicial action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': , Department of the Air Force, Arlington, VA, and Beverley Hazelwood\u8211Lewis, Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': At issue is whether plaintiff qualifies as a prevailing party pursuant to EAJA such that plaintiff may recover her attorneys\rquote fees and whether the government was substantially justified in its position. Plaintiff argues that she was a prevailing party because, although Ryan did not win an outright judgment, she \succeed[ed] on [a] significant issue in litigation which achieves some of the benefit [it] sought in bringing suit.\ Pl.\rquote s Mem. 4 (quotation omitted). Plaintiff also argues that the government was not substantially justified because, despite its \statutory obligation to determine whether [Birdstrike Control Program (BCP) ] was a legitimate [Historically Underutilized Business Zone (HUBZone) Small Business Concern (SBC) ],\ it \failed to meet its obligation and denied Ryan\rquote s protest without conducting a reasonable investigation of Ryan\rquote s allegations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 031 - Ryan v US.doc, Paragraph with 'The Rule of Two': at 6. On September 29, 2005, plaintiff filed a timely protest challenging BCP\rquote s alleged HUBZone status and its qualification as a small business under Small Business Administration (SBA) guidelines. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 034 - Brown And Pipkins LLC v US.doc, Paragraph with 'The Rule of Two': This competitive procurement was subject to two such statutory priority schemes: one for certified small business concerns under Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': at 83. The contract was to be set aside for small businesses, and was classified under North American Industrial Classification System (NAICS) Code Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': at 3525-30. One week later, PHT filed a size protest with the SBA, arguing that Croman was ineligible for the small business set-aside award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': AR at 3543-51. The SBA rejected PHT\rquote s argument regarding Croman\rquote s status as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': at 3691. In a Size Determination issued on July 31, 2006, the SBA explained that Croman was eligible for a small business set-aside award because CSC would be \performing on CLINs which are valued at only 3% of the contract amount.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Resp. at 29.[ ]. Pl.\rquote s Mot. at 34. PHT argues that the Navy\rquote s reliance on CSC\rquote s experience was especially unreasonable given that the contract had been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Mot. at 15; Int.\rquote s Mot. at 28; Int.\rquote s Reply at 15. Because Croman properly proposed to use CSC as a subcontractor, and the Solicitation expressly permitted the Navy to consider the experience of proposed subcontractors and assign proposal strengths based thereon, Croman asserts that the Navy acted reasonably when it relied on CSC\rquote s experience to reach its conclusions. In fact, the United States contends that it would have been arbitrary for the agency to penalize Croman for its proposed subcontract with CSC. Def.\rquote s Mot. at 16. In response to the claim that reliance on CSC\rquote s experience was inappropriate during the course of a small business set-aside procurement, defendants point to the SBA\rquote s determination that Croman\rquote s relationship with CSC did not jeopardize its status as a small business. Based on the SBA\rquote s findings, the government insists that \particular emphasis\ could properly be placed on both entities\rquote experience. Def.\rquote s Mot. at 17 (citing AR at 3689-96); Def.\rquote s Reply at 12; Int.\rquote s Mot. at 28. Finally, intervenor points out that because this was a negotiated procurement, the Navy was entitled to wide discretion in evaluating proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': NAICS codes are used by governmental agencies, and the United States Small Business Administration (SBA), to establish size standards to determine the entities which qualify as small businesses for preferences or eligibility in government procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': . The United States Office of Management and Budget (OMB) assigns NAICS codes to various industry sectors, and SBA determines which firms qualify as small businesses in accordance with those codes, \to assure that a fair proportion of government contracts for goods and services are performed by such entities in each industry category.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': (2000)). To do so, SBA specifies the maximum number of employees, or the maximum annual receipts, which a company may have in order to qualify as a small business within a particular code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 036 - Pacific Helicopter Tours Inc v US.doc, Paragraph with 'The Rule of Two': . Then, according to SBA regulations, procuring agencies specify the NAICS code and accompanying size standard applicable to each federal procurement in which small business status is required or preferred. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': In 2000, NCI filed this action seeking declaratory and injunctive relief against the State of Illinois, the Illinois Department of Transportation (\IDOT\), the United States Department of Transportation (\USDOT\), the Secretary of IDOT, and IDOT\rquote s Bureau Chief of the Bureau of Small Business Enterprises, under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 038 - Northern Contracting Inc v Illinois.doc, Paragraph with 'The Rule of Two': to maximize the portion of the goal that will be achieved through race-neutral means. Among other methods, IDOT has sponsored different types of informational sessions, provided technical and financial training to DBEs and other small businesses, and has initiated a bonding and financing assistance program. NCI has failed to demonstrated that IDOT has not maximized the portion of its goal that will be met through race-neutral means. This failure reflects NCI\rquote s broader inability to demonstrate that IDOT\rquote s DBE program is in violation of the Constitution. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest against the United States challenging rulings of the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) in small business size determination appeals. After it obtained preliminary injunction, plaintiff moved for attorney fees and expenses filed pursuant to the equal access to justice act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': order of the Court granting joint motion to remand matter to the OHA and instructing the OHA to consider plaintiff\rquote s views on small business size determinations did not render protestor a \prevailing party\ for purposes of the EAJA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Preliminary injunction obtained by pre-award bid protestor who challenged rulings of the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) in small business size determination appeals did not render it a \prevailing party\ for purposes of attorney fee award under the Equal Access to Justice Act (EAJA), where injunction merely preserved the status quo in the procurements until the Court of Federal Claims could rule on the merits, and thus it did not alter the legal relationship of the parties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Order of the Court of Federal Claims granting joint motion to remand pre-award bid protest to the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) and instructing the OHA to consider bid protestor\rquote s views on small business size determinations did not render protestor a \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Through its motion, Plaintiff requests attorney\rquote s fees and costs incurred in its pre-award bid protest challenging rulings of the Small Business Administration Office of Hearings and Appeals (OHA) in size determination appeals. Plaintiff\rquote s underlying bid protest raised a novel issue about the extent to which OHA must permit potential bidders to participate in its appeal proceedings challenging the small business code designation in a solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff claimed that it was rendered ineligible to bid as a small business on two solicitations as a result of SBA proceedings in which it did not participate and alleged violations of its Constitutional due process rights, the Administrative Procedure Act (APA), and SBA regulations. Plaintiff argues that because this Court issued a preliminary injunction to preserve the status quo in the procurements at issue until the Court could rule on the merits, Plaintiff was a \prevailing party\ under EAJA. However, because the preliminary injunction did not materially alter the legal relationship of the parties, the entry of this interim relief did not render Plaintiff a prevailing party for EAJA purposes. Further, before the Court addressed the merits of the protest, the parties filed a joint motion for remand to OHA. On remand, OHA reconsidered the size appeals and considered Plaintiff\rquote s views, but afforded Plaintiff no relief in the procurements at issue. The Court dismissed the action at the request of Plaintiff. Because the remand directing OHA to consider Plaintiff\rquote s views in the size appeals was solely the result of an agreement of the parties, not an adjudication by the Court, and because Plaintiff secured no relief on remand, Plaintiff was not a \prevailing party.\ As such, Plaintiff is not entitled to fees and costs under EAJA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Advanced Systems Technology, Inc., was the incumbent contractor on two United States Army contracts supporting the Training and Doctrine Command Analysis Centers (TRAC) at Fort Levenworth, Kansas and the White Sands Missile Range, New Mexico. A competing bidder filed a successful appeal of the small business size code designations in the follow-on solicitations, and Plaintiff did not have an opportunity to participate in those appeal proceedings at OHA. Plaintiff later filed its own appeals of these size code determinations, but OHA dismissed them without considering Plaintiff\rquote s arguments on grounds that it had already considered all potential NAICS codes for these solicitations. Plaintiff asked the Court to vacate SBA\rquote s decisions changing the NAICS code provisions and dismissing its appeals and to remand the matter to OHA, instructing OHA to consider Plaintiff\rquote s views on the proper NAICS code designations. Because the changes in the NAICS codes rendered Plaintiff ineligible to compete as a small business, it sought an injunction preventing award under the solicitations using the then current NAICS codes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': On August 30, 2005, the Army issued solicitation 0011 for service to be provided in support of TRAC White Sands. The solicitation was limited solely to small businesses and has a NAICS code of 541710 with a corresponding 500\u8211employee size standard ... [which made Plaintiff] eligible to bid on solicitation 0011 as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': requested a remand to OHA after the Court entered a preliminary injunction. Third, Plaintiff secured no relief from OHA on remand and remained ineligible to compete in the procurements as a small business. Although Plaintiff was vindicated in its position that OHA wrongly failed to consider its views in the size appeal proceedings, this vindication was achieved not through a court-ordered directive, but through Defendant\rquote s agreement to remand the matter to OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 044 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': SBA uses the North American Industry Classification System (NAICS) to establish size standards governing what entities qualify as small businesses for preferences or eligibility under Government programs and procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest against the United States. Contract awardee intervened as defendant. Government moved to remand matter to the Small Business Administration (SBA) for a determination of contract awardee\rquote s HUBZone qualifications. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that appropriate remedy for failure of contracting officer (CO) to refer disappointed bidder\rquote s administrative challenge regarding HUBZone status of contract awardee to the Small Business Administration (SBA) was to remand matter to the SBA for a determination of awardee\rquote s HUBZone qualifications rather than a judicial determination of the issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Appropriate remedy for failure of contracting officer (CO) to refer disappointed bidder\rquote s administrative challenge regarding HUBZone status of contract awardee to the Small Business Administration (SBA) was to remand matter to the SBA for a determination of awardee\rquote s HUBZone qualifications rather than a judicial determination of the issue, as Congress has unambiguously delegated to the SBA Administrator the task of determining a contractor\rquote s qualified HUBZone status. Small Business Act, \u167\u167 2[3], 2[30], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': that Cadence was ineligible for the award because Cadence was purportedly not a qualified HUBZone small business concern as required by the Army\rquote s solicitation. Diversified previously filed a protest with the Army\rquote s contracting officer, challenging Cadence\rquote s eligibility under the HUBZone rules, but that protest was denied in a debriefing letter issued October 2, 2006. Promptly thereafter, on October 13, 2006, Diversified filed its complaint in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': The government has in effect confessed error by filing a motion (\Def.\rquote s Mot.\) requesting the court to remand this matter to the Small Business Administration (\SBA\) for a determination of Cadence\rquote s HUBZone qualifications. Diversified opposes remand, arguing that a remand would be inappropriate and would merely delay the resolution of the case. The resulting question before the court concerns the remedy to be applied, and specifically whether a remand to the SBA is appropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': On February 2, 2006, the Army issued Solicitation No. W91151\u821105\u8211R\u82110003, requesting offers for work to repair, renovate, construct, and maintain facilities and structures on the Fort Hood Military Reservation, Fort Hood, Texas. Administrative Record (\AR\) AR 581 (Solicitation \u167 00700); 614 (Amendment of Solicitation (Feb. 10, 2006)). The solicitation required that the awardee be a \[qualified] HUBZone small business concern[ ].\ AR 534 (Solicitation \u167 00700 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation closed on March 31, 2006. AR 639 (Amendment of Solicitation (Mar. 1, 2006)). The Army received offers from seven prospective contractors, of whom all but Cadence and Diversified were disqualified for a variety of reasons. AR 483 (Abstract of Offers). Both Cadence and Diversified represented themselves to be qualified HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Cadence Contract Services, LLC is not a HUBZone small business. As can be seen from attachment D hereto, Cadence Contract Services, LLC is a Utah Limited Liability firm that lists its address as \1204 W SOUTH JORDAN PKWY # D South Jordan, UT 84095.\ Attachment B hereto shows that there is no HUBZone firm in Utah by that name. The SBA\rquote s regulations defining a HUBZone small business require that the firm\rquote s principal office AND at least 35% of its employees must reside in a[ ] HUBZone. Attachment K shows that Cadence\rquote s principal office is NOT qualified as a HUBZone. Attachment C, on the other hand, shows that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': Cadence Contract Services, LLC, represented itself as a H[UBZ]one Certified small business concern, registered at 30139 State Rt. 3, Black River, New York 13612. Following the close of the solicitation, this office verified the qualifications and eligibility criteria of Cadence at that address. The Small Business Administration\rquote s H[UBZ]one website confirms that eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': establish procedures relating to ... the filing, investigation, and disposition by the [SBA] of any challenge to the eligibility of a small business concern to receive assistance under this section (including a challenge, filed by an interested party, relating to the veracity of a certification made or information provided to the [SBA] by a small business concern under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': , and other scattered sections of Chapter 14A of Title 15), amending the Small Business Act, Pub.L. No. 85\u8211536, 72 Stat. 384 (1958), to create a new category of entities for which the President was directed to \annually establish [a] Government-wide goal[ ] for procurement contracts awarded.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': . As stated in implementing regulations issued by the SBA, \[t]he purpose of the HUBZone program is to provide federal contracting assistance for qualified [small business concerns] located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': allows small business concerns to certify their eligibility as qualified HUBZone small business concerns and empowers the SBA Administrator to make determinations as to whether \[a] HUBZone small business concern is \u8216qualified\u8217 \ based on SBA\rquote s certification procedures and information submitted by the small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 045 - Diversified Maintenance Systems Inc v US.doc, Paragraph with 'The Rule of Two': (providing that an appeal may be taken by the HUBZone small business concern, the protestor, or the contracting officer, and prescribing time limitations on the various appellate steps). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': small business offeror would not be disqualified from award of task order under a GSA Federal Supply Schedule (FSS) contract based on its teaming with a subcontractor that did not hold a GSA Schedule contract; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': Small business offeror would not be disqualified from award of task order under a GSA Federal Supply Schedule (FSS) contract based on its teaming with a subcontractor that did not hold a GSA Schedule contract, where solicitation did not inform prospective offerors that all services including those of subcontractors had to be available from a current GSA Schedule contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': hold a GSA Schedule contract. A procuring agency may not limit a solicitation to holders of GSA Schedule contracts, and then procure non-Schedule services through the awarded contract. Where, as here, teaming arrangements are made to respond to such a solicitation, all team members must hold GSA Schedule contracts. While the agency should have followed this basic tenet of FSS task order contracting, DoDEA\rquote s solicitation did not explicitly inform offerors of the consequences of proposing non-Schedule subcontractors. In a dispute between small businesses, the Court is reluctant to disqualify ICATT where fault most squarely lies with the agency for failing to inform offerors of the applicable rules. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': Without any clear guidance in the Solicitation that an offeror should propose only subcontractors with a GSA Schedule contract, the Court is reluctant to disqualify a small business offeror such as ICATT for WWIDEA\rquote s failure to have a Schedule contract. The procuring agency should have been aware of this requirement, and it should have included instructions in the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': . Plaintiff has performed home schooling services for DoDEA for six years, and likely expected that its work for this agency would continue. The size of the contract is relatively modest and extends only for one year, but the Court accepts Plaintiff\rquote s assertion that the contract is a significant opportunity for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 046 - Idea Intern Inc v US.doc, Paragraph with 'The Rule of Two': The \irreparable harm\ factor tilts slightly in favor of Plaintiff because of the lost opportunity to a small business, but not enough to offset consideration of the other factors discussed below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 048 - Club Italia Soccer And Sports Organization Inc v Charter Tp of Shelby Mich.doc, Paragraph with 'The Rule of Two': ... where Congress has by \u8216constitutional legislation\u8217 recognized the legal right of a bidder for government contracts to benefit from the policy of granting a fair share of such contracts to small business concerns. Standing is conferred by Section 10 [of the APA] only when a relevant statute indicates a congressional intent that the person or firm seeking review comes within the zone of interests sought to be regulated or protected. Absent such a congressionally created exception, the general rule of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Small business contractor for phases I and II of research and development contract filed suit to contest award of phase III production contract for night-vision goggles to a former subcontractor. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': , Senior Circuit Judge, held that United States was not statutorily required to adopt phase III production contract with small business contractor after its completion of phases I and II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': United States Air Force was not statutorily required to adopt phase III production contract with small business concern after its completion of phases I and II of research and development contract in Small Business Innovation Research (SBIR) program; statute required modification of policy directives to ensure to the extent practicable the accomplishment of the statutory policy to award phase III follow-on contracts to small business concerns that successfully completed phase I and II projects, but the statute did not mandate particular action to achieve the objective. Small Business Act, \u167 2[9] (j)(2)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Once prototypes have been successfully completed in phase I and II contracts under Small Business Innovation Research (SBIR) and the government has determined to go ahead with the acquisition of the prototyped product, it has discretion to select the particular form the procurement will take; it can be a phase III contract awarded to the small business concern that performed the phase I and II contracts, a negotiated contract with a particular supplier, or a competitively-let contract. Small Business Act, \u167 2[9](j)(2)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Depositions indicating oral promises by Air Force officials to award phase III production contract to small business contractor after completion of phases I and II of research and development contract failed to create genuine issue of material fact precluding summary judgment for United States on claims of oral contract and implied-in-fact contract, in Court of Federal Claims; contractor failed to attribute the alleged oral promises to an official authorized to make them or to identify the official who allegedly made the promises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': A small business concern contends that it had a contractual commitment with the Air Force that, if it successfully completed the first two phases of a research and development contract, it would be awarded the contract for further development and ultimate production of the device it developed; and that the Air Force breached this commitment when it awarded the production contract to another company. The Court of Federal Claims dismissed the breach-of-contract suit that the small business had filed, ruling that the Air Force had not made any such contractual commitment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Congress created the Small Business Innovation Research (\SBIR\) program to assist small-business concerns in obtaining and performing research and development work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': . The program requires federal agencies to reserve some of their research and development funds for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': A. The basic facts in this case, as found by the Court of Federal Claims, are largely undisputed. The Air Force awarded the appellant Night Vision Corporation (\Night Vision\), a small business concern, successive Phase I and Phase II contracts to develop improved \Panoramic Night Vision Goggles\ (\Goggles\), which would have a broader field of view than existing Goggles. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': After Night Vision successfully developed a prototype under the Phase I contract, it entered into a Phase II contract to produce twelve prototypes of the Goggles. Night Vision, which had only three employees, hired Insight Technology, Inc. (\Insight\), which was not a small business, as a subcontractor to assist in performing the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': , which is captioned \(j) Small Business Administration policy directives for the general conduct of small business innovation research programs,\ and provides in pertinent part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration ... shall, within one hundred and twenty days of July 22, 1982, issue policy directives for the general conduct of the SBIR programs within the Federal Government, including providing for\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (C) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small business concern under an SBIR program enters into follow-on, non-SBIR funding agreements with the small business concern for such research, development, or production. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': imposes is that the Administrator \modify the policy directives issued pursuant to this subsection to provide for ... (C) procedures to ensure, to the extent practicable, that an agency which intends to pursue ... a technology developed by a small business concern under an SBIR program enters into follow-on, non-SBIR funding agreements with the small business concern for such research, development or production.\ The Administrator has done so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': with a small business concern for additional work to be performed during or after the second phase period.... Agencies which intend to pursue research, research and development or production of a technology developed by a small business concern under the STTR [Small Business Technology Transfer] Program will give special acquisition preference ... to the STTR company which developed the technology\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': The statutory provision thus deals with modification of \policy directives\ to \provide for ... procedures\ to \ensure to the extent practicable\ the accomplishment of the statutory policy that Phase III, \follow-on\ contracts should be awarded to small business concerns that have successfully completed Phase I and Phase II projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Night Vision would interpret this provision as requiring that the objective stated in sub-paragraph (C) be made a mandatory provision of every Phase I and Phase II contract. In effect, it would read into every such contract the requirement that if a contractor successfully completes Phase I and Phase II, the government must adopt Phase III as the way to perform the production phase of the project and award the Phase III contract to the small business concern involved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Night Vision\rquote s position would seriously limit the government\rquote s ability to select the form of procurement that it considers most appropriate in the particular situation. Once the prototypes have been successfully completed in the Phase I and Phase II contracts and the government has determined to go ahead with the acquisition of the prototyped product, it is within the government\rquote s discretion to select the particular form the procurement will take. It could be a Phase III contract, which the statute favors, but does not require, awarded to the small business concern that performed the Phase I and II contracts. It could be a negotiated contract with a particular supplier. Or, as was done in this case, it could be a competitively-let contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': , however, bars the government from making that choice or requires it to (1) select a Phase III procurement and (2) award the contract therefor to the small business concern that performed the Phase I and II contracts. We decline to read into those contracts such a requirement for, and commitment by, the government. Whatever may be the policy favoring small business in the present situation, there is simply no valid basis for reading such a requirement into the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 049 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': D. We are mindful of the strong public policy, reflected in the SBIR program, favoring the awarding of government research and development contracts to small business concerns, as the Small Business Technology Council discusses in its Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 053 - Data Monitor Systems Inc v US.doc, Paragraph with 'The Rule of Two': On June 6, 2005, the Air Force issued a solicitation seeking offers from qualifying small businesses to perform base operation support services at Grissom Air Reserve Base for a period of one year plus nine option years. The solicitation, which was to be conducted as a \best value solicitation,\ informed offerors that in the evaluation of proposals \assessment of Present/Past Performance is essential ... and relative capability to meet performance requirement[s] ... is significantly more important than Evaluated Price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 055 - Textron Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor did not establish that contracting agency coerced it to waive the benefit of its price evaluation adjustment (PEA) for small disadvantaged business; agency determined that protestor was not eligible for a PEA, and offered to forward matter to the Small Business Administration (SBA) if protestor disputed its findings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 055 - Textron Inc v US.doc, Paragraph with 'The Rule of Two': The record does not support O\u8211Tech\rquote s position. It is the Small Business Administration (the \SBA\) that is responsible for determining whether O\u8211Tech qualified for the PEA, not the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 055 - Textron Inc v US.doc, Paragraph with 'The Rule of Two': Although it was not stated in the June 1, 2006 letter to Mr. Fernadez, Mr. Palmer previously had informed O\u8211Tech that he would forward the issue to the SBA if O\u8211Tech disputed the USCG\rquote s findings. Palmer Decl., Ex. A. In an e-mail dated May 25, 2006, from Scott Palmer to Esteban Fernadez of O\u8211Tech, Mr. Palmer stated, \Absent a satisfactory explanation or waiving the PEA, I will need to forward this matter to the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 065 - NVT Technologies Inc v US.doc, Paragraph with 'The Rule of Two': On May 24, 2005, the U.S. Air Force (the Air Force) issued a request for proposals (RFP), number FA8601\u821105\u8211R\u82110034. On June 6, 2005, it revised the RFP to set aside the procurement entirely for small business concerns. Offerors were advised that their proposals were to \include sufficient detail for effective evaluation and for substantiating the validity of stated claims\ and that the award would be made to the offeror providing the agency with \the greatest confidence that it will best meet or exceed the requirements affordably.\ Three evaluation factors were listed in the RFP, in descending order of importance: mission capability, past performance and price. The RFP contained a trade-off clause that stated, \[i]f the lowest priced, mission capability (technically acceptable) offeror\rquote s performance confidence rating is less than exceptional/high confidence, the Government will accomplish a trade-off between price and past performance\ to select the best offer. Initial proposals were due on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 065 - NVT Technologies Inc v US.doc, Paragraph with 'The Rule of Two': On September 26, 2005, NVT filed a protest with the Small Business Administration (SBA), contending that SelectTech was not a small business. On October 12, 2005, the SBA rejected this protest. That same day, the contracting officer countersigned the Form SF33 that had been signed by SelectTech on September 20, 2005. On October 27, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 070 - Interspiro Inc v US.doc, Paragraph with 'The Rule of Two': The RFP stated that award would be made to the offeror that is judged to be \the best value\ to the government, and that the best value determination could \result in an award to a higher rated, higher priced offeror.\ AR 31. The RFP stated that the evaluation would be based on the following evaluation factors: (I) Mission Capability, (II) Proposal Risk, (III) Present and Past Performance, (IV) Cost/Price, and (V) Small Business Participation. AR 32. The RFP stated that the first three factors combined were \significantly more important\ than the fourth and fifth factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 070 - Interspiro Inc v US.doc, Paragraph with 'The Rule of Two': As to Factor V (Small Business Participation), the RFP stated that an offeror\rquote s proposal would be evaluated as either acceptable or unacceptable relative to the proposal\rquote s adherence to Department of Defense small business goals. AR 37. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 072 - Magic Brite Janitorial v US.doc, Paragraph with 'The Rule of Two': Fact that award of contract to incumbent contractor was under Small Business Administration (SBA) section 8(a) set-aside program, and that contractor was no longer eligible for an award under the program, did not preclude its having standing to protest government\rquote s failure to exercise option under existing contract. Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 072 - Magic Brite Janitorial v US.doc, Paragraph with 'The Rule of Two': The government responded with a motion to dismiss the case, arguing that Magic Brite lacks standing for two reasons: it was not eligible to be awarded the contract in the absence of a purchase exception; and, even under a purchase exception, Magic Brite no longer qualified for award under the Small Business Administration (\SBA\) section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 075 - Information Sciences Corp v US.doc, Paragraph with 'The Rule of Two': On September 30, 2000, GSA awarded a contract for the original development and maintenance of FBO to Science Applications International Corporation (\SAIC\), who in turn subcontracted to ISC, a small business concern, for \development, design, and maintenance services for the FBO platform and technical environment.\ AR 2. The final option year of the contract with SAIC was scheduled to expire on September 30, 2004, requiring the Government to award a new contract in order to continue the operation of FBO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 075 - Information Sciences Corp v US.doc, Paragraph with 'The Rule of Two': Moreover, although the Administrative Record indicates that ISC is a small business, the court does not have sufficient information to ascertain any hardships that either ISC or DEVIS would suffer absent a grant of injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims lacked jurisdiction over contractor\rquote s claim that contracting agency breached implied-in-fact contract that all bids would be honestly and fairly considered by agency by artificially deflating base price that contractor was required to bid to prevent a small business from matching its bid, since contractor was the successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': D. Claims of Illegality Based on DESC\rquote s Minority Price Preferences and Small Business Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': \by extending to minority-owned businesses bidding preferences that were not narrowly tailored to further a compelling governmental interest.\ Am. Compl. \u182 41. Plaintiff also argues that DESC\rquote s administration of its small business program violated various sections of the FAR, the Office of Federal Procurement Policy Act, and Part 219 of the Department of Defense Federal Acquisition Regulation by using prohibited auction techniques and by awarding portions of the procurements set aside for small businesses together with large businesses. Am. Compl. \u182\u182 39\u821140. Plaintiff argues that both the minority price preference and the \auction\ depressed bid prices with the result that plaintiff received less than fair market value for the fuel it sold pursuant to its contracts with DESC. Pl.\rquote s Resp. 16, 55. Defendant moves to dismiss for lack of jurisdiction. Def\rquote s. Mot. 1. Alternatively, defendant moves for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': 2. Small Business Claims Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the small business program, as administered by DESC, violates FAR \u167\u167 15.610, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': , and Department of Defense Federal Acquisition Regulation (DFAR) part 219 by using prohibited auction techniques and by soliciting and awarding portions of procurements set aside for small businesses together with large businesses. Am. Compl. \u182\u182 39\u821140; Pl.\rquote s Resp. 56\u821157. Plaintiff alleges that DESC \discloses competitors\rquote bid or pricing information to small businesses\ and awards the contracts to small businesses \if they agree to match the price, or adjusted price, DESC discloses,\ thereby engaging in a prohibited auction technique. Pl.\rquote s Resp. 58; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': the portion of the procurement not set aside for small businesses is completed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': ). Plaintiff argues that, as a consequence, DESC artificially deflated the base price that La Gloria was required to bid to prevent a small business from matching its bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': at 16 (\Both DESC\rquote s minority price preference and its auction, by their very nature, placed downward pressure on bid prices, as non-minority and non-small businesses were forced to compete on an uneven playing field.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': at 63\u821164 (\The impact of DESC\rquote s violation of the OFPPA and the FAR is that DESC pays lower prices for fuel to both large businesses and small businesses.\). As a consequence, plaintiff argues, the contract did not reflect the fair market value of military fuel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': Defendant moves to dismiss for lack of jurisdiction because, it argues, \the complaint presents nothing more than a facial attack upon DESC\rquote s small business program.\ Def.\rquote s Mot. 34. As defendant explains, \[T]he complaint does nothing to link any particular action taken under [DESC\rquote s small business set-aside] program to any contract La Gloria was awarded.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': \). In fact, defendant argues, if a small business offeror had agreed to match the price La Gloria had offered, La Gloria would have been awarded no contract for that amount. Def.\rquote s Reply 24. The necessary implication of defendant\rquote s argument is that La Gloria could not have a post-award claim under the small business set-aside program without being a disappointed bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': Defendant further argues that DESC\rquote s small business program does not violate the FAR because the \match price method\ does not constitute an auction, Def.\rquote s Mot. 32; Def.\rquote s Reply 23\u821124 (arguing that the \match price method\ does not constitute an auction because \the small business offeror is given the opportunity to match the price the Government would otherwise pay\ and \[t]he offeror agrees to match or not\ so that \there is no back and forth between one offeror and another\), and because DESC\rquote s authorized deviation from the FAR permits it to give small businesses the opportunity to match the price the government would otherwise pay to large businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': (\As we explained, the Government\rquote s match price method of conducting partial small business set-aside negotiations follows authorized agency procedures and the FAR itself.\). Defendant explains the rationale behind the deviation: \This procedure [, which] avoids the delay that would take place in re-soliciting set[-]aside failure quantities under the standard FAR and DFARS procedures, has been used since the 1960\rquote s pursuant to authorized deviations, and has been approved by the GAO on several occasions.\ Def.\rquote s Mot. 34. Defendant states, \DESC\rquote s procedures are consistent with applicable law and regulation\ according to findings of the Comptroller General. Def.\rquote s Reply 25\u821126 (citing B\u8211230556, March 23, 1989). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': at 63. In further support of its argument that no deviation exists to authorize DESC\rquote s administration of its small business program, plaintiff asserts, \a FAR deviation cannot authorize the very conduct OFPPA prohibits.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': The court lacks jurisdiction over plaintiff\rquote s small business claims. Even though plaintiff has express contracts with the government, it does not identify the contracts as the source of its complaint. Rather, its claim is for breach of an implied contract concerning the bidding process. If plaintiff had been displaced by DESC\rquote s allegedly \prohibited auction techniques,\ Am. Compl. \u182 39, the court may have had jurisdiction to entertain plaintiff\rquote s claims. Under these circumstances, however, where plaintiff does not allege that the small business program prevented plaintiff from obtaining the contract, the court lacks jurisdiction over plaintiff\rquote s claims because plaintiff was the successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': The court DISMISSES plaintiff\rquote s small business claims for lack of jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': for failure to state a claim upon which relief may be granted. The court GRANTS defendant\rquote s Motion to Dismiss plaintiff\rquote s equal protection and small business claims for lack of jurisdiction. The court GRANTS defendant\rquote s Motion to Dismiss plaintiff\rquote s common law contract claims and takings claim for failure to state a claim upon which relief may be granted. The court GRANTS defendant\rquote s Motion for Summary Judgment of plaintiff\rquote s conflict of interest claim. The court DENIES plaintiff\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': This count contained six sub-parts including two small business complaints and an allegation that defendant awarded and administered plaintiff\rquote s contracts in violation of the Due Process Clause of the Fifth Amendment. Amended Complaint (Am. Compl. or Amended Complaint) \u182\u182 39\u821141. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 078 - La Gloria Oil and Gas Co v US.doc, Paragraph with 'The Rule of Two': Defendant\rquote s motion specifically requests that paragraphs 40 and 41 of the Amended Complaint (plaintiff\rquote s small business and equal protection claims) be dismissed pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': On March 19, 2001, the AMCOM Small Business Administration (SBA) Competition Advocate, Wade Griffin, Jr., approved the November, 2000 J & A, but recommended acquisition of \the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': In addition, a separate justification was prepared solely for the \Fat Boy\ strap pack and was independently approved by Wade Griffin, Jr., AMCOM\rquote s Small Business Competition Advocate. The government suggests that this separate justification reflects AMCOM\rquote s specific conclusion that the Army lacked the technical data necessary to conduct a competitive procurement for the \Fat Boy\ strap pack. The government further states that although the Competition Advocate had conducted market research by publishing the item in its March, 2005 \Shopping List,\ no new potential sources had either expressed interest in producing the \Fat Boy,\ or otherwise been identified. Following approval of the 135\u8211item J & A by the Assistant Secretary of the Army, AMCOM issued solicitation W58RGZ\u821104\u8211R\u82110982 to MDHC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': from Ralph Massey, the Small Business Administration\rquote s Procurement Center Representative. In the 2001 memorandum, Mr. Massey stated, concerning the \Fat Boy\ procurement: \It appears that the Army will, for all practical purposes, be using this sole source buy to re-pay Boeing/McDonnell [somewhere between $15M and $20M] for their Non\u8211Recurring Engineering costs for both the development and qualification testing of the new strap assembly.\ (bracketed language in original). Thus, KSD argues that the government, and a SBA official, acknowledged that Boeing did not develop the \Fat Boy\ at private expense, \and that Boeing was to be paid for the development costs after AMCOM issued the sole source contracts to Boeing.\ The government, however, dismisses the Massey memorandum, stating: \Given his [Mr. Massey\rquote s] responsibilities, it is hardly surprising to learn that AMCOM\rquote s representative for small business concerns would oppose implementation of a commercialization initiative in a case where a large firm is willing to risk substantial sums of money on its own research and development.\ Additionally, the government argues that Mr. Massey overestimated the price for the \Fat Boy\ strap pack to be $15,000.00, when it was actually [deleted]. Finally, the government argues that even if Mr. Massey believed that the MDHC sole source contract was inappropriate, he nevertheless approved the procurement of the \Fat Boy\ strap packs through sole source procurement in 2001 and again in 2005. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': (2)(A) In the case of an item or process that is developed by a contractor or subcontractor exclusively with Federal funds (other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': (v) Agencies shall conduct market research on an ongoing basis, and take advantage to the maximum extent practicable of commercially available market research methods, to identify effectively the capabilities, including the capabilities of small businesses and new entrants into Federal contracting, that are available in the marketplace for meeting the requirements of the agency in furtherance of a contingency operation or defense against or recovery from nuclear, biological, chemical, or radiological attack; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'The Rule of Two': Notices of proposed contract actions must be made available pursuant to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 090 - Fort Carson Support Services v US.doc, Paragraph with 'The Rule of Two': Protests challenging FCSS\rquote s HUBZone status were apparently also filed with the Small Business Administration, and were denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': \non-manufacturer rule\ of the Small Business Act (SBA) pursuant to which non-manufacturer recipients of small business set-aside contracts for manufactured products must provide the product of a domestic small business manufacturer or processor, applies to contracts for the supply of manufactured items which also require the provision of some services; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': rule applied to solicitations of small business set-aside contracts for the provision of home oxygen equipment, and agency\rquote s decision to award work under the solicitations, without examining each offeror\rquote s intent to comply with the rule, was arbitrary and capricious; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor, which brought pre-award bid protest of decision of Department of Veterans Affairs (VA) to award small business set-aside contracts for the provision of home oxygen equipment in four locations on ground that such awards would violate the non-manufacturer rule of the Small Business Act (SBA), lacked standing to challenge agency\rquote s award decisions for the provision of such equipment in locations for which proposals were evaluated on basis of full and open competition. Small Business Act, \u167 2[8](a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to award of small business set-aside contracts for the provision of home oxygen equipment, on ground that such awards would violate the non-manufacturer rule of the Small Business Act, was not untimely on theory that request for proposals (RFP) created a patent ambiguity as to whether procurement was one for supplies or one for services to which rule was not applicable, and thus challenge should have been made before the deadline for submission of proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to award of small business set-aside contracts for the provision of home oxygen equipment, on ground that such awards would violate the non-manufacturer rule of the Small Business Act, was not untimely on theory that protestor was essentially challenging the North American Industrial Classification System (NAICS) codes assigned to the solicitations, and that challenge had to be served and filed on the Small Business Administration (SBA) within ten calendar days after the solicitations were issued. Small Business Act, \u167 2[8](a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': \Non-manufacturer rule\ of the Small Business Act (SBA), pursuant to which nonmanufacturer recipients of small business set-aside contracts for manufactured products must provide the product of a domestic small business manufacturer or processor, applies to contracts for the supply of manufactured items which also require the provision of some services. Small Business Act, \u167 2[8](a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Non-manufacturer rule of the Small Business Act (SBA), pursuant to which nonmanufacturer recipients of small business set-aside contracts for manufactured products must provide the product of a domestic small business manufacturer or processor, applied to solicitations of small business set-aside contracts for the provision of home oxygen equipment, and agency\rquote s decision to award work under the solicitations, without examining each offeror\rquote s intent to comply with the rule, was arbitrary and capricious. Small Business Act, \u167 2[8] (a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that non-manufacturer rule of the Small Business Act (SBA), pursuant to which nonmanufacturer recipients of small business set-aside contracts for manufactured products must provide the product of a domestic small business manufacturer or processor, applies solely to contracts for supplies only, and not to contracts for both supplies and services, rule was applicable to solicitations for the provision of home oxygen equipment, as most of the value of the procurements related to supply of equipment, and comparative value of services was incidental. Small Business Act, \u167 2[8] (a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor who prevailed on pre-award bid protest challenging decision to award small business set-asides on ground they violated non-manufacturer rule of the Small Business Administration (SBA) was entitled to permanent injunction requiring resolicitation, considering that it would suffer irreparable harm in form of lost opportunity to compete absent such relief, that it had no other adequate remedy, and that the public interest would be served by upholding the non-manufacturer rule. Small Business Act, \u167 2[8] (a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff Rotech Healthcare Inc. (Rotech), a Delaware corporation with its principal place of business in Orlando, Florida, filed this pre-award bid protest action on April 19, 2006. Rotech is the incumbent supplier of home oxygen equipment to the United States Department of Veterans Affairs (the VA). In this lawsuit, Rotech challenges the VA\rquote s decision to award four future contracts for that work to two competitor companies, Mitchell Home Medical, Inc. (Mitchell) and First Community Care, LLC (FCC). Rotech complains that the agency\rquote s decision to award the small business set-aside contracts to Mitchell and FCC is arbitrary and capricious. Plaintiff contends that Mitchell and FCC are ineligible for the set-aside awards because, although they are small businesses, they intend to fulfill the contracts by supplying home oxygen equipment obtained from large equipment manufacturers. Rotech argues that such a practice violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , a section of the Small Business Act commonly referred to as the \non-manufacturer rule.\ Plaintiff asks the court to enjoin the VA from awarding the contracts to Mitchell and FCC, and to order it to conduct a new procurement which comports with the requirements of that rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 270, 278\u8211319. Although RFP 583 is structured as a small business set-aside cascaded procurement, with a three tier cascade structure, it provides that \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 383 (emphasis in original). The RFP explains, however, that if a minimum of two offers are received from historically underutilized business zone (HUBZone) small business concerns, and the offers are determined to be competitive, to meet all solicitation requirements, and to represent the \best value\ to the government, the VA reserves the right to make a HUBZone small business set-aside award. The RFP states further that, if no HUBZone award is made, the VA will determine whether a minimum of two offers have been received from other small business concerns and, subject to the same conditions, may make a small business set-aside award. Finally, if no award is made under any of the above conditions, the VA will make an award \on the basis of full and open competition from among Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Like all government procurements, RFP 583 has been assigned a North American Industrial Classification System (NAICS) code, which is listed on the RFP\rquote s cover sheet. NAICS codes are used by government agencies, and the United States Small Business Administration (SBA), to establish size standards governing which entities qualify as small businesses for preferences or eligibility under government programs and procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). Here, the procurement bears NAICS code 532291, titled \Home Health Equipment Rental.\ AR at 270. This code indicates that small businesses which hope to secure a small business set-aside award under RFP 583 must have annual profits of no more than $6 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The VA received five eligible proposals in response to RFP 583. Because the conditions precedent to a HUBZone award were not met, the agency determined that an award could not be made under that tier of the cascaded procurement structure. Instead, the agency authorized small business set-aside awards for four of the locations covered by the RFP, and awards for the remaining three areas on the basis of full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': for two Michigan facilities (Areas B and C), and that FCC would likely be awarded contracts covering two Indiana facilities (Areas F and G), as small business set-asides. The notice letter also provided as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Challenge of Small Business Size Status: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': An offeror or another interested party may protest the small business representation of an offeror. To be timely, a protest must be received by the Contracting Officer by the close of business of the 5th business day after receipt of this preaward notice that identifies the apparently successful offeror. Please see Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , Protesting a Small Business Representation, for additional information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 455. Accordingly, on April 3, 2006, Rotech filed a small business size protest with the VA, arguing that an award to Mitchell or to FCC, without an adequate inquiry regarding those companies\rquote intent to comply with the non-manufacturer rule, would be erroneous. In its size protest, Rotech stated as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Rotech urges an immediate inquiry into (1) the identity and size status of the manufacturers of the home oxygen equipment to be supplied by Mitchell and FCC, (2) the precise work to be performed by Mitchell and FCC under the contracts, and (3) the dollar value of the actual work to be performed by Mitchell and FCC. Because the VA apparently does not intend to perform such an inquiry, Rotech respectfully requests that this matter be referred for review by the U.S. Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The second solicitation challenged by Rotech, Request for Proposals 247\u82110082\u821106 (RFP 247), was issued by the VA on December 19, 2005. RFP 247 seeks proposals on a contract to supply home oxygen equipment to VA beneficiaries in and around Augusta, Georgia. While many terms of RFP 247 are identical to those included in RFP 583, RFP 247 is structured differently. Initially, work under RFP 247 was designated a 100% small business set-aside. AR at 8. On March 16, 2006, however, the solicitation was amended, to provide that the contract would be awarded through a six tier cascaded procurement: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': a. Service Disabled Veteran Owned Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': b. HUBZone/8(a) Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': c. 8(a) Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': d. HUBZone Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': e. Small Business Set\u8211Aside Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': On March 27, 2006, the VA amended RFP 247 a second time, and the 100% set-aside for small business concerns was reinstated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 8. That code indicates that, to qualify as a small business, an offeror must have annual revenues of no more than $11.5 million. Like RFP 583, however, the solicitation incorporates the language of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 97. Rotech\rquote s protest in regard to RFP 247 is based on its belief that the VA will also refuse to apply the non-manufacturer rule to the procurement, but will nonetheless award the contract through a small business set-aside. The administrative record demonstrates that plaintiff has taken a number of steps to address this concern with the agency. Plaintiff alleges that on March 22, 2006, a Rotech representative telephoned Faye S. Thomas, the VA\rquote s contracting officer for RFP 247, and stated Rotech\rquote s belief that the non-manufacturer rule applied to the procurement. Compl. \u182 40. Later that day, plaintiff faxed to Ms. Thomas a copy of Rotech\rquote s filings before the GAO, on a related matter, which discussed the non-manufacturer rule in more detail. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': \u182 41. On March 31, 2006, after learning that the VA had amended RFP 247 to reinstate the 100% set-aside for small business concerns, Rotech faxed another letter to Ms. Thomas which elaborated on its belief that the non-manufacturer rule applied to RFP 247. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Here, the United States agrees, in the main, that if Rotech succeeds in showing that the VA\rquote s decision to make small business set-aside awards was in error, it will also be able to establish harm as a result of that error. Defendant disagrees with Rotech\rquote s allegation of harm, however, in regard to three of the VA locations (areas A, D, and E) for which the VA plans to award contracts under RFP 583. The government argues that the non-manufacturer rule, and any offerors\rquote purported failure to comply with it, are irrelevant to the VA\rquote s award decisions for those areas, which were evaluated on the basis of full and open competition. Def.\rquote s Resp. at 18. The government claims that \Rotech cannot demonstrate that it was harmed in any way by the VA\rquote s failure to apply the nonmanufacturer rule to source selection decisions for locations A, D, and E, because as a large business, its proposal was considered for these locations just like the proposals submitted by small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 19. Defendant concedes that Mitchell and FCC failed to include required representations in their proposals regarding compliance with the non-manufacturer rule. Defendant also agrees that this mistake would have disqualified those companies from consideration under the small business set-aside tier of the procurement. The United States insists, however, that Mitchell and FCC nevertheless would have been eligible to compete during the third tier of the competition, and thus, would still be in line for awards in areas A, D, and E. Accordingly, the government contends that, even if Rotech succeeds on the merits of its claim regarding the non-manufacturer rule, the court should order a resolicitation only for the four locations for which Mitchell and FCC were chosen to receive small business set-aside awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': For its part, Rotech argues that it was harmed in relation to all seven of the areas addressed in RFP 583. Rotech insists that, if the VA had applied the non-manufacturer rule during the small business tier of the cascaded procurement, it would have discovered that Mitchell and FCC had failed to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': On this aspect of the record, the court agrees with defendant. There is no evidence to suggest that, because Mitchell and FCC failed to make required representations relevant to their small business status, those companies should have been disqualified from competition under RFP 583 altogether. It is clear that both companies did, in fact, fail to represent that they would comply with the non-manufacturer rule. And plaintiff is correct that other offerors\rquote proposals were excluded from competition under RFP 583 for failure to make other types of required representations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 275. The plain language of that provision, however, indicates that disqualification of an offending offeror is left to the discretion of the VA. It follows, then, that the standard set forth in the RFP permitted, but did not require, the VA to eliminate Mitchell and FCC from competition for small business set-aside awards under RFP 583 based on their failure to make required representations, and as demonstrated by the court\rquote s examination of the instances and circumstances under which the CO eliminated defective offers, the CO did not abuse this discretion. The RFP likewise did not require the agency to disqualify Mitchell and FCC from full and open competition. [ ]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , which is used to implement the regulatory version of the non-manufacturer rule. That provision states, in relevant part, that \[a] small business concern submitting an offer in its own name shall furnish, in performing the contract, only end items manufactured or produced by small business concerns in the United States or its outlying areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . And, as defendant concedes, the text also includes the small business size standard applicable to procurements for manufactured items, which is used any time the non-manufacturer rule applies to a procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, the record makes clear that Rotech raised the issues central to this protest before the deadline for proposals in response to RFP 583. On September 20, 2005, Metro Home Medical Supply, Inc. (MHMS), a small business which intended to submit a proposal in response to RFP 583, filed a pre-award bid protest before the GAO which challenged the VA\rquote s procurement strategy. The parties agree that Rotech intervened in that action and argued that MHMS was ineligible for a small business preference because its proposal did not appear to comply with the non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Defendant argues next that Rotech\rquote s protest is essentially an untimely challenge to the NAICS codes assigned to RFPs 583 and 247. As stated earlier, NAICS codes are used by government agencies and SBA to establish size standards governing which entities qualify as small businesses for preferences or eligibility under government programs and procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The United States Office of Management and Budget (OMB) assigns NAICS codes to various industry sectors, and SBA determines which firms qualify as small businesses in accordance with those codes, \to assure that a fair proportion of government contracts for goods and services are performed by such entities in each industry category.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). To do so, SBA specifies the maximum number of employees, or the maximum annual receipts, which a company may have in order to qualify as a small business within a particular code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . Then, according to SBA regulations, procuring agencies must specify the NAICS code and accompanying size standard applicable to each federal procurement in which small business status is required or preferred. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . The NAICS code assigned to a procurement, and its corresponding size standard, are final unless appealed to the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': makes no mention of the classification \code\ when imposing the requirement that a small business offeror \represent that it will supply the product of a domestic small business manufacturer or processor.\ Instead, [t]he issue of the \code\ is discussed in a separate section of the statutory Nonmanufacturer Rule that relates to an issue entirely distinct from the identity of the product\rquote s manufacturer. Under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (ii[ ]), the offeror must \be a small business concern under the numerical size standard for the Standard Industrial Classification Code assigned to the contract solicitation on which the offer is being made.\ In its NAI[CS] code argument, the VA seems to have confused these two separate and distinct provisions of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': distinct requirements which small business offerors must satisfy before they are eligible for a small business set-aside award. The government has not, however, articulated a logically persuasive interrelationship, nor directed the court to any persuasive authority to show that such a connection exists. The first provision on which the United States relies, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': of the Small Business Act, requires that, to qualify for a small business preference, an offeror must meet the numerical size standard applicable to the procurement, as identified by its code assignment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . Again, that section states that any offeror which seeks a small business set-aside contract to supply manufactured goods must supply the product of another domestic small business. It is this, and only this, provision of the Small Business Act which Rotech argues will be violated by the intended awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Here, the NAICS codes assigned to RFPs 583 and 247 require that, to qualify as a small business offeror, a company must have annual revenues of no more than $6 million and $11.5 million, respectively. Rotech does not argue that this standard is inappropriate, or that Mitchell or FCC are unable to meet it. Instead, plaintiff argues that because the procurements will require Mitchell and FCC to supply manufactured products to the VA, the monetary standards identified by those NAICS codes are replaced by the 500 employee standard found in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Rotech\rquote s principal contention is that the VA\rquote s decision to award small business set-aside contracts to Mitchell and FCC under RFP 583 is arbitrary, capricious, an abuse of discretion, and contrary to law. Rotech argues, specifically, that the VA erred when it decided to award the contracts to Mitchell and FCC without determining their compliance with the Small Business Act\rquote s non-manufacturer rule. Rotech argues that because the value of the contracts to be awarded is derived principally from the supply of home oxygen products, any offeror which seeks to qualify under the terms of the solicitation must comply with that provision of the Act, by supplying home oxygen equipment manufactured by a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff asserts that neither Mitchell nor FCC intends to do so, and thus, they are ineligible for small business awards in the context of these procurements. Rotech asks the court to permanently enjoin any small business set-aside awards to Mitchell or FCC, and to order the VA to apply the non-manufacturer rule to the contested procurements or to conduct a resolicitation which complies with the rule. In response, defendant admits that the VA made no findings on whether Mitchell or FCC will comply with the non-manufacturer rule. The government contends that such findings are not necessary, however, because the rule does not apply to RFPs 583 and 247. The United States insists that the non-manufacturer rule applies only to contracts for the supply of manufactured products alone, and not to contracts like these, which call for the supply of both manufactured products and services. Indeed, the VA took that position early in this dispute, as demonstrated by a written statement from the CO for RFP 583: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The proposed contracts for home oxygen services are service contracts. The nonmanufacturer rule is not applicable to this procurement. It is not solely for manufactured products (oxygen), but also requires the contractor to perform a significant number of services. The Small Business Administration\rquote s Office of Hearings and Appeals has held that the nonmanufacturer rule applies to procurements solely for manufactured products, and not to procurements which include services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': There is no question that Rotech\rquote s protest is centered on the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (daily ed. Oct. 12, 1988) (statement of Rep. Aspen). To that end, the Act \directs federal agencies to reserve some government contracts for small businesses,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , with a \ \u8216Government-wide goal for participation by small business concerns ... [of] not less than 23 percent of the total value of all prime contracts for each fiscal year.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). A business is considered a \small business concern\ under the Act only if it is \independently owned and operated\ and \not dominant in its field of operation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). The task of establishing criteria to determine whether individual companies qualify as small businesses, and applying those criteria in individual cases, has been delegated by Congress to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). Federal agencies work together with the SBA to establish small business set-asides for contract solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act imposes a number of requirements which businesses must satisfy if they wish to claim a small business preference in government procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Most important to this lawsuit is the Act\rquote s requirement \that nonmanufacturer recipients of small business set-aside[ ] ... contracts for manufactured products ... provide the product of domestic small manufacturers or processors on small business set-asides ...\u8212the so-called \u8216nonmanufacturer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . The rule serves, in other words, \to prevent dealers from acting as mere conduits for the products of large manufacturers on small business set-aside procurements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . The non-manufacturer rule began as a regulation created by the SBA as a part of its effort to promote small business in the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards, 49 Fed.Reg. 27925 (July 9, 1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (citing 13 C.F.R. \u167 121.5(b)(2) (1984)). In 1988, however, during a major overhaul of the terms of the Small Business Act, Congress codified the rule as a separate section of the statute itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (ii) be a small business concern under the numerical size standard for the Standard Industrial Classification Code assigned to the contract solicitation on which the offer is being made; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (iv) represent that it will supply the product of a domestic small business manufacturer or processor, unless a waiver of such requirement is granted\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (I) by the Administrator, after reviewing a determination by the contracting officer that no small business manufacturer or processor can reasonably be expected to offer a product meeting the specifications (including period for performance) required of an offeror by the solicitation; or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (II) by the Administrator for a product (or class of products), after determining that no small business manufacturer or processor is available to participate in the Federal procurement market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': As defendant correctly notes, the phrases \contract for the supply of a product\ and \contract to provide manufactured products\ are not defined in the statute or regulation. The United States suggests that, to clarify the issue, the court should look to decisions from the SBA\u8211OHA, which has been afforded the authority to expound upon, and interpret, the Act. Defendant argues that those decisions are persuasive, and entitled to deference, because the SBA promulgated the non-manufacturer regulation, and is charged with protecting the interests of small businesses. Def.\rquote s Mot. at 12 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': On review, the SBA looked to several regulations, including its own small business size regulation, \u167 121.3\u82111(b)(4), which provided that \if a multi-item procurement requires the successful bidder to deliver all items and/or perform all services being procured, the applicable size standard is that for the industry whose products or services account for the greatest proportion of the contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': There are about 70 line items being procured. The concerns who provide the equipment are not manufacturers of the equipment. Accordingly, they must meet the requirements of the nonmanufacturing rule. That rule provides that the concern must provide the products of a small business manufacturer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards; Revision; Correction, 54 Fed.Reg. 35454 (Aug. 28, 1989) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Finally, as a matter of policy, the government claims that the SBA\rquote s interpretation of the non-manufacturer rule is reasonable because \where services are a significant part of the procurement, labor costs are the major expense for the contractor. This is especially true for the home respiratory therapy industry where studies have shown that labor costs are the largest operating costs.\ Def.\rquote s Reply at 7. The government contends that, in these types of mixed-purpose contracts, the goals of the Small Business Act are better served by the application of the limitation on subcontracting rules applicable to service contracts than they would be by application of the non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (section of SBA regulations titled \Prime contractor performance requirements (limitations on subcontracting)\). The United States argues that the agency\rquote s interpretation of the rule actually protects the interests of small businesses because, if the non-manufacturer rule applied to every procurement which included even one manufactured product, the government\rquote s ability to use small business set-asides would be extremely limited, given that many manufactured products simply are not produced by small business manufacturers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). Rotech points out that, in that decision, the SBA\u8211OHA did not address the text of the Small Business Act, but instead relied exclusively on its own decisions in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Reauthorization and Amendments Act of 1990, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards, 49 Fed.Reg. 27925 (July 9, 1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Finally, plaintiff argues that the government\rquote s interpretation of the non-manufacturer rule would undermine the purpose of the Small Business Act and render the rule ineffectual: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': From all of these arguments, one clear question emerges\u8212whether the court should defer to SBA\rquote s interpretative gloss on the regulatory non-manufacturer rule, and graft that interpretation onto its statutory counterpart in the Small Business Act. The answer to that question depends, in large part, on whether the agency\rquote s interpretation of the Act is entitled to deference. To make that determination, a two step inquiry is necessary. First, the court must examine whether Congress has spoken directly on the issue at hand, through its express statutory language. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . Here, however, nothing in the legislative history of the Small Business Act indicates that Congress intended to create an exception to the non-manufacturer rule like the one suggested by the government. In fact, the unique history of the rule, in its statutory and regulatory forms, indicates just the opposite. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': As the court explained earlier, the regulatory version of the non-manufacturer rule existed for a number of years before Congress adopted it formally as a part of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Reauthorization Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). And there is no question that SBA is charged with issuing rules and regulations which will further the underlying policies of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': On March 31, 1989, the Small Business Administration (SBA) revised its regulations to set an explicit size standard of 500 employees for nonmanufacturers. A \nonmanufacturer\ is a company offering to supply to the Federal Government an item which it does not itself manufacture. However, the subheadings of the size standards table for Division F\u8212Wholesale Trade and Division G\u8212Retail Trade can give the unintended impression that all retail and wholesale procurement contracts, including those for services, are included under the 500\u8211employee nonmanufacturer standard. The regulations cover only contracts for supplies. Institutional food service, computer software and other service-type contracts are excluded from the nonmanufacturer\rquote s size standard. The final rule is corrected by adding the words \of supplies\ to the subheadings of Division F and G. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards; Revision; Correction, 54 Fed.Reg. 35454\u821101 (Aug. 28, 1989) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards, 61 Fed.Reg. 3280, 3296 (Jan. 31, 1996) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards, 49 Fed.Reg. 27925 (July 9, 1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations; Non\u8211Manufacturer Rule, 60 Fed.Reg. 27924 (May 16, 1995) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Finally, there is no question that, if the VA\rquote s interpretation of the non-manufacturer rule is allowed to stand, it will significantly undermine the Small Business Act\rquote s primary goal\u8212to promote the participation of small businesses in federal government contracting. Again, the non-manufacturer rule was \designed to ensure that small businesses actually perform a significant part of the work required by government contracts that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Here, however, it is impossible to overlook the reality that, if Mitchell and FCC receive small business awards under RFPs 583 and 247, they will \act[ ] as mere conduits for the products of large manufacturers on small business set-aside procurements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': . This is exactly the sort of arrangement which the non-manufacturer rule was created to prevent. It is true that Mitchell and FCC will benefit marginally from those awards, by earning profits associated with the resale of home oxygen equipment to the VA. However, their participation will undercut the intended, and much greater benefit which would be enjoyed by a small business chosen to supply that equipment to the VA directly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Next, plaintiff argues that the NAICS codes assigned to RFPs 583 and 247 are irrelevant to whether the procurements describe contracts for supplies or services. Rotech observes that the assignment of NAICS codes is governed by a separate section of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': small business status, which is not in dispute here. Moreover, plaintiff argues that the sections of the RFPs which discuss the NAICS code system, when examined carefully, actually support Rotech\rquote s position that these are procurements for supplies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': As plaintiff correctly points out, both RFPs reference the NAICS code assigned by the agency and the accompanying small business size standards, but go on to state that \the small business size standard for a concern which submits an offer in its own name, but proposes to furnish an item which it did not itself manufacture, is 500 employees.\ Pl.\rquote s Resp. at 4 (citing AR at 48, 364). Rotech insists that \[d]efendant\rquote s Motion is fatally flawed because it ignores this critical RFP provision and focuses instead on the NAICS Codes identified on the cover sheets\ for each procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , which states that the 500 employee small business standard is to be included in \solicitations for the acquisition of commercial items.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). Plaintiff claims that \[n]othing in the statute suggests that the size code has any relevance to or effect on whether the offeror must represent that it will supply the product manufactured by a domestic small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Without the non-manufacturer rule, large manufacturers could simply supply their products to the government indirectly (through small business offerors that won the contract). Small business would then, in effect, be competing with large manufacturers on a large number of contracts ostensibly reserved for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Regulations; Non\u8211Manufacturer Rule, 60 Fed.Reg. 27924, 27925 (May 26, 1995) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': ). Plaintiff argues that \reliance on an agency\rquote s characterization of a procurement\u8212rather than the reality of what is being procured\u8212would result in a direct violation of both the statutory language and the underlying policies ... the clearly stated purpose of the Nonmanufacturer Rule is to ensure that small businesses are the real beneficiaries of \u8216small business\rquote preferences....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Size Standards; Revisions; Corrections, 54 Fed.Reg. 35454\u821101 (Aug. 28, 1989) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Inasmuch as this common sense approach to classification appears in relevant SBA decisions, the federal regulations, and elsewhere in state and federal law, the court concludes that it should govern this analysis as well. Applying that test to the facts of this case, it is clear that RFPs 583 and 247 include only an incidental amount of services. The VA\rquote s own estimate of proposal costs related to RFP 583 indicates that the single service requirement listed in the schedule, Item 0014, will account for [ ] of the entire cost of the procurement in all of the areas in which small business set-aside awards are planned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': , applies to them. Accordingly, the VA\rquote s decision to award small business set-aside contracts under RFP 583 to Mitchell and FCC, without considering whether those offerors would provide items manufactured by small businesses, was erroneous. The VA\rquote s stated intent to award work under RFP 247 without considering compliance with the non-manufacturer rule is likewise contrary to law. On this record, the court agrees with plaintiff that Rotech was prejudiced by this error in the procurement process, and that but for the error, Rotech would have had a substantial chance to win these awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': Rotech also notes that the public interest will be served by the proper application of the non-manufacturer rule, which embodies an important public policy to ensure that small business manufacturers actually benefit from small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': at 30. Plaintiff states that \in the event that the VA were to assert some form of harm, the express Congressional language to the contrary represents a determination that this interest is outweighed by the need to ensure that the small business program primarily benefits small business manufacturers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (stating that \the public has a strong interest in assuring that the integrity of the procurement laws are preserved\u8212both in letter and spirit\). Because the procurement approach adopted by the VA in this instance violates the letter and the spirit of the non-manufacturer rule and the Small Business Act as a whole, it cannot be upheld. A permanent injunction in favor of plaintiff is therefore appropriate. Accordingly, the court grants Rotech\rquote s cross-motion for judgment on the administrative record, and denies the cross-motion for judgment on the administrative record by the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': from proceeding with awards under Request for Proposals 583\u821100035\u821106 and Request for Proposals 247\u82110082\u821106 in a manner inconsistent with the requirements of the Small Business Act and the statutory non-manufacturer rule, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (b) If the United States Department of Veterans Affairs elects to cancel Request for Proposals 583\u821100035\u821106 or Request for Proposals 247\u82110082\u821106 and to resolicit proposals for the work described therein, the government must do so in a manner consistent with the requirements of the Small Business Act and the statutory non-manufacturer rule, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': This structure is mirrored in the small business size regulations, which also include two distinct provisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': How does a small business concern qualify to provide manufactured products under small business set-aside or 8(a) contracts? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (a) General. In order to qualify as a small business concern for a small business set-aside or 8(a) contract to provide manufactured products, an offeror must either: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'The Rule of Two': (iii) Will supply the end item of a small business manufacturer or processor made in the United States, or obtains a waiver of such requirement pursuant to paragraph (b)(3) of this section. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 093 - Advanced Systems Development Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a small business that provides enterprise Information Technology (IT) solutions and other similar services. The company is an incumbent contractor for various IT support with Defendant through the Washington Headquarters Services (WHS). Bennet Decl. at \u182 2. WHS is a field activity of the Department of Defense (DoD) comprised of eleven directorates which provide support to the Secretary of Defense and other DoD activities. Prior to the contract award at issue in this case, WHS had six separate contracts with five different companies to meet its IT support needs. Administrative Record (AR) at 335. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 093 - Advanced Systems Development Inc v US.doc, Paragraph with 'The Rule of Two': The agency determined that it would be more efficient to consolidate the separate IT systems into one integrated system provided by one contractor. Consequently, on March 9, 2006, WHS issued Solicitation No. HQ0034\u821106\u8211R\u82111012 for a new consolidated WHS IT Support services contract. AR at 191. The procurement sought a total small business set aside to acquire labor, hardware/software and other materials necessary to provide WHS and its clients with \a flexible, responsive platform of IT services,\ including support-like web management and software development. The solicitation listed certain evaluation factors and stated that a contract would be awarded to the offeror whose proposal provided the best overall value to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 094 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': This bid protest involves the award of contracts to provide travel services to the Department of Defense. A portion of these contracts were to be set aside for certified small businesses. This dispute arose among numerous bidders, each alleging that the others were not, in fact, small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 094 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': The Intervenors do not oppose dismissal, however, they raise serious allegations regarding Manassas Travel\rquote s status as a small business and eligibility to have participated in the solicitation at all. Specifically, Intervenors point to Manassas Travel\rquote s complaint in another case in the District of Utah, in which Manassas asserts that it had already begun taking over N & N prior to the date of self-certification as a small business. Given that N & N is an acknowledged large business, it would disqualify Manassas from the protested solicitation if, in fact, it had associated with N & N prior to the certification date. Therefore, Intervenors request that the Court refer this case to the Department of Justice (DOJ) for an investigation of possible fraud. In response, Plaintiffs argue that the Intervenors lack standing to challenge the settlement and submitted the Affidavit of Mr. Mark Pestronk, who assisted Manassas in both the merger with N & N Travel and the proposal for this contract. The Defendant then moved to have Mr. Pestronk appear in open court and be subject to cross-examination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 094 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': Thus, the current posture of this case counsels against further proceedings. The Court has before it what amounts to a challenge to the size of one of the Plaintiffs as of the date it self-certified that it was a small business. In the normal course of affairs, the size determination should be made by the Small Business Administration (SBA). In this case, however, the SBA cannot address this matter because the Plaintiff was not awarded a contract. However, without a justiciable challenge to the settlement, the Court does not think it would be appropriate to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 094 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': Intervenors\rquote Response to Court\rquote s Request to Show Cause why the Case Should not be Dismissed with Prejudice, at 1 (\While Intervenors do not object to the dismissal of this case with prejudice....\); Intervenors\rquote Reply to Plaintiffs\rquote Opposition to Intervenors\rquote Response to Court\rquote s Request to Show Cause why the Case Should not be Dismissed with Prejudice, at 1 (\Intervenors wish to emphasize that it is not their intention to unduly extend this action and they confirm their belief that the matter should be dismissed with prejudice.\). Further, because the settlement agreement itself includes provisions allowing the Defendant to recover for any fraud, dismissing this case will do nothing to impede the Defendant from seeking redress, if it so chooses. The Court wishes to make clear, however, that it is taking no position regarding the merits of the Intervenors\rquote allegations regarding the size of Manassas at the time of its self-certification as a small business. The Court, therefore, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 095 - Cygnus Corp Inc v US.doc, Paragraph with 'The Rule of Two': Cygnus is a small business that has provided general research and support services to AHRQ under Contract No. 290\u821101\u8211001 since November 28, 2000. Administrative Record (AR) at 33. Under this contract, Cygnus provided the same services that are described in the RFP AHRQ\u821106\u8211003 Statement of Work. Cygnus\rquote AHRQ contract was originally set to expire in late 2005. Sometime during the procurement process for the RFP, AHRQ and Cygnus mutually agreed to extend Cygnus\rquote general research and support services contract until January 31, 2006, when AHRQ determined that it needed more time to make its procurement decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 095 - Cygnus Corp Inc v US.doc, Paragraph with 'The Rule of Two': AHRQ initially planned for the new solicitation to be set aside for businesses certified by the Small Business Administration\rquote s (SBA) 8(a) program. Cygnus is not an SBA 8(a) Small Business. On June 24, 2005, Cygnus filed a protest with the Government Accountability Office (GAO) claiming that the set-aside for the SBA 8(a) program would have an adverse financial impact on Cygnus pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 095 - Cygnus Corp Inc v US.doc, Paragraph with 'The Rule of Two': . On July 7, 2005, AHRQ determined that the contract would remain in the small business program and would not be transferred to the SBA. Cygnus withdrew its protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 095 - Cygnus Corp Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that AHRQ\rquote s decision to cancel the RFP violated applicable procurement statutes or regulations. These corollary allegations are grounded in two statutes, the Small Business Act (SBA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 100 - Ryan v US.doc, Paragraph with 'The Rule of Two': , Department of the Air Force, Arlington, VA, and Beverley Hazelwood\u8211Lewis, Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 100 - Ryan v US.doc, Paragraph with 'The Rule of Two': \u182 17. On September 29, 2005, plaintiff filed a timely protest challenging BCP\rquote s alleged HUBZone status and its qualification as a small business under Small Business Administration (SBA) guidelines. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 100 - Ryan v US.doc, Paragraph with 'The Rule of Two': \u182 20, and that BCP was a \qualified HUBZone SBC [Small Business Concern],\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 100 - Ryan v US.doc, Paragraph with 'The Rule of Two': \u182 34. Plaintiff requested that the court \stay award of the contract [to BCP],\ \extend [plaintiff\rquote s] current BASH contract pending the Court\rquote s resolution of this case,\ \determine that BCP is not a qualified small business concern\ or a \qualified HUBZone SBC,\ \direct the Contracting Officer to award the contract to Ryan,\ \award Ryan damages [under] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 002 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': that defendant had established that plaintiff acted with unclean hands, defendant must still justify its delay in presenting its additional evidence to substantiate its charge of unclean hands. This it has failed to do. By way of explanation, defendant\rquote s counsel offers only that he was unaware until September 2005, when the Small Business Administration (the \SBA\) initiated its review of plaintiff\rquote s competency, that plaintiff was contesting the notion that its bid was unauthorized. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 002 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': . The court then extended the preliminary injunction, subject to approval by the Small Business Administration, on August 5, 2005. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': On May 30, 2006, Defendant provided supplemental information in support of its motion to dismiss, indicating that HUD would take the following steps: (1) Reinstate Chapman\rquote s previously awarded contract, but issue a stop work order against the contract so that corrective action can be taken; (2) Issue an amendment to all offerors in the competitive range at both small business and unrestricted competition tiers identifying various changes that have occurred since HUD issued the original solicitation in August 2003; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': review matters raised in the GAO\rquote s January 17, 2006 bid protest decision, as Chapman had initially addressed in a January 27, 2006 submission to HUD containing explanatory materials; and (4) Request a final proposal revision from Chapman, ostensibly the only offeror in the small business tier, prior to requesting and reviewing proposals submitted by other offerors at the unrestricted tier. (May 30, 2006 Second Supplement in Support of Motion to Dismiss, Supp. Declaration of Maureen Musilli, dated May 26, 2006). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The remaining controversy is whether it is reasonable and lawful for HUD to reopen discussions and obtain an updated proposal only from Chapman, or whether Greenleaf also should be included. The issue is complicated by the fact that HUD employed a \cascade\ method of proposal evaluation, in which it first evaluated small business proposals before considering any unrestricted proposals. Chapman is a small business. Greenleaf certified that it was a small business in its initial proposal, but the Chicago Area Office of the U.S. Small Business Administration (\SBA\) sustained a size protest asserting that Greenleaf was other than small. However, the SBA\rquote s Office of Hearings and Appeals (\OHA\) reversed this ruling on February 16, 2006, reinstating Greenleaf as a small business. According to the Contracting Officer, HUD has discretion to consider Greenleaf as a small business and to enter into discussions with it as well, but for other reasons, the Contracting Officer believes the Government\rquote s best interests will be served by conducting discussions only with Chapman. HUD could later consider other offerors\rquote proposals, including Greenleaf\rquote s, if necessary. (Supp. Declaration of Maureen Musilli, \u182\u182 4\u82116). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The issue before the Court is whether HUD\rquote s planned corrective action is reasonable and lawful under the circumstances. Analysis of the agency\rquote s reasonableness must also include consideration of whether Greenleaf is in the small business or the unrestricted tier, and whether it is in the Government\rquote s best interests to hold discussions only with Chapman. In reviewing HUD\rquote s corrective action, the Court is mindful that contracting officers have wide discretion in evaluating bids and applying procurement regulations, and that the Court should not substitute its judgment for that of the agency. The Court reviews the propriety of HUD\rquote s corrective action from the standpoint of whether it has a rational basis, and whether it is in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': AR, Tab 1, at 267. The RFP provided that the non-price factors were \significantly more important than price.\ AR, Tab 1, at 264\u821165. The six non-price factors, in descending order of importance, were: management capability/quality of proposed management plan, past performance, experience, proposed key personnel, subcontract management, and small business subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': For 14 of the 24 geographic areas, including area P\u82112, HUD employed a \cascading\ procedure in which competition would first be considered among only eligible small business concerns. AR, Tab 1, at 267\u821169. If adequate competition among small businesses did not exist, then HUD could make the award on the basis of unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The small business size standard for this procurement was from the North American Industrial Classification System (\NAICS\), Category 531110, \Lessors of Residential Buildings and Dwellings.\ In order to be considered a small business, an offeror\rquote s average revenues could not have exceeded $6,000,000 for the previous three fiscal years. AR Tab 1, at 258; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': By the September 5, 2003 closing date for receipt of initial proposals, HUD received proposals from nine offerors for the P\u82112 area, each of them certifying that they were an eligible small business. AR, Tab 8, at 965. From these nine, HUD made a competitive range determination on April 26, 2004 to keep three offerors in contention for award, including Chapman and Greenleaf. AR, Tab 8, at 965\u821172. Following discussions, the three offerors in the competitive range submitted final proposal revisions in early May 2004. AR, Tabs 9, 10. Upon evaluating the final proposal revisions, HUD selected Greenleaf for award on July 6, 2004. AR, Tab 13, at 2050\u821153. HUD\rquote s Source Selection Officer determined that Greenleaf\rquote s proposal was superior to the other two small business offerors in the competitive range. AR, Tab 13, at 2050\u821153. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': By letter dated July 14, 2004, Chapman filed a size protest with HUD\rquote s Contracting Officer challenging the small business size status of Greenleaf. AR, Tab 15, at 2062\u8211121. The SBA\rquote s Area IV Office in Chicago determined that Greenleaf was other than a small business for the purposes of the HUD procurement, because Greenleaf was affiliated with MCB, its proposed subcontractor. AR, Tab 17, at 2180\u821189. The SBA reviewed the Greenleaf proposal and expressed concern that MCB\rquote s role was that of a joint venture member with Greenleaf, rather than a subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': After the third offeror in the competitive range withdrew from the competition, and following the SBA Area Office\rquote s determination that Greenleaf was not a small business for this procurement, the Contracting Officer determined that adequate competition did not exist in the small business tier, and that HUD could open the unrestricted tier. AR, Tab 31, at 3378\u821179. On April 19, 2005, based upon evaluations of the Chapman and Greenleaf proposals, HUD\rquote s Source Selection Officer again selected Greenleaf for award of the P\u82112 contract. AR, Tab 37, at 3533\u821136. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': B\u8211293105.15, B\u8211293105.16. Chapman asserted that HUD should not have opened the unrestricted tier, because adequate competition existed at the small business tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': In the course of the GAO proceedings, the SBA\rquote s Office of General Counsel submitted a June 2, 2005 letter to the GAO explaining that adequate competition existed at the small business tier when three small businesses were included in the competitive range. AR, Tab 45, at 3781\u821185. Accordingly, the small business set aside should have been maintained, and the award should not have been made to a firm found not to be a small business for this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': (Bruggink, J.); AR, Tab 58, at 4647\u821159. The Court affirmed HUD\rquote s corrective action confining its source selection to the small business tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': On February 16, 2006, SBA\rquote s Office of Hearings and Appeals reversed the earlier decision of the Chicago Area Office, and reinstated Greenleaf as an eligible small business for this procurement. AR, Tab 76, at 7436\u821148. The OHA found that Greenleaf is not unduly reliant upon MCB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': Thus, in the present posture, where HUD would like to reopen discussions and obtain updated proposals from offerors within the small business tier, both Chapman and Greenleaf qualify as eligible small business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': Fourth, under its \cascade\ method of evaluating proposals described in the solicitation, HUD currently has two offerors in the small business tier, as both Chapman and Greenleaf are eligible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': Defendant certainly is aware of these competition rules ingrained in Federal procurement, but argues that Greenleaf cannot be considered in the small business tier because of the effect of two regulations regarding SBA OHA decisions. To summarize the sequence of events, the SBA\rquote s Chicago Area Office found Greenleaf to be other than small in a decision dated July 29, 2004. AR, Tab 17, at 2180\u821189. HUD awarded the current P\u82112 contract to Chapman on September 30, 2005. AR, Tab 60, at 4682\u8211820. The GAO issued its decision on January 17, 2006 questioning the award to Chapman and requiring corrective action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': . The SBA OHA decision reinstating Greenleaf as a small business for this procurement is dated February 16, 2006. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': to allow contracting officers discretion in considering OHA decisions after contract award, but the pending HUD solicitation is dated August 6, 2003. Therefore, says Defendant, the amended regulation does not apply to this procurement, and the contracting officer has no discretion to consider Greenleaf in the small business tier. The comparable FAR provision, found at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': There are at least two problems with Defendant\rquote s failure to give effect to the SBA OHA decision, and its consequent refusal to consider Greenleaf in the small business tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': Until that determination is made, the agency should not consider this procurement as being in the \after contract award\ stage for purposes of interpreting the FAR and SBA regulations. The agency should interpret these regulations as applying to a pre-award circumstance, in which case Greenleaf should be considered in the small business tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': Second, even if the current state of HUD\rquote s procurement could be described as \after contract award,\ it is doubtful that the SBA and FAR provisions regarding SBA OHA decisions were intended to trump the over-arching CICA competition requirements. Most likely, these regulations were intended to promote a public policy of finality in contract award, and to discourage the wasteful practice of changing contractors after performance has begun, instead giving only prospective effect to OHA decisions. In the present case, Chapman has performed no work under its September 30, 2005 contract, and the procurement still is very much in a competitive mode, with the agency desiring updated proposals to a new set of requirements. In light of the fact that Greenleaf was the selected offeror on two prior occasions, and has been reinstated as a small business, HUD would stand logic on its head by now denying Greenleaf the opportunity to compete. Presumably, Greenleaf today would be completing the second year of its contract performance if not for an erroneous SBA Area Office decision in July 2004. AR, Tab 17, at 2180\u821189. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The outcome described above is in accord with sound procurement policy. The Government will emerge a beneficiary, as it will certainly enhance competition to allow Greenleaf and Chapman to compete in the reopened negotiations. The integrity of the procurement process also is enhanced, where both entities in the small business tier will have the opportunity to submit proposals in response to amended agency requirements. For the agency to exclude Greenleaf from competing in the small business tier where the SBA OHA has recently ruled that Greenleaf is a small business would lack any rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 004 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The Court appreciates that HUD is facing a potential time constraint with the impending June 30, 2006 expiration of MCB\rquote s current \bridge\ contract\u8212HUD must have these M & M services in place at all times. However, HUD may well be able to conduct the necessary discussions, and obtain and evaluate updated proposals, before the June 30, 2006 expiration date. If more time is needed, HUD should be able to reach some accommodation with MCB to continue M & M services for a short time. To the extent that a time constraint exists, it is largely of the agency\rquote s own making. HUD knew or should have known shortly after the SBA OHA decision on February 16, 2006 that Greenleaf had been reinstated as a small business. At that point, the agency could have begun the process described herein. Although the available time until June 30, 2006 is now more compressed, HUD simply must observe the overriding competition requirements even if it means working on an expedited basis to achieve its objectives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 006 - TransAtlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': The issues that we addressed in connection with plaintiff\rquote s petition for an injunction were (1) whether the contracting officer made a reasonable effort to insure that Strong Vessel\rquote s refrigerated cargo containers would meet the standards called for in the solicitation; and (2) whether the Agency allowed Strong Vessel to avoid Small Business Administration regulations governing limitations on labor costs. We found that the contracting officer did not make a reasonable inquiry to insure that Strong Vessel\rquote s refrigerated cargo containers met the Government\rquote s needs and that he did not enforce statutes and regulations applicable to small business concerns. The Agency\rquote s position cannot be considered reasonable or justified for as contemplated by EAJA for reasons stated in the Opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 010 - PHT Supply Corp v US.doc, Paragraph with 'The Rule of Two': On April 26, 2005, the United States, acting through the U.S. Army Tank\u8211Automotive & Armaments Command, Rock Island Arsenal (TACOM\u8211RI) in Rock Island, Illinois, issued Solicitation No. W52H09\u821104\u8211R\u82110119, for the purchase of magazine cartridges to be used with M9 9 millimeter semiautomatic pistols. The contract was designated as a 100% small business set-aside. AR at 119. The solicitation sought competitive proposals from eligible businesses for a firm, fixed-price, five year Indefinite Delivery/Indefinite Quantity (ID/IQ) contract period. The solicitation also guaranteed that the contract would result in a minimum order of 900,000 units and a maximum order of 14,000,000 units. Further, award would be made to the offeror whose proposal offered the best overall value to the government, based on an integrated assessment of past performance and price. Past performance was described as \slightly more important\ to the agency\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 010 - PHT Supply Corp v US.doc, Paragraph with 'The Rule of Two': PHT, Airtronic, and three other small businesses submitted offers in response to the solicitation. After initial reviews, however, two were deemed ineligible for the award. Acting through its source selection authority (SSA) and contracting officer (CO), Marc E. Lemon (Lemon), as well as an eight member evaluation team, TACOM\u8211RI then conducted a complete review of the proposals from the three remaining offerors. The agency\rquote s critiques of the proposals from PHT and Airtronic, which are at the heart of this litigation, are summarized below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Company that had previously been awarded contracts under the Small Business Administration\rquote s Historically Underutilized Business Zone program (HUBZone) filed post-award bid protest against the United States, protesting Air Force\rquote s decision to grant and award contract for recycling and solid waste management services at Air Force base via a sole source solicitation, and alleging that failure to set the contract aside for HUBzone violated applicable statutes and regulations and also lacked a rational basis. Contract awardee intervened as a defendant. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s decision not to set aside contract for recycling and solid waste management services at Air Force base for the Small Business Administration\rquote s Historically Underutilized Business Zone program (HUBZone) was not contrary to law and did not lack a rational basis, where Air Force had rational basis for determining that fewer than two responsible qualified HUBZone concerns would submit offers, and the initial responsibility determination was within the discretion of the Air Force. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force awarded Waste Management a contract for solid waste disposal at Fairchild Air Force Base (\Fairchild AFB\) after determining that Waste Management was the only responsible source for the waste disposal services. Similarly, because the Air Force determined that it would not receive two or more bids from qualified, responsible sources, the Air Force did not set-aside the contract at Fairchild AFB for the Small Business Administration\rquote s Historically Underutilized Business Zone program (\HUBZone\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': But this is not the only exception to full and open competition in government contracts. Other government programs, such as those promulgated under the Small Business Act (Chapters 14 and 14A of 15 U.S.C.), are designed to \aid, counsel, assist and protect\ small-business concerns in order to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The purpose of the Act is to ensure the attainment of a \Government-wide goal for participation by small business concerns [in Government contracts]....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The [Small Business Administration (the \SBA\) ] is charged with carrying out the policies of the Act and issuing such rules and regulations as it deems necessary. In order to realize this goal, federal agencies, acting in concert with the SBA, are empowered to establish small business set-asides for contract solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': and is designed to aid small businesses that are located in economically disadvantaged or distressed areas. As required by the program, \a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone concerns will submit offers and that the award can be made at fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': On April 12, 2004, Blue Dot filed a complaint in the Court of Federal Claims alleging that the Air Force\rquote s sole-source solicitation and its subsequent award to Waste Management violated applicable statutes and regulations and that the sole-source solicitation and award were arbitrary and capricious. Blue Dot sought preliminary and permanent injunctions barring the Air Force from awarding a sole-source contract to Waste Management. It also sought an order that either awarded the contract to Blue Dot or re-opened the solicitation and set-aside the procurement for HUBZone small business concerns only. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': upon which to require an awardee to have a WUTC solid waste disposal certificate before bidding for the contract. Second, the Court of Federal Claims determined that there was no rational basis upon which the Air Force could reasonably expect to receive less than two responsible offers from qualified HUBZone small businesses, and thus the Air Force\rquote s decision to not set aside the contract for HUBZone similarly lacked a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': According to the Court of Federal Claims, \under the HUBZone Small Business Program, it is the SBA, not the Air Force, that has the authority \u8216[t]o certify to Government procurement officers ... with respect to all elements of responsibility....\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility ..., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Thus, in making its initial decision whether to set-aside the contract for HUBZone, the Air Force must make the initial responsibility determinations about the HUBZone small business concerns. Where the Air Force determines that two or more responsible qualified HUBZone concerns will submit offers, then the award is set-aside. Where the Air Force determines, however, that fewer than two will submit offers, the Air Force is not required to set the award aside. Thus, this initial responsibility determination is not one which requires a referral or conferral with the SBA. As the Comptroller General has stated, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Lastly, the Court of Federal Claims determined that the Air Force lacked a rational basis in deciding not to set-aside the contract for HUBZone. Specifically, it held that the Air Force lacked a rational basis in determining that it would not receive two or more responsible offers from HUBZone small business concerns. But as described above, the Air Force did rationally require a WUTC certificate when it made its decision that there existed only one responsible source. As Waste Management was the only responsible source, the Air Force had a rational basis for determining that there would be fewer than two responsible HUBZone sources. As a result, the Air Force\rquote s decision to not set-aside the contract at Fairchild AFB evinced rational reasoning and considered relevant factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 018 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': No other company held a WUTC certificate for Fairchild AFB even though nothing prevented Blue Dot from applying for such a certificate before or after learning about the Air Force\rquote s solicitation of the disposal contract. Similarly, the Air Force itself properly made responsibility determinations about the HUBZone small business concerns, and it properly decided not to set-aside the contract at Fairchild AFB for HUBZone. Accordingly, we find on appeal that the Air Force did not violate statutes or regulations and its decision evinced rational reasoning, and we therefore reverse. The issue of bid preparation costs is rendered moot by our decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 021 - Rig Masters Inc v US.doc, Paragraph with 'The Rule of Two': The Corps of Engineers is responsible for the operation, maintenance, repair, inspection, reconstruction, and rehabilitation of certain recreational facilities in Northern Mississippi. These facilities are located at Lakes Grenada, Enid, Sardis, and Arkabutla. The Corps issued a Solicitation for Competitive Proposals for a contractor that would carry out these duties for one year, with four single-year options. The Corps restricted the procurement to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 021 - Rig Masters Inc v US.doc, Paragraph with 'The Rule of Two': Rig Masters protested Ferguson\rquote s small business status on August 26. AR 16. The Small Business Administration dismissed the protest on September 8, and reaffirmed the dismissal upon Rig Masters\rquote request for reconsideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': determination of Small Business Administration (SBA) not to issue certificate of competency (COC) for contractor was not arbitrary or capricious; and (COC) review by the SBA is required in a sole source 8(a) program procurement when contracting agency makes a nonresponsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': Determination of Small Business Administration (SBA) not to issue certificate of competency (COC) for contractor who submitted proposal in sole source procurement under the SBA 8(a) program was not arbitrary and capricious, despite contractor\rquote s contention that SBA succumbed to pressure from contracting agency in denying the COC after initial recommendation of district director to issue COC. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': Certificate of competency (COC) review by the Small Business Administration (SBA) is required in a sole source 8(a) program procurement when contracting agency makes a nonresponsibility determination. Small Business Act, \u167 2[8] (b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': , United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': The April 2000 contract required GS Tech to provide support services for the Southeast Region Campus of the AmeriCorps* National Civilian Community Corps (NCCC), a component of CNCS. Def.\rquote s SOF \u182\u182 6, 8. The April 2000 contract was awarded through the Small Business Administration\rquote s (SBA)\rquote s 8(a) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': The 8(a) Program was enacted in its present form by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (B) to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': AR at 602 (Letter from CNCS Contracting Officer Patricia Holliday to the SBA) (\Subject: Request for authorization to obtain the services of UEA under Section 8(a) of the Small Business Act by contract with the Small Business Administration\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (requiring contracting officer to refer \apparent [nonresponsible] low small business offeror ... to SBA for a possible COC prior to rejecting the offeror\rquote s proposal\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': ). The stated policy of the Small Business Act is to \aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': ) established a program that authorizes the Small Business Administration (SBA) to enter into all types of contracts with other agencies and let subcontracts for performing those contracts to firms eligible for program participation. The SBA\rquote s subcontractors are referred to as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': The SBA uses the NAICS codes to determine whether an entity qualifies as a \small business concern,\ generally by reference to the number of employees or the amount of annual receipts, for different classes of economic activity or industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (b) The COC program empowers the [SBA] to certify to Government contracting officers as to all elements of responsibility of any small business concern to receive and perform a specific Government contract. The COC program does not extend to questions concerning regulatory requirements imposed and enforced by other Federal agencies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (b) No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': states: \A contracting officer must, upon determining an apparent low small business offeror to be nonresponsible, refer that small business to SBA for a possible COC ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting ...) the contracting officer shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (1) A notice that a small business concern has been determined to be nonresponsible, specifying the elements of responsibility the contracting officer found lacking .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': states, in pertinent part: \Within 15 business days ... after receiving a notice that a small business lacks certain elements of responsibility, the SBA Area Office will ... [,] [a]t the completion of the process, notify the concern and the contracting officer that the COC is denied or is being issued.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (7)(A) To certify to Government procurement officers ..., with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the [SBA]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (1) The Certificate of Competency (COC) Program is authorized under section 8(b)(7) of the Small Business Act. A COC is a written instrument issued by [the] SBA to a Government contracting officer, certifying that one or more named small business concerns possess the responsibility to perform a specific Government procurement (or sale) contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (2) A contracting officer must, upon determining an apparent low small business offeror to be nonresponsible, refer that small business to [the] SBA for a possible COC, even if the next low apparently responsible offeror is also a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (3) A small business offeror referred to [the] SBA as nonresponsible may apply to SBA for a COC..... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (1) A contracting officer who determines that an apparently successful offeror that has certified itself to be a small business with respect to a specific Government procurement lacks any element of responsibility (including competency, capability, capacity, credit, integrity or tenacity or perseverance) must refer the matter in writing to the SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': By the terms of the Act, a COC is conclusive as to responsibility. Where [the] SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': A number of other federal regulations, including provisions of the FAR pertaining to small business programs (48 C.F.R. Chapter 1, Subchapter D, Part 19) and contractor qualifications (48 C.F.R. Chapter 1, Subchapter B, Part 9), discuss the SBA\rquote s COC review program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (b) The COC program empowers the Small Business Administration (SBA) to certify to Government contracting officers as to all elements of responsibility of any small business concern to receive and perform a specific Government contract.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': upon determining an apparent successful small business offeror to be nonresponsible, refer that small business to the SBA for a possible COC, even if the next acceptable offer is also from a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': states, in pertinent part: \In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': states, in pertinent part: \If a small business concern\rquote s offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': states, in pertinent part: \If the contracting officer determines and documents that a responsive small business lacks certain elements of responsibility, the contracting officer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': , which provides that \[a] Government procurement officer ... may not, for any reason specified in the preceding sentence [concerning elements of responsibility], preclude any small business concern or group of such concerns from being awarded [a specific government] contract without referring the matter for a final disposition to the [SBA]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations; 8(a) Business Development/Small Disadvantaged Business Status Determinations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': Minority Small Business and Capital Ownership Development Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': . However, the SBA\rquote s discussion in the Federal Register of the procedure to apply when an agency determines that a prospective sole source 8(a) Program contractor is non-responsible appears to the court to be inconsistent with the clear mandate of Congress that \[a] Government procurement officer ... may not, for any reason specified in the preceding sentence [concerning elements of responsibility], preclude any small business concern or group of such concerns from being awarded [a specific government] contract without referring the matter for a final disposition to the [SBA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\The COC program is applicable to all Government acquisitions. A contracting officer shall, upon determining an apparent successful small business offeror to be nonresponsible, refer that small business to the SBA for a possible COC ....\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. If the prospective contractor is a small business concern, the contracting officer shall comply with subpart 19.6, Certificates of Competency and Determinations of Responsibility.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\If a small business concern\rquote s offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer shall refer the matter to the [SBA], which will decide whether or not to issue a[COC] (see subpart 19.6). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\If the contracting officer determines and documents that a responsive small business lacks certain elements of responsibility, the contracting officer shall comply with the procedures [for COC review] in subpart 19.6.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\[R]egardless of whether a small-business set-aside is involved, before rejecting a small business\rquote s bid on grounds of non-responsibility, an agency must refer the matter to the SBA, which, in its discretion, may issue a COC.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\By the terms of the [Small Business] Act, a COC is conclusive as to responsibility. Where SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (\SBA COC[ ]s are conclusive with respect to all elements of responsibility of prospective small business contractors.\). In contrast, simply \appeal[ing] the procuring agency\rquote s decision to the head of the procuring agency,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': 19 Nash & Cibinic Report, No. 6, \u182 30 (June 2005) (Nash & Cibinic), at 92 (Steve Feldman, commenting on this issue in a letter to Professor Cibinic) (\To an extent, the[se] ... regulations require the referral of any small business concern to the SBA for a possible COC whenever the agency deems the firm nonresponsible. Thus, an important inconsistency exists in the FAR and the [Code of Federal Regulations] on the COC referral process for apparently nonresponsible 8(a) concerns in sole-source 8(a) procurements.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': available \when a procuring agency contracting officer,\ rather than the SBA, \questions the responsibility of a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': is designed to help small businesses overcome the hesitanc[y] a procuring agency may have in awarding an ordinary contract to a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': (explaining that the COC process \is provided by law to protect small businesses from arbitrary nonresponsibility determinations made by procurement agencies.\)). The court continued, \[S]mall businesses benefit from the COC program because it gives them an opportunity to have the SBA rather than a procuring agency determine their responsibility ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': However, defendant cites, and the court has found, no statute, regulation, statutory or regulatory history, or case indicating that where a small business concern is operating under the 8(a) Program, the SBA may ignore the mandates of section 8(b). Nor does defendant account for the numerous current regulations cited in this footnote indicating that the COC process, implemented by section 8(b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 024 - United Enterprise And Associates v US.doc, Paragraph with 'The Rule of Two': Tr. at 37:3\u821138:19 (Ms. Lewis, SBA counsel, explaining that \[the COC provisions are] for the more general small business contracting [and] small business companies, as opposed to just 8(a) companies,\ and answering, in response to the court\rquote s query as to \why [\u167 8](b)(1)(A) is applicable to 8(a) contracts and [\u167 8](b)(7)(A) is not,\ that she \can see [the court\rquote s] point .... It\rquote s just that the [SBA] has interpreted 637(b) ... not to be required ... for 8(a) contracting.\). Given the resolution of the case on other grounds, the court need not resolve the propriety of the government\rquote s contention that the SBA is not required to apply Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 029 - Systems Plus Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation sought a supplier for a variety of services in support of the computing, telecommunication, and software functions in use at DOL. AR Tab 2 \u182 2. This contractual award was designated as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 029 - Systems Plus Inc v US.doc, Paragraph with 'The Rule of Two': \u182 1. DOL invited approximately a dozen holders of existing GSA Federal Supply Schedule contracts to participate in the competition. AR Tab 2 \u182 1, Tab 4 (Invitation letters to potential suppliers). At the time the RFQ was issued, DOL believed that each of these businesses qualified as a small business, although one of the businesses, Sytel, was later disqualified when DOL determined that it no longer satisfied the small-business criteria. AR Tab 2 \u182 4. Plaintiff Systems Plus and intervening defendant NetStar were among those suppliers invited to participate. AR Tab 4 at 1\u82115. Systems Plus and NetStar had both performed work for DOL\rquote s ITC prior to the solicitation. Systems Plus had performed work for ITC for approximately seven years, and NetStar for approximately two years (as a subcontractor to another entity). AR Tab 1 (Agency Memorandum of Law, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 029 - Systems Plus Inc v US.doc, Paragraph with 'The Rule of Two': Vendors supplied the requested responses. AR Tab 11 (Systems Plus Clarifications), Tab 12 (NetStar Clarifications), Tab 16 (Determination of Best Value). Sytel was eliminated from the competition and was not included in the final evaluations because DOL determined that Sytel no longer qualified as a small business. Tab 18 (Letter from John Huotari, DOL Contracting Officer, to Jeanette Lee White, President, Sytel (Sept. 7, 2005)); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': An agency\rquote s judgment regarding whether a small business will comply with the subcontracting limitation involves a responsibility determination, which is a matter committed to the discretion of the contracting officer; however, the contractor\rquote s actual compliance with the subcontracting limitation is a matter of contract administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': Administrative Record (AR) at 24\u821127 (solicitation synopsis). The solicitation was restricted to service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Facts \u182 4; AR at 28 (Hawk\rquote s request for copy of solicitation), 29 (Precision\rquote s request for copy of solicitation), 692 (Shubhada\rquote s request for technical data package). AMCOM determined that only Precision and Hawk were eligible service-disabled veteran-owned small businesses. Def.\rquote s Facts \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': On May 13, 2005, Precision filed a protest with AMCOM challenging the award on, among other grounds, the basis that Hawk did not meet the service-disabled veteran-owned small business eligibility requirement. Def.\rquote s Facts \u182 10; AR at 845\u821156 (Precision\rquote s protest to AMCOM). By letter dated May 16, 2005, the contracting officer informed Precision that \[p]er the solicitation, we awarded the contract to the low responsible offeror.\ AR at 841 (fax confirmation of letter dated May 16, 2005 from AMCOM to Precision). The contracting officer explained that \[p]rice was the only factor considered for this award.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': In addition, AMCOM forwarded the protest to the Small Business Administration (SBA), as is required under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': for a determination of Hawk\rquote s status as a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': The SBA determined that Hawk was a service-disabled veteran-owned small business and dismissed the protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': AR at 73 (solicitation, Section L\u821118 (exempting offerors that are small businesses from the requirement of submitting a subcontracting plan)); and, second, based on Hawk\rquote s alleged failure to submit the required representations and certifications pursuant to Section K of the solicitation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': Facts \u182 4 (although three prospective offerors originally requested and were issued \the solicitation and associated technical data,\ defendant determined that \only P[recision] and Hawk were eligible service-disabled veteran-owned small businesses.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': . While this limitation is incorporated into the solicitation, the solicitation also states that \offerors that are small businesses\ are not \required\ to submit a subcontracting plan that would demonstrate their compliance with the limitation on subcontracting. AR at 73 (solicitation, Section L\u821118 (\[Subcontracting plans] are not required from offerors that are small businesses.\)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': AR at 646\u8211705. The offerors did not submit subcontracting plans because section L\u821118 of the solicitation provided that such plans were not required of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': (unpublished table decision). An agency\rquote s judgment regarding whether a small business will comply with the subcontracting limitation involves a responsibility determination, which is a matter committed to the discretion of the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'The Rule of Two': The regulation requires the \contracting officer ... [to] forward to SBA any non-premature protest received\ challenging the apparent successful offeror\rquote s status as a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 034 - Jana-Rock Const Inc v New York State Dept of Economic Development.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](d)(3)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 034 - Jana-Rock Const Inc v New York State Dept of Economic Development.doc, Paragraph with 'The Rule of Two': The USDOT program incorporates by reference the Small Business Act\rquote s definition of disadvantaged business enterprise (DBE), which creates a presumption of DBE status for \Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 034 - Jana-Rock Const Inc v New York State Dept of Economic Development.doc, Paragraph with 'The Rule of Two': (declaring that Hispanics are presumptively socially and economically disadvantaged for purposes of the Small Business Act). But these sources do not answer the more particular question of whether Spanish persons suffer the same kind and degree of discrimination as Hispanics included within New York\rquote s definition of the term. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 037 - Mills v US.doc, Paragraph with 'The Rule of Two': The Request allowed an awardee who qualified as a small business under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 037 - Mills v US.doc, Paragraph with 'The Rule of Two': Compl. Ex. A at 21. In his bid, Plaintiff did not check the box indicating a small business status and his desire to have the Forest Service construct the roads. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor which was rendered ineligible to bid as a small business on two follow-on solicitations as a result of Small Business Administration (SBA) proceedings in which it did not participate brought suit against the United States alleging violations of its constitutional due process rights, the Administrative Procedure Act (APA) and SBA regulations. Plaintiff filed motion for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction to review decisions of the Office of Hearings and Appeals (OAH) of the Small Business Administration (SBA) which changed small business code designations in solicitations, where decisions had the effect of rendering incumbent contractor ineligible to bid on solicitations, resulting in pre-award bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Dispute in which incumbent contractor challenged decision of the Office of Hearings and Appeals (OAH) of the Small Business Administration (SBA) which changed small business code designations in solicitation, rendering it ineligible to bid, was justiciable, notwithstanding government\rquote s contention that any relief could only be prospective under procurement regulation since OAH decision was received after due date of initial offers, as Court of Federal Claims could set a new date for submission of initial offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor which was rendered ineligible to bid on follow-on solicitations by decisions of the Small Business Administration (SBA) changing small business code designations in solicitations was entitled to preliminary injunction enjoining awarding contracts pursuant to solicitations, considering likelihood of success on the merits of contractor\rquote s claim that SBA committed prejudicial errors, that contractor would be irreparably harmed if injunctive relief were withheld, and that public interest in integrity of procurement process would be served by injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest raises a novel issue about the extent to which the Small Business Administration (SBA) must permit potential bidders to participate in its appeal proceedings challenging the small business code designation in a solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff claims that it was rendered ineligible to bid as a small business on two solicitations as a result of SBA proceedings in which it did not participate and alleges violations of its Constitutional due process rights, the Administrative Procedure Act (APA) and SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Advanced Systems Technology, Inc. (AST), currently serves as the incumbent contractor on two United States Army contracts supporting the Training and Doctrine Command Analysis Centers (TRAC) at Ft. Levenworth, Kansas and the White Sands Missile Range, New Mexico. A competing bidder filed a successful appeal of the small business size code designations in the follow-on solicitations, and Plaintiff did not have an opportunity to participate in those appeal proceedings at SBA\rquote s Office of Hearings and Appeals (OHA). AST later filed its own appeals of these size code determinations, but OHA dismissed them without considering AST\rquote s arguments on grounds that it had already considered all potential NAICS codes for these solicitations. Plaintiff asks the Court to vacate SBA\rquote s decisions changing the NAICS code provisions and dismissing its appeals and to remand the matter to OHA, instructing OHA to consider AST\rquote s views on the proper NAICS code designations. Because the changes in the NAICS codes render Plaintiff ineligible to compete as a small business, it seeks an injunction preventing award under these solicitations using the current NAICS codes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': In August 2005, the Army Contracting Agency (ACA), Northern Region Contracting Center issued solicitation 008 for a multiple-award contract, a follow-on solicitation for work currently being performed by AST at Ft. Leavenworth. One award under this solicitation was set aside for small businesses. Under solicitation 008, the Army is procuring studies and analyses in support of TRAC\rquote s mission requirements including: operations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': analyses, experimentation, warfighting scenarios, combat modeling and simulations, operational effectiveness analysis, and planning and decisional aids. AR at 64. This solicitation originally carried NAICS code 541710, with a corresponding 500\u8211employee standard for small business. Under this code, AST was eligible to bid on the small business set-aside award as a small business. On August 30, 2005, ACA issued solicitation 0011 for services to be provided in support of TRAC White Sands. The solicitation was limited solely to small businesses and had a NAICS code of 541710 with a corresponding 500\u8211employee size standard. AST was also the incumbent contractor performing these services, and was eligible to bid on solicitation 0011 as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act grants SBA the power to establish size standards and other criteria for qualification as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': . SBA\rquote s size standards \define whether a business entity is small and, thus, eligible for Government programs and preferences reserved for \u8216small business\rquote concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': . To determine which entities qualify as small business concerns, SBA uses the North American Industry Classification System. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': SBA determines which firms qualify as small businesses to assure that a fair proportion of government contracts for goods and services are performed by such entities in each industry category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': . To accomplish this, SBA specifies the maximum number of employees or maximum annual receipts needed for qualification as a small business within a particular NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': The procuring agency contracting officer, or authorized representative, designates the proper NAICS code and size standard in a solicitation, selecting the NAICS code which best describes the principal purpose of the product or service being acquired. Primary consideration is given to the industry descriptions in the NAICS United States Manual, the product or service description in the solicitation and any attachments to it, the relative value and importance of the components of the procurement making up the end item being procured, and the function of the goods or services being purchased. Other factors considered include previous Government procurement classifications of the same or similar products or services and the classification which would best serve the purposes of the Small Business Act. A procurement is usually classified according to the component which accounts for the greatest percentage of contract value. Procurements for supplies must be classified under the appropriate manufacturing NAICS code, not under the wholesale trade NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': On August 19, 2005, RhinoCorps, Ltd. (RhinoCorps) filed an appeal of the NAICS code in solicitation 008, alleging that a more restrictive NAICS code was appropriate. As reflected in an e-mail attached to the Army\rquote s response to RhinoCorps\rquote appeal, the contracting officer and the Army\rquote s small business utilization specialist supported using the original NAICS code 541710. AR at 996. The e-mail stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': From a small business view this NAICS would bring in the stronger small businesses to compete that could handle the dollar and complexity of the acquisition, and have both the financial capability and past performance. I have discussed with Deanna McKeel and she concurs with my recommendation to use the 541710 NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': On September 23, 2005, OHA issued a decision changing the NAICS code to 541690 which imposes a $6\u8211million annual receipts standard. Plaintiff is ineligible to bid as a small business under the new code because its annual receipts exceed $6 million. In its decision, OHA considered three possible NAICS codes\u8212the original code designated by the contracting officer, the code proposed by RhinoCorps, and the code ultimately chosen by OHA. OHA determined that the solicitation called for the contractor to provide \consulting services on issues of military policy, doctrine and concepts,\ and would require the contractor to conduct \studies into the art and science of warfare, and [to support] TRAC in its mission to study warfare.\ AR at 142\u821143. Based on this assessment, OHA concluded that NAICS Code 541690, which covers \establishments primarily engaged in providing advice and assistance to businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': AST learned through the grapevine that an appeal might have been made and moved to intervene in the appeal on October 5, 2005. OHA denied the motion to intervene on the ground that the record had closed on September 28, 2005. Pl.\rquote s Ex. G. On October 7, 2005, OHA issued a final decision finding that the appropriate code for solicitation 0011 was 541511, a $21\u8211million annual receipts standard. AST is ineligible as a small business under this code. In its decision, OHA considered the services being procured in the solicitation, the NAICS code designated by the contracting officer, the NAICS code recommended by RhinoCorps, and the NAICS code it ultimately chose. OHA concluded that although the solicitation\rquote s Performance Work Statement was diverse, the majority of the services involved computer software, modification, testing, or supporting services. AR at 399\u8211400. OHA found NAICS code 541511 (Writing, Modifying, Testing, and Supporting Software) to be most appropriate because this type of expertise \is critical for performance of the contract.\ AR at 401. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Defendant argues that AST lacks standing to challenge solicitation 008 and that its protest as to that solicitation is not justiciable because even if OHA were to change the NAICS code such that Plaintiff could qualify as a small business, the FAR mandates that such a change would only apply to future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': . Defendant asserts that the Court\rquote s fashioning of the relief AST requests with respect to solicitation 008\u8212a new NAICS code\u8212would only apply prospectively and would not affect its status as a small business on the 008 procurement, thereby making this issue nonjusticiable. As the Court of Federal Claims has recognized, a dispute is not justiciable if a court lacks the ability to supply relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': However, Plaintiff here has requested relief which would affect its status as a small business in the 008 procurement. Plaintiff asks that the Court remand the matter to OHA with instructions to have the Army reestablish a new due date for initial offers at a time after OHA considers and rules on AST\rquote s appeal. Pl.\rquote s 2d Supp. at 6 n. 2. Because the conduct challenged is a cascading illegality\u8212the OHA process and the resultant NAICS code and its insertion into the solicitation rendering Plaintiff ineligible, Plaintiff seeks injunctive relief to restore the procurement to the status quo ante before it was tainted by OHA\rquote s unfair process, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': For these same reasons AST also has standing to challenge the NAICS code in solicitation 008. Based upon its pleading and requested relief, AST has a substantial chance of award\u8212if the Court were to grant its protest and set a new date for submission of initial offers, Plaintiff would be able to bid as a small business on solicitation 008. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': in an administrative proceeding. Rather, the determination of a NAICS code for a given solicitation carries with it the ability to exclude entities from bidding on a small business set aside procurement\u8212a serious ramification for small businesses which compete in the federal procurement arena. OHA\rquote s process as applied here rendered AST ineligible to compete as a small business in two procurements due to changes in the solicitations\rquote NAICS codes without affording it any opportunity to participate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': The Court recognizes that the procedure SBA has adopted for NAICS code appeals is an odd duck in the continuum of administrative adjudications. Although the rules do not permit discovery or an oral hearing, they do have many earmarks of an adversarial adjudicative process\u8212they permit written argument, allocate the burden of proof to the appellant, establish OHA\rquote s standard of review as clear error and require OHA to set forth findings of fact and conclusions of law, as well as reasons for such determinations and for any relief ordered. On the other hand, the purpose of a NAICS code appeal is not to determine a bidder\rquote s eligibility as a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff will be irreparably harmed if it remains ineligible to bid on these solicitations as a small business because the solicitations contain improper NAICS codes it had no opportunity to challenge. Less harm will inure to third parties. During the pendency of the preliminary injunction, the Army can continue to acquire the services uninterrupted through March 27, 2006. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': SBA uses the North American Industry Classification System (NAICS) to establish size standards governing what entities qualify as small businesses for preferences or eligibility under government programs and procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff cannot establish that its Constitutional due process rights were violated. AST does not have a protected property or liberty interest in OHA\rquote s designation of a NAICS code that would enable it to qualify as a small business in a given procurement. It is well established that there is no Constitutionally protected property interest in a government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 039 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, in the OHA appeal regarding solicitation 008, no other party advocated the same code as AST since the contracting officer did not participate. OHA did not consider the e-mail from the Army\rquote s Associate Director, Small and Disadvantaged Business Utilization Specialist stating that she and the contracting officer recommended the original code, which AST also advocated, because it would \bring in the stronger small business ... that could handle the dollar and complexity of the acquisition, and have both the financial capability and past performance.\ AR at 996. OHA did not consider this e-mail because it had not been served on RhinoCorps. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 040 - CC Distributors Inc v US.doc, Paragraph with 'The Rule of Two': . CCD contends that where, as here, Maratech\rquote s prices were \unreasonably low\ the CO should have made a determination of non-responsibility and referred the matter to the Small Business Administration for a Certificate of Competency pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest against the United States seeking an order that the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) consider its appeals of designation of small business size codes in two solicitations. Small business corporation certified by the SBA as a HUBZone small business moved for leave to file an amicus curiae brief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': In this pre-award bid protest Plaintiff, Advanced Systems Technology, Inc. (AST), asks this Court to order the Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) to consider its appeals of the designation of small business size codes in two solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': AST currently serves as the incumbent contractor on two Army contracts supporting the Training and Doctrine Command Analysis Centers (TRAC) at Ft. Levenworth, Kansas and the White Sands Missile Range, New Mexico. A competing bidder filed successful appeals of the small business code designations in the follow-on solicitations, and Plaintiff did not have an opportunity to participate in those appeal proceedings at OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Because the changes in the NAICS codes render Plaintiff ineligible to compete as a small business, it seeks an injunction preventing award under these solicitations using the current NAICS codes and requiring SBA to consider Plaintiff\rquote s arguments in support of using the original codes. Plaintiff asks the Court to remand the matter to SBA\rquote s OHA, instructing OHA to afford it an opportunity to present its views on the proper NAICS code designation for each solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': Alatec is a for-profit service-disabled veteran-owned small business corporation organized under the laws of Alabama. Alatec Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': provides engineering and professional services to the federal government, operates in a historically underutilized business zone (HUBZone), and is certified by SBA as a HUBZone small business. According to Alatec, its existence and plans for growth depend upon the Small Business Act, and Alatec opposes any relief sought by Plaintiff that may lead to redefinition of any regulations, guidelines, or procedures that implement the Small Business Act. Alatec is represented on the pending motion and proposed amicus brief by Sammy L. McNully, a vice president of Alatec. Alatec\rquote s motion papers do not represent that Mr. McNully is an attorney. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': In its motion, Alatec indicates that it has \a vital interest in the core Small Business Act goal of opening Federal Government markets to the products, services, and innovations of small businesses,\ and argues in support of the small business code classifications which render Plaintiff ineligible under the solicitations at issue. Both Plaintiff and Defendant oppose Alatec\rquote s motion because Alatec is not represented by counsel as required by United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'The Rule of Two': SBA now uses the Northern American Industry Classification System (NAICS) to determine the size of a small business in a given industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Donald RUMSFELD, in his representative capacity as Secretary of Defense; Hector V. Barreto, Jr., in his representative capacity as Administrator of the Small Business Administration, Defendants\u8211Appellees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Government contractor that qualified for small-business set-asides but did not qualify as Historically Underutilized Business Zone (\HUBZone\) small business challenged Navy\rquote s designation of certain contract bid solicitations as HUBZone-only, and challenged Small Business Administration\rquote s (SBA) authorization of that designation. The United States District Court for the District of Hawaii, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Act\rquote s requirement that HUBZone small business have its principal office in HUBZone area did not require that HUBZone contracts be awarded exclusively for work to be performed within HUBZone areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Mandatory nature of implementing regulations for Small Business Act\rquote s Historically Underutilized Business Zone (\HUBZone\) program, i.e. requirement that agency contracting officer make HUBZone designation for contract if he expects that at least two HUBZone small businesses will submit offers and determines that award can be made at fair market price, comported with Act, regardless of fact that Act section creating separate special program, for disadvantaged small businesses, left it to agency discretion to initially place given contract within program; language of Act sections creating respective programs was materially different. Small Business Act, \u167\u167 2[8](a)(1)(A), (D), 2[31](b)(2), as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Act\rquote s requirements that Historically Underutilized Business Zone (\HUBZone\) small business have its principal office in HUBZone area, with at least 35% of its employees residing in such areas, did not require that HUBZone contracts be awarded exclusively for work to be performed within HUBZone areas; thus, implementing regulations allowing HUBZone businesses to bid on contracts nationwide comported with Act. Small Business Act, \u167 2[3](p), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Appellant Contract Management Industries (\CMI\) brings this suit challenging the implementation of the Small Business Administration\rquote s (\SBA\) \HUBZone Program.\ The district court granted summary judgment to the Government. We have jurisdiction under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': CMI has provided custodial services at the Pearl Harbor Naval Base and Shipyard (\Pearl Harbor\) since 1985. At the time CMI brought this suit, it held four contracts at Pearl Harbor, all of which were awarded as small-business set-asides under the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In December 2002, the Navy combined the four contracts then being performed by CMI with other custodial contracts, consolidating them into three new contract solicitations. One such contract, Solicitation No. N62742\u821103\u8211R\u82112216, which includes custodial work from two of CMI\rquote s former contracts, was re-designated under the Small Business Act\rquote s HUBZone Program. It excluded CMI because, although it qualifies as a small business under the Small Business Act, it is not a HUBZone small business. CMI therefore faced the prospect of losing a portion of its custodial work with the Navy and brought suit to stop the Navy from awarding the solicitation to another company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Congress enacted the Small Business Act in 1953 to \aid, counsel, assist, and protect, insofar as possible, the interests of small-business concerns ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The purpose of the Act is to ensure the attainment of a \Government-wide goal for participation by small business concerns [in Government contracts] ... [of] not less than 23 percent of the total value of all prime contracts for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . In order to realize this goal, federal agencies, acting in concert with the SBA, are empowered to establish small business set-asides for contract solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In addition to its broader goals of aiding small businesses in general, the Small Business Act also contains special programs favoring certain categories of small businesses. Two such programs are relevant to this case. First is the Section 8(a) Program, which assists \socially and economically disadvantaged small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': , which favors small businesses that are located in economically disadvantaged or distressed areas. In order to qualify as a HUBZone small business, a company must have its principal office in a HUBZone area and have at least 35 percent of its employees residing in the HUBZone area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The statutory language of the Section 8(a) Program is materially different from that of the HUBZone Program. Under the Section 8(a) Program, the SBA may, in its discretion, enter into contracts under the Small Business Act \whenever it determines such action is necessary or appropriate,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Pursuant to this statutory language, the SBA has adopted regulations mandating that a contracting officer \must set aside the requirement for competition restricted to qualified HUBZone [small businesses] if the contracting officer: (1) Has a reasonable expectation after reviewing SBA\rquote s list of qualified HUBZone SBCs that at least two responsible HUBZone SBCs will submit offers; and (2) Determines that award can be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The district court found that the SBA correctly interpreted the language of the Small Business Act and rejected CMI\rquote s request to invalidate the HUBZone contracting regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': \ when \the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': CMI, in short, would import the discretionary nature of the Section 8(a) Program into the HUBZone Program in spite of the differences in statutory text. However, as the district court noted, \Congress has used the term \u8216shall\u8217 to mandate that certain contracting opportunities be set aside for competition restricted to HUBZone small businesses. With regard to the 8(a) Program ... Congress has ... le[ft] to agency discretion the initial offer and acceptance of contracts into the 8(a) Program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In short, we agree that the SBA\rquote s regulations implementing the HUBZone Program properly accord with congressional intent under the Small Business Act. Consequently, we see no reason to disturb the Navy\rquote s decision to deny CMI the opportunity to bid on the contract in question at Pearl Harbor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': not to include the other provisions of the Small Business Act. In accordance with that principle, the SBA has promulgated regulations that exempt from the Program contract solicitations currently preformed by, or designated for, a Section 8(a) small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': We note, as well, that the SBA\rquote s regulations are presumptively correct given that Congress amended the Small Business Act in 2000 without altering the statutory language in a way that would affect the SBA\rquote s interpretation of the HUBZone Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': CMI\rquote s suggestion that all small business set-asides will eventually become HUBZone contracts under the existing regulations is far-fetched. At the outset, CMI agrees that HUBZone contracts cannot interfere with contracts already designated part of the Section 8(a) Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 044 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': And Congress can certainly intervene and amend the statute at any time if the HUBZone Program ever does begin to encroach on the broader purposes of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 050 - Jet Asphalt And Rock Co Inc v Angelo Iafrate Const LLC.doc, Paragraph with 'The Rule of Two': In 2000, Angelo Iafrate and Jet Asphalt were competing bidders for a contract with the State of Arkansas for work on a State Highway Commission (\Commission\) project known as the Bearden Bypass. Angelo Iafrate won the contract with a bid of approximately $6.4 million. Because the project was funded partially by the federal government, Angelo Iafrate was required to subcontract 10% of the work to disadvantaged business enterprises (\DBEs\). DBEs are \for profit small business concern[s] ... at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged\ and managed by \one or more of the socially and economically disadvantaged individuals who own it.\ (Appellant\rquote s App. at 127). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Bidder declared ineligible for small business set-aside task order filed post-award bid protest against the United States. Task order awardee intervened. Defendant and intervenor filed motions to dismiss for lack of subject matter jurisdiction. Plaintiff moved for injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': contracting agency could require contractor to re-certify it small business size in connection with request for proposals (RFP) for task order, even though contractor qualified as a small business at time it was selected for underlying multi-award indefinite delivery/indefinite quantity (ID/IQ) contract to provide maintenance of flight simulation equipment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Contractor exhausted its administrative remedies with respect to decision of the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) that contracting agency could request small business re-certification of contractor in task order request for proposals (RFP), notwithstanding that OHA had not ruled on contractor\rquote s appeal from Area Office determination on remand from OHA that it did not qualify as a small business; Area Office\rquote s size determination on remand was not a separate decision that needed to be appealed to the OHA, but was a mere ministerial act implementing the OHA\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Where a claim concerning a contractor\rquote s small business determination has been fully and fairly litigated before a Small Business Administration (SBA) Area Office and the SBA Office of Hearings and Appeals (OHA), the exhaustion requirement has been satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Post-award bid protest in which contractor sought to vacate adverse decision of the Office of Hearings and Appeals (OHA) of the Small Business Administration (SBA) presented a justiciable controversy, notwithstanding government\rquote s contention that relief was barred by SBA regulation providing that any new OHA decision after contract award applies only prospectively, as contractor was not seeking a new OHA decision post-award but vacation of OHA decision issued pre-contract award and reinstatement of Area Office size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force could require contractor to re-certify its small business size in connection with request for proposals (RFP) for task order, even though contractor qualified as a small business at time it was selected for underlying multi-award indefinite delivery/indefinite quantity (ID/IQ) contract to provide maintenance of flight simulation equipment, as underlying contract was an invitation to participate in future competitions for task order contracts but not a guarantee as to any specific future contract, and thus provided only a framework for future contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': . At issue is a Request for Proposal (\RFP\) for a small business set-aside task order (\task order\) to provide maintenance of flight simulation equipment to the United States Air Force (\Air Force\). The RFP was issued pursuant to a multi-award Indefinite Delivery/Indefinite Quantity (\ID/IQ\) contract previously awarded by the Air Force in 2001. The underlying ID/IQ contract, known as Training Systems Acquisition II (\TSA II contract\), authorized the Air Force to issue task orders for Air Force simulation training products and services. The plaintiff, LB & B Associates Inc. (\LB & B\), was among the five small businesses and six large businesses that were selected under the 15\u8211year TSA II contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': At the time it submitted its offer on the TSA II contract, LB & B certified that it was a small business under North American Industrial Classification System (\NAICS\) code 336413, which is 1,000 employees. It is not disputed that LB & B is no longer a small business under the applicable NAICS code. Nonetheless, in submitting its proposal for the subject small business set-aside RFP, LB & B relied upon the size certification it had made in response to the TSA II contract in 2001. The Air Force determined that LB & B\rquote s proposal for the subject task order represented \best value.\ However, prior to making an award, the Air Force filed a protest with the Small Business Administration\rquote s (\SBA\) Area 2 Office of Government Contracting (\Area Office\) to determine whether LB & B still qualified as a small business for purposes of the task order. The Area Office ruled in favor of LB & B and determined that LB & B could rely on its earlier certification. The Air Force appealed the Area Office decision to the SBA Office of Hearings and Appeals (\OHA\), which held on September 28, 2005 that the Air Force could request LB & B to re-certify and therefore LB & B\rquote s size could be determined as of the offer date specified in the task order RFP. As a consequence, LB & B was no longer eligible to receive the task order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': On January 29, 2001, the Air Force issued an RFP for a multi-award ID/IQ contract to be awarded to a mix of large and small businesses to provide flight simulation training products and services. This multi-award ID/IQ contract was identified as the TSA II contract. Compl., Ex. 1. As described in the executive summary accompanying the TSA II RFP, once the basic ID/IQ contracts had been awarded, \individual task orders/delivery orders\ would be competed among the awardees, unless small business set-asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': applied. The executive summary also provided: \The basic structure of the overall contract will allow individual task/delivery orders to buy items or services [through a variety of contract types].\ The TSA II contract contemplated a 15\u8211year concurrent ordering and performance period. The TSA II contract was also partially set-aside for small businesses, with an applicable NAICS code 336413. Compl. Ex. 2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': On April 21, 2001, LB & B submitted an initial offer, including its certification of small business status, in response to the TSA II RFP. The Air Force made awards under TSA II to six large businesses and five small businesses, including LB & B. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': LB & B was awarded two task orders under the TSA II ID/IQ contract that were set-aside for small businesses. LB & B was not asked to re-certify its size status in the RFPs for either of the two task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': As noted, the task order was for the maintenance of flight simulation equipment that the Air Force uses to train pilots. The task order was for services at Offut Air Base, Nebraska. The subject task order was set-aside for a small business under NAICS code 336413. In the proposal preparation instructions to the RC\u8211135 task order RFP, the Air Force also required that offerors \[r]e-certify as to small business size under NAICS CODE 336413.\ RFP Section L, 6.1(e). The proposal preparation instructions described the task order as follows: \The resulting contract will be Fixed Price, IDIQ .... Period of performance is October 2005 through September 2015. The contract will consist of the basic year with nine (9) one year options.\ RFP Section L, 1.2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Three approved suppliers, LB & B, KARTA, and Sytronics, submitted proposals in response to the task order RFP. KARTA and Sytronics were able to certify that, as of the time of the task order RFP, they were small businesses. LB & B referred to its 2001 size certification and did not re-certify its size at the time of its May 13, 2005 offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': After receipt of the offers, the Air Force filed a protest with the SBA Area Office because the Air Force had credible information that LB & B was no longer small. The Air Force asked the Area Office to determine whether LB & B qualified as a small business for purposes of the task order. On June 28, 2005, the Area Office issued a size determination, stating that LB & B was a small business because it was small when it submitted its offer for the ID/IQ contract in April 2001. In support of its decision, the Area Office relied on the SBA\rquote s long-standing policy, now codified in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': , that a concern that qualifies as a small business at the time it receives a contract is considered a small business for the life of the contract. The Air Force appealed that determination to the SBA OHA on July 13, 2005. The OHA vacated the Area Office\rquote s decision and dismissed the Air Force\rquote s appeal as premature pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': , because the Air Force had not yet selected the apparently successful offeror. On July 28, 2005, the Air Force announced that LB & B was the apparent successful offeror subject to the challenge of its small business status. The Air Force refiled its appeal with the Area Office on July 29, 2005. On August 18, 2005, the Area Office once again issued a size determination, which was based on LB & B\rquote s certification of its size in 2001. The Area Office rejected the Air Force\rquote s contention that the task order should be treated as a new contract and that a new certification was therefore required. The Air Force appealed the Area Office\rquote s size determination the following day to the OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': at 9. The RFP required a self-certification as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': the OHA also had to determine whether the \procurement\ was the \original FSS contract\ or whether the \RFP [for the BPA] represents a whole new small business set-aside procurement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': The OHA judge held that the RC\u8211135 task order RFP was separate from the TSA II procurement for several reasons. The Air Force \[s]tructured an ID/IQ that anticipated further solicitations and set-asides to small businesses\; \required the offerors to re-certify their small business size status in their offers\; \[u]tilitzed different evaluation factors for award in the [task order] RFP than it used in the ID/IQ RFP\; and \[r]equired delivery orders to give the ID/IQ Contract any status or meaning.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': On remand, on September 30, 2005, the Area Office determined that LB & B did not qualify as a small business under NAICS code 336413 on the date that LB & B submitted its offer in response to the RC\u8211135 task order RFP in 2005. That same day, the Air Force awarded the task order to Sytronics. This bid protest followed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': , for the proposition that exhaustion is not required where: (1) requiring resort to the administrative remedy may occasion undue prejudice to subsequent assertion of a court action; (2) an administrative remedy may be inadequate because of some doubt as to whether the agency was empowered to grant effective relief; or (3) an administrative remedy may be inadequate because the administrative body is shown to be biased or has otherwise predetermined the issue before it. LB & B contends that the OHA has already determined that LB & B does not meet the size requirements for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': the Area Office issued a size determination on July 23, 2004, finding that another company was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': At issue in this case is whether the OHA judge erred in holding that the Air Force could require LB & B to re-certify its size in connection with the RFP for task order RC\u8211135, even though LB & B qualified as a small business at the time it was selected for the underlying ID/IQ TSA II contract. LB & B argues that, under SBA\rquote s regulations and decisions, once LB & B qualified as a small business for the ID/IQ contract LB & B retains its status as a small business for the life of the ID/IQ TSA II contract. The government and the intervenor argue in response that the OHA decision is consistent with SBA\rquote s regulations and a long line of cases involving other multi-award contracts, such as multiple award schedule (\MAS\) and FSS contracts. Under these cases, when issuing additional contracts under multi-award contracts, the contracting officer may require re-certifications to ensure that small business set-aside contracts are awarded to an actual small business. The government and the intervenor further argue that the OHA judge did not err in concluding that the subject task order involved a separate procurement and that the contracting officer had the discretion to require re-certification in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': LB & B is correct that in the ordinary contract situation a small business contractor retains that status for the life of the contract. However, the government and the intervenor are also correct that the SBA has recognized, in connection with other types of multi-award contracts, that contracting officers retain the discretion to require re-certification of small business status as of the time of the new contract. Although LB & B contends that those SBA decisions are distinguishable and that the OHA judge\rquote s decision in this case is contrary to law, the court finds for the reasons set forth below that, despite LB & B\rquote s excellent advocacy, the OHA decision must be affirmed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': Indeed, the SBA has historically recognized that contracting officers retain discretion in multi-award contract situations to require small businesses to re-certify where the new contract involves a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': , which provides in relevant part: \The contracting officer may exercise broad discretion in developing appropriate order placement procedures.\ In other words, it is not at all clear that the contracting officer violated CICA by requiring small businesses to re-certify in order to qualify for a new procurement arising from the TSA II contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': In sum, given the discretion provided to contracting officers in administering ID/IQ contracts and to the SBA in deciding when a size determination decision is appropriate, the court cannot say that the OHA decision affirming the contracting officer\rquote s request for re-certification under the subject RFP was irrational or illegal. The subject OHA decision is largely consistent with other OHA decisions concerned with the timing of size determinations in the context of multi-award contracts and the balance it reaches among the various SBA regulations governing size determinations is not irrational. In addition, LB & B\rquote s argument that the subject task order RFP would be illegal if the OHA decision were affirmed is not ultimately persuasive. The OHA is charged with deciding when size determinations should be made under its own regulations. Here, taking all of the relevant facts and regulations into account, the OHA judge determined that re-certification was appropriate in this case. The court agrees. Indeed, the OHA decision gives meaning to the SBA\rquote s policy goal of ensuring that small business set aside contracts are in fact awarded to small businesses where, as here, a previous guarantee for work has not been granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 052 - LB And B Associates Inc v US.doc, Paragraph with 'The Rule of Two': does not permit a contracting agency to restrict competition under a \procurement\ to certain small businesses, as the Air Force did in restricting competition for the subject task order to those businesses who had received awards under the TSA II contract as small businesses. Pl.\rquote s Reply 18. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': statute did not operate to create a contractual entitlement to an Small Business Innovation Research (SBIR) Phase III contract for contractor who successfully completed Phase I and Phase II contracts; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': By its own language, regulation governing contractor\rquote s data rights under a Small Business Innovation Research (SBIR) contract indicates that a contractor may only restrict the government\rquote s use and disclosure of technical data by marking the deliverable data with the appropriate data legend; failure to use the appropriate legend results in the government receiving complete, unrestricted use. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Assuming that prototypes of night vision goggles constituted \data\ eligible for protection under regulation governing data rights under a Small Business Innovation Research (SBIR) contract, contractor waived any legal protection from disclosure of data rights when it delivered prototypes to the government without marking prototypes or their packaging with appropriate proprietary data legends, and it was not sufficient to have affixed the legend to technical drawings and documentation associated with the goggles. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Statute directing Director of the Small Business Administration (SBA) to establish certain procedures under the Small Business Innovation Research (SBIR) program to ensure that \follow-on\ Phrase III contracts be awarded to a contractor who has successfully completed Phase I and Phase II (SBIR) contracts did not operate to create a contractual entitlement to an SBIR Phase III contract for contractor who successfully completed Phase I and Phase II obligations; statute did not impose an obligation directly upon a procuring agency nor did it create any enforceable rights under an SBIR contract. Small Business Act, \u167 2[9](j)(2)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Contractor who successfully completed Phase I and Phase II Small Business Innovation Research (SBIR) contracts failed to establish existence of an oral, implied-in-fact contract that procuring agency would award it a Phase III contract if it successfully completed a Phase II contract, absent evidence of actual authority by any agent representing the government to bind the United States to the alleged oral contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Contractor\rquote s allegation that government breached its duty of good faith and fair dealing by unreasonably denying it a Phase III Small Business Innovation Research (SBIR) contract failed to state a claim, absent allegation that government violated its duty of good faith and fair dealing with respect to any specific obligation imposed by the parties\rquote Phase I and Phase II SBIR contracts, or that a statute or regulation required the award of a Phase III contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': The plaintiff, Night Vision Corporation (\NVC\), is a small business concern that obtained contracts with the United States Air Force for research and development of wide field-of-view NVG technology. NVC successfully developed prototype night vision goggles that expand the field-of-view to 100 degrees without compromising image quality\u8212a technology NVC calls \Panoramic Night Vision Goggles\ (\PNVG\)\u8212under the Small Business Innovation Research (\SBIR\) program. The SBIR program requires certain federal agencies to reserve a portion of their research and development budgets for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': . Generally speaking, fully successful contractors in the SBIR program proceed in three distinct phases. In Phase I, a small business concern is awarded limited funding to determine \the scientific and technical merit and feasibility of ideas that appear to have commercial potential.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (4) the term \Small Business Innovation Research Program\ or \SBIR\ means a program under which a portion of a Federal agency\rquote s research or research and development effort is reserved for award to small business concerns through a uniform process having- Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (1) In general. In the case of a small business concern that is awarded a funding agreement for the second phase of a SBIR or STTR program, a Federal agency may enter into a third phase agreement with that business concern for additional work to be performed during or after the second phase period. The second phase funding agreement with the small business concern may, at the discretion of the agency awarding the agreement, set out the procedures applicable to third phase agreements with that agency or any other agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': also requires the Small Business Administration (\SBA\) Administrator to establish policy directives that provide administrative procedures so that agencies taking part in the SBIR program award follow-on contracts to SBIR-program participants. In relevant part this section provides that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (j) Small Business Administration policy directives for the general conduct of small business innovation research program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (C) procedures to ensure, to the extent practicable, that an agency which intends to pursue research, development, or production of a technology developed by a small business concern under a SBIR program enters into follow-on, non-SBIR funding agreements with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': the small business concern for such research, development, or production; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Pursuant to this section, the SBA Administrator issued the Small Business Innovation Research Program Policy Directive on January 26, 1993. This Policy Directive was intended to provide guidance to Federal agencies on the general conduct of the SBIR program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Small Business Innovation Research Program Policy Directive, 58 FR 6144\u821102, 61444 (Jan. 26, 1993) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': 7. Small Business Innovation Research Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': (3) Phase III. The term third phase agreement means to follow-on, non-SBIR funded award as described in 1, 2 and 3 below. A federal agency may enter into a third phase agreement with a small business concern for additional work to be performed during or after the second phase period. The second phase funding agreement with the small business concern may, at the discretion of the agency awarding the agreement, set out the procedures applicable to third phase agreements. The competition for Phase I and Phase II awards satisfies any competition requirement of the Competition in Contracting Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Small Business Innovation Development Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': 1982 U.S.C.C.A.N. 512, 539 (\The definition of the third phase was changed to clarify the Committee [on Small Business]\rquote s intent that the funding of this phase be discretionary.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': \u8226 \SBIR data\: \data first produced by a Contractor that is a small business firm in performance of a small business innovation research contract ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': . SBIR data is \data first produced by a Contractor that is a small business firm in performance of [a SBIR] contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': Plaintiff Advanced Systems Technology, Inc. (\AST\) currently serves as the incumbent contractor on two United States Army contracts supporting the Training and Doctrine Command Analysis Centers (\TRAC\) at Fort Leavenworth, Kansas and White Sands Missile Range, New Mexico. Plaintiff has filed a Motion for a Preliminary Injunction challenging the decision of the Small Business Administration (\SBA\) to classify two follow-on contracts for the work currently performed by AST in such a manner as to prevent AST from bidding for the contracts. Currently before the Court is defendant SBA\rquote s Motion to Dismiss (\Def.\rquote s Mot.\) for lack of jurisdiction. Defendant asserts that under Section 12(d) of the Administrative Dispute Resolution Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': Pursuant to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': , certain federal government procurement contracts must be reserved for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': \u167 644. The SBA is granted authority under the Small Business Act to promulgate by regulation applicable size standards to determine which entities qualify as small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': \u167 632. The SBA makes use of the North American Industry Classification (\NAICS\) codes to determine the maximum number of employees or annual receipts that a business can have and receive accommodation as a small business with respect to each contract solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': \u182\u182 10, 27.) Solicitations 0008 and 0011 were limited solely to small businesses and were initially designated a NAICS code of 541710, which corresponds to a 500 employee size standard. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 065 - Advanced Systems Technology Inc v Barrito.doc, Paragraph with 'The Rule of Two': \u182 15.) Plaintiff is ineligible to bid as a small business under the new NAICS code. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 068 - Systems Plus Inc v US.doc, Paragraph with 'The Rule of Two': Based on the information contained in this explanation, Systems Plus filed an award protest in the Government Accountability Office (\GAO\) on September 19, 2005. The grounds for this protest were that Netstar\u82111 had a conflict of interest and an unfair competitive advantage, in violation of FAR subpart 9.5, because of previous performance on a DOL subcontract, and that Netstar\u82111 was not a responsible contractor, as it had allegedly broken small business rules. On September 20, 2005, the GAO gave formal notice to DOL of the GAO protest. Systems Plus requested that DOL suspend Netstar\u82111\rquote s performance, based upon its reading of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': at 1\u82112. This Request for Proposals (RFP) divided the country into Travel Areas (TA), some of which were restricted to small business and some were not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': at 1. In response to numerous protests, DoD re-solicited the small business procurements separately from unrestricted TA\rquote s, but again in an omnibus solicitation that combined Military Entrance Processing Stations (MEPS) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': at 2. Successful protests were filed in the General Accounting Office (GAO), causing the DoD to split the small business solicitation into MEPS and non-MEPS sites. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': in the GAO and the Small Business Administration (SBA) since the award of this contract, mostly dealing with Mr. Chisik\rquote s involvement with the Intervenors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': A disappointed bidder\u8212Alexander Travel\u8212subsequently submitted the \Report of Significant Procurement Fraud Irregularity in the Defense Travel Services ITEC\u82114 Small Business Procurements Involving Master Solicitation No. W91QUZ.\ (Alexander Report) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 069 - Kola Nut Travel Inc v US.doc, Paragraph with 'The Rule of Two': It is a quite substantial leap to conclude that there was collusive bidding based upon the common use of a consultant, especially when the field of consultants in the federal travel arena is small. Indeed, the Court is not alone in this conclusion. As the SBA (Region III) stated, finding offerors affiliated \through the mere use of a common business consultant would no more affiliate the same companies than usage of a common specialized attorney. In this case, Mr. Rike has effectively represented that he, not Mr. Chisik, is in control of [Ravenel Travel]. We find no restrictions in Part 121 of the Code of Federal Regulations which prohibit small businesses from using the services of consultants or advisors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 071 - Argencord Mach And Equip Inc v US.doc, Paragraph with 'The Rule of Two': On July 6, 2004, the United States Army Aviation & Missile Command at Redstone Arsenal, Alabama (Army) issued solicitation number W58RGZ\u821104\u8211R\u82110164 for the acquisition of tie rod structural support assemblies for Black Hawk helicopters. AR at 75. The procurement was a small business set-aside, and was to result in an indefinite delivery indefinite quantity (IDIQ) contract with a minimum quantity of 406 and a maximum of 2406 over a five-year period. AR at 66, 75. Because the tie rod structural supports were categorized as \critical safety items,\ only contractors capable of becoming source-approved by the Army before the date of award were eligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 071 - Argencord Mach And Equip Inc v US.doc, Paragraph with 'The Rule of Two': Further, although Plaintiff asserts that amending the solicitation to allow machined tie rods could not have been reasonably anticipated by offerors, its Operations Manager testified that he knew Tek had received a waiver to propose machined rods in an earlier procurement for these parts. Tr. at 43\u821144. As such, Plaintiff itself reasonably could have anticipated this amendment. Nor was there a basis for the CO to conclude that notifying all potential offerors of this amendment by cancelling the solicitation and resolicitating would have resulted in increased competition. Rather, the record suggests that no other sources could have competed here. The solicitation was a small business set-aside restricted to entities which had undergone requisite engineering testing and were, or would be, source-approved for the supply of these parts as of the time of award. AR at 66. Here, Plaintiff and Tek were the only approved sources for the part, and there is no evidence to suggest that other entities would timely achieve source-approved status. AR at 66. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': contracting officer (CO) violated section of the Federal Acquisition Regulation (FAR) by not ensuring that contract awardee was in compliance with Small Business Administration (SBA) regulation; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) violated section of the Federal Acquisition Regulation (FAR) by not ensuring that contract awardee was in compliance with Small Business Administration (SBA) regulation requiring a small business concern awarded a set-aside contract to pay at least fifty percent of its labor costs on the contract to its own employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': The issues in this case are (1) whether the contracting officer made a reasonable effort to insure that Strong Vessel\rquote s refrigerated cargo containers would meet the standards called for in the solicitation; and (2) whether the Agency allowed Strong Vessel to avoid Small Business Administration regulations governing limitations on labor costs. The contracting officer did not make a reasonable inquiry to insure that Strong Vessel\rquote s refrigerated cargo containers met the Government\rquote s needs; and he did not enforce statutes and regulations applicable to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': The Military Surface Deployment and Distribution Command is a Department of the Army agency responsible for transportation of equipment and supplies for military personnel around the world. The contract at issue is a firm, fixed-price requirements contract for transportation of cargo from Jacksonville, Florida to military personnel stationed in Guantanamo Bay, Cuba. It is a 100% set-aside for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': Plaintiff filed a protest with the General Accounting Office, contending that Strong Vessel did not meet the requirements of the solicitation in two respects: (1) A small business concern awarded a set-aside contract for services must pay at least fifty percent of its labor costs on the contract to its own employees. Plaintiff alleged that Strong Vessel did not meet this SBA set-aside requirement. (2) Strong Vessel did not meet a technical requirement that the offeror provide refrigerated cargo containers that would insure the safety of perishable goods during transit. The equipment was to include a generator that would permit the system to be self-sustaining aboard ship, so the goods would survive if the barge lost power at sea. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': A contractor awarded a small business set-aside contract for services must show that it will incur at least fifty percent of its labor costs on the contract from its own employees. Federal Acquisition Regulations require that contracting officers include Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': , Limitations on Subcontracting, \in solicitations and contracts for supplies, services and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $100,000.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': . The purpose of this provision is to insure that small business concerns do not pass along the benefits of their contracts to their subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that it does not matter whether the box was checked because the law requires that a small business contractor make this commitment. Congress established the rule that at least fifty percent of the cost of labor on an SBA contract must participate in the contract to qualify. Defendant argued initially that the contract provision did not apply because the box was not checked. It also claimed that plaintiff waived its right to raise the issue because plaintiff did not point out the problem before bid opening. The GAO accepted a similar argument in ruling against plaintiff\rquote s July 2005 protest. It found that plaintiff could not complain about \alleged improprieties in a solicitation which are apparent prior to bid opening.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': (holding that government contracts must be read as if they included clauses required by law). Defendant argued initially that the Christian Doctrine does not apply to a solicitation, as in this case, but only to the contract itself. Plaintiff did not depend on the Christian Doctrine because it contended that fifty-percent labor participation is required by law for small business set-asides. It asserted, however, that defendant\rquote s argument made no sense because the solicitation was the Government\rquote s offer. Once accepted, it becomes a part of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': did not feel the 50 % rule was an issue. Had [TransAtlantic] raised the question of 52.219\u821114 during either the pre-proposal conference, discussions or under the Small Business Size challenge this issue would have been examined. [Plaintiff] infers that it is the Contracting Officer\rquote s responsibility to evaluate the compliance of 52.219\u821114. The clause actually states \[b]y submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract ....\ Therefore, it is the responsibility of the offeror/contractor to ensure they are in compliance with the clause. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': Laws and regulations applicable to small business set-asides measure compliance with the Limitation on Subcontracting clause by the cost of the labor rather than the number of employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': . Plaintiff submitted the second-lowest bid and its technical proposal was superior to Strong Vessel\rquote s. We do not have detailed information about the relative costs of complying with technical requirements of the solicitation and the costs of complying with applicable Small Business Act regulations. The parties did not argue this issue substantively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': A business concern is qualified a small business for these purposes if it meets certain size criteria set out in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with 'The Rule of Two': \A [small business] concern may not be awarded a contract ... as a small business concern unless the concern agrees that\u8212[ ] in the case of a contract for services (except construction), at least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 079 - Park Tower Management Ltd v US.doc, Paragraph with 'The Rule of Two': Although the SSEB determined that Farrelly Building Services (\Farrelly\) did not satisfy the RFQ\rquote s requirements, the SSEB referred the firm to the Small Business Administration (\SBA\) for a Certificate of Competency (\COC\), pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that contracting agency was correct in reversing its decision to cascade procurement from small business tier to unrestricted tier after withdrawal of one offeror left only one small business offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency was correct in reversing its decision to cascade procurement from small business tier to unrestricted tier after withdrawal of one offeror left only one small business offeror; agency properly made determination that competition was adequate in small business tier at time bids were initially submitted, and subsequent events that reduced to one the number of small business offerors should not have called into question prior determination of adequate competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': For each of the twenty-four contracts arising from this RFP, an offeror\rquote s eligibility to bid varied based on its size. Three contracts were set aside exclusively for small business concerns; another contract was similarly reserved for Section 8(a) business concerns. Three other contracts were subject to full and open competition between offerors of all types. The remaining seventeen contracts were subject to \Cascade Procedures.\ Typically, offerors of any size are free to bid on a cascading procurement, but particular tiers of offerors are given preference over others. If the competition among bidders in a preferred tier is inadequate, the procurement will cascade into the next prescribed tier of bidders. Three contracts were classified as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': \Cascade from 8(a) to Small Business to Unrestricted;\ all others, including the contract at issue, were classified as \Cascade from Small Business to Unrestricted.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': According to RFP \u182 M.9.1.b.i, a small-business-to-unrestricted cascade mandates contract award to a small business provided that the competition in the small business tier is adequate: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Awards will be made on a competitive basis first to an eligible small business concern provided there is adequate competition among such firms. When there is inadequate competition among small business concerns, an otherwise qualified offer will be considered with all offers from all responsible business concerns and award will be on the full and open competition considering all offers submitted by all responsible business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': By April 2004 at least ten offerors had submitted proposals for the P\u82112 contract. Nine of these offerors, including Greenleaf, Chapman, and * * *, were self-certified as small businesses. At some point in early 2004, the TEP evaluated and ranked the technical proposals in the small business tier. It concluded that Greenleaf\rquote s proposal was superior to all others and recommended that it be included in the competitive range for award. It also recommended the proposals of * * * and Chapman, which were ranked second and third respectively, for the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In the internal Pre\u8211Negotiation memorandum also dated April 26, 2004, Ms. Thomas noted that \[o]nly the small business tier was opened\ for initial consideration and concluded that \[a]dequate competition exists [in that tier] in accordance with the Federal Acquisition Regulation.\ AR 959. In support of her conclusion, she cited the TEP\rquote s recommendation of three offerors for the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': By establishing the competitive range, HUD had \eliminated from the competition\ the six lowest-ranked small business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': the Independent Government Cost Estimate for the procurement. Based on this pricing, Ms. Thomas confirmed her earlier conclusion concerning the competitiveness of the small business tier. She found \that adequate competition exists, [and that] all pricing is considered to be fair and reasonable ....\ AR 1938. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Before Greenleaf was determined responsible, however, Chapman challenged the intended award by filing a size protest with HUD. Chapman argued that Greenleaf did not warrant the award because it exceeded the size limitations necessary to compete in the small business tier. HUD forwarded the size protest to the Small Business Administration (\SBA\) for a determination. On July 30, 2004, the SBA determined Greenleaf to be other than small for purposes of the P\u82112 procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': As a result of the SBA size determination, HUD disqualified Greenleaf from the small business tier and re-opened negotiations with the remaining offerors in the competitive range: Chapman and * * *. In the fall of 2004, HUD engaged both offerors in an additional round of written discussions, which resulted in the submission of revised FPRs. Based on an evaluation of * * * \lquote s newest FPR, the TEP amended its Final TEP Report. During the time following the Final TEP Report, which was issued in June 2004, HUD had awarded * * * four geographically disparate M & M contracts. Pursuant to a re-evaluation of the first technical proposal evaluation factor, Management Capability and Quality of Proposed Management Plan, the TEP concluded in its amended report that * * * had the capacity to perform only four M & M contracts. It reasoned that the award of a fifth contract would pose \an unacceptably high risk of unsuccessful performance.\ AR 2535. Because of this risk, the TEP deemed * * * \technically non-competitive ....\ AR 2543. In light of * * * \lquote s technical uncompetitiveness and Greenleaf\rquote s disqualification, the TEP concluded that Chapman, alone, could not maintain adequate competition in the small business tier and recommended cascading the P\u82112 procurement to the unrestricted tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': 2005 Comp. Gen. \u182 31 (2005), entitled * * * to the reconsideration of its capacity, which had served as the basis for HUD finding it technically uncompetitive. According to the CO, the Comptroller\rquote s opinion \indicated that an agency\rquote s decision to find a small business nonresponsible based on capacity issues should be referred to the SBA for a Certificate of Competency [(\COC\)].\ AR 3863. The COC procedure gives the SBA the final word when a procuring agency calls into doubt the responsibility of a small business that is otherwise in line for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': After HUD engaged the three competitive range offerors in a round of discussion and FPR submissions, the CO wrote an internal Price Negotiation Memorandum for the unrestricted tier. In this memo, she concluded that Greenleaf\rquote s estimated price of $* * * was $* * * less than its original small business tier estimate, $* * * less than Chapman\rquote s revised estimate, and $* * * less than the Independent Government Cost Estimate for the procurement. The estimate of the unnamed offeror was the costliest among the competitive offerors. On April 11, 2005, the TEP signed its Final TEP Report for the unrestricted tier. In it, Chapman\rquote s rating improved from * * * to * * * and its risk assessment was improved from * * * to * * *. Although the TEP ranked Chapman\rquote s technical proposal ahead of the unnamed offeror\rquote s proposal, it concluded that Greenleaf\rquote s technical proposal maintained marginal superiority. Greenleaf\rquote s technical superiority, coupled with its much lower cost estimate, prompted the TEP to recommend its bid for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': challenge to the timing of HUD\rquote s \determination of whether adequate competition exists in a given tier ....\ AR 3782. The SBA also treated the cascade procedure as a subset of small business set asides. The SBA concluded that regulations governing small business set asides governed cascading procurements as well. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': According to the set-aside regulation known as the \Rule of Two,\ a CO shall set aside for small businesses any procurement greater than $100,000 if the CO has a \reasonable expectation\ that \two responsible small business\ offerors will submit bids that will result in an award \at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': . In other words, the evaluation of competition adequacy for a small business set aside is prospective. Based on this rule, the SBA determined that a procuring agency\rquote s \set-aside determination is usually made before the solicitation is issued.\ AR 3783. With regard to the procurement at issue, the SBA concluded that HUD\rquote s initial decision to not cascade\u8212or, from the SBA\rquote s perspective, its decision to set aside\u8212occurred when the agency established the competitive range. To support this conclusion, it quoted RFP section H.14: \ \u8216Whenever there is adequate competition (two or more competitive technical and cost Offerors) at a tier, an award is made.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The SBA reasoned that HUD\rquote s identification in April 2004 of a competitive range containing three self-certified small business offerors warranted its decision to set the procurement aside at that time. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': According to the SBA, subsequent events that reduced to one the number of small business offerors should not have drawn into question the prior determination that there was adequate competition. It claimed that \it is well settled that a contracting officer may make an award under a small business set-aside even if only one offer is actually received.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Therefore, the SBA opined that HUD improperly cascaded to the unrestricted tier and that Chapman should have received the award in the small business tier. Soon after the SBA issued this letter, HUD took corrective action by terminating for convenience its contract with Greenleaf on June 17, 2005. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ; and second, the procedure favors small businesses in procurements that otherwise would not have been set aside for their benefit, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The RFP states that a procurement should not be cascaded to the unrestricted tier if there is \adequate competition\ among small business offerors. The parties dispute both the substance and timing of the HUD\rquote s evaluation of adequate competition. According to Greenleaf, the terms of the RFP require HUD to conclusively evaluate the responsibility of each small business offeror pursuant to FAR Subpart 9.1 before it determines whether competition is adequate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Greenleaf claims that, in the present case, HUD properly applied the cascade procedure by withholding its conclusive evaluation of competition adequacy until after it had examined the responsibility of the small business offerors before it. Thus, it concludes, the agency\rquote s subsequent decision to reverse the cascade violated the RFP and deprived Greenleaf of its award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The government and Chapman argue that, as laid out in the RFP, the responsibility of small business offerors is not relevant to the evaluation of adequate competition. According to both parties\rquote reading of the RFP, the adequacy of competition is determined once, at the time bids are initially submitted, independent of the subsequent evaluation of the putative awardee\rquote s responsibility. Chapman also points out that, despite HUD\rquote s later decision to cascade, the agency initially decided that the small business tier was adequately Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In effect, Greenleaf reasons that HUD must examine the responsibility of enough small business offerors to determine if at least two are responsible. Furthermore, it claims that these multiple determinations must precede the selection of a putative awardee in order to ensure competition adequacy at the time of award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': At oral argument, counsel argued that HUD intended such a process when it drafted the RFP because many small business offerors were expected to compete for multiple awards under this procurement. According to Greenleaf, the award of one contract could significantly decrease a bidder\rquote s capacity to perform other contracts because the contracts subject to this procurement were relatively large. Therefore, Greenleaf contends that the agency anticipated that, over the course of the procurement, bidders could be rendered nonresponsible for lack of capacity by winning the award of other M & M contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Greenleaf argues that HUD arrived at its January 6, 2005, decision to cascade after conducting the necessary evaluation of responsibility among bidders in the small business tier. Furthermore, Greenleaf claims the agency\rquote s later reversal was improper because Chapman, which had become the lone offeror at that point, did not provide adequate competition. Were Greenleaf\rquote s argument credited, prejudice would be established because the decision to reverse the cascade also stripped Greenleaf of the contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': .\ AR 262. And in section M.8, the RFP directs the agency to award the contract \to the Offeror that is deemed responsible in accordance with FAR 9.104 ....\ AR 267. These provisions plainly contemplate only one determination of bidder responsibility\u8212that of the eventual awardee. An overall reading of the RFP therefore does not suggest the examination of any other bidder\rquote s responsibility pursuant to FAR Subpart 9.1. By contrast, Greenleaf\rquote s interpretation of the second definition would require HUD to render a number of on-going responsibility and nonresponsibility determinations sufficient to conclude that two bidders in the small business tier remain responsible at the time of award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Greenleaf argues that the best evidence that HUD agreed with plaintiff\rquote s interpretation of the RFP is that the agency decided to cascade. Greenleaf points out that, before HUD decided that Chapman, alone, could not provide adequate competition, the agency had conclusively evaluated the responsibility of both Greenleaf and * * *. From this, Greenleaf argues that Ms. Thomas interpreted the RFP as obligating her to determine whether at least two small business offerors were responsible pursuant to FAR 9.104 before she could cascade to the unrestricted tier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': While it is correct that Ms. Thomas felt the presence of only one small business as of January 2005 prompted a need to cascade, our review of the record suggests that this decision did not result from an application of the procedure proposed by Greenleaf. There is no evidence that HUD read the RFP to mandate conclusive responsibility evaluations prior to assessing the adequacy of competition. If it had shared Greenleaf\rquote s interpretation, it seems reasonable the agency would have concurrently evaluated the responsibility of Greenleaf and * * *, the two highest-rated offerors in the competitive range. Instead, the agency evaluated * * * \lquote s responsibility more than seven months after it determined Greenleaf responsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': \ AR 959. Ms. Thomas confirmed this finding in the June 9, 2004, Price Negotiation Memorandum. AR 1938 (\... the [CO] finds that adequate competition exists ....\). Both of these references to the CO\rquote s conclusive evaluation of competitiveness predate Ms. Thomas\rquote July 30, 2004, responsibility determination for Greenleaf. Furthermore, by applying the typical responsibility process, HUD selected Greenleaf for award before it determined Greenleaf responsible. Clearly, HUD was not evaluating the adequacy of competition at a time when it had already determined the competition\rquote s winner. What is apparent is that, as of July 6, 2004, when Greenleaf was initially selected for award, Ms. Thomas had already decided that there was adequate competition in the small business tier, and yet there had been no conclusive responsibility evaluation as to any offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Because the FAR establishes the definition of \responsible,\ we are left to determine what the agency intended by use of the word. As we held above, the FAR neither mandates nor contemplates that a CO will determine more than one bidder responsible for any given award. We believe the only reasonable interpretation of the RFP, as a whole, is that a prospective element must be implied in the definition of adequate competition. A CO\rquote s evaluation of adequate competition thus means she must assess the likelihood, based on bid proposals, that an adequate pool of small business offerors exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': \u8217 \ Intervenor\rquote s Opp\rquote n 10 (emphasis in original). Chapman reasons that a CO should take a conclusive look at the adequacy of small business tier competition when the competitive range is established, as appears to have happened here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': A comparison of the RFP term at issue with the \Rule of Two\ also supports the idea that the term \responsible\ was intended to refer to future application of FAR Subpart 9.1. According to the Rule of Two, a decision to set a procurement aside is prospective in nature: \The [CO] shall set aside any acquisition over $100,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': that (1) offers will be obtained from at least two responsible small business concerns...; and (2) award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': CO lacks a reasonable expectation of bids from at least two responsible small businesses. Otherwise, the Rule would mandate that such a procurement be set aside for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': We are not persuaded by the government\rquote s alternative interpretations of the second definition of adequate competition. In one argument, the government claims that \responsible\ should be given its plain dictionary meaning. As such, a CO need not demand more from a potential small business awardee than a parent demands from a growing child\u8212\a general level of responsibility.\ Def.\rquote s Opp\rquote n 15 (citing American Heritage Dictionary of the English Language (4th ed.2000)). In another argument, the government attempts to distill from the RFP two responsibility determinations. The first, which is employed in sections L. 16 and M.8, is a \formal responsibility determination\ as prescribed by FAR 9.104. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In sum, the alternative scenario proposed by Greenleaf runs counter to the normal timing of responsibility determinations, runs counter to the agency\rquote s application of the RFP in this case, and would lead to the anomalous result that a determination of adequate competition must be revisited over time to account for the vagaries of a bidders\rquote circumstances. We therefore conclude that reversal of the decision to cascade was correct. The adequacy of competition at the small business tier had been sufficiently addressed. The fact that * * * withdrew, leaving Chapman as the lone small business offeror, did not compel a cascade to the unrestricted tier. While Greenleaf has established prejudice, it fails on the merits of its argument that the agency violated the terms of the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In support of its motion to dismiss Counts IV and V of Greenleaf\rquote s complaint, the government argues that Greenleaf lacks standing. In order to demonstrate Chapman\rquote s ineligibility for award, Greenleaf assumes in both counts, for the sake of argument, that various defenses raised by the government and Chapman are correct. Under Count IV, Greenleaf assumes that the SBA properly criticized HUD\rquote s decision to cascade. In Count V, Greenleaf assumes that it would have been appropriate for the agency to have conclusively evaluated the existence of adequate competition in the small business tier at the time the competitive range was established with three offerors. Were either argument credited, Greenleaf argues, * * *, not Chapman, would be entitled to the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Chapman filed a separate motion to dismiss. In it, Chapman argues that Greenleaf lacks standing to bring this protest because the procurement was restricted to small businesses either by the establishment of the competitive range or by the Rule of Two. Because the GAO determined that Greenleaf was not small, Chapman reasons that it was not injured because the procurement\rquote s restriction to offerors in the small business tier rendered Greenleaf ineligible for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The government used the following six factors, in descending order of importance, to evaluate technical proposals: (1) Management Capability and Quality of Proposed Management Plan; (2) Past Performance; (3) Prior Experience; (4) Proposed Key Personnel; (5) Subcontract Management; and (6) Small Business Subcontracting Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The Initial TEP Report appears at AR 863. This document, dated April 22, 2004, contained the following ratings for the three best technical proposals: Greenleaf, * * * with * * *; * * *, * * * with * * *; and Chapman, * * * with * * *. In her Competitive Range Determination of April 26, 2004, Ms. Thomas references an \Initial TEP Report\ dated February 20, 2004. This report does not appear in the record. According to ratings referenced in the CO\rquote s range determination, the February and April reports reached the same conclusion for most, but not all, of the nine small business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The court lacks any basis for determining whether the TEP issued more than one initial report for the small business tier. For the purposes of this case, we concern ourselves only with the contents of the report contained in the record. The confusion in the record has no bearing on our analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': note 8. The Competitive Range Determination also relies upon the Determinations and Findings of January 6, 2005. In turn, the January 6 document is premised on the January 11, 2005, Amendment to Final TEP Report for the small business tier. None of the parties have taken issue with the date discrepancies contained within the record. Thus, we assume that all documents were preceded in existence by the documents upon which they rely, regardless of a date conflict. For the sake of our analysis, however, we treat each document date as accurate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': notes 11, infra note 19. We merely note that the SBA helped HUD draft the RFP cascade provisions that are now subject to conflicting interpretations, that it is the agency responsive to matters of small business, and that it now takes a position that supports the arguments against relief. Had the SBA adopted the opposite position, we might be inclined to give more serious attention to its views. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Greenleaf was unable to point to record evidence in support of its contention that HUD purposely sought to award large M & M contracts to small businesses, thereby necessitating increased vigilance in gauging bidder responsibility. It is clear, however, that the contracts subject to this procurement were valued at tens of millions of dollars and that some small business offerors sought the award of more than one contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In contrast to the SBA\rquote s conclusion that \all FAR provisions applicable to small business set-asides must be followed when a procuring agency utilizes the cascading set-aside methodology,\ AR 3784, we de not simply apply the Rule of Two to the matters at hand. The Rule only governs whether a procurement will be issued as a small business set aside. It has no impact on issued solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 086 - SKJ And Associates Inc v US.doc, Paragraph with 'The Rule of Two': bidder ... that submitted a bid in an amount higher than [SKJ]\rquote s bid.\ Compl. \u182\u182 22\u821123. Because of these transgressions, plaintiffs maintain that defendant \essentially made a non-responsibility determination and the awarding agency should have referred the matter to the Small Business Administration [ (SBA) ] for review under [the] Certificate of Competency program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 086 - SKJ And Associates Inc v US.doc, Paragraph with 'The Rule of Two': Upon receipt of plaintiff\rquote s bid, USDA requested a certificate of competency (COC) for plaintiff and initiated a size protest against plaintiff with the United States Small Business Administration (SBA). Shortly before the bids were to be awarded, and before SBA determined plaintiff\rquote s competency, USDA suspended plaintiff from participating in government contracts for a period of one year. The court found that USDA Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 087 - Chapman Law Firm Co v US.doc, Paragraph with 'The Rule of Two': The following facts are not in dispute unless otherwise noted. On April 19, 2005, HUD awarded a contract to Greenleaf Construction Company (\Greenleaf\) for Management and Marketing (\M & M\) services in connection with properties owned by HUD in the region of the United States known as the \P2 region,\ which includes properties in Ohio and Michigan. The services to be provided by the awardee included the following: monitoring mortgagee compliance with HUD\rquote s property conveyance requirements; managing single family homes owned by, or in the custody of, HUD; marketing HUD\rquote s single family homes for sale; and overseeing both the sale of these HUD properties and all related closing activities. The award of the P2 contract to Greenleaf prompted a protest by the plaintiff before the GAO on May 2, 2005. After the filing of this protest, and based in part on comments received from the Small Business Administration (\SBA\), HUD elected to terminate the award of the contract awarded to Greenleaf and the plaintiff\rquote s protest was dismissed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': contracting agency was not obligated to refer bidder to the Small Business Administration (SBA) for a determination of the bidder\rquote s responsibility under the SBA\rquote s certificate of competency program when it rejected bid on ground other than nonresponsibility, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': A disappointed small business bidder rejected by the contracting agency on the basis of a nonresponsibility is entitled, as a small business, to request from the Small Business Administration (SBA) a determination of the company\rquote s responsibility under the SBA\rquote s certificate of competency program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': Although contracting agency determined that small business bidder was nonresponsibile, it was not obligated to refer the bidder to the Small Business Administration (SBA) for a determination of the bidder\rquote s responsibility under the SBA\rquote s certificate of competency program, where agency concurrently rejected bid on other ground of nonresponsiveness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s reply brief filed on August 2, 2005, included a separate Motion To File a First Amended Complaint, which requests a stay of proceedings on the ground that the Small Business Administration (the \SBA\) has exclusive jurisdiction to make the determination whether plaintiff is a responsible bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': provides: \A contracting officer must, upon determining an apparent low small business offeror to be nonresponsible, refer that small business to SBA for a possible COC, even if the next low apparently responsible offeror is also a small business.\ Plaintiff asserts that, at present, jurisdiction over the complaint is premature in that the court lacks jurisdiction either to pass on the merits of plaintiff\rquote s challenge to ANG\rquote s nonresponsive determination or to enter a judgment for defendant. Because plaintiff deems Contract Specialist Mitchell\rquote s June 29, 2005 memorandum \a determination that [plaintiff] was not responsible[,]\ plaintiff contends that ANG was required to refer the matter to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': , a disappointed small business bidder rejected on the basis of a nonresponsibility is \entitled, as a small business, to request an SBA determination of the company\rquote s responsibility under its Certificate of Competency ... program.\ The program was explained, as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': Under the program the SBA makes a determination of a small business\rquote responsibility to perform under a contract. After considering all aspects of a business\rquote responsibility, the SBA determines whether or not to issue a COC. If the SBA issues the COC, the procuring agency must accept the SBA\rquote s responsibility determination as final. However, if the SBA declines to issue a COC, the contracting officer nevertheless may award the contract based on independent judgment and new information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': Upon determining that a small business is non-responsible, the contacting officer must notify the SBA of its determination. The agency then withholds award of the contract for up to 15 working days following receipt by the SBA of the notice of that determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': , the regulation that compels the procuring officer to refer the small business to the SBA for a COC, provides: \If a small business concern\rquote s offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer shall refer the matter to the Small Business Administration[.]\ The express language of this regulation triggers a procuring agency\rquote s obligation to refer a bidder to the SBA not solely when it determines the bidder to be nonresponsible, but when the bidder has submitted a bid that \would otherwise be accepted\ and is \to be rejected because of a determination of nonresponsibility.\ ANG\rquote s decision not to refer the matter to the SBA was correct at the time because plaintiff\rquote s bid would not \otherwise be accepted,\ given that the ANG had determined it to be nonresponsive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': The calculus of respective harm has changed, because the delay that was deemed nonprejudicial in the prior order was attributable to delay in funding. The funding is in hand. As the COC determination by regulation prescribes a further fifteen-day period of delay, the FAR contemplates that delay can and will occur after award when the award involves a small business. Plaintiff has proceeded post haste, in any event. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 088 - Aeroplate Corp v US.doc, Paragraph with 'The Rule of Two': , ANG shall provide notice to the Small Business Administration that it has determined that plaintiff lacks certain elements of responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 098 - Gould Inc v US.doc, Paragraph with 'The Rule of Two': Total small business set-asides are compatible with the multiyear method of contracting. Partial set-aside procedures (both small business and labor surplus area) are generally not compatible with the multiyear procedure when high startup costs are involved (potential duplication of such costs by the set-aside contractor and the non-set-aside contractor is not offset by broader and more realistic competition). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 098 - Gould Inc v US.doc, Paragraph with 'The Rule of Two': Partial set-asides are compatible when the opportunity for cost savings is based on assurance of continuity of production over longer periods of time. When considering use of this procedure, the contracting officer shall request the activity\rquote s small business specialist and the SBA representative, if one is assigned to that activity, to review all pertinent facts and make recommendations thereon. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 002 - Evers v Barnhart.doc, Paragraph with 'The Rule of Two': On February 9, 2004, the SSA filed the requisite agency report pursuant to GAO rules, asserting that the SSA is required, by regulation, to presume that Evers was not a responsible contractor by reason of the termination for cause of his prior contract. (Def.\rquote s 56.1(a)(3) Statement \u182 114). On March 1, 2004, in response to the agency\rquote s report, Evers alleged that he was a small business and that the SSA could not make a non-responsibility determination without referring his quote to the Small Business Administration. (Id., \u182 115). On March 8, 2004, the SSA agreed with Evers\rquote position and agreed to determine whether the only problem with Evers\rquote quote was non-responsibility; and, if so, it would refer the quote to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 003 - CC Distributors Inc v US.doc, Paragraph with 'The Rule of Two': . CCD contends that where, as here, Maratech\rquote s prices were \unreasonably low\ the CO should have made a determination of non-responsibility and referred the matter to the Small Business Administration for a Certificate of Competency pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 008 - MTB Group Inc v US.doc, Paragraph with 'The Rule of Two': proper competition between auction participants because other small business inspection firms, along with plaintiff\rquote s own subcontractors, will be able to obtain or derive plaintiff\rquote s pricing and pricing strategy information and then use such data to plaintiff\rquote s disadvantage in an ongoing auction and in later auctions involving the same HUD properties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 008 - MTB Group Inc v US.doc, Paragraph with 'The Rule of Two': HUD will suffer significant harm should the Reverse Auction Program not continue. Not only does the RAP purport to maximize competition among certified small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 008 - MTB Group Inc v US.doc, Paragraph with 'The Rule of Two': encourages the use of methods that \[r]educe administrative costs[;]\ improve opportunities for, among others, small businesses so that they receive a fair proportion of government contracts; increase efficiency and economy in the contracting process; and minimize unnecessary concerns for agencies and contractors. Without question, although the FAR does not specifically contemplate a reverse auction as a simplified acquisition procedure, defendant has demonstrated that HUD\rquote s reverse auctions attempt to meet these goals. These auctions, moreover, do not improperly break down requirements that were initially greater than the simplified acquisition threshold. Instead, HUD must list properties and lots as separate entities so that it is able to award contracts for each individual property and monitor the inspections of all properties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 008 - MTB Group Inc v US.doc, Paragraph with 'The Rule of Two': In order to be eligible to participate in a reverse auction and access the reverse auction website, a contractor must (1) ensure that all inspectors under its auspices are certified in the UPCS inspection protocol and in the current version of the Data Collection Device software; (2) maintain a minimum of $500,000.00 in general liability insurance; and (3) maintain and provide proof of status as a Level 2, on-line service MasterCard vendor. Additionally, participation in the Reverse Auction Program is limited to contractors that are classified as a small business and meet the small business size standard for the North American Industry Classification System. A.R. Ex. 19 at 330. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 011 - Night Vision Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s First Amended Complaint consists of five counts. Count I alleges that defendant breached its Small Business Innovation Research Program (\SBIR\) contracts with plaintiff by disclosing to third parties plaintiff\rquote s proprietary technical data in violation of SBIR statutes and regulations allegedly incorporated into the contracts. Compl. at 23-25. Count II alleges that defendant breached its SBIR contracts with plaintiff by declining to enter into a Phase III SBIR contract in violation of statutes and regulations allegedly incorporated into the contracts. Compl. at 25-27. Count III alleges that defendant breached an oral contract it allegedly formed with plaintiff to award it a Phase III SBIR contract in the event that plaintiff successfully completed its Phase II SBIR contract. Compl. at 27-28. Count IV alleges that defendant\rquote s decision not to award plaintiff a Phase III SBIR contract violated its implied duty of good faith and fair dealing. Compl. at 28-29. Count V, plaintiff\rquote s bid protest related to Air Force Contract No. 00-01-HE, alleges that defendant\rquote s award of the contract to Insight Technology, Inc. (\Insight\) instead of plaintiff was \patently unreasonable, arbitrary, and capricious.\ Compl. 29-31. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 013 - Patriot Contract Services v US.doc, Paragraph with 'The Rule of Two': Organization (including Organizational Structure and the identification of Key Personnel), Management Systems, and Participation of Small Business, HUBZone Small Businesses, Small Disadvantaged Business, Women\u8211Owned Business Concerns. As part of the first factor, MSC would consider the bidder\rquote s experience and demonstrated ability to maintain and operate \ships of similar type and/or size\ to the LMSRs. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 013 - Patriot Contract Services v US.doc, Paragraph with 'The Rule of Two': Two of the eleven LMSRs are not relevant here as they were set aside for small business participation. At issue here is the operation and maintenance of only nine LMSRs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 013 - Patriot Contract Services v US.doc, Paragraph with 'The Rule of Two': Both bidders were rated \Exceptional\ in the most important subcategory of Technical Experience & Capability, in the second most important subcategory of Management of Purchasing Systems and Reimbursables, and for Property Control (one of two factors in the fourth-ranked Management Systems subcategory). Both bidders were rated \Very Good\ for Organizational Structure (one of two factors in the third-ranked Management Organization subcategory) and for the least significant (for evaluation purposes) Participation of Small Business, HUBZone Small Businesses, Small Disadvantaged Business, Women\u8211Owned Business Concerns subcategory. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': Transportation Equity Act (TEA), which required portion of federal highway construction funds to be paid to small businesses owned and controlled by racial minorities and women, served compelling government interest in not perpetuating effects of racial discrimination in its own distribution of federal funds and in remediating effects of past discrimination in government contracting markets created by its disbursements, for purpose of facial equal protection challenge under strict scrutiny standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': The pertinent provision of TEA\u821121 provides that, \[e]xcept to the extent that the Secretary [of Transportation] determines otherwise, not less than 10 percent of the amounts made available for any program under titles I, III, and V of this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ \u167 1101(b)(1), 112 Stat. at 113. The specifics of this minority preference program are set forth in regulations promulgated by the USDOT. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': . A disadvantaged business enterprise (\DBE\) is defined as a small business owned and controlled by one or more individuals who are socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': including informational and instructional programs targeted toward all small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': \u8226 Women own nearly a third of all small businesses but receive less than 3% of federal contracting dollars. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 018 - Western States Paving Co Inc v Washington State Dept of Transp.doc, Paragraph with 'The Rule of Two': The TEA\u821121 regulations place a preference on the use of race-neutral means\u8212including informational and instructional programs targeted toward all small businesses\u8212to achieve a State\rquote s DBE utilization goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 027 - Orca Northwest Real Estate Services v US.doc, Paragraph with 'The Rule of Two': The SA\u82113 procurement was offered as a Small Business Set Aside. According to the RFP, the award decision would adhere to a cascading procedure: The competition would only open to offerors of all sizes if HUD determined that competition between small businesses was not adequate. If awarded as a small business set aside, the contract would include a clause mandating that the contractor\rquote s employees would account for at least 50% of the work performed under the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 027 - Orca Northwest Real Estate Services v US.doc, Paragraph with 'The Rule of Two': In descending order of importance, these were: (1) Management Capability and Quality of Proposed Management Plan; (2) Past Performance; (3) Prior Experience; (4) Proposed Key Personnel; (5) Subcontract Management; and (6) Small Business Subcontracting Participation. AR 256\u821158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 027 - Orca Northwest Real Estate Services v US.doc, Paragraph with 'The Rule of Two': In the fall of 2003, six small business offerors, including ORCA and HMBI, submitted proposals for the SA\u82113 contract. The offerors\rquote technical proposals were initially reviewed by a Technical Evaluation Team (\TET\), a group of HUD officials convened to evaluate the technical aspects of the Santa Ana HOC proposals. The TET rated * * * \lquote s technical proposal \Excellent.\ ORCA and HMBI both received a \Good\ rating, while the remaining three proposals were rated \Fair\ or \Poor.\ Although HMBI received the same technical rating as ORCA, the TET concluded that HMBI\rquote s technical proposal presented a greater risk of unsuccessful performance. The TET recommended that only the proposals of * * * and ORCA receive further consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 027 - Orca Northwest Real Estate Services v US.doc, Paragraph with 'The Rule of Two': . By 5:02 p.m. on October 21, the day of dismissal, HMBI began to furnish HUD with new information relevant to its responsibility in general and its financial situation in particular. It submitted evidence that it had met the bonding requirements of its four M & M contracts by securing a * * * letter of credit that very day. Four days later, HMBI faxed HUD evidence that the Small Business Administration (\SBA\) had approved a Mentor/Prot\u233g\u233 Agreement (\MPA\) between HMBI and BTS, Inc., a substantially larger corporation that HMBI proposed using as a subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 028 - Patriot Contract Services LLC v US.doc, Paragraph with 'The Rule of Two': Two of the eleven LMSRs are not relevant here as they were set aside for small business participation. At issue here is the operation and maintenance of only nine LMSRs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Information technology company originally awarded Department of Energy (DOE) computer network services contract as qualified small business brought action against Government after the Small Business Administration (SBA) determined company did not meet small business criteria on disappointed bidder\rquote s challenge, contract was re-awarded to challenger, SBA appellate level overturned size determination and remanded, and contracting officer (CO) refused to reinstate contract to company. Challenger intervened. Government and challenger moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Originally successful bidder\rquote s challenge to re-award of contract to challenger after challenger\rquote s protest to business size qualification was upheld, and to refusal to reinstate contract award to bidder following Small Business Administration\rquote s (SBA\rquote s) appellate overturning of disqualification determination was not a post-award administrative dispute, but was within Court of Federal Claims\rquote jurisdiction under the Tucker Act as expanded by the Administrative Disputes Resolution Act (ADRA); bidder claimed it was mistakenly excluded from re-award and thus unfairly denied contract, and bidder\rquote s appeal was pending when contract was re-awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Originally successful bidder was \interested party\ within meaning of Tucker Act that had standing to sue in protest of contract re-award, even though contract was re-awarded during window of time between Small Business Administration\rquote s (SBA\rquote s) adverse size determination disqualifying bidder and remand from SBA\rquote s appellate level after that determination was overturned; the only obstacle to original contract award to bidder was size determination that was reversed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had subject matter jurisdiction to weigh reasonableness of discretion applied by contracting officer (CO) in refusing to reinstate originally successful bidder when computer network services contract had been re-awarded to challenger during window of time between size determination adverse to bidder and Small Business Administration\rquote s (SBA\rquote s) subsequent appellate reversal of that determination, pursuant to regulation setting forth discretionary scheme to be followed after formal size determination is made by SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': This case pits the needs of any administrative system against an apparent unfair loss of a contract. Plaintiff was awarded a contract by the Department of Energy (DOE) as qualified under Small Business Administration (SBA) rules. A disappointed bidder filed a challenge with the SBA that Plaintiff did not meet the small business criteria of the agency and its regulations. SBA initially determined that indeed Plaintiff did not meet that criteria and DOE withdrew the contract from Plaintiff, eventually awarding it to the challenger, who is the Intervenor here. Three days after the contract was re-awarded, but before contract performance began, the appellate level of SBA (OHA) overturned the determination that Plaintiff was not a small business and remanded to the initial SBA decision-maker. If this appellate reversal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': If the initial SBA size determination was wrong, then Plaintiff has lost a valuable contract by reason of a Government misjudgment. The taxpayer has also been denied the best deal. However, this problem is inherent where the SBA has a role in government procurement. Of course, Congress found this role to be based on an important national concern; fostering small business. The Court is thus faced with 3 questions it must answer. First, does it have subject matter jurisdiction? Second, does the complaint state a cause upon which this Court has the power to grant relief? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': The third question is the hardest to answer because the mandates from Congress clash. In order to find that the CO abused his discretion the court must determine that the CO either acted in bad faith (for which there appears to be no evidence) or that his action is so inconsistent with DOE\rquote s actual need for certainty that it can not be justified in light of Plaintiff\rquote s small business status at the time of the OHA reversal. This is a tough standard to meet. The Court has not heard specific argument on this point, however, it has some preliminary views that may help the parties. So far, the description of the CO\rquote s decision does sound reasonable. The DOE in this case is faced with a real need for computer services. Reissuing the contract to Plaintiff would add an additional level of uncertainty to the process. If the contract was returned to Plaintiff and the ongoing OHA remand ultimately finds that CNSI was not an 8(a) small business, then DOE would yet again have to terminate the contract with Plaintiff, and presumably the Intervenor would again be given the contract a second time. Thus, after one award and three re-awards the Government would only then get its IT network. The systemic interest in preventing this seems strong indeed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Client Network Services, Inc. (CNSI) is an information technology company, which is a participant in the Small Business Administration\rquote s 8(a) Business Development Program, for purposes of federal government contract set-asides. Complaint \u182 14. When its Yucca Mountain Project Office of Civilian Radioactive Waste Management needed new Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': computer network services, the Department of Energy (DOE) solicited a handful of such small businesses through a Request for Quotations (RFQ) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': Within a week of DOE\rquote s award to CNSI, disappointed bidder Catapult challenged CNSI\rquote s size eligibility with the SBA, arguing the North American Industry Classification System (NAICS) schedule applied. Complaint \u182 16. On October 28, 2004, the SBA Philadelphia Area Director concluded that CNSI was other than a small business concern under that standard. Complaint \u182 23. Seven days later, on November 4, 2004 CNSI exercised its administrative right to appeal that adverse size determination, filing with the OHA. Id. Now operating under the Area Office ruling, on November 8, 2004 DOE terminated it\rquote s award of the Yucca Mountain IT contract with CNSI. While the OHA was considering CNSI\rquote s appeal, DOE then re-awarded the contract to Catapult on February 8, 2005. Three days later, OHA issued its order of remand, vacating the Area Office\rquote s October size determination. Complaint \u182 25. After discovering that DOE would stand by its re-award to Catapult even in light of the OHA remand, CNSI lodged a protest first with the agency, and then with GAO on February 17, 2005. Complaint \u182 27. On March 3, 2005 GAO dismissed CNSI\rquote s protest, finding that DOE had discretion not to abide by an after-award OHA decision correcting an SBA size ruling. Complaint \u182 28. On March 18, 2005 Plaintiff CNSI filed in this Court asking us to declare DOE\rquote s decision not to reinstate CNSI as successful bidder as arbitrary and capricious, and to permanently enjoin the Government from performance of the task order under the RFQ awarded to Catapult on February 8, 2005. Plaintiff\rquote s Prayer for Relief, (a) and (c). In response, Defendant filed its 12(b)(1) Motion to Dismiss, and Intervenor Catapult filed its Motion to Dismiss arising under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': While the RFQ itself did not expressly limit bidders to 8(a) qualified small businesses, instead insisting on GSA Federal Supply Schedule contract holders, the accompanying email from the contracting officer read, \Your firm has been selected to participate in a competitive 8(a) award.\ Complaint at \u182 13, 19 and Pl. Appendix, Tab 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 030 - Client Network Services Inc v US.doc, Paragraph with 'The Rule of Two': \We are a small business. We should have had the award. We have an adverse decision because we were knocked out of the running.\ John Marcotte, for Plaintiff Transcript of April 1, 2005 Oral Argument. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 033 - Consolidated Engineering Services Inc v US.doc, Paragraph with 'The Rule of Two': & B submitted its subcontracting plan on December 18, 2003. Upon review by the contract specialist and contracting officer, the agency found that LB & B\rquote s plan generally complied with the requirements set forth in the RFP, but submitted it to the Small Business Administration (SBA) for review and comment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 033 - Consolidated Engineering Services Inc v US.doc, Paragraph with 'The Rule of Two': ) that demonstrates a good faith effort designed to meet the following Small, Small Disadvantaged and Women\u8211Owned Small Business minimum goals will ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 033 - Consolidated Engineering Services Inc v US.doc, Paragraph with 'The Rule of Two': ) apply to this requirement: Small Businesses\u821220% of the total value of the contract; Small Disadvantaged Businesses\u82125% of the total value of the contract; and Women Owned Small Businesses\u82125% of the total value of the contract. (See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 033 - Consolidated Engineering Services Inc v US.doc, Paragraph with 'The Rule of Two': , Small Business Subcontracting Plan, as an addenda to the solicitation. The incorporated provision states, in pertinent part, that \[t]he offeror, upon request by the Contracting Officer, shall submit and negotiate a subcontracting plan....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 033 - Consolidated Engineering Services Inc v US.doc, Paragraph with 'The Rule of Two': sets forth the additional requirement that \[t]he contracting officer must review the subcontracting plan...\ and provides this instruction: \In determining the acceptability of a proposed subcontracting plan, the contracting officer should take the following actions:...(7) Obtain advice and recommendations from the SBA procurements center representative (if any) and the agency small business specialist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 037 - Arch Chemicals Inc v US.doc, Paragraph with 'The Rule of Two': SpaceChem is a recently formed limited liability company, which is owned by United Paradyne Corporation. Admin. R. Tab 17, at 2. United Paradyne is a small business that has provided engineering and propellant services, as well as aerospace support services, at Vandenberg Air Force Base and the Kennedy Space Center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 039 - Manson Const Co v US.doc, Paragraph with 'The Rule of Two': , which deals with the preference for so-called HUBZone Small Business concerns under the HUBZone program maintained by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 039 - Manson Const Co v US.doc, Paragraph with 'The Rule of Two': (1) Offers will be evaluated by adding a factor of 10 percent to the price of all offers, except\u8212(i) Offers from HUBZone small business concerns that have not waived the evaluation preference ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 039 - Manson Const Co v US.doc, Paragraph with 'The Rule of Two': One of these bidders, B+B Dredging Company (B+B Dredging), is a qualified HUBZone Small Business and thus eligible for the evaluation preference described in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': denied motions, and remanded to the Small Business Administration (SBA) to provide evidence of awardee\rquote s HUBZone eligibility at the time of bid opening. After SBA determined that awardee was a qualified HUBZone small business concern (SBC) at the time of bid opening, parties filed renewed cross motions for judgment on the administrative records. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': , Senior Judge, held that substantial evidence supported SBA\rquote s determination that contract awardee\rquote s principal office was located in a HUBZone at time of bid opening, and thus awardee was an eligible HUBZone small business concern (SBC) at time of bid opening. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Substantial evidence in post-award bid protest supported determination of the Small Business Administration (SBA) that contract awardee\rquote s principal office was located in a HUBZone at time of bid opening, and thus awardee was an eligible HUBZone small business concern (SBC) at time of bid opening. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': , Assistant Director, for defendant. Major Kevin Robitaille, Army Litigation Division, and Beverly Hazlewood\u8211Lewis, U.S. Small Business Administration, Office of General Counsel, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest is before the Court on renewed cross motions for judgment on the administrative record. Plaintiff, Mark Dunning Industries, Inc. (\MDI\), challenges the award of a refuse collection and disposal contract to Si\u8211Nor, Inc. (\Si\u8211Nor\). Plaintiff maintains that Si\u8211Nor should not have received a 10% price evaluation preference based on Si\u8211Nor\rquote s Small Business Administration (\SBA\) status as a Small Business Concern (\SBC\) located in a historically underutilized business zone (\HUBZone\) because Si\u8211Nor did not meet the statutory requirements for HUBZone status. Plaintiff claimed that it submitted a timely SBA status protest to the contracting officer (\CO\), who never forwarded the protest to SBA. Plaintiff, therefore, claimed that its protest was never properly decided on the merits. On August 21, 2003, this Court held that the CO\rquote s failure to forward MDI\rquote s protest fax was a violation of the HUBZone regulations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Pursuant to this Court\rquote s order, the SBA investigated Si\u8211Nor\rquote s eligibility and determined that Si\u8211Nor was a qualified HUBZone small business concern at the time of the bid opening on October 11, 2002. Specifically, the SBA found that Si\u8211Nor met the principal office requirement at the time of bid opening and was, therefore, a qualified HUBZone small business concern eligible for HUBZone contracts. The SBA came to this conclusion after the SBA requested that Si\u8211Nor provide supporting documents demonstrating that its principal office was located in a HUBZone at the time of bid opening. In response, Si\u8211Nor provided numerous documents including payroll records, copies of state unemployment tax filings, job site locations, weekly hours for employees, copies of tax bills for various properties, copies of utility bills, a map showing that the Vernon office is located in a HUBZone, a statement that Si\u8211Nor owns each of its three properties, and a copy of a temporary Certificate of Occupancy for the office located in the HUBZone. In addition, Si\u8211Nor provided a statement \that at the time of bid opening, 31 employees worked at the Vernon office, 3 at the Gardena office and 10 at the Rialto office.\ SBA July 14, 2004 Decision at 3. Si\u8211Nor also provided a statement describing the duties of its employees at its various offices. Specifically, Si\u8211Nor noted that all of its employees that are truck drivers report to work at the Vernon office, sign their time sheets, pick up their trucks and equipment, and proceed to service their customers throughout the day. Si\u8211Nor also provided a breakdown of the hours each employee spends performing duties at the various job site locations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 041 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': This Court agrees with defendant. The principal office definition can mean something very different from a company\rquote s headquarters. A small business might have a headquarters in a non-HUBZone location, establish a principal office within a HUBZone locality, and still qualify legitimately for program participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with 'The Rule of Two': (challenging HMBI\rquote s status as a small business.) That protest\u8212litigated by two of the same attorneys involved in this action\u8212had a tangential impact on this protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with 'The Rule of Two': The Request for Procurement (\RFP\) called for a \best value\ competition, providing for two-part proposals: (1) the Technical and Management Proposal; and (2) the Business Proposal. The Technical and Management Proposal was evaluated on the following criteria: Management Plan Capability/Quality of Proposed Management Plan; Past Performance; Prior Experience; Proposed Key Personnel; Subcontract Management; and Small Business Subcontracting Participation. Part II, the Business Proposal, is essentially the price at which the offeror is able to provide the services. Solicitation, Section M (Evaluation Factors for Award.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with 'The Rule of Two': Although the three proposals were deemed technically acceptable, the TEP had identified a number of areas for further discussion for each. In light of its close association with Best Assets as a subcontractor, the contracting officer directed HMBI to respond to questions concerning its plans to incorporate small business subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with 'The Rule of Two': Indeed, because the RFP contemplated performance primarily by a small business concern, the contract limited the permissible level of the offerors\rquote reliance on subcontractors. For this reason, the Solicitation required proposals to itemize the total value of the proposed small business subcontracting effort as it related to the total value of the prospective contract, to state specific goals for small business, to indicate small business commitments, and to describe the substantive nature of work to be subcontracted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with 'The Rule of Two': Solicitation at \u182\u182 M.5(5)-(6) (Technical and Management Proposal; discussion of Subcontractor Management and Small Business Subcontracting Participation.) If it could be shown that HUD disregarded this clear goal in accepting HMBI\rquote s offer, then we might well have a cardinal change. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': Incumbent government contractor that did not qualify as small business under amount-of-receipts standard reflected on request for proposal (RFP) did not have substantial chance of obtaining contracts that were subject of its bid protest action, and thus was not \interested party,\ for purposes of jurisdiction of Court of Federal Claims to hear action by interested party objecting to agency\rquote s solicitation of bids or proposals, and lacked injury-in-fact required for standing to challenge agency\rquote s award of contracts to rival bidders, notwithstanding contractor\rquote s speculative theory that one rival had to be eliminated, allowing contractor to have standing to protest award as one of only two remaining offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': On Block 10 on the RFP cover page, the USMS designated the solicitation as a set-aside for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': code 532411. NAICS code 532411, applicable to Commercial Air, Rail, and Water Transportation Equipment Rental and Leasing, ventures require annual receipts under $6 million to qualify for small business treatment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': which states: \[T]he small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': was told by the USMS on May 6, 2004 that it had won the contracts in Oklahoma and Louisiana. Unsuccessful offeror Aviation Enterprises, Inc. (\AEI\) immediately protested that Pride exceeded the size criteria applicable for a small business set-aside under the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': On May 7, the USMS suspended the contract awards and requested a size determination from the SBA, which determined on May 27 that Pride did not qualify as a small business because its gross revenue exceeded the $6 million ceiling. Pride\rquote s appeal to the SBA\rquote s Office of Hearings and Appeals was denied on July 28. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': 3. The SBA erred by failing to investigate plaintiff\rquote s allegation that Metscan did not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': At a hearing on July 19, 2004, plaintiff argued that the SBA\rquote s $6 million receipts/500\u8211employees standards could be read both disjunctively and conjunctively. July 19 Transcript (\7/19 Tr.\) at 23. The court questioned whether (1) plaintiff qualified as an interested party when it was not a small business under the NAICS code displayed on the RFP, and (2) plaintiff waived this argument by failing to raise the ambiguity with the contracting officer prior to the bid deadline. Plaintiff repeatedly conceded that it did not qualify under the $6\u8211million\u8211in\u8211receipts standard, but argued that, because the situation was confusing, it should have to satisfy only the employee-number standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': On July 29, 2004, plaintiff filed a \Supplemental Submission\ appending copies of the various documents and the substance of conversations with the contracting officer, and defendant submitted the SBA\rquote s July 28, 2004 adverse decision on plaintiff\rquote s appeal of the SBA determination that it was not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': Although it did not need to reach these issues, the SBA held, on the merits, that the 50% \nonmanufacturer rule\ did not apply to this lease, which was not for an item sold to the general public, and because plaintiff intended to provide an item that was not manufactured by a small business, Pride not having denied that it would obtain from the Boeing Company one or more of the airplanes Pride intended to lease to the USMS under this contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': The Small Business Act grants the Small Business Administration (\SBA\) broad power to establish size standards and other criteria for qualification as a small business, which other federal agencies must accept as conclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': ). Qualification as a small business permits an entity to bid on and obtain contracts set aside for small businesses, which are not subject to usual rules of competition or government contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': The SBA uses the NAICS codes to determine which entities qualify as a \small business concern,\ generally by reference to the number of employees or the amount of annual receipts, for different classes of economic activity or industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': provides that the NAICS code and small business size standard for the solicitation appear in Block 10 of the RFP cover sheet. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 047 - Pride Intern LLC v US.doc, Paragraph with 'The Rule of Two': On August 12, 2004, defendant filed the SBA\rquote s July 30, 2004 denial, No. SIZ\u82112004\u821106\u821124\u821139, of another of Pride\rquote s protests of the Metscan award. In this protest, Pride had asserted that Metascan was too large to have qualified as a small business. The OHA upheld the SBA Atlanta area office\rquote s dismissal of Pride\rquote s protest because, under the Small Business Set\u8211Aside Program, a business found to be \other than small\ lacks standing to mount a size protest when there is more than one other offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 048 - Kropp Holdings Inc v US.doc, Paragraph with 'The Rule of Two': [ ] received a \Satisfactory\ socioeconomic subcontracting rating, but the SSAs noted that \[ ] has not exceeded the statutory small business procurement goals for Federal agencies for this solicitation.\ AR at 127. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': , Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': AR at 25 (Solicitation). The Solicitation provided for the award of multiple indefinite quantity indefinite delivery fixed-unit-rate contracts with full and open competition for some contracts, with a small business set-aside for other contracts, and with a section 8(a) set-aside for still other contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': at 280. The Solicitation identified six evaluation criteria for the technical proposal in descending order of importance: (1) Management Capability and Quality of Proposed Management Plan, (2) Past Performance, (3) Prior Experience, (4) Proposed Key Personnel, (5) Subcontract Management, and (6) Small Business Subcontracting Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': The Solicitation provided that the award for the Illinois\u8211Indiana contract would be made to an eligible small (non\u82118(a)) business if adequate competition existed among the small businesses, and, absent adequate competition, then by cascading priority to an unrestricted business entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': at 25, 285. The record indicates that HUD determined that the competition among small businesses was adequate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': The next day, on July 8, 2004, Chapman filed an unsuccessful size protest with the Small Business Administration (SBA) challenging HMBI\rquote s eligibility for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': The Solicitation requires a small business contractor to agree \[t]o adhere to the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': HMBI acknowledges that, in responding to HUD\rquote s discussion questions, it occasionally referred to the more stringent requirements for a proposal submitted by an 8(a) small business concern rather than the slightly different requirements for a proposal submitted by a non\u82118(a) small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': As a general matter, an agency\rquote s judgment as to whether a small business offeror will comply with the subcontracting limitation is a matter of responsibility, and the contractor\rquote s actual compliance with the provision is a matter of contract administration. However, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': at 1676 (TEP\rquote s evaluation of HMBI\rquote s final proposal revision). The TEP observed that HMBI\rquote s final proposal revision \represent[ed] a major change from the original proposal that better supports the ability of HMBI to perform fifty-one percent (51%) of the work as required by the Small Business Administration of a prime 8(a) contractor.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': A business concern is determined to be a small business if it meets the size criteria addressed in section 632 of the Small Business Act, as amended in 1997, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': . A section 8(a) small business concern is one that is \owned and controlled by socially and economically disadvantaged individuals,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': , and has completed participation in the business development program authorized by the Small Business \to assist eligible small disadvantaged business concerns compete in the American economy,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 049 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': (6) Small Business Subcontracting Participation\u8212no significant weaknesses identified. Compl. \u182 21. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 050 - Puglia Engineering v US Coast Guard.doc, Paragraph with 'The Rule of Two': This case arises out of the Coast Guard\rquote s preliminarily granting, but then rescinding, the award to Plaintiff of a government contract to repair the Long Island. The contract provides for major repairs to the ship\rquote s hull, which has fallen victim to severe corrosion. On May 28, 2004, the Coast Guard issued its initial Solicitation for bidders on the contract. The Solicitation provided that the contract was a part of the Small Business Administration\rquote s (\SBA\) Historically Underutilized Business Zone (\HUBZone\) set-aside program, which encourages economic development in historically depressed areas by restricting the award of some government contracts to those areas. After receiving four bids, the Coast Guard on August 25, 2004 determined that Puglia had given the best value bid. However, a competing offeror contested the award of the contract based on the allegation that Puglia was not a qualified HUBZone contractor. Based on this challenge, the Coast Guard referred the matter to the SBA to determine whether Puglia should be granted a Certificate of Competency (\COC\). On September 23, SBA awarded Puglia a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 050 - Puglia Engineering v US Coast Guard.doc, Paragraph with 'The Rule of Two': (SBA regulations incorporating NAICS and providing size standards for small businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 055 - EP Productions Inc v US.doc, Paragraph with 'The Rule of Two': Eight companies submitted proposals. The evaluation team concluded that seven of these satisfied the threshold facility acceptability requirement. In early February 2004, the contracting officer, the source selection authority, determined that three of these seven\u8212including plaintiff, American Small Business Alliance (ASBA), and the eventual winner, A\u8211S\u8211K Associates\u8212were within the competitive range. A fourth offeror, Avail Inc., was later included in this group after a successful appeal. Between March 3 and 9, 2004, the four offerors within the competitive range made their oral presentations to SDDC officials, with each presentation being videotaped. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': ). Therefore, \[a]ll the MEPS travel services require extensive personal effort of [Carlson\rquote s] Travel Counselors.\ Compl. at 9, \u182 47. See also id. (\In the case of MEPS, ... the most time-consuming efforts are negotiating directly with air carriers to arrange for group travel of up to 50 or more recruits at special rates and restricted service. Such group travel cannot be booked via the [airlines\rquote ] automated Global Distribution System[ ] ... used for individuals or small groups (nine or less).\). According to Carlson, \the Government has stated that the DTS will not be functional and capable of facilitating MEPS travel until Fiscal Year 2006 ... at the earliest.\ Pl.\rquote s Opp. at 8 (footnote omitted). This representation is consistent with testimony offered by DoD representatives in a GAO bid protest action concerning \a small business set-aside to acquire official travel management\ services for MEPS facilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': (ITEC4) issued a solicitation set-aside for small businesses to provide DTS CUI travel management services to eighty-nine military sites, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': \[h]owever, the Defense Travel System Program Management Office (\u8216DTS PMO\u8217), which sponsored the procurement, and ITEC4 ... issued public statements to the industry to the effect that they intended to promptly reissue the solicitation for the same MEPS travel management service requirements.\ Pl.\rquote s Facts at 7, \u182 8. This proved to be the case. On October 8, 2003, Carlson learned that the DTS PMO and ITEC4 had \publicly announce[d] their intention to reissue such a small business set-aside Solicitation that include[d] the travel requirements for [all of] the MEPS sites covered by [Carlson]\rquote s DTR Contracts.\ Pl.\rquote s Opp., App. Ex. 3 (letter from plaintiff to Contracting Officer, Jackie Robinson\u8211Burnette (CO or Contracting Officer), of Oct. 8, 2003 (Pl.\rquote s First Letter)), at 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': It is CWGT\rquote s position that so long as the DTR Contracts are in effect, CWGT is the exclusive provider of travel services to the MEPS sites ..., and any transfer of that travel service business to another contractor, small business or otherwise, would constitute a breach of CWGT\rquote s ... Contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': The letter concluded with a request that the Contracting Officer \promptly issue a Final Decision pursuant to the Contract Disputes Act of 1978\ (CDA) if she determined \that the travel requirements of the MEPS sites covered by the ... Contracts may be transferred to another contractor, including pursuant to a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': On October 9, 2003, one day after Carlson sent this letter, ITEC4 issued a draft solicitation for a small business set-aside containing \the travel requirements for 63 MEPS locations, including the 54 MEPS locations contained in Carlson\rquote s ... Contracts.\ Pl.\rquote s Facts at 17\u821118, \u182 11. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': On December 1, 2003, Carlson sent a third letter to its Contracting Officer. Pl.\rquote s Opp., App. Ex. 8 (Pl.\rquote s Third Letter). Referencing the Workload Data Letters, Carlson quoted a statement on the DTS web site that the data was being collected to provide \prospective offerors the most accurate and current workload data available. The workload data is being provided to prospective offerors for their preparation of proposals in regard[ ] to the Government\rquote s Small Business Final Request for Proposals for Travel Management Services.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': the Contracting Officer stated that she could not \assure ... that at some future date these services [would] not be deleted and/or transferred to a[DoD] travel service contract,\ and noted that such a transfer would \depend[ ] primarily on the outcome of the proposed acquisition set-aside for small business[es] by the Defense Travel System (DTS) Program Management Office (PMO) for travel services at MEPS sites, including those currently within [Carlson\rquote s] Army contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': so long as the ... Contracts are in effect, [Carlson] is the exclusive provider of travel services to all the sites listed in the contracts, including the MEPS sites, and any transfer of such travel service business to another contractor, small business or otherwise, would constitute a breach .... The removal of MEPS travel requirements from [the] contracts would have a significant adverse impact on CWGT\rquote s performance of those contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': On February 13, 2004, before the Contracting Officer responded to Carlson\rquote s final letter, ITEC4 issued its solicitation seeking six small business subcontractors to provide travel management services to sixty-seven MEPS sites, including the fifty-four MEPS sites covered under Carlson\rquote s contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Opp., App. Ex. 2 (Solicitation W91QUZ\u821104\u8211R\u82110007) (MEPS Solicitation). \Carlson is not a small business concern and is thus precluded from competing under this MEPS Solicitation.\ Compl. at 15, \u182 83. The MEPS Solicitation \purported to seek proposals to provide both DTS CUI-facilitated travel services and traditional travel services for MEPS locations,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': at 52:17\u821119 (statement of plaintiff\rquote s counsel that \[t]his procurement has been going on for some time and they\rquote re representing that they are going to make awards in December.\). Notwithstanding these delays, defendant stated that performance on the MEPS small business contract \wouldn\rquote t begin ... until April [1], 2005,\ the day after Carlson\rquote s current option expires. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': the DTS PMO requested a transfer of MEPS sites to its proposed small business set-aside contracts,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': so long as the DTR Contracts are in effect, [Carlson] is the exclusive provider of travel services to all sites listed in the contracts, including the MEPS sites, and any transfer of such travel service business to another contractor, small business or otherwise, would constitute a breach of CWGT\rquote s DTR Contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 056 - CW Government Travel Inc v US.doc, Paragraph with 'The Rule of Two': the government planned to do an open competition for all of the [travel services] work. It then realized that it needed to concern itself with small business ... set[-] asides. So that part of the work, the small business [set]aside, has already been the subject of a solicitation. The remainder of the work that Carlson is doing now, the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) did not violate sole source regulations by recommending two firms to procuring agency in sole source procurement conducted under sole source provisions of section 8(a) of the Small Business Act, and thereby convert sole source procurement to a competitive procurement, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) did not violate sole source regulations by recommending two firms to procuring agency in sole source procurement conducted under sole source provisions of section 8(a) of the Small Business Act, and thereby convert sole source procurement to a competitive procurement; SBA and procuring agency acted within strictures of applicable regulations when two section 8(a) firms were nominated by the SBA, and procuring agency chose between the two eligible firms. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': Contractor which was not selected by procuring agency in sole source procurement conducted under sole source provisions of section 8(a) of the Small Business Act was not an \interested party\ with standing to file pre-award bid protest, as there was no solicitation, and contractor did not submit a bid. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': The prospective contract is to be awarded as a sole source contract pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': Neals Janitorial Service qualified as a small, disadvantaged business eligible to participate in the Small Business Administration\rquote s (\SBA\rquote s\) Section 8(a) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': . Thus, GSA would enter into a contract with the Small Business Administration, who would in turn Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 058 - Innovative Resources v US.doc, Paragraph with 'The Rule of Two': Small business concerns are eligible to participate in the Section 8(a) program for a maximum period of 9 years. 13 U.S.C. \u167 124.2. After such time, a participant graduates from the program and is no longer eligible for contract awards under the Section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': agency\rquote s imposition of a \special standard\ in sole-source solicitation under the HUBZone Small Business Program was contrary to law; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor established that it was prejudiced by agency\rquote s award of sole source solicitation, and thus had standing to assert protest, where if agency was obliged to resolicit contract competitively as a HUBZone small business set-aside, then protestor, as a certified HUBZone small business concern, would be eligible to compete for such contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Agency\rquote s imposition of a \special standard\ in sole-source solicitation under the HUBZone Small Business Program for solid waste collection and disposal services which required that an offeror have a state certificate to perform such services was contrary to law; \special standard\ attempted to convert a responsibility requirement into a responsiveness requirement, thereby precluding the Small Business Administration (SBA) from exercising authority to make the responsibility determination as Congress intended. Small Business Act, \u167 2[8](b)(7), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': A contracting officer must make reasonable efforts to ascertain if it is likely that at least two small businesses capable of performing the work will submit offers, so as to satisfy requirement for a HUBZone program set aside. Small Business Act, \u167 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Agency\rquote s decision to issue sole-source solicitation and contract for solid waste collection and disposal services, instead of conducting a competitive procurement in compliance with HUBZone small business set-aside requirements, lacked a rational basis insofar as it was based on its determination that offers would not be received from two or more Hubzone small business concerns; given prior procurement history and nature of contract, it was reasonable to assume that two or more HUBZone small business concerns would submit offers for any future solicitations. Small Business Act, \u167 2[31](b)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': A. 2002 Proceedings Before The Small Business Administration Concerning The Department Of Air Force\rquote s Solicitation F45613\u821102\u8211Q\u8211A027. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (defining a HUBZone small business as: one owned and controlled by one or more persons, each of which is a United States citizen; Alaska Native Corporations owned and controlled by Natives, including certain qualified direct or indirect subsidiaries; or owned wholly or in part by Indian tribal governments; or owned wholly by certain community development corporations). Blue Dot Energy Company, Inc. (\Blue Dot\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 241, 303. Blue Dot filed a timely protest with the Small Business Administration (\SBA\) challenging Olgoonik\rquote s status as a small business and qualified HUBZone business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 322\u821140. On September 26, 2002, the SBA ruled that although Olgoonik was a HUBZone business, it was not a \small business,\ because Olgoonik was \affiliated\ with Waste Management\u8212Washington. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': If the federal contracting guidelines require the federal entity to contract with a small business, minority or woman-owned business etc. and the existing solid waste collection company cannot meet those guidelines then this could be used by the applicant as justification for the [WUTC] to authorize an additional certificate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (requiring a contracting officer to set aside acquisitions exceeding the simplified acquisition threshold to HUBZone small business concerns when the contracting officer has a reasonable expectation that offers will be received from two or more small business concerns and award will be made at fair market price). This Pre\u8211Solicitation Notice, however, also required that \[t]he successful offeror must have a permit issued by the Washington Utilities and Transportation Committee [sic] (\u8216WUTC\u8217) in order to be determined a responsible contractor and eligible for contract award.\ AR at 716. On July 23, 2003, the Air Force issued Solicitation F45613\u821103\u8211Q\u8211A028 for HUBZone qualified Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 3 (Prayer for Relief); or an \order that the solicitation be re-opened and that the procurement be set-aside for HUBZone small business concerns only.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': In this case, Blue Dot was an offeror for Solicitation No. F45613\u821102\u8211Q\u8211A027 concerning solid waste collection and disposal services at Fairchild AFB initially that was set aside under the HUBZone Small Business Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': In this case, if the Air Force was obligated to resolicit the Contract No. FA4620\u821104\u8211D\u8211A003 competitively as a HUBZone small business set-aside, then Blue Dot, as a certified HUBZone small business concern, would be eligible to compete for such contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force issued Sole\u8211Source Solicitation Notice No. F45613\u821103\u8211Q\u8211A068 and did not set it aside under the HUBZone Small Business Program, based on an interpretation that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': As a threshold issue, under the HUBZone Small Business Program, it is the SBA, not the Air Force, that has the authority \[t] o certify to Government procurement officers ... with respect to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': nor Wash. Rev.Code \u167 81.77 require that a HUBZone small business have a WUTC Certificate in hand before it may submit a bid on a federal contract for solid waste collection services, as previously discussed. In fact, Wash. Rev.Code \u167 81.77 requires only that a solid waste collection company have a WUTC Certificate by the time performance commences. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': reasonable to assume that the WUTC would issue an additional certificate to a HUBZone small business for solid waste collection services at Fairchild AFB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Air Force would have ample opportunity to support the successful bidder\rquote s WUTC Certificate application by expressing the Government\rquote s need to comply with the HUBZone Small Business Program and immediate need for the services. Therefore, the Air Force\rquote s determination that applying for a WUTC Certificate necessarily would result in delay of contract performance lacks a rational basis, particularly since Waste Management\u8212Washington also has agreed to continue performance until this matter is final. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': b. The Air Force\rquote s Determination That Offers Would Not Be Received From Two Or More HUBZone Small Business Concerns Lacked A Rational Basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Reauthorization Act of 1997 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': , Title VI) authorized the Historically Underutilized Business Zone, or \HUBZone,\ program to provide contracting incentives for small businesses located in areas of economic distress. The relevant statutory provision states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (B) a contract opportunity shall be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': In this action, the Government has not contested the mandatory nature of the HUBZone Small Business Program nor has it challenged it is an unlawful preference, although, in discussions with the WUTC about whether additional Certificates may be issued, the Air Force improperly referred to the HUBZone program as a \preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The law is clear that a contracting officer must make reasonable efforts to ascertain if it is likely that at least two small businesses capable of performing the work will submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': and relevant FAR provisions do not require a particular method to assess small business availability, a contracting officer must make reasonable efforts to determine whether offers will be received from at least two responsible small businesses at fair market prices) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (same). Moreover, a contracting officer must base the decision on factors such as: prior procurement history, \the nature of the contract,\ \market surveys,\ and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 178. This prior response establishes that it was reasonable for the contracting officer to assume that two or more HUBZone small business concerns would submit offers for any future solicitations involving solid waste collection and recycling services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 236. Although Olgoonik initially was awarded the contract, it was terminated after Blue Dot protested that Olgoonik was not a small business concern and therefore was not qualified to receive the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 236. With SI\u8211NOR\rquote s increase in cost and virtually identical ratings between Selrico and Blue Dot, and taking into account that any resolicitation would fundamentally change technical proposals, past performance evaluation, and costs, the Air Force\rquote s determination that offers would not have been received from two or more HUBZone small business concerns lacked a rational basis based on the record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': ii. Advice Of The Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': After Olgoonik was determined not to be a small business, the Air Force represented that it would \compete the Fairchild waste management contract as a HUBZONE Set-side [sic] for FY 2004 as a result of the encouragement of the SBA. Blue Dot will be specifically included in the solicitation.\ AR at 668. An e-mail to the Air Force from Mr. Kevin Michael, Procurement Center Representative of the SBA, advised that the \Air Force should work with the State of Washington to allow other permits to be issued to insure the integrity of the procurement as an [sic] HUBZone set-aside. I would be willing to help in that process.\ AR at 681. In addition, in its response to Waste Management\u8212Washington\rquote s March 24, 2003 protest of the Air Force\rquote s resolicitation of the contract as a HUBZone set aside, \SBA urges GAO to find that where the Air Force can satisfy both state & local and federal requirements through reasonable efforts, then it should, where practicable, be required to take those steps. If local and federal requirements cannot be harmonized, then the procuring agency may use this irreconcilable conflict as a justification for utilizing non-competitive procurement mechanisms, as required by law.\ AR at 703b. Moreover, in the same response, the SBA objected to the restrictive nature of the Pre\u8211Solicitation notice for HUBZone companies and specifically advised the Air Force: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': For this additional reason, the Air Force\rquote s determination that offers would not be received from two or more HUBZone small business concerns lacked a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': [will be] provided by Olgoonik Logistics a HUBZone small business.\ AR at 887 (emphasis added). The Subcontracting Plan further provides that \Olgoonik Logistics will continue as our subcontractor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': since it did not file a proper bid protest nor submit a bid.). If Waste Management\u8212Washington and its affiliated companies have been engaging in a pattern of improperly invoking RCRA to preclude government military bases from awarding contracts to small business set asides, further inquiry may be in order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': by unlawfully determining that solid waste collection and disposal services were available from only one \responsible source.\ In light of the size of this procurement, this was no small loss for a small business like Blue Dot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Further, in this case, requiring the Air Force to resolicit this contract as a HUBZone small business set-aside will not cause the Government harm, because Waste Management\u8212Washington is currently providing the services on a month-to-month basis until this proceeding is concluded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': TR 5. Therefore, in light of the immediate and continuing harm to Blue Dot, as well as other potential small businesses, the balance of harm weighs in favor of Blue Dot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': In this case, the court has determined that the Air Force acted contrary to law in issuing a sole-source solicitation and contract to Waste Management\u8212Washington, instead of deferring to the SBA\rquote s expertise in deciding whether HUBZone small businesses are \responsible\ to perform the required services. In doing so, the procurement process was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The Clerk of the Court is directed to enter a final judgment that orders the Air Force to: 1) set aside Sole\u8211Source Solicitation No. F45613\u821103\u8211Q\u8211A068 and Contract No. FA4620\u821104\u8211D\u8211A003; 2) issue a new Solicitation to procure solid waste collection and disposal services required by Fairchild AFB in compliance with the CICA and HUBZone Small Business Program; and 3) award a new Contract on or before July 1, 2005. Waste Management\u8212Washington, however, may continue performance under Sole\u8211Source Contract No. FA4620\u821104\u8211D\u8211A003 until July 1, 2005. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s Complaint for Declaratory and Injunctive Relief (\Pl.Compl.\) at \u182 1. Blue Dot is certified as a HUBZone small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': exceeding the simplified acquisition threshold for competition restricted to HUBZone small business concerns when the requirements of paragraph (b) of this section can be satisfied. The contracting officer shall consider HUBZone set-asides before considering HUBZone sole source awards ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': 19.1306) or small business set asides ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (b) To set aside an acquisition for competition restricted to HUBZone small business concerns, the contracting officer must have a reasonable expectation that\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (1) Offers will be received from two or more HUBZone small business concerns; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration (\SBA\) regulations also provide: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': (\The SBA and FAR regulations implement Congress\rquote s unambiguously expressed intent by mandating that participating agencies set aside contract opportunities to qualified HUBZone small business concerns when the statutory criteria are met.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for government contract that was set aside for small businesses filed post-bid award protest, alleging that Small Business Administration (SBA) failed to conduct good-faith investigation of bidder\rquote s protest of size status of intended awardee, which intervened as defendant in action. Bidder moved for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for small business contract had standing to bring bid protest action as an \interested party\ under Administrative Disputes Resolution Act (ADRA) as offeror whose proposal for government contract was determined to be in the competitive range for the challenged award and whose direct economic interest was affected by the contract award to successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Bid protest complaint filed by unsuccessful bidder for government contract, as interested party, was well-pleaded articulation of its objection to \alleged violation of statute or regulation in connection with a procurement,\ and therefore, pursuant to Administrative Disputes Resolution Act (ADRA), Court of Federal Claims had jurisdiction over action, in which bidder alleged that Small Business Administration (SBA) violated its own regulations concerning procedures for bidder size protests by arbitrarily dismissing bidder\rquote s protest based on bidder\rquote s failure to use certain language in protest, even though basis for protest was clear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Award to successful bidder of government contract that had been set aside for small businesses could not be challenged by unsuccessful bidder based on determination of successful bidder\rquote s size issued by Small Business Administration (SBA), where unsuccessful bidder did not file its administrative appeal and SBA\rquote s Office of Hearings and Appeals (OHA) did not rule on that appeal until after contract was awarded, and regulation made bidder size determinations issued after contract award applicable to prospective government procurements only, and therefore Court of Federal Claims could not supply declaratory or injunctive relief requested by unsuccessful bidder in its motion for preliminary injunction, and claim was not justiciable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': In finding, on motion for preliminary injunction, that claim in which unsuccessful bidder for small business contract challenged size determination made by Small Business Administration (SBA) for successful bidder was not justiciable, in light of unsuccessful bidder\rquote s post-award appeal and regulation making post-award bidder size determinations applicable to prospective government procurements only, Court of Federal Claims made finding on the merits warranting dismissal of action, in that unsuccessful bidder could not show requisite clear and prejudicial violation of regulations governing its appeal from its SBA size status protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Given that government small business contract was presumed valid as awarded, and no decision of Office of Hearings and Appeals (OHA) for Small Business Administration (SBA) issued after unsuccessful bidder\rquote s failure to file prompt appeal of SBA\rquote s size determination for awardee changed that result, any election by contracting officer to exercise discretion and apply post-award decision of OHA to awarded contract was beyond scope of bid protest jurisdiction of Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': , Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Before the court is the post-award bid protest of Chapman Law Firm Company, LPA (Chapman). Chapman alleges that the Small Business Administration (SBA) failed to conduct a good faith investigation of Chapman\rquote s protest of the size status of the intended awardee of a Department of Housing and Urban Development (HUD) contract set Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': aside for small businesses. For the following reasons, plaintiff\rquote s protest is DISMISSED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Complaint (Compl.) \u182 8; Administrative Record (AR) at 2 (Solicitation). The solicitation sought management and marketing services for multiple geographic regions around the United States, including a region comprising Indiana and Illinois. AR at 17 (Solicitation). The solicitation stated that the award would be made to an eligible small business unless the competition was inadequate among small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': The procedures for challenging a business concern\rquote s eligibility for a small business contract award are set forth in Subpart 19.3 of the FAR, titled \Determination of Small Business Status for Small Business Programs,\ and Part 121 of Title 13 in the Code of Federal Regulations, titled \Small Business Size Regulations.\ These regulations permit an offeror to protest the small business representation of another offeror in a specific offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': (addressing who may file a protest challenging the small business status of an offeror for \a specific offer\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': at 90 (Chapman\rquote s Supplement to Size Protest dated 7/21/04). On July 23, 2004, SBA\rquote s Area Office in Fort Worth, TX issued its size determination concluding that HMBI was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': review of the solicitation, prospective bidder \Red River contacted the Chief of the Contracting Division and Small Business Specialist of [the contracting office issuing the solicitation] and requested that [the contracting] office ... direct the [contracting officer] to change the NAICS code.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': the Federal Circuit determined that the Claims Court had jurisdiction to entertain a pre-award protest brought by a small business contractor challenging the rejection of its bid to manufacture women\rquote s Army coats. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Defendant argues that, in this case, \the [c]ourt cannot supply relief to Chapman because, in light of the procedural posture of its appeal to the SBA, any new determination as to HMBI\rquote s status as a small business would not affect the award of the contract to HMBI.\ Def.\rquote s Br. at 4. Defendant explains that, if the court \lacks the ability to supply relief,\ the dispute is not justiciable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': In challenging the justiciability of plaintiff\rquote s action, defendant and HMBI rely on Federal Acquisition Regulation (FAR) Subpart 19.3 which governs the procedures for an interested party to challenge a contract awardee\rquote s self-representation of its small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': July 23, 2004, SBA\rquote s Area Office in Fort Worth, TX issued its size determination finding that HMBI was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 69 Fed.Reg. 29192 (May 21, 2004) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': (finding under the then-applicable regulations that the contracting officer abused his discretion when, upon issuance of a decision by the SBA Size Appeals Board that the successful bidder was not a small business concern, as required by the contract, the contracting officer canceled the contract as \an erroneous award.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': . Moreover, because Chapman has failed to establish that the procurement procedure for this HUD contract involved a \clear and prejudicial violation\ of the regulations governing the appeal of its SBA size status protest HUD, the court does not reach the further issue of whether OHA\rquote s determination that HMBI is an eligible small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': ), which established the HUBZone program, in 1997. The court explained that \[t]he program\rquote s purpose \u8216is to a provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': To assure that a fair proportion of government contracts are performed by small businesses in each industry category, SBA specifies the maximum number of employees or maximum annual receipts that qualify a small business within an individual NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': (\[I]n the interest of assuring that a fair proportion of the total sales of Government property be made to small-business concerns,\ contract awards may be made to small businesses.); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': (\SBA\rquote s size standards define whether a business entity is small and, thus, eligible for Government programs and preferences reserved for \u8216small business\rquote concerns. Size standards have been established for types of economic activity, or industry generally under the North American Industry Classification System (NAICS).\)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': , made clear that one of the duties of SBA is \to certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern ... to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter, the Administrator [of the Small Business Administration] may\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Defendant also refers to Title 13, Part 121 of the Code of Federal Regulations (titled \Small Business Size Regulations\), which also addresses the procedures for an interested party to challenge a contract awardee\rquote s self-representation of its small business status. Def.\rquote s Br. at 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': filed suit in this court after the contracting officer canceled its award of a road construction contract with the Department of Agriculture based on a determination by the SBA Size Appeals Board that it was not an eligible small business concern as required by the invitation to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': The issue before the Court of Claims was \whether the contracting officer was authorized, in the circumstances, to make the award to plaintiff even though the company was not truly a \u8216small business.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 062 - Chapman Law Firm v US.doc, Paragraph with 'The Rule of Two': Examining the Federal Procurement Regulations and the Small Business Administration Regulations \dealing specifically with the procedures for determining small business status and the effect of those determinations (or lack thereof) on federal procurement activity\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with 'The Rule of Two': Modification P00010, issued on October 10, 2003, eliminated the requirements for custodial services at the four Child Development Centers, so that the services could be re-procured as an 8(a) contract. This was the modification referenced above in the Price Negotiation Memorandum for Modification P00004. Modification P00010 resulted in a decrease of $31,158.48 to the funded amount of the contract. AR at 4927. The Air Force stated that the modification was issued after it determined that services for the Child Development Centers would be appropriate for a small business and that a contract could be awarded without full and open competition. The Air Force issued solicitation no. F64605\u821103\u8211R\u82110071 on September 23, 2003; on October 1, 2003, the Air Force awarded the contract for custodial services at the Child Development Centers to Choe. It is not disputed that the contract for the Childhood Centers is for $261,885.60. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 070 - Spherix Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, a small business that as part of its services provides reservation services for federal\u8211 and state-owned camping and touring properties, has been awarded contracts for the NPRS since 1998, while defendant-intervenor ReserveAmerica Holdings, Inc. (\intervenor\), which also contracts for the same services within the Forest Service and DOI, has been awarded contracts under the earlier NRRS. Compl. filed Sept. 23, 2004, \u182 6. The NRRS \provides reservation services for more than 1900 USDA and ACE campgrounds, cabins, and other facilities[,]\ while the NPRS covers \reservation services for at least 30 NPS parks and tour ticketing at five NPS facilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 076 - Forest Service Employees For Environmental Ethics v US Forest Service.doc, Paragraph with 'The Rule of Two': Plaintiff registered on the FedBizOpps website as a small business vendor interested in the solicitation for the CAT team functions. Plaintiff states that it did so merely to stay informed of developments related to the solicitation offer, not to submit a proposal. The government submitted a copy of an email from FSEEE Executive Director Andy Stahl to CAT members dated October 9, 2003, which says: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': Subcontractor of bidder disqualified for failing to meet requisite Small Business Administration (SBA) size standard filed post-award bid protest against the United States. Contract awardee intervened. Defendant and intervenor filed motions to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': SBA determined that Z\u8211Tech was not a small business because it was an affiliate of Eagle Design under SBA regulations. Eagle Design appealed SBA\rquote s decision, but SBA\rquote s Office of Hearing and Appeals (OHA) concluded that Plaintiff did not have standing to request review of the SBA\rquote s size determination regarding Z\u8211Tech. Eagle Design has asked this Court to invalidate OHA\rquote s decision and vacate the award subsequently made by the National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK) to Intervenor Circle Solutions Inc. (Circle Solutions). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': On August 15, 2002, NIDDK issued Request for Proposals (RFP) number NIH\u8211NIDDK\u821102\u821105 for three information clearinghouse contracts, soliciting support services for public inquiry response, database and materials development, meetings and exhibit support and communications planning and outreach. The RFP required offerors to be small businesses as defined by the North American Industry Classification System (NAICS) rating code 561110, \Office Administrative Services,\ mandating annual revenues of less than $6 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': Eagle Design admittedly did not meet this NAICS rating code and unsuccessfully appealed the contracting officer\rquote s designation of this code to OHA. Plaintiff subsequently filed a pre-award bid protest with this Court, again challenging this NAICS code and recommending alternative codes which would have allowed offerors to have average annual revenues of $21 million and thus permitted Eagle Design to qualify as a small business in this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': Concurrent with its challenge to the NAICS code designation, Eagle Design entered into a teaming agreement with Z\u8211Tech (Teaming Agreement) on September 6, 2002. The Teaming Agreement provided that Z\u8211Tech, a small business under NAICS code 561110, would be the prime contractor with Eagle Design as subcontractor in the instant procurement. The Teaming Agreement required Eagle Design to provide professional expertise in the development of materials under the RFP. Z\u8211Tech, on the other hand, would be responsible for administrative functions, including Project Management, Meeting/Exhibit Support, Inquiry Response, Graphic Design and Information Technology. The Teaming Agreement provided that 51 percent of the labor costs for proposed work on the RFP would be Z\u8211Tech\rquote s and 49 percent, Eagle Design\rquote s. The Teaming Agreement was to remain in force until the subject contract was awarded by the Government to a contractor other than Z\u8211Tech. Once the award was made to another successful offeror, the Teaming Agreement was rendered null and void by its terms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': In December 2002, Z\u8211Tech submitted a proposal in response to the RFP, identifying Eagle Design as its subcontractor for specifically identified activities. On March 16, 2004, NIDDK notified offerors that the apparent successful offeror was Z\u8211Tech. On March 23, 2004, Circle Solutions filed a size protest with the SBA Area Office, alleging that Z\u8211Tech was not, in fact, a small business because Z\u8211Tech and Eagle Design were coequal joint venturers. The SBA Area Office granted Circle Solutions\rquote size protest on May 13, 2004, stating that Z\u8211Tech\rquote s unusually heavy reliance on Eagle Design in the performance of the contract rendered it an affiliate of Eagle Design and disqualified Z\u8211Tech as a small business for purposes of the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': Eagle Design does not allege that it would have been an offeror but for SBA\rquote s erroneous decision here. It only claims that Z\u8211Tech should have been qualified as a small business and that its status as Z\u8211Tech\rquote s subcontractor renders it an interested party here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 081 - Eagle Design And Management Inc v US.doc, Paragraph with 'The Rule of Two': Tr. Sept. 8, 2004. This also vitiates Eagle Design\rquote s ability to demonstrate the requisite prejudice to establish standing. Eagle Design\rquote s ineligibility as a small business under the NAICS code for this procurement is established, having been fully litigated at SBA and in this Court. Plaintiff has not alleged any error which, if corrected, would have given it a substantial chance of award, since Eagle Design did not itself qualify as a small business, was ineligible to bid, and had no intention to bid other than as Z\u8211Tech\rquote s subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with 'The Rule of Two': ). The County subsequently enacted a Community Small Business Enterprise (CSBE) program for construction contracts, but continued to apply racial, ethnic, and gender criteria to its purchases of goods and services in other areas, including its procurement of A & E services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with 'The Rule of Two': more black, Hispanic, or female individuals, and must have an actual place of business in Miami\u8211Dade County. MWBE joint ventures must have at least one member certified under one of the three MWBE programs. Each MWBE participant must also demonstrate that it does not exceed the size limits for \small business concerns\ as defined by the Small Business Administration of the United States Department of Commerce. If an MWBE exceeds that size limit, however, it may retain its certification if it demonstrates that \it continues to experience the kinds of racial [or gender] discrimination addressed by [the programs].\ County Code \u167 2\u82118.2(3)(e). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with 'The Rule of Two': the small business ordinance is effective in the contracting industry\u8212and there is no indication that it is not\u8212then the County\rquote s failure to at least explore a similar program in the A & E industry in practice indicates that the HBE program is not narrowly tailored. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with 'The Rule of Two': Once again, the failure of the County to identify who is discriminating and where in the process the discrimination is taking place indicates (though not conclusively) that the WBE program is not substantially related to eliminating that discrimination. Additionally, the existence of the County\rquote s anti-discrimination ordinance and the County\rquote s refusal to enact a small business enterprise ordinance for the A & E industry are also relevant. Although the County is not required to implement the WBE program only as a last resort, these other programs would likely be much more efficient in preventing and remedying the effects of discrimination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': A. 2002 Proceedings Before The Small Business Administration Concerning The Department Of Air Force\rquote s Solicitation F45613\u821102\u8211Q\u8211A027. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 241, 303. Blue Dot filed a timely protest with the Small Business Administration (\SBA\) challenging Olgoonik\rquote s status as a small business and as a qualified HUBZone business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': AR at 322\u821134. On September 26, 2002, the SBA ruled that Olgoonik was a HUBZone business, but agreed with Blue Dot that it was not a \small business,\ because it turns out that Olgoonik was affiliated with Waste Management\u8211Washington. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 3 (Prayer for Relief), or an \order that the solicitation be re-opened and that the procurement be set-aside for HUBZone small business concerns only.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration 409 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 088 - Kirkpatrick v White.doc, Paragraph with 'The Rule of Two': Wright Depo. at 68\u821170. During the time DESE was under investigation, it received and was nominated for business ethics awards: in March 2001 DESE was awarded the American Business Ethics Award by the North Alabama Society of Financial Service Professionals; in November 2000 DESE was nominated for the Better Business Bureau of North Alabama\rquote s Torch Award for Marketplace Ethics; and DESE has been nominated three times for Huntsville/ Madison Chamber of Commerce Small Business of the Year, most recently in June 2001. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': , \Notice of Price Evaluation Preference for HUBZone Small Business Concerns.\ Admin R at 329. This provision requires that \[o]ffers will be evaluated by adding a factor of 10 percent to the price of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': all offers, except ... [o]therwise successful offers from small business concerns.\ As the provision was printed verbatim, as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': A concern that is both a HUBZone small business concern and a small disadvantaged business concern will receive the benefit of both the HUBZone small business price evaluation preference and the small disadvantaged business price evaluation adjustment (see FAR clause 52.219\u821123). Each applicable price evaluation preference or adjustment shall be calculated independently against an offeror\rquote s base offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': . It does not appear to be disputed, however, that Danner was a small business concern and thus was excepted from the ten percent adjustment, under paragraph 52.219\u82114(b)(ii). See Admin R at 13. If one factors in the HUBZone preference, and adds ten percent to Kokolakis\rquote s bid of $7,173,900, then Gulf Group was the second-lowest bidder: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': It appears that there was no discussion of this preference in the two documents because the trade-off analysis was a decision whether to award the contract to the low bidder or to another bidder with a better past performance rating. The HUBZone preference would not raise the price of the low bidder, because of the small business exception, and thus was irrelevant to the first part of the analysis; and Gulf Group was not in a better risk rating category than Danner, so it did not figure in the second part of the analysis. In a comparison of Kokolakis and Danner, neither of which was a HUBZone small business concern, this preference would not apply to adjust either\rquote s bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': As recounted above, the unusual manner in which the HUBZone price adjustment, the bids offered, and the past performance ratings interact make the question of prejudice a difficult one. The low bidder, Danner, made a bid of $7,039,398 and was given a \Satisfactory\ risk rating. The successful bidder, Kokolakis, made a bid of $7,173,900, and was given a \Very Good\ risk rating. The protester, Gulf Group, made a bid of $7,706,388.57, and was placed in the \Satisfactory\ risk category. The HUBZone preference would add 10 percent to the bid of Kokolakis for purposes of comparison with Gulf Group, but not for comparison with Danner; and Danner, being a small business, would not have its bid adjusted even in comparison with Gulf Group. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': Gulf Group makes an argument in the alternative that it was, in essence, misled into believing that the SDB price evaluation adjustment applied. Pl\rquote s Opp\rquote n & Cross\u8211Motion for Summ J at 25\u821126. It asserts that, relying on the applicability of this price adjustment, it raised its bid by ten percent over what it otherwise could have bid. Complaint \u182\u182 17, 54\u821155; Memo of Points & Authorities in Support of Motion, Ex I. Gulf Group\rquote s argument is based on a reference to the SDB price evaluation adjustment in the FAR provision governing the HUBZone small business price evaluation preference. See Admin R at 330. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': The HUBZone small business price evaluation preference was clearly included in the Solicitation. The FAR provision for this preference, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': The requirements of Section 00700, NOTICE OF EVALUATION PREFERENCE FOR HUBZONE SMALL BUSINESS CONCERNS, will be applied in making the Performance\u8211Price Trade\u8211Off analysis Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': The requirements of Section 00700, NOTICE OF EVALUATION PREFERENCE FOR HUBZONE SMALL BUSINESS CONCERNS, will be applied in determining which proposal is most advantageous to the Government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': A concern that is both a HUBZone small business concern and a small disadvantaged business concern will receive the benefit of both the HUBZone small business price evaluation preference and the small disadvantaged business price evaluation adjustment (see FAR clause 52.219\u821123). Each applicable price evaluation preference or adjustment shall be calculated independently against an offeror\rquote s base offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 090 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': Without this preference, Gulf Group was the fourth-lowest bidder, following Danner, Kokolakis, and R.M. Williams Contractors, Inc. The record does not indicate whether the latter was a small business concern, and the Court assumes it was not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Congressional reauthorization, in 2003, of statute establishing goal that five percent of dollar amount of defense contracts be awarded to small disadvantaged businesses (SDBs), and imposing price evaluation adjustment program (PEA) adding ten percent to bid price of non-SDBs where necessary to achieve goal, did not violate on its face equal protection rights of non-SDB contractors; there was ample anecdotal evidence of racial discrimination against owners of small businesses attempting to obtain government contracts, backed up by statistical confirmation, and challenger could not show there was no situation in which statute could be constitutionally applied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': At issue is the constitutionality of Section 1207 of the National Defense Authorization Act of 1987 (the \Act\). In the Act, Congress set a goal that five percent of the total dollar amount of defense contracts for each fiscal year would be awarded to small businesses, owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': prior contract. Although Rothe\rquote s bid was numerically the lowest, a second company, International Computers & Telecommunications (\ICT\), was awarded the contract after Rothe\rquote s bid was increased by ten percent according to the PEA program. ICT was owned and operated by an Asian American, and the business qualified as a socially and economically disadvantaged small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . In Section 1207 of the Act, Congress established an annual goal that five percent of the total dollar amount spent for defense contracts should be awarded to small businesses owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In order to meet this goal, the Department of Defense uses several methods, including the program at issue here. The Act specifically defined the term \socially and economically disadvantaged\ in accordance with the Small Business Act and the regulations issued pursuant to it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': This presumption may be rebutted with credible evidence by a contracting officer, a failed bidder, or the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In order to help meet the goal of five percent participation, all competitive bids sought by the Department of Defense were subject to a ten percent preferential increase when competing with small businesses owned and controlled by socially and economically disadvantaged individuals (known as small disadvantaged businesses or \SDB\rquote s\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': To the extent practicable and when necessary to facilitate achievement of the 5 percent goal described in subsection (a), the head of an agency may enter into contracts using less than full and open competitive procedures (including awards under section 8(a) of the Small Business Act) and partial set asides for entities described in subsection (a)(1), but shall pay a price not exceeding fair market cost by more than 10 percent in payment per contract to contractors or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': subcontractors described in subsection (a). The head of an agency shall adjust the percentage specified in the preceding sentence for any industry category if available information clearly indicates that nondisadvantaged small business concerns in such industry category are generally being denied a reasonable opportunity to compete for contracts because of the use of that percentage in the application of this paragraph. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Rothe complains of the 5% goal and the PEA program on its face and as applied to Rothe\rquote s 1998 bid. Rothe has not brought a generalized challenge to the Small Business Act of 1958. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Act promotes a governmental policy of maximizing small business opportunities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': make it clear that the Court must do so. Because the Government cannot offer any substantial statistical evidence that the Department of Defense discriminated against minority small businesses, particularly Asian\u8211American small businesses, in this particular industry, it fails to meet its initial burden. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Although race creates a rebuttable presumption that a business will qualify for the program, the program\rquote s articulated goal of encouraging small business participation in public contracting is also reached. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In a hearing before the Committee on Small Business in the House of Representatives, June 12, 1991, Joshua Smith, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Hearing before Committee on Small Business, House of Representatives, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': at 22 (emphasis added). As the discussion wore on about the goals for the 8(a) program of the Small Business Act, it became obvious that the country was still striving to overcome past discrimination but also that SDB\rquote s were still being discriminated against by their own government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The State of Small Business: A Report of the President, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': small businesses through Federal procurement programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The State of Small Business: A Report of the President, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': IX (1992) (emphasis added). The nation needed to continue diversifying small business participation through Federal procurement programs because minority and women owned firms were not participating at a national level. While the President did not speak to the reason behind this lack of participation, Congress held hearings to reauthorize these programs and to meet the President\rquote s objective. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': These numbers illustrate that SDB\rquote s represented a significant portion of America\rquote s small businesses, but were unable to compete or receive a significant proportion of the federal dollars available. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': As discussed below, Congress was aware not only that the Department of Defense was a passive participant in perpetuating discrimination in public contracting, but that private discrimination was still rampant throughout the country. Congress did not believe the problem was perceived merely by a few, but heard evidence from citizens of multiple states explain that discriminatory conduct limited access of their small businesses to high dollar government contracts. Further, socially and economically disadvantaged small businesses were unable to compete effectively because of this handicap. Thus, \[i]f Congress or the federal agency acted for a proper purpose and with a strong basis in the evidence, the program has the requisite compelling government interest nationwide, even if the evidence did not come from or apply to every state or locale in the Nation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Here, Congress\rquote intent was to encourage participation in Department of Defense contracts by providing contracting advantages in a form consistent with the Small Business Act. Likewise, the PEA program is an example of a congressional plan to ensure that \federal funds [are not] distributed in a manner which reinforce[s] prior patterns of discrimination.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Department of Defense: Federal Programs to Promote Minority Business Development: Hearing Before the Subcomm. on Minority Enterprise, Finance and Urban Development of the House Comm. on Small Business, 103d Cong., 1st Sess. 49 (1993) (statement of Rep. Roybal\u8211Allard) (\Old attitudes and old habits die hard * * *. Defense contracting has, traditionally, been a closed shop. Only a select few need apply. Since the passage of the minority contracting opportunity law, some progress has been made.\). These contracting advantages are similar to those found in the federal highway statutes requiring ten percent of federal highway construction funds to be paid to SDB\rquote s. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Court finds that Congress believed, and stated in the record, that census numbers showing that socially and economically disadvantaged small businesses did not participate at a national level consistent with expectations must be attributed to more than random chance. It must be contributed to discrimination perpetuated both by the federal government, particularly the Department of Defense, and privately. Once this evidence is supplemented by the statistical evidence to be discussed, the Government meets its burden in demonstrating that a remedial program was necessary. Congress\rquote statements are not based on individual beliefs but rather on what the committee documented from citizens across the nation when reauthorizing and discussing these types of programs for public contracting. By supplementing these statements with statistical studies produced by the Department of Commerce and the Department of Justice, the Government has met its burden. Further, the Court finds that Congress does not work in a vacuum. Numbers and statistics from 1990, 1996, and 1998, are still relevant to Congress\rquote decision making in 2003. Rothe points to nothing in the congressional record or case law that demonstrates that evidence from these dates should be considered stale or invalid. While Rothe continuously argued that these figures are stale and of no use, the Court finds that it is precisely this information that Congress has relied upon. When a Supreme Court opinion, like Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Appendix cites impediments to credit, training, and bonding. While the Federal Circuit reminded this Court that these impediments would be the same regardless of race, the Court notes that the Small Business Administration specifically considers these types of factors when considering whether a business is economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Most small businesses just starting out may have \diminished capital and credit opportunities,\ but the program at issue was designed in part to encourage small businesses to compete in the arena of defense contracting. The Court must consider the evidence that minorities, more so than other small business concerns, but also like other small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The program Rothe contends is unconstitutional takes race into consideration as only one factor. While small businesses are more likely economically disadvantaged, the fact that Congress considered evidence of economic disparity also supports this remedial program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . In addition, the Small Business Administration has placed net worth caps on individuals participating in the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In its regulations, the Small Business Administration has added Subcontinent Asian Americans into the list of groups presumed to be socially disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . The Small Business Act lists the above four groups but states that the presumption should apply to \other minorities, or any other individual found to be disadvantaged by the Administration ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 003 - Mexican Intermodal Equipment SA de CV v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. Dec. B\u8211270074 (Oct. 31, 1995) (unpub). MIE\rquote s protest, filed on October 10, 1995, alleged that MIE\rquote s bid was improperly rejected as nonresponsible without referring the matter of its nonresponsibility to the Small Business Administration (SBA) for consideration under Certificate of Competency (CoC) procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 003 - Mexican Intermodal Equipment SA de CV v US.doc, Paragraph with 'The Rule of Two': \improperly rejected it [MIE] as nonresponsible without referring the matter of its responsibility to the Small Business Administration for consideration under Certificate of Competency procedures ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 003 - Mexican Intermodal Equipment SA de CV v US.doc, Paragraph with 'The Rule of Two': MIE, along with two other bidders on the cargo container contract, TransTac Management Corporation and T.R.S. Research, all protested the award of the contract to CCI to the GAO. In an October 23, 1995 Memorandum for the Record, subject: \Contracting Officer\rquote s Determination to Terminate Contract M67004\u821195\u8211C\u82110052 [to CCI] for Convenience,\ the contracting officer indicated that he believed the TransTac Management Corporation\rquote s protest, concerning the country of origin of awardee CCI\rquote s cargo containers, to be without merit. MIE\rquote s protest, that, as a small business, its nonresponsibility determination should have been referred to the Small Business Administration, led the contracting officer to submit a letter to the Small Business Administration for a determination in that regard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 003 - Mexican Intermodal Equipment SA de CV v US.doc, Paragraph with 'The Rule of Two': MIE subsequently requested reconsideration of the GAO\rquote s October 31, 1995 decision to dismiss the protests brought by MIE and the two other offerors of the cargo container award to CCI. In a January 18, 1996 response to MIE\rquote s request for reconsideration, the USMC stated that: \MIE did not receive the initial award because it received a negative PreAward Survey and thereafter, the SBA [Small Business Administration] definitively ruled that MIE has no standing as a small business to receive a CoC [Certificate of Competency].\ MIE cited, and, therefore, was aware of the USMC\rquote s January 18, 1996 response to the GAO in a February 7, 1997 letter to the GAO withdrawing its request for reconsideration. MIE\rquote s February 7, 1996 letter did not contradict the USMC\rquote s statement, quoted above, that MIE was not eligible for a Certificate of Competency responsibility determination from the SBA, which was the substantive basis of MIE\rquote s protest to the GAO. Nor has MIE, in this court, contradicted the USMC\rquote s assertion that MIE\rquote s GAO protest regarding the Certificate of Competency was without any basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 006 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': On November 12, 1998, DoD General Counsel Judith A. Miller issued an opinion reinforcing the DOE view that RSA applied in general to mess halls and other DoD eating facilities irrespective of their military name or character (DoD memo). Administrative Record (AR) at 412. She also made clear the RSA, in her words \trumps\ other contracting preferences, such as set-asides under section 8(a) of the Small Business Act. She based her conclusions on her reading of the RSA, DOE guidance (the Carney letter) and Comptroller General opinions. While rejecting what we may call litmus tests or \definitional\ distinctions, the memo cites to the Carney letter, but does not explicitly adopt it. It is with this regulatory backdrop in mind that we examine the Navy\rquote s solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 006 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': On July 17, 2003, the Navy opened the solicitation for the contract, which was by its express terms limited to small business concerns, as a section 8(a) set-aside under the Small Business Administration Act. AR at 1\u8211164. MDRS does not qualify as a section 8(a) entity. However, consistent with the DoD memorandum, the Government does not contend that it can exclude the coverage of the RSA simply by failing to cite it in an RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 006 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': We next address the Government\rquote s laches defense. The Government argues that the Plaintiff\rquote s claim should be barred through the application of the doctrine of laches. MDRS filed its complaint in this Court on September 3, 2003, four days after the CO disqualified its proposal. In the Government\rquote s view, MDRS should have challenged the RFP upon its receipt of the CO\rquote s letter of May 22, 2003, stating that the solicitation was not subject to the RSA. Alternatively, MDRS should have brought a challenge to the solicitation when it was issued on July 17, 2003, and ostensibly limited to small business concerns, as a section 8(a) set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': , remanded to the Small Business Administration (SBA) for determination whether it would have upheld plaintiff\rquote s HUBZone status protest if had been timely received. After SBA dismissed the protest, parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': bidder\rquote s protest letter to contracting officer (CO) asking CO to verify whether contract awardee met the requirements for HUBZone certification by the Small Business Administration (SBA) met specificity requirement of regulation with respect to objection that its address was not in a HUBZone; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s allegation that the Small Business Administration (SBA) arbitrarily dismissed its HUBZone status protest of contract awardee as unspecific was sufficient to demonstrate prejudice; had SBA upheld the protest, awardee would not have been awarded the contract, and because protestor was next in line for the contract, it was clear that but for the alleged error, protestor had a substantial chance of receiving the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Bidder\rquote s protest letter to contracting officer (CO) asking CO to verify whether rival bidder met the requirements for HUBZone certification by the Small Business Administration (SBA) met specificity requirement of regulation with regard to principal office certification, notwithstanding that letter did not use term \principal office,\ where letter stated that company\rquote s address was not in a HUBZone and supported assertion with printout which showed the HUBZone locator results for its address. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Bidder\rquote s protest letter to contracting officer (CO) asking CO to verify whether rival bidder met the requirements for HUBZone certification by the Small Business Administration (SBA) did not meet specificity requirement with regard to question whether protested company met 35% employee residence requirement, and thus SBA had no duty to investigate whether company met the requirement, where letter simply requested that the CO \verify all certifications,\ and sentence questioning company\rquote s eligibility referred only to the principal office location requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Decision of Small Business Administration (SBA) not to investigate whether contractor met the 35% employee residence requirement for HUBZone status because protest letter had not raised that allegation was not arbitrary or capricious, where SBA explained that policy of not investigating issues not raised in protest was based on the short time-frame SBA had to render a HUBZone protest decision, and on need to prevent frivolous claims of disappointed bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': , Assistant Director, for defendant. Major Kevin Robitaille, Army Litigation Division, and Glenn P. Harris, U.S. Small Business Administration, Office of General Counsel, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest is before the Court on cross-motions for judgment on the administrative record. Plaintiff, Mark Dunning Industries, Inc. (\MDI\), challenges the award of a refuse collection and disposal contract to defendant-intervenor, Si\u8211Nor, Inc. (\Si\u8211Nor\). Plaintiff maintains that Si\u8211Nor should not have received a 10% price evaluation preference based on Si\u8211Nor\rquote s Small Business Administration (\SBA\) status as a Small Business Concern (\SBC\) located in a historically underutilized business zone (\HUBZone\) because Si\u8211Nor did not meet the statutory requirements for HUBZone status. Plaintiff claimed that it submitted a timely SBA status protest to the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 008 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': IS NOT in a HUB Zone.\ Pl.\rquote s Mot. Exh. C at 1 (emphasis added). There are only two requirements, other than the small business size requirement, for HUBZone eligibility: (1) the business concern\rquote s principal office must be located in a HUBZone, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'The Rule of Two': Galen argues that the VA accepted Downing\rquote s incorrect claim for preferential status as a \Disabled Veteran Owned Small Business Concern.\ However, the court found that there was no evidence that the VA gave any preference to Dr. Downing based on that alleged status. It noted that the proposal did not even offer such preference. On appeal, Galen has failed to adduce any evidence contradicting the court\rquote s finding. Therefore, we conclude the court\rquote s finding was not clearly erroneous. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims does not have jurisdiction under the Tucker Act to review a decision of an administrative judge of the Small Business Administration Office Of Hearings And Appeals; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims does not have jurisdiction under the Tucker Act to review a decision of an administrative judge of the Small Business Administration Office Of Hearings And Appeals; proper forum for further adjudication of SBA administrative decisions lies with a United States District Court. Small Business Act, \u167 2[5](b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': Pre-award bid protestor who prevailed on claim that Air Force contracting officer (CO) violated procurement regulations in selecting North American Industry Classification System (NAICS) Code for small business procurement was entitled to permanent injunction requiring Air Force to set aside solicitation until Code was changed; protestor would suffer irreparable harm of loss of opportunity to compete if Code was not changed, balance of hardships was in favor of protestor since the Air Force would suffer no financial harm, and public interest would be served by preserving integrity of procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': , United States Small Business Administration counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': (\Tucker Act\), authorizes the court to review a decision of an Administrative Judge in the Small Business Administration (\SBA\) Office of Hearings and Appeals; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': In order to qualify as a small business within the NAICS Code 811212 category, a firm may not have more than annual receipts of $21 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': On October 20, 2003, shortly after Red River received and reviewed the October 15, 2003 Solicitation, Red River contacted the Chief of the Contracting Division and Small Business Specialist for the 38th EIG at Tinker Air Force Base to request that office to intervene and direct the Air Force CO to change the NAICS Code from 811212 \Computer and Office Machine Repair and Maintenance,\ with a size standard of $21 million, to NAICS Code 517110 \Wired Telecommunications Carriers,\ with a size standard of 1,500 employees. See AR at 775, 787\u821189. On October 24, 2003, the Air Force CO was requested by the Chief of the Contracting Division and Small Business Specialist to make this change, but the CO declined. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': AR at 772. In addition, on October 28, 2003, Red River proffered an August 23, 2001 Small Business Administration Decision, Docket Number NAICS\u82112001\u821108\u821109\u821131, where, in a similar procurement, the agency upheld the use of NAICS Code 513310, \Wired Telecommunications Carriers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': Since 1990 this office has awarded in excess of 50 contracts under SIC 7378, with no challenge to the SIC Code being used. This office currently has 39 active contracts awarded under SIC 7378, or NAICS811212, in place (which Red River Services Corporation holds five (5)). Since 1999 this office has awarded two 8(a) competitive and three sole source 8(a) contracts using NAICS 811212. The letter of acceptance from the Small Business Administration took no exception to usage of NAICS 811212 for our O & M contracts. Further, this office has received guidance from the Small Business Administration Office and the U.S. Census Bureau confirming Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': A. The United States Court Of Federal Claims Does Not Have Jurisdiction Under The Tucker Act To Review A Decision Of An Administrative Judge Of The Small Business Administration Office Of Hearings And Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': 1. The Jurisdiction Of The Small Business Administration Office Of Hearings And Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': components of the procurement making up the end item being procured, and the function of the goods or services being purchased. Other factors considered include previous Government procurement classifications of the same or similar product or services, and the classification which would best serve the purposes of the Small Business Act. A procurement is usually classified according to the component, which accounts for the greatest percentage of contract value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': SBA OHA\rquote s decision in this matter was reasonably based upon a review of the full administrative record, consideration of the central purpose of the procurement and applicable law, and was adequately explained. As the decision had a rational basis, it was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. Because the SBA has been designated by Congress as the arbiter of small business matters, the decision also warrants deference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': The FAR regulations governing small business size under the Armed Services Procurement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': AR at 3. In order to qualify as a small business within the NAICS Code 811212 category, a firm may not have more than average annual receipts of $21 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': . Red River\rquote s annual revenues appear to preclude it from competing for this significant small business set-aside under NAICS Code 811212. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': Therefore, in light of the immediate harm to Red River and other potential small businesses, if the contract is awarded, the balance of harm weighs in favor of Red River. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': 811212, and perhaps the lack of any challenge to that selection in other procurements, was the driving force behind the decision made. In doing so, however, the procurement process was compromised in that the actual requirements of this particular Solicitation were not adequately considered. Where the promotion of small business is a priority, it is even more important that the Contracting Officer ascertain a NAICS Code that complies with procurement regulations, so that as many potential competitors as possible may have an opportunity to compete for these highly coveted contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': The Office of Management and Budget is responsible for assigning NAICS codes to various industry sectors. The SBA then determines which firms qualify as \small businesses\ to assure, among other policy objectives, that a fair proportion of government contracts for goods and services are performed by such entities in each industry category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': . To accomplish this, SBA specifies the maximum number of employees or maximum annual receipts that qualify a small business within an individual NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': MS. HAMPTON: At the bases, only if the incumbent contractor is currently a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': THE COURT: And it was my understanding the current contractor is a small business and will be bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 013 - Red River Service Corp v US.doc, Paragraph with 'The Rule of Two': , other applicable regulations are set forth in Title 13 (Business Credit and Assistance), Part 121, Small Business Size Regulations, in the form of questions and answers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 018 - Naplesyachtcom Inc v US.doc, Paragraph with 'The Rule of Two': Ability to effectively manage projects, effective management of Small/Small Disadvantaged Subcontracting and Women Owned Small Business Programs which meets or exceeds planned Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 019 - JCN Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation procedures called for offerors to make separate, severable proposals regarding price and technical aspects of the proposed construction work. AR 36. The only price to be submitted by offerors related to the seed project because future task orders were to be the subject of subsequent competition on technical and price grounds. Offerors\rquote technical proposals would be evaluated under four equally weighted subfactors\u8212Relevant Past Performance, Management Approach, Safety Record, and Commitment to Small Business Concerns\u8212the combination of which would be considered approximately equal to price. AR 36\u821143; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 019 - JCN Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In addition, the Small Business subfactor was keyed to numeric Small Business Subcontracting Goals and to Small Business Subcontracting provisions of the Federal Acquisition Regulation (\FAR\), including Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 021 - PGBA LLC v US.doc, Paragraph with 'The Rule of Two': concerning utilization of small, small disadvantaged and women-owned small businesses.\ AR B. 15, T. 73 at 102. The PRAG\rquote s evaluation of all of PGBA\rquote s relevant information showed that PGBA had \directly relevant past performance and would be capable of performing the work required under the TDEFIC contract,\ as explained by the SSEB Chair in his initial report to the SSA. AR B. 15, T. 94 at 213. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 026 - B And B Trucking Inc v USPS.doc, Paragraph with 'The Rule of Two': the plaintiff was due payment on a contract to which the Small Business Administration was a guarantor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': Offer in response to solicitation by the Department of Veterans Affairs (VA) for distribution of pharmaceutical products in 14 VA regions was an \all or none offer\ within meaning of the Federal Acquisition Regulation (FAR), notwithstanding that offer recognized that the VA maintained the right to set aside three regions for small business concerns, where proposal limited acceptance to \all regions\ contained in the offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': The solicitation set aside three of the 13 geographic regions (6, 7 and 8) for the participation of small business concerns. The solicitation noted, however, that the VA reserved the right to dissolve the set-asides under two circumstances: (1) failure to receive at least two offers from qualified small business concerns, or (2) a determination by the contracting officer that no offer submitted by a small business concern was acceptable. In the event of dissolution, the RFP provided that the VA would consider offers for the regions on a \full and open unrestricted basis from all responsible business concerns (regardless of size).\ AR 0257. Offerors, therefore, were encouraged to submit offers for the set-aside regions. AR 0139\u821140. The solicitation noted that because the VA intended to award the contract without discussion, offerors should submit their best terms in their initial offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': After receiving only one offer for Region 7, the VA issued Amendment No. 7 to the solicitation and withdrew the small business set-aside for Region 7 in September 2003. Thereafter, in October 2003, the VA wrote a letter to McKesson, seeking clarification of the statement on the cover page of McKesson\rquote s Proposal One. AR 0762. Specifically, in light of the dissolution of the set-aside for Region 7, the VA requested that McKesson clarify the meaning of: \It is understood that regions 6, 7 & 8 are set asides and may not factor into the overall volume.\ Id. In response, McKesson explained that the intent of the language \was to indicate that [the] distribution fees offered applied to all regions Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': with the exception of 6, 7 and 8 as they were designated as set asides.\ AR 0763. Because the VA dissolved the set-aside for Region 7, McKesson indicated that its proposal covered all regions except 6 and 8\u8212the remaining small business set-asides. McKesson also explained that in the event that the VA dissolved the set-aside for regions 6 and 8, Proposal One would apply to those regions as well. In November and December of 2003, the VA issued amendments 8 and 9 to the solicitation, removing the set-asides for regions 6 and 8, respectively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': Next, ABC claims that McKesson\rquote s Proposal One was an \all or none\ offer that should have been rejected by the VA because it was \ \u8216only offered for all 14 Veterans Affairs Regions as a whole.\ \u8217 Pl\rquote s. Mot. for J. at 17; AR 0780. The VA and McKesson claim that this proposal was not an \all or none\ offer because the offer recognized that the VA maintained the right to set aside three regions for small business concerns. Specifically, McKesson\rquote s proposal demonstrated that it understood that Regions 6, 7 and 8 were set aside for small business. The VA and McKesson argue that this was not an \all or none\ offer because it allowed the VA to accept the reduced pricing even if the VA maintained the small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'The Rule of Two': The Court finds that the proposal was, in fact, an \all or none\ offer. Although the proposal allowed the VA to award at least three regions to small business concerns, the proposal limited acceptance to \all regions\ contained in the offer. ABC\rquote s interpretation is consistent with the FAR\rquote s definition of \all or none\ offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': Metro Machine Corp. v. U.S. Small Business Admin., 305 F.Supp.2d 614 (2004) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': UNITED STATES SMALL BUSINESS ADMINISTRATION Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': Company decertified from Small Business Administration\rquote s (SBA) Historically Underutilized Business Zone (\HUBZone\) program for failure to meet requirement that 35% of employees reside in HUBZone sought declaratory judgment of its continued eligibility. SBA moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': deference was due Small Business Administration\rquote s (SBA) interpretation of its own regulation defining who was \employee\ under Historically Underutilized Business Zone (\HUBZone\) program, and consequent decertification of business that had formed subsidiary and \transferred\ employees to it in order to meet requirement that 35% of employees reside in HUBZone; SBA\rquote s incorporation of relevant factors from a previous policy statement into regulation\rquote s \totality of circumstances\ test, including whether business had power to control subsidiary\rquote s employees, was not plainly erroneous or contrary to controlling statute or regulation. Small Business Act, \u167 2[3] (p)(5)(A)(i)(I)(aa), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) application of its own regulation defining who was \employee\ under Historically Underutilized Business Zone (\HUBZone\) program, and consequent decertification of business that had formed subsidiary and \transferred\ employees to it in order to meet requirement that 35% of employees reside in HUBZone, did not conflict with separate regulation providing that \[HUBZone business] may have affiliates\; purpose of regulation concerning affiliates was to prevent companies that legitimately hired 35% of workforce from HUBZone from being disqualified based on mere affiliation with company involved in different business outside HUBZone. Small Business Act, \u167 2[3](p)(5)(A)(i)(I)(aa), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': , Assistant U.S. Attorney, Norfolk, Glenn P. Harris, Chief Counsel for Enforcement, U.S. Small Business Administration, Washington, DC, Counsel for Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': Machine\), seeks a declaration that the decision of defendants, United States Small Business Administration (\SBA\) and Michael P. McHale, Associate Administrator of the HUBZone Program, to decertify Metro Machine as a qualified HUBZone small business concern was arbitrary, capricious, an abuse of discretion, or otherwise contrary to law, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': Congress created the Historically Underutilized Business Zone (\HUBZone\) program in 1997 to provide federal contracting assistance to qualified small business concerns (\SBCs\) located in geographic areas that are considered \HUBZones.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': . Small businesses that are \qualified HUBZone SBCs\ are given a ten percent price evaluation preference in qualifying for federal government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': By statute, in order to be certified as a qualified HUBZone SBC, a small business must be exclusively owned and controlled by United States citizens, have its principal office located in a HUBZone, and at least 35% \of its employees\ must reside in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': provides that if any of the SBC\rquote s assertions that it qualifies for the preferred HUBZone status is \determined by [SBA] to be materially false,\ then the SBC shall not be awarded \qualified HUBZone SBC\ status. In order to carry out its task of administering the HUBZone program, Congress provided that SBA \shall establish procedures relating to the filing, investigation, and disposition by [SBA] of any challenge to the eligibility of a small business concern to receive assistance under this section.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': provides that a business entity is \small and, thus, eligible for Government programs and preferences reserved for \u8216small business\rquote concerns,\ if that entity meets industry-specific size standards set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': is plainly erroneous and inconsistent with the HUBZone regulations. As an initial matter, the factors from Policy Statement No. 1 seem very relevant to the question of who are the \employees\ of a small business concern, and they do not appear to be facially erroneous. The factors incorporate well-established tests for a principal-agent relationship, such as: whether the concern has the power to control the worker in the performance of his duties, and whether the concern hired and has the ability to fire the worker. Several of the other factors examine substance over form: whether Metro Machine dismissed workers from its payroll and immediately rehired them to do the same work from a subsidiary; whether the subsidiary\rquote s workers do work that most other concerns in the business would have in-house workers do; and whether the workers who were dismissed from Metro Machine were replaced with the exact same people. These factors seem entirely relevant to the question of who should be counted as an employee of a small business concern for HUBZone qualification purposes. Thus, Metro Machine must show why SBA\rquote s adoption of the eleven factors for purposes of interpreting the totality of the circumstances test was impermissible given the existing regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': is phrased in terms of subcontracting that a \qualified HUBZone SBC\ is permitted to do\u8212not subcontracting a small business is permitted to do in order to become a qualified HUBZone SBC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': was promulgated under \u167 2(a) of the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': was necessary because Congress\rquote declared intent in \u167 2(a) of the Small Business Act was to promote free enterprise and strengthen the economy by supporting the proliferation of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 121.1 (1985) (\It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise.\). In order to effectuate this policy, SBA had to ensure that its regulations would promote an increased number of small businesses, not an increased number of employees at existing, larger businesses. In other words, SBA had to ensure that government contracting preferences would not go to businesses that were not actually Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': The HUBZone legislation was enacted for entirely different purposes. Rather than seeking to increase competition and promote free enterprise for small businesses vis-\u224-vis large businesses, the HUBZone Act gives a substantial preference to particular small businesses over all other businesses, large and small. The overarching policy behind the HUBZone Act was to \increase employment opportunities, economic development, and investment in areas where unemployment has historically been above national averages.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': . In order to increase employment opportunities, Congress felt it was important that 35% of a small business\rquote s employees reside in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': . To ensure that small businesses entitled to the HUBZone bid preference were actually committed to creating real employment opportunities to individuals living in HUBZones, SBA defined \employee\ more narrowly in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': , choosing not to include temporary employees, leased workers, or independent contractors. The obvious reason for this limitation is to prevent a small business from hiring a number of HUBZone residents temporarily, solely for the purpose of qualifying as a HUBZone SBC, only to terminate their employment once SBA certified the company for the bidding preference. Further, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': . Again, the reason for this limitation is to prevent small businesses from artificially increasing their percentage of HUBZone resident employees by offering part-time positions to HUBZone residents, while the more highly-compensated full-time workers reside outside of a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': ensures that the policies of the Small Business Act and the HUBZone Act, respectively, will be implemented. Without a showing that the eleven factors used by SBA to decertify Metro Machine cannot possibly inform the agency\rquote s basic definition of \employee\ consistent with the existing HUBZone regulations, it simply is not \plainly erroneous\ for SBA to utilize the same eleven factors to give substance to both tests under both regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': draws the conclusion that \the whole point of the change in the affiliation restriction was to permit small businesses to set up affiliates whose employees would Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': would be \meaningless\ if it does not permit a company to shuffle non-HUBZone resident employees over to a dormant subsidiary solely for the purpose of obtaining qualified HUBZone status does not withstand scrutiny. The flaw in this argument is that it assumes that in all cases where small businesses are \affiliated,\ the workers for all affiliates work together on the same contracts and are interchangeable. Metro Machine does not argue that Metro On\u8211Call has any business separate from Metro Machine\rquote s business. It is likely that the purpose of the 2001 amendment was to loosen the affiliate rules so that companies who legitimately hired 35% of their workforce from a HUBZone would not be disqualified from achieving preferred status based on a mere affiliation or common ownership with a company involved in a different business not located in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': small businesses to act in response to the HUBZone incentives by taking steps necessary to qualify as HUBZone contractors.\ (Metro Machine\rquote s Mem. in Supp. of Mot. for Summ. J., at 28.) While it is no doubt true that Congress wanted small businesses to act in response to the HUBZone legislation, Congress was obviously looking to inspire small businesses to hire more workers from HUBZones, move their principal offices into HUBZones, and to take other substantive measures that would have the effect of increasing employment opportunities, economic development, and investment in HUBZone areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 031 - Metro Machine Corp v US Small Business Admin.doc, Paragraph with 'The Rule of Two': . It is far-fetched to argue that Congress was hoping small businesses would take the initiative to think up creative ways to manipulate the corporate form in order to qualify for the HUBZone contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 037 - Florida AGC Council Inc v Florida.doc, Paragraph with 'The Rule of Two': [A]ny small business concern ... which is organized to engage in commercial transactions, which is domiciled in Florida, and which is at least 51\u8211percent\u8211owned by minority persons who are members of an insular group that is of a particular racial, ethnic, or gender makeup or national origin, which has been subjected historically to disparate treatment due to identification in and with that group resulting in an underrepresentation of commercial enterprises under the group\rquote s control, and whose management and daily operations are controlled by such persons. A minority business enterprise may primarily involve the practice of a profession. Ownership by a minority person does not include ownership which is the result of a transfer from a nonminority person to a minority person within a related immediate family group if the combined total net asset value of all members of such family group exceeds $1 million. For purposes of this subsection, the term \related immediate family group\ means one or more children under 16 years of age and a parent of such children or the spouse of such parent residing in the same house or living unit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 043 - Industrial Property Management Inc v US.doc, Paragraph with 'The Rule of Two': In 1998, shortly after the base was closed, IPM won a competitive small business set-aside contract for base operations, maintenance and support services at SAEP. The contract type was \cost plus fixed-fee\ for a base year period from October 1, 1998 through September 30, 1999, and three options to renew the contract for one year each, all of which the Army exercised. The final option to renew, therefore, was set to expire on September 30, 2002. The total award under IPM\rquote s contract was $18,816,607. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 047 - Builders Ass'n of Greater Chicago v City of Chicago.doc, Paragraph with 'The Rule of Two': The universe of construction firms in the Chicago area, as well as the area demographics, has changed considerably over time. One set of numbers discloses the following (other sets differ slightly): In 1982, Hispanic small businesses constituted 4,463 or 1.8% of Chicago area small businesses. The corresponding numbers for African\u8211American small businesses was 12,473 or 5%, for other minorities (primarily Asian\u8211American) 8,382 or 3.3%, for women 73,426 or 29.3%, and for white males 151,913 or 60.6%. The percentage in construction, however, was considerably less: African\u8211American 3.6%, other minority 2.1%, and women 5.5%. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 047 - Builders Ass'n of Greater Chicago v City of Chicago.doc, Paragraph with 'The Rule of Two': Defendant\rquote s experts turned to other data, much of it derived from census data. Some of that data was national in scope, some regional, some targeted to the Chicago market, generally, and some to the Chicago construction industry. Some was rather old and some data was not available for analysis by plaintiff\rquote s experts and therefore was not considered by the court. In a few instances the nature of the information changed, thus raising comparison problems, such as the description of loan difficulties, minority women being MBEs or WBEs, or both, and firms owned by husband and wife being a WBE or not. In other instances, the universe of information did not fit neatly into the patterns the experts were seeking to explore. For example, small business data included very small businesses indeed, far too small to bid on City construction projects. For another, the relevant Standard Industrial Classifications (SICs) were not entirely relevant because they included\u8212SIC 87 particularly\u8212occupations and professions rather far removed from the construction industry. The results of various surveys were used, but some of them had a small number of responses or otherwise were not entirely reliable. Data could be over- Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 047 - Builders Ass'n of Greater Chicago v City of Chicago.doc, Paragraph with 'The Rule of Two': Besides management and market access, a key element in the industry is money. Dr. Bates reported to the City Council in 1990 that there was a wide disparity in debt capital between startup African\u8211American small businesses and white male small businesses. Part of that was due to less wealthy family and friends, but regression analysis disclosed that, nationally, African\u8211Americans obtained $2.37 in loans for each $1 in equity, while white male firms obtained $2.72. He later concluded, using 1993 Federal Reserve System National Survey of Small Business Finance (NSSBF) data, that minority firms receive smaller loans because they are minorities. That was followed up at trial by the report and testimony of Dr. David G. Blanchflower, an expert in econometrics. He concluded, based on regression analyses and other evidence, that minority-owned firms are substantially more likely to be denied credit than other groups. He did not conclude that women were victims of discrimination in the credit market. Hispanics were, based on 1993 data, victims only if those who did not seek loans because of a fear of denial are treated as denials, but the 1998 data showed a significant disparity in denials. African\u8211Americans are particularly disadvantaged. They have considerably greater problems in obtaining loans and, when they do, they on average pay 1% more interest than others. Asians and Hispanics pay approximately .5% more. While Dr. Blanchflower did not find a significant statistical deviation in his Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 049 - Washington State Dept of Services for the Blind v US.doc, Paragraph with 'The Rule of Two': On July 16, 2003, the Army issued a pre-solicitation notice for a \Dining Facility Attendants and Full Food Services\ contract to be awarded as a section 8(a) set aside under the Small Business Administration Act. Pls.\rquote Mem. Ex. 2. Neither DSB nor Robert Ott, the licensed vendor in Washington\rquote s vending program under RSA selected to operate the dining facilities at Fort Lewis if the DSB obtains the contract, is eligible to bid on a section 8(a) contract. Pls.\rquote Mem. at 3; Complaint (Compl.) \u182 5. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 049 - Washington State Dept of Services for the Blind v US.doc, Paragraph with 'The Rule of Two': http:// www.lewis.army.mil/doc/SOLIC.htm. The solicitation for dining facilities attendant (DFA) services issued on November 10, 2003 is in issue in this protest. Pls.\rquote Mot. at 1; Def.\rquote s Opp. at 3. The solicitation seeks proposals pursuant to section 8(a) of the Small Business Administration Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 049 - Washington State Dept of Services for the Blind v US.doc, Paragraph with 'The Rule of Two': At oral argument, defendant stated that the expiring contract was awarded as a section 8(a) set-aside under the Small Business Administration Act. Transcript of Oral Argument on December 12, 2003 (Oral Arg. Tr.) at 93. The Army had not applied the Randolph\u8211Sheppard Act priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 052 - Norfolk Dredging Co Inc v US.doc, Paragraph with 'The Rule of Two': (acknowledging that, although bound by determination of the Small Business Administration regarding Certificate of Competency, contracting officer has discretion to award contract \based on independent judgment and new information\). Plaintiff is challenging the contracting officer\rquote s decision, which reflects his independent judgment informed by Customs decisions, as not in accordance with law. After January 1, 2001, the Court of Federal Claims is the only forum with jurisdiction over a bid protest that challenges a contracting officer\rquote s determination as not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Donald RUMSFELD, in his representative capacity as Secretary of Defense, Hector V. Barreto, Jr., in his representative capacity as Administrator of the Small Business Administration, and the United States of America, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Government contractor that qualified for small-business set-asides but did not qualify as Historically Underutilized Business Zone (\HUBZone\) small business challenged Navy\rquote s designation of certain contract bid solicitations as HUBZone-only, and challenged Small Business Administration\rquote s (SBA) authorization of that designation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Act section establishing HUBZone program provided for mandatory, not discretionary, award of contract opportunities for HUBZone small businesses under certain circumstances; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Act section establishing Historically Underutilized Business Zone (\HUBZone\) program provided for mandatory, not discretionary, award of government contract opportunities on basis of competition restricted to qualified HUBZone small businesses when certain criteria were met. Small Business Act, \u167 2[31](b)(2), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Federal regulations that implemented Small Business Act\rquote s Historically Underutilized Business Zone (\HUBZone\) program by mandating HUBZone set-asides for government contracts in certain circumstances did not frustrate overarching goals of Act, even though they benefited narrow group of small businesses. Small Business Act, \u167\u167 2[2](a), 2[15](g), 2[31](b)(2), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Fact that Small Business Act program for disadvantaged small businesses mandated competition of eligible government contractors, while leaving to agency discretion initial offer and acceptance of contracts into program, did not require that Act\rquote s Historically Underutilized Business Zone (\HUBZone\) program extend same discretion; thus, HUBZone implementing regulations that mandated HUBZone set-asides in certain circumstances were valid. Small Business Act, \u167\u167 2[8](a)(1)(D)(i), 2[31](b)(2)(B), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) reasonably resolved conflict between congressional objective of parity between Small Business Act program for disadvantaged small businesses and second program for Historically Underutilized Business Zone (\HUBZone\) businesses, on one hand, and mandatory status of HUBZone set-asides, on other, by limiting scope of HUBZone preference so that it did not affect other program. Small Business Act, \u167 2[31](b)(2), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Small Business Act\rquote s Historically Underutilized Business Zone (\HUBZone\) program was not limited to new contracts, nor did it require that contracts set aside for HUBZone businesses be performed within HUBZones. Small Business Act, \u167 2[31], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Administrative Procedure Act\rquote s arbitrary and capricious standard of review did not apply to Navy contracting officer\rquote s designation of certain contract bid solicitations as Historically Underutilized Business Zone (\HUBZone\)-only, since officer was carrying out legal duty she believed to be required by Small Business Act implementing regulations. Small Business Act, \u167 2[31], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': , for Defendant Barreto, Office of General Counsel, U.S. Small Business Administration, Washington, DC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The instant case involves a dispute surrounding the Small Business Administration\rquote s (\SBA\) interpretation of the HUBZone Program, set forth in the Small Business Act, at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Plaintiff is a small business which provides custodial services to the United States Naval Base and Shipyard at Pearl Harbor, Hawaii. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Plaintiff has named the following parties as Defendants: Donald Rumsfeld in his representative capacity as Secretary of Defense of the United States; Hector Barreto, Jr. in his representative capacity as Administrator of the Small Business Administration (\SBA\); and the United States of America. Plaintiff alleges that Defense Secretary Rumsfeld has violated his duty to carry out the laws of the United States with respect to his responsibility over the management of the Pearl Harbor Naval Base in Honolulu, Hawaii. Plaintiff alleges that Administrator Barreto has breached his responsibility to administer properly the SBA programs at issue in the instant case. Plaintiff has named the United States as a Defendant alleging that the sovereign nation has violated its obligation to follow its own laws. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The material facts in this case are undisputed. Plaintiff has provided custodial services at Pearl Harbor continuously for 18 years, since 1985. At the time of filing, Plaintiff held four contracts to provide custodial services at the United States Naval Base and Shipyard at Pearl Harbor. Plaintiff was awarded the contracts as small business set-asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In December 2002, the Navy, with the approval of the Small Business Administration, combined the four contracts then being performed by Plaintiff with other custodial contracts then being performed by other small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': During this process, the Navy contracting officer consulted with an SBA procurement representative, reviewed the Federal Acquisition Regulations, and concluded that Solicitation No. N62742\u821103\u8211R\u82112216 had to be designated a set-aside for HUBZone small businesses. Plaintiff does not qualify as a HUBZone small business and therefore was faced with the prospective loss of its custodial contracts with the Navy. Plaintiff, therefore, brought this case to challenge the Navy\rquote s designation\u8212and the SBA\rquote s authorization of that designation\u8212of Solicitation No. N62742\u821103\u8211R\u82112216 as a HUBZone set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Congress enacted the Small Business Act (the \Act\) to assist the interests of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The Small Business Administration is charged with carrying out the policies of the Act and making rules and regulations it deems necessary to carry out the Act\rquote s purposes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The Federal Acquisition Regulations (\FAR\) pertaining to small business programs are codified at 48 C.F.R. Part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The Small Business Act allows competition and procurement awards to be limited to small businesses in certain situations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The Act also provides special programs to assist particular groups of small businesses. One such program is the HUBZone program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The purpose of the HUBZone program is to \provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In order to qualify to receive a contract award under the HUBZone program, a small business must have its principal office located in a designated HUBZone and no fewer than 35 percent of its employees must reside in HUBZone areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . A small business that is qualified under the HUBZone program can receive contracting preferences, such as set-aside awards Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Another special program under the Small Business Act is the 8(a) Program, named after Section 8(a) of the Act. The purpose of the 8(a) Program is to increase federal contracts awarded to small businesses owned by socially and economically Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The SBA then awards a subcontract to a small business owned by socially and economically disadvantaged individual(s). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The dispute in this case revolves around the interpretation of the HUBZone Program, codified in the Small Business Act at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price;\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The Small Business Act created the Small Business Administration to carry out the policies outlined therein. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The Federal Acquisition Regulations System (FAR) is issued and maintained jointly under the statutory authorities granted to the Secretary of Defense, the Administrator of General Services, and the Administrator of the National Aeronautics and Space Administration. The FAR pertaining to small business programs also interpret Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': HUBZone small business concerns when the requirements of paragraph (b) of this section can be satisfied. The contracting officer shall consider HUBZone set-asides before considering HUBZone sole source awards ... or small business set-asides.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': (b) To set aside an acquisition for competition restricted to HUBZone small business concerns, the contracting officer must have a reasonable expectation that- Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': (1) Offers will be received from two or more HUBZone small business concerns; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': In the instant case, Congress has used clear language to mandate, \notwithstanding any other provision of law,\ the award of contract opportunities on the basis of competition restricted to qualified HUBZone small business concerns when certain, specific criteria are met. Congress has therefore addressed directly the precise question at issue, requiring both the SBA and this Court \to give effect to the unambiguously expressed intent of Congress.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The SBA and FAR regulations implement Congress\rquote s unambiguously expressed intent by mandating that participating agencies set aside contract opportunities to qualified HUBZone small business concerns when the statutory criteria are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Plaintiff asserts that Congress did not intend for the HUBZone Program to mandate HUBZone set-asides and urges the Court to consider the HUBZone Program in the broader context of the Small Business Act and in light of the language Congress used in outlining the provisions of the 8(a) Program. Even if this Court did not find that Congress, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': 1. Mandatory HUBZone set-asides conflict with the broader goals of the encompassing Small Business Act; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': 1. Mandatory HUBZone set-asides do not frustrate the overarching goals of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The purpose of the Small Business Act is articulated in Section 2(a) of the Act. \It is the declared policy of the Congress that the Government should ... insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government ... be placed with small-business enterprises ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': . The SBA and FAR regulations\rquote interpretation of the HUBZone Program as mandating set-asides to qualified HUBZone businesses does not thwart the policy underlying the Small Business Act as the HUBZone set-asides benefit small businesses, albeit a narrow group of small businesses that does not include Plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': (explaining that the purpose of the HUBZone Program is to provide federal contracting assistance to qualified small business concerns located in historically underutilized business zones). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Plaintiff calls particular attention to the fact that the legislation containing the HUBZone Program also contains congressional goals for small businesses\rquote participation in the overall assignment of federal government contract awards. The statute raised the goal for the overall small business share in federal contract awards from the prior goal of 20 percent to 23 percent and, in codifying the HUBZone Program, set the target for HUBZone small businesses at 3 percent of the total value of federal contract awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Interpreting HUBZone set-asides as mandatory is not inconsistent with setting lower targets for HUBZone businesses than for other classifications of small businesses, including the general grouping of all small businesses. First, the goals set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': are minimum targets rather than caps. Perhaps more importantly, the target of 23 percent for the overall small business share in federal contract awards incorporates the various sub-groups of small businesses, including HUBZone small businesses. The award of contracts to HUBZone small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': therefore, aids in the realization of the 23 percent goal for all small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': It is also significant that since the inception of the HUBZone Program, the minimum target of 3 percent of the total federal contract awards for HUBZone small businesses has not yet been achieved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Trans. of Hearing re Plaintiff\rquote s Motion for Preliminary Injunction (June 27, 2003), at 30, lines 18\u821119 (attorney for Defendants proffering that less than 1 percent of federal contract awards are going to HUBZone companies). If the HUBZone Program becomes so successful that it threatens the ability of other small businesses to meet their goals, Congress is free to amend the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': The Court therefore finds that the regulatory interpretation of the HUBZone Program as mandating set-asides to HUBZone small businesses when the statutory criteria are met does not frustrate the broad policies underlying the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': on the basis of competition restricted to qualified HUBZone small business concerns ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': mandates that certain contracting opportunities be set aside for competition restricted to HUBZone small businesses, whereas Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': , Congress has used the term \shall\ to mandate that certain contracting opportunities be set aside for competition restricted to HUBZone small businesses. With regard to the 8(a) Program as set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': Although the SBA\rquote s resolution of the conflict between the Congressional objective of parity between the 8(a) and HUBZone programs, on the one hand, and the mandatory status of HUBZone set-asides, on the other, appears to be one that Congress would have sanctioned, this Court need not speculate. As Defendants point out, the Small Business Act is re-authorized every three years, the most recent re-authorization having occurred in 2000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 054 - Contract Management Inc v Rumsfeld.doc, Paragraph with 'The Rule of Two': A small business set-aside consists of the reservation of the opportunity to bid for a contract exclusively by small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 056 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': Even if the Court were obligated to follow the GAO rule, the initial question is whether or not the alleged impropriety of the Navy\rquote s failure to apply the RS Act was apparent prior to the time set for receipt of initial proposals. The solicitation, as we stated, mentions the applicability of the Small Business Act, but is silent with regards to the RS Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 056 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': The GAO has opined that a solicitation may include \a \u8216cascading\u8217 set of priorities or preferences whereby competition is limited to small business concerns and the SLA.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 056 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': GAO Opinion B\u8211290925, October 23, 2002. Further, case law has contemplated that a solicitation may include a small business limitation and still allow a SLA to apply and be afforded priority under the RS Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 056 - Mississippi Dept of Rehabilitation Services v US.doc, Paragraph with 'The Rule of Two': The case the Government cites for its policy arguments in support of the GAO rule clearly states that the only method by which a potential RS Act bidder could \find out whether its proposal would be accepted (either under the rules governing small business set-asides or under the application of the Randolph Sheppard Act) was to submit a proposal and then challenge any rejection of that proposal prior to the deadline for receipt of all proposals or at the very least, prior to contract award.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 069 - Norfolk Dredging Co Inc v US.doc, Paragraph with 'The Rule of Two': (acknowledging that, although bound by determination of the Small Business Administration regarding Certificate of Competency, contracting officer has discretion to award contract \based on independent judgment and new information\). Plaintiff is challenging the contracting officer\rquote s decision, which reflects his independent judgment informed by Customs decisions, as not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 071 - Williams Alaska Petroleum Inc v US.doc, Paragraph with 'The Rule of Two': Suppliers of military fuel were precluded from challenging agency\rquote s class deviation from the Federal Acquisition Regulation (FAR) on ground that agency failed to prepare a regulatory flexibility analysis describing the impact of the proposed deviation on small businesses, in compliance with the Regulatory Flexibility Act (RFA), as suppliers were not small businesses and their grievance did not concern a final agency action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 071 - Williams Alaska Petroleum Inc v US.doc, Paragraph with 'The Rule of Two': . The purpose of the RFA is to ensure that small businesses are not adversely affected by government rules and regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 071 - Williams Alaska Petroleum Inc v US.doc, Paragraph with 'The Rule of Two': a small business, nor does their grievance concern a final agency action. (Their argument, as we have noted, concerns DESC\rquote s alleged failure to have performed an initial regulatory analysis.) In short, plaintiffs are precluded by the terms of the RFA from contesting DESC\rquote s actions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) plaintiff was prejudiced by regulatory violations by the Small Business Administration (SBA) in connection with SBA\rquote s denial of a certificate of competency (COC); (2) SBA\rquote s decision to deny plaintiff\rquote s application for a COC lacked a rational basis; and (3) plaintiff was entitled to an award of bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction to review Small Business Administration\rquote s denial of bid protestor\rquote s application for a certificate of competency (COC) pursuant to the Court\rquote s jurisdiction over bid protests. Small Business Act, \u167 2[8](b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In reviewing a contractor\rquote s certificate of competency (COC) application, the Small Business Administration (SBA) is bound by the responsibility criteria set forth in the Federal Acquisition Regulation (FAR), and the criteria set out in the solicitation itself. Small Business Act, \u167 2[8](b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In reviewing contractor\rquote s application for certificate of competency (COC), the Small Business Administration (SBA) violated section of the Federal Acquisition Regulation (FAR) charging agency evaluators to \consider the number of contracts involved and the extent of deficient performance in each contract\ when making responsibility determinations, where SBA contacted only 3 of 35 project references submitted by contractor for the period since 2000 to the present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Upon bidder\rquote s application for certificate of competency (COC) from the Small Business Administration (SBA), contracting agency was required by regulation to supply the SBA with the results of its investigation into bidder\rquote s past performance, and the SBA was required to give consideration to the information collected by the agency concerning bidder\rquote s past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Failure of the Small Business Administration (SBA), on review of bidder\rquote s application for certificate of competency (COC), to consider whether bidder\rquote s past performance problems arose from circumstances beyond its control and whether bidder took appropriate corrective action to remedy the problems constituted a violation of SBA\rquote s obligations under both the solicitation and section of the Federal Acquisition Regulation (FAR). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': On review of bidder\rquote s application for a certificate of competency, the Small Business Administration (SBA) was not required to give bidder the opportunity to clarify unfavorable past performance references the SBA had collected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Bidder who was denied a certificate of competency (COC) by the Small Business Administration (SBA) was prejudiced by SBA\rquote s violation of regulatory requirements which occurred when it failed to consider unfavorable past performance references within the context of bidder\rquote s overall work record, and when it failed to consider whether the problems bidder encountered in past performance were beyond bidder\rquote s control and whether it took appropriate corrective action; in light of SBA\rquote s statement that the unfavorable references were a \major concern,\ there was a substantial chance that but for the violations the SBA would have issued the COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Decision of the Small Business Administration (SBA) to deny bidder a certificate of competency (COC) on the basis of poor past performance lacked a rational basis, where the SBA checked only three past references from extensive list of 105 submitted by bidder, and ignored contracting agency\rquote s conclusion that bidder\rquote s past performance was \very good\; moreover, SBA did not consider whether negative comments concerning past performance stemmed from circumstances beyond bidder\rquote s control, or even whether bidder had taken appropriate corrective action in the three instances. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor was entitled to award of bid preparation costs, where contracting agency and the Small Business Administration (SBA) violated applicable statutes and regulations with respect to the protestor\rquote s application for a certificate of competency (COC), to the prejudice of protestor, and where the decision to deny it a COC lacked a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , Office of Counsel, Small Business Administration, Washington, D.C., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (citations omitted). The GAO also noted that if the Corps had determined that CSE\rquote s low price reflected unfavorably on CSE\rquote s responsibility, then the Corps should have referred the matter to the Small Business Administration (SBA): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The agency\rquote s apprehension that CSE\rquote s price was too low would appear to concern the firm\rquote s responsibility, that is, whether CSE could satisfactorily perform at its proposed price, or whether CSE may have made a mistake in its proposed price. Since CSE is a small business concern, if the agency believed that CSE could not satisfactorily perform the contract at its proposed price, the Corps was required to refer this finding of non-responsibility to the Small Business Administration (SBA) for that agency\rquote s review under its certificate of competency procedures. If the agency believed CSE had made a mistake in its proposed price, it was required to request that CSE verify its price. As noted above, the agency did not request verification here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': As contracting officer, I have determined that CSE Construction\rquote s proposal on Solicitation No. DACA 41\u821102\u8211R\u82110006 is nonresponsible as to several elements, detailed below. CSE is a small business. Accordingly, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration (SBA) has been notified of the nonresponsibility determination so it may offer your business the opportunity to apply for a Certificate of Competency (COC). If you choose to apply for a COC [Certificate of Competency], SBA will perform an independent review of your operations in order to determine whether or not it will issue a COC on your business\rquote behalf. If you choose to participate in the COC review and the SBA does issue a COC on your business\rquote behalf, your business will, virtually without exception, be awarded the contract in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (a) Within 15 business days (or a longer period agreed to by the SBA and the contracting agency) after receiving a notice that a small business concern lacks certain elements of responsibility, the SBA will take the following actions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Upon receipt of [notice that a small business concern has been determined to be nonresponsible], SBA personnel then contact the company concerned to inform it of the impending decision, and to offer the opportunity to apply to SBA for a Certificate. A concern wishing to apply advises the SBA regional office for the geographic region within which the concern is located. Upon timely receipt of required documentation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (governing the referral of small business concerns to the SBA for competency review); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': . In support of the proposition that the SBA is bound by the responsibility criteria set out in the FAR, the court cited the legislative history concerning the 1977 amendments to the Small Business Act, which established the Certificate of Competency program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act, sec. 501, \u167 8(b), 91 Stat. 553 (1977) (codified as amended at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': states that \[t]he House bill [1977 H.R. 692] authorizes the SBA to make all determinations regarding the responsibility of a small business concern to perform a specific Government contract. The term \u8216responsibility\u8217 would include all criteria presently used by procurement officers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (\It is hornbook law that agencies must evaluate proposals and make awards based on the criteria stated in the solicitation.\). This rule applies with equal force to SBA competency determinations, not only because of the legislative intent to bind COC determinations to the same \criteria presently used by procurement officers,\ but also because of the nature of the COC program itself. The issuance of a COC reflects the SBA\rquote s determination that a small business concern is responsible to perform a specific government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (empowering the SBA \[t]o certify to Government procurement officers ... with respect to all elements of responsibility ... of any small business concern or group of such concerns to receive and perform a specific Government contract.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (\A COC is a written instrument issued by SBA to a Government contracting officer, certifying that one or more named small business concerns possesses the responsibility to perform a specific Government procurement (or sale) contract.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (\A Certificate of Competency (COC) is the certificate issued by the Small Business Administration (SBA) stating that the holder is responsible ... for the purpose of receiving and performing a specific Government contract.\). Given the contract-specific nature of the COC program, it is both necessary and proper for the SBA to evaluate COC applications according to the criteria set out in the solicitation at issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (c)(1) A contracting officer who determines that an apparently successful offeror that has certified itself to be a small business with respect to a specific Government procurement lacks any element of responsibility (including competency, capability, capacity, credit, integrity or tenacity or perseverance) must refer the matter in writing to the SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located. The referral must include a copy of the following: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': . Upon referral of a small business concern to the SBA for competency review, the procuring agency is required to submit to the SBA \[a]ny ... justification and documentation used to arrive at the nonresponsibility determination.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The court is aware that its decision that the Corps was required to supply the SBA with the results of its investigation into CSE\rquote s past performance is contrary to some, but not all, of the decisions of the Comptroller General treating the question of a procuring agency\rquote s duty to supply the SBA with relevant information upon referral of a small business concern for a competency determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': explicitly require procuring agencies to forward to the SBA any information relevant to the agency\rquote s determination that a small business concern is nonresponsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': that procuring agencies are free to withhold credible, relevant, and readily accessible evidence directly concerning the question of a small business\rquote s responsibility. Moreover, the 1985 version of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': provided that any referral of a small business concern to the SBA for a responsibility determination should include \[a] copy of the solicitation, drawings and specifications, preaward survey findings, pertinent technical and financial information, abstract of bids (if available), and any other pertinent information Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Had the Corps satisfied its regulatory duty to supply the SBA with the results of its investigation into CSE\rquote s past performance, the SBA would have been obligated to consider this information during its independent review of CSE\rquote s past performance. Courts have stated that the COC program \was designed to protect small businesses against discrimination by procurement officers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': . In the court\rquote s view, it is not possible for the SBA to adequately protect small businesses without giving due consideration to the evidence cited by procurement officers in support of their findings of nonresponsibility. Thus, while the court affirms the SBA\rquote s authority to conduct an independent investigation into any and all elements of a small business\rquote s responsibility, the court cannot endorse the view that the Corps is free to withhold, or the SBA free to ignore, credible evidence, already collected, that is directly relevant to the question of a small business concern\rquote s responsibility. In the present case, it appears that a fundamental error was the Corps\rquote failure to supply the SBA with the results of its review of CSE\rquote s past performance. The SBA is not without blame, however, since it appears from the record that the SBA was aware that CSE had been rated \very good\ by the Corps for the factor of past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Mr. Turner, as an SBA Investigator undertaking a COC on behalf of a small business, had a duty to examine and elaborate on each of the statements he deemed negative in order to get a better idea of the scope and magnitude of any perceived problem before assuming the worst to the detriment of CSE. The record reveals, however, that Mr. Turner did nothing to determine whether the circumstances were properly beyond CSE\rquote s control .... Moreover, to the extent Mr. Turner believed CSE had serious performance problems, he made no attempt to determine whether CSE had taken appropriate \corrective action\ to resolve those problems to the satisfaction of its customers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (2001) (\The COC program empowers the Small Business Administration (SBA) to certify to Government contracting officers as to all elements of responsibility of any small business concern to receive and perform a specific Government contract.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The SBA is authorized to make the binding, final evaluation of a small business as to all elements of responsibility, and a decision by the SBA to issue a COC normally determines that the contract will be awarded to the successful COC applicant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (\In any case in which a small business concern or group of such concerns has been certified by the [Small Business] Administration ... to be a responsible or eligible Government contractor as to a specific Government contract, the officers of the Government having procurement ... powers are directed to accept such certification as conclusive, and shall let such Government contract to such concern or group of concerns without requiring it to meet any other requirement of responsibility or eligibility.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': An SBA-certified concern shall not be required to meet any other requirements of responsibility. SBA COC\rquote s are conclusive with respect to all elements of responsibility of prospective small business contractors.\). Given the SBA\rquote s role as the final arbiter of a small business\rquote s responsibility, the plaintiff\rquote s burden when seeking to overturn an SBA decision to deny a COC is to demonstrate that but for the alleged unlawful error, there was a substantial chance the plaintiff would have been issued a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The SBA\rquote s actions were not reasonable under the circumstances, and reflect errors in judgment. If the SBA were to conduct itself similarly in all of its responsibility determinations, as a general proposition, small businesses would have difficulty qualifying for contract awards. The court concludes that the agency action taken was not reasonable under the applicable statutes, regulations and Supreme Court guidelines for arbitrary and capricious determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Regarding the second factor, the plaintiff claims that it will suffer irreparable harm if the court does not issue the injunctive relief requested: \[T]he separate actions of the SBA and COE have effectively deprived CSE of the opportunity to compete on a level playing field for the Fort Leonard Wood Contract. As a small business, the loss of the Fort Leonard Wood Contract substantially impacts CSE\rquote s annual income.\ Generally, \[l]ost profits and a lost opportunity to compete constitute irreparable injury.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (b) It shall also be the duty of the [Small Business] Administration and it is empowered, whenever it determines such action is necessary\u8211 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (7)(A) To certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ( \There is no rational basis for construing this protective provision to deny to the small business concern access to a court which is otherwise available to all other business concerns, for relief from adverse actions by the procurement officer or the SBA ....\). In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Satisfactory performance record. A prospective contractor that is or recently has been seriously deficient in contract performance shall be presumed to be nonresponsible, unless the contracting officer determines that the circumstances were properly beyond the contractor\rquote s control, or that the contractor has taken appropriate corrective action. Past failure to apply sufficient tenacity and perseverance to perform acceptably is strong evidence of nonresponsibility. Failure to meet the quality requirements of the contract is a significant factor to consider in determining satisfactory performance. The contracting officer shall consider the number of contracts involved and the extent of deficient performance in each contract when making this determination. If the pending contract requires a subcontracting plan pursuant to Subpart 19.7, The Small Business Subcontracting Program, the contracting officer shall also consider the prospective contractor\rquote s compliance with subcontracting plans under recent contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 074 - CSE Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Within 15 business days (or a longer period agreed to by the SBA and the contracting agency) after receiving notice that a small business concern lacks certain elements of responsibility, the SBA Area Office will take the following actions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 076 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Corporate plaintiff failed to make showing that it employed fewer than 500 people on date that underlying suit was filed, so as to satisfy eligibility requirement for award of attorney fees under the Equal Access to Justice Act (EAJA); although plaintiff presented size determination of the Small Business Administration (SBA) that plaintiff and related corporate entity collectively employed fewer than 500 people, the SBA\rquote s size determination, as the product of averaging, was a proxy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 076 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Lion Raisins, Inc. (\plaintiff\), grows, processes, and markets raisins and has completed more than 20 contracts awarded to it as a disadvantaged small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 076 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': , by the United States Department of Agriculture (the \USDA\) over the last decade. On November 22, 2000, the USDA issued an invitation for raisin handlers to bid on two contracts for school lunch programs: Invitation 923 and Invitation 924. After receiving plaintiff\rquote s bids, and without plaintiff\rquote s knowledge, the USDA requested a Certificate of Competency (\COC\) from the Small Business Administration (the \SBA\). The request for the COC was spurred by an investigation conducted by the Agricultural Marketing Service (the \AMS\), the USDA\rquote s compliance office, that revealed that plaintiff had falsified certain raisin certifications. The USDA also had initiated a size protest against plaintiff after receiving numerous telephone calls from plaintiff\rquote s competitors insisting that plaintiff did not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 076 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': 98th Cong. 62 (1983) (statement of David O. Stewart, Attorney, and the Small Business Legal Defense Committee, \Equal Access to Justice Act: An Attorney\rquote s Handbook\). The Senate testimony cited Department of Justice policy indicating that Justice applies the common law definition of employee, which includes \all persons who regularly perform services for remuneration for the applicant, under the applicant\rquote s direction and control.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 078 - Vantage Associates Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation at issue in the case before the court was issued on March 11, 2002 and sought a contractor to manufacture Low Solar Absorbent (LSA) gray track radomes, pursuant to attached drawings. The Navy\rquote s solicitation listed two \qualified sources\ for gray radomes, Vantage and Raytheon, and mentioned no other large or small business manufacturers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 078 - Vantage Associates Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also asserts that the public interest would be served by granting injunctive relief. Specifically, plaintiff maintains that granting relief will ensure that RFPs are awarded in accordance with the general provisions of federal procurement law and the terms stated in the solicitation. Additionally, plaintiff argues that the public has an interest in enhancing the opportunities and participation of small businesses, and that plaintiff offers a product Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 078 - Vantage Associates Inc v US.doc, Paragraph with 'The Rule of Two': Second, plaintiff alleges that radomes had traditionally been procured using a sealed bid process, rather than a negotiated procurement. Third, Vantage and Raytheon were listed as the only \qualified sources\ for production of the gray radomes. Fourth, plaintiff alleges that the procurement of gray radomes at issue was not set aside for small businesses as white radome procurements had been for many years. Fifth, plaintiff argues that \even the \u8216qualified\u8217 sources, [Vantage] and Raytheon, were required to conduct First Article Testing,\ that such a requirement indicates the importance of technical factors and signals a change in the manufacturing process. Plaintiff contends that the additional cost in its proposal ensured \that the gray gel coat was correct and thereby eliminate[s] any possibility that radomes made in accordance with the Navy\rquote s \u8216gray\u8217 specification might not work.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 078 - Vantage Associates Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that Raytheon won the contract award based on low price rather than on technical merit, contrary to the evaluation criteria of the solicitation. Plaintiff notes that the defendant\rquote s initial SSP used for the original contract award provided that, \[f]or purposes of the Government\rquote s best value tradeoff, Price is significantly more important than ... Technical and Past Performance.\ Plaintiff claims that during the Navy\rquote s first reevaluation, after Vantage\rquote s first GAO protest, the Navy continued to use this original SSP criteria, contrary to the evaluation criteria of the solicitation. The Navy\rquote s second reevaluation, also following Vantage\rquote s first GAO protest, plaintiff describes as, \pursuant to a Source Selection Plan never formally adopted ..., conducted with full awareness that Raytheon offered the low price.\ The procurement, according to plaintiff, \continued to be exactly what Defendant internally planned it to be, a low-price-wins competition.\ Plaintiff also contends that for years the defendant purchased white radomes by sealed bid, low-price procurements qualified among small business offerors and that plaintiff \was duped into increasing its price .... If the RFP had stated forthrightly that this was a low-price-wins procurement among technically qualified offerors, Plaintiff\rquote s price would have been far lower than that which it actually offered.\ Defendant acknowledges that \the Navy originally erred in placing too much importance upon price,\ however, \the Government rectified this problem after the GAO protest was filed,\ during the second reevaluation by the Navy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 079 - Fru-Con Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Section 15.2.6.1 states: \Provide a discussion of the methods used by your firm to develop subcontracting possibilities for minority enterprises and small business concerns. (15.2.6.2). Describe, in detail, your firm\rquote s subcontractor selection and management process. Describe the work that will be performed by the offeror and work that will be performed by the subs. Describe, in detail, how you ensure that each subcontractor has the relevant experience for this project. Provide criteria used in awarding subcontracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': , Senior Judge, held that: (1) contract specialist violated regulation by not forwarding a fax he received from plaintiff to the Small Business Administration as HUBZone status protest of contract awardee, and (2) remand to the SBA was necessary to determine if regulatory violation was prejudicial. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Fact that bidder\rquote s HUBZone status protest in fax to contracting officer (CO) did not state all the specific grounds for the protest did not relieve CO of his duty under regulation to forward protest to the Small Business Administration (SBA); regulation clearly required CO to forward the protest to the SBA \notwithstanding whether he or she believes it is sufficiently specific.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Whether bidder intended that his fax to contracting officer questioning the HUBZone status of rival bidder be treated as a HUBZone status protest was irrelevant with regard to the question whether CO should have treated it as such and forwarded it to the Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Protesting bidder did not abandon HUBZone status protest by not taking some sort of action after contracting officer (CO) did not forward the protest to the Small Business Administration (SBA), notwithstanding contention that bidder knew, or should have known, that CO had not forwarded the protest because it did not receive notice of receipt of the protest from the SBA; protestor was under no duty to acknowledge the receipt, or lack thereof, of the SBA\rquote s notice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest brought by the plaintiff, Mark Dunning Industries, Inc., against the United States is before the Court on plaintiff\rquote s motion for summary judgment and defendant and defendant-intervenor\rquote s cross-motions for summary judgment upon the administrative record. Plaintiff asserts that a contract award to defendant-intervenor, Si\u8211Nor, Inc. (\Si\u8211Nor\), was improper because Si\u8211Nor received a 10% price evaluation preference based on Si\u8211Nor\rquote s Small Business Administration (\SBA\) status as a business located in a historically underutilized business zone (\HUBZone\), and that Si\u8211Nor did not meet the statutory requirements for HUBZone status. Plaintiff argues further that it submitted a timely SBA protest regarding Si\u8211Nor\rquote s HUBZone status to the contracting officer, but that SBA never acted on the protest because it was not forwarded to the SBA by the contracting officer. Plaintiff contends that if the SBA had properly responded to plaintiff\rquote s protest of Si\u8211Nor\rquote s HUBZone status, SBA would have upheld the protest, and thus, plaintiff would have been awarded the contract. After careful consideration, the Court remands this matter to the SBA for its determination as to whether SBA would have upheld plaintiff\rquote s protest had it been timely received by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': On August 23, 2002, the Army issued Invitation for Bid No. DABT10\u821102\u8211B\u82110009 for trash collection services at Fort Benning, Georgia. The solicitation provided that bidders certified by the SBA as small business concerns located in a HUBZone would receive a 10% price evaluation preference, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': RE: HUB\u8211Zone, Small Business Advantage Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': I enjoyed meeting you last Friday at the bid opening; it\rquote s always easier to work with someone when you have met him in person. When we were leaving you mentioned that the other bidders may be entitled to a 10% bid advantage based on Small business and or HUB Zone status, and of course we would be upset about it, as we were the apparent low bidder. I did some preliminary investigation and have found a couple of items, which may or may not have any affect [sic] on the bid/award process, but I have followed this letter with copies for you to review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': Selrico Services claims HUB Zone certification and they are located in a HUB Zone, but their D & B Report shows that their income is to [sic] large to be Small Business which is a requirement for HUB Zone certification. Si\u8211Nor, Inc. also claims HUB Zone certification but according to the SBA HUB Zone locator their address IS NOT in a HUB Zone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': was overly restrictive. Specifically, Si\u8211Nor pointed to the requirement that the small business concern \must certify that it will attempt to maintain this percentage during the performance of any HUBZone contract it receives.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 083 - Mark Dunning Industries Inc v US.doc, Paragraph with 'The Rule of Two': ), which established the HUBZone program. The program\rquote s purpose \is to a provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that where contracting officer (CO) based his decision to withdraw request for proposals (RFP) from the small business set aside program on comparison of independent government estimate (IGE) to remaining bidder\rquote s price, but there was no supporting documentation or discussion in the record regarding how the IGE was prepared, matter had to be remanded to the CO for a new IGE. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': Where contracting officer (CO) based his decision to withdraw request for proposals (RFP) from the small business set aside program on comparison of independent government estimate (IGE) to remaining bidder\rquote s price, but there was no supporting documentation or discussion in the record regarding how the IGE was prepared, the Court of Federal Claims had no choice but to remand the matter to the CO for a new IGE. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': . The plaintiff, Nutech Laundry & Textile, Inc. (\Nutech\), objects to the denial of award and withdrawal of Request for Proposal (\RFP\ or \solicitation\) No. CC\u821102\u821107. The RFP was for laundry services at the Warren Grant Magnuson Clinical Center for the Department of Health and Human Services, National Institutes of Health (\NIH\ or \government\). The RFP was set aside for small businesses, but NIH decided to withdraw the RFP and proceed with an unrestricted, full and open competition. Nutech argues that the withdrawal of the RFP fails to follow the applicable regulations, and that the contracting officer\rquote s (\CO\rquote s\) decision not to award Nutech the contract is arbitrary, capricious, or otherwise not in accordance with the law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': On April 29, 2002, the NIH issued solicitation number RFP\u8211CC\u821102\u821107, a small business set-aside, seeking to procure a requirements contract for industrial laundry and garment cleaning services. The RFP covered a variety of facilities in various locations within Maryland and required offers to contain unit pricing for three bulk linen laundry Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': NIH also conducted a market survey to determine if using a small business set-aside was appropriate for laundry services. On October 27, 2000, NIH conducted an initial market survey to which five companies responded. NIH pursued negotiations with a responsive nonprofit agency that was a \preferred source of supplies and services\ under the Javits\u8211Wagner O\rquote Day Act. On February 8, 2002, that agency was ultimately found to not have the capacity to perform. NIH thereafter conducted a new market survey on February 12, 2002. Two companies, besides Nutech, the incumbent contractor, provided capability statement responses. Only one of those companies adequately responded to the posted questions. Based on Nutech\rquote s and the responsive company\rquote s submissions, the CO concluded that \competitory requirements were satisfied to remain within the small business set aside arena.\ AR 553. NIH did not, however, collect any price information as part of this survey. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': Following its analysis, NIH chose Tartan, and advised Nutech via letter on July 23, 2002. NIH also informed Nutech that no further revisions to its proposal would be considered \unless a basis exists to challenge the small business size status\ of the awardee. AR 65. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': does not qualify for a small business set-aside under controlling SBA regulations.... IT SHOULD HAVE BEEN CLEAR FROM THE DATA SUBMITTED by TARTAN ... THAT THEY DID NOT QUALIFY.... [T]he proposal submitted by Tartan [should] be declared ineligible for this solicitation since Tartan is legally not eligible to receive a small business setaide contract.... Further, it is very clear that Tartan is using its size to overwhelm small laundries ... by grossly underbidding small business set aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': AR 68. Tartan responded to Nutech\rquote s protest on August 6, 2002 by admitting that it did not qualify as a small business: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': [W]e have determined that Tartan is in fact not a small business as defined under the Small Business Administration\rquote s size regulations under this procurement. When I completed the [proposal], I believed that our operation in Front Royal, VA was operating as a subsidiary of our parent company and therefore, met the requirements of a small business.... I did list the pertinent information regarding our parent company. I had no intention to hide information and no reason to not complete the bid in a truthful and honest manner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': On September 23, 2002, the CO advised the NIH Small Business Office that NIH would like to pursue an unrestricted, full and open competition because Nutech\rquote s price could not be found to be reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': The CO determined that using a full and open competition \would be more feasible for competitiveness of the marketplace.\ AR 745. On September 24, 2002, the NIH small business specialist and the SBA procurement center representative concurred with the decision by signing a standard form that provided the reason as \[n]o reasonable expectation of obtaining \u8216two or more\u8217 offers from small businesses concerns providing products of small businesses.\ AR 748. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': The CO responded to the GAO protest. He explained that his decision to cancel the small business set-aside was based upon four factors: 1) Tartan\rquote s price, even though that offer was non-responsive; 2) Nutech\rquote s unit price for the NNMC contract; 3) the Kramer study; and 4) the IGE. The CO response demonstrated that Nutech\rquote s unit price was almost double the IGE, Tartan\rquote s unit price, and the NNMC unit price. In this connection, the record showed that 1) Tartan\rquote s revised total price was approximately * * * * * the IGE, and 2) Nutech\rquote s revised total price was approximately * * * * * the IGE and * * * * * Tartan\rquote s total price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': The plaintiff then filed its bid protest in this court on February 21, 2003, requesting a judgment permanently enjoining the NIH from withdrawing the RFP as a small business set-aside and from awarding any contract for laundry services to anyone other than the plaintiff, declaring the actions of the CO at NIH to be arbitrary, capricious, and contrary to law, and awarding plaintiff its bid and proposal costs incurred in responding to the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': price, the Kramer study, and the IGE to find Nutech\rquote s price unreasonable. The government contends that each document or comparison is adequately supported and reflected in the Administrative Record. According to the government, Nutech\rquote s solicitation price, * * * * * that of Tartan\rquote s price, Nutech\rquote s NNMC contract and the IGE unit price, clearly exceeded the fair market value. Furthermore, the government argues that there is no evidence that any of the comparison prices are intrinsically irrational. The government finally argues that the CO followed correct administrative procedures, and received NIH\u8211SBA approval to withdraw the solicitation from the small business set-aside program and conduct an unrestricted, full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': Last, Nutech argues that the CO failed to comply with the appropriate regulations in withdrawing the solicitation from a small business set-aside. Nutech seeks to demonstrate that the CO misled Nutech during negotiations after he sought and obtained approval from the NIH\u8211SBA to withdraw the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': While the court is not prepared to reverse the CO decision and award the contract to Nutech, the court finds that it must remand the case to the CO to prepare a revised IGE that is well reasoned and supported by documentation. Once the revised IGE is prepared, the CO must then reevaluate his decision, in light of the new IGE, to determine whether the contract should be awarded to Nutech or if the new contract should be withdrawn from the small business set-aside program and re-solicited with unrestricted, full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': to NIH in order for NIH to undertake a new IGE that reflects the methods and data used to determine its cost estimates and for NIH to then re-evaluate Nutech\rquote s proposal based on its revised IGE, as well as its decision to withdraw the RFP from the small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': If, before award of a contract involving a small business set-aside, the contracting officer considers that award would be detrimental to the public interest (e.g., payment of more than a fair market price), the contracting officer may withdraw the small business set-aside determination whether it was unilateral or joint. The contracting officer shall initiate a withdrawal of an individual small business set-aside by giving written notice to the agency small business specialist and the SBA procurement center representative, if one is assigned, stating the reasons. In a similar manner, the contracting officer may modify a unilateral or joint class small business set-aside to withdraw one or more individual acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'The Rule of Two': In light of the remand decision, Nutech\rquote s objections to NIH\rquote s compliance with the procedures regarding its decision to withdraw the solicitation from the small business program are moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': , Senior Judge, held that where contract was awarded without a HUBZone price evaluation preference on the basis of a faulty small business certification of the contract awardee, it was appropriate to take corrective action by terminating the contract, and proceeding to make a new award based on the proposals previously received with application of the HUBZone price evaluation preference mandated by statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Omission of clause in request for proposals (RFP) giving notice of price evaluation preference for HUBZone small business concerns was not prejudicial procurement error, where RFP required offerors to list their small business or HUBZone small business status, and bidders did so, indicating clear knowledge as to the existence of small business and HUBZone provisions. Small Business Act, \u167 2[31](b)(3)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Where contract was awarded without a HUBZone price evaluation preference on the basis of a faulty small business certification of the contract awardee, it was appropriate to take corrective action by terminating the contract, and proceeding to make a new award based on the proposals previously received with application of the HUBZone price evaluation preference mandated by statute; however, it was not necessary to amend the request for proposals (RFP) to include the HUBZone notice clause and then obtain new price proposals, as there was no evidence that presence of clause would have any additional impact on price competition, and prices proposed by all offerors for the contract have been mistakenly disclosed by the contracting agency. Small Business Act, \u167 2[31](b)(3)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': The RFP was not a small business set-aside in that it provided for full and open competition so that both large and small business contractors could submit proposals. The RFP did include Section 00600 \Representations & Certifications\ which included Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': \SMALL BUSINESS PROGRAM REPRESENTATIONS\ requiring offerors to certify whether they were: a small business concern; a women-owned small business concern; a small disadvantaged business concern; a veteran-owned small business concern; a service-disabled veteran-owned small business concern; and/or a HUB\u8211Zone small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': provides that the contracting officer shall insert FAR clause 52.219\u82114, \Notice of Price Evaluation Preference for HUBZone Small Business Concerns\ in a solicitation, such as the Fort Drum road RFP, conducted using full and open competition. However, by mistake this clause was not included in the RFP for the Fort Drum road contract. The RFP did advise offerors that the small business size standard for the road contract was $28.5 million in annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': By the receipt date of August 12, 2002, the Corps of Engineers obtained seven proposals for the road contract. Three offerors, including Tug Hill, self-certified as HUBZone small business contractors. Two contractors, including plaintiff, Delaney Construction Corp. (\Delaney\), self-certified as small businesses. The remaining offerors were large businesses under the size standard specified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': , to Delaney\rquote s proposed price. If this were done, Tug Hill, a HUBZone small business with a proposed price within ten percent of Delaney\rquote s, would have received the contract award on the basis of its then lowest technically acceptable offer. However, Delaney\rquote s self-certification as a small business was noted, which precluded the addition of a HUBZone price evaluation preference to its price, as the preference is not applied to an offer from a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': , asserting that Delaney was not a small business. Tug Hill\rquote s letter stated, in part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Tug Hill protests any award to Delaney on the basis that Delaney does not appear to be a small business under the appropriate SIC classification for this procurement. In this regard, it is believed that Delaney has gross annual revenues in excess of $28.5 million. As Delaney is a large business, rather than a small business contractor, the HubZone Price Evaluation Preference Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': On September 30, 2002, Delaney, by letter, notified the contracting officer that it had not considered revenues from several affiliated companies when it self-certified as a small business in its proposal for the Fort Drum contract. Delaney noted that its subsequent research indicated that \the Small Business Administration may include \u8216Affiliate Revenue\u8217 in their calculation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': On October 11, 2002, Delaney\rquote s counsel wrote to the Small Business Administration stating, in part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Accordingly, our client has authorized us to advise you that it no longer contends that it is a small business concern. Although our client recognizes that this will affect its participation in small business set-aside procurements in the future, it will not affect the instant procurement given the fact that the solicitation was not a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': On October 16, 2002, the Small Business Administration forwarded to Delaney its formal size determination that Delaney Construction Corp. is \other than a small business for this procurement and all future procurements with a size standard of $28.5 Million.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': By letter, dated December 23, 2002, to the General Accounting Office, counsel for Tug Hill objected to the corrective action proposed by the Corps of Engineers. In particular, Tug Hill objected to any reopening of competition in view of the previous public disclosure of the prices proposed by all offerors. The Agency Report submitted by the Corps to the GAO on January 21, 2003, defended its proposed corrective action and recommended that Tug Hill\rquote s protest be denied. A January 28, 2003 letter from the Corps of Engineers Division Counsel to the Small Business Administration stated as follows (in part): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': . Pursuant to that legislation, the HUBZone program was established. The purpose of the HUBZone program \is to provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Once a firm is HUBZone certified and its name appears on the Small Business Administration\rquote s List of Qualified HUBZone Small Business Concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': Under the HUBZone price preference procedure set forth for full and open competitions, the \contracting officer shall give offers from HUBZone small business concerns a price evaluation preference by adding a factor of 10 percent to all offers,\ except those enumerated which includes offers from \[o]therwise successful offers from small business concerns.\ FAR 19.1307(b)(2); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': (i) Offers from HUBZone small business concerns that have not waived the evaluation preference; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': (ii) Otherwise successful offers from small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': clause is needed as it includes a place where a HUBZone small business can signify its waiver of the price evaluation provision should it wish to compete only as a small business and avoid HUBZone performance obligations with respect to use of subcontractors. However, the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': notice clause from the RFP. The RFP required offerors to list their small business or HUBZone small business status. Delaney and Tug Hill did so, indicating clear knowledge as to the existence of small business and HUBZone provisions. Whatever the merit of the several decisions by the Comptroller General, cited by the parties, that missing provisions cannot be read into a solicitation, these decisions lack substance where, as here, the HUBZone statute itself mandates the price evaluation preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': However, this mandate does not apply to small business offers and Delaney self-certified as a small business. The Corps was entitled to rely on this certification for award purposes, and the post-award protest and small business size determination that Delaney\rquote s certification was erroneous does not impact the legality of the prior award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': The fact remains that the Fort Drum road contract was awarded without HUBZone price evaluation on the basis of a faulty small business certification. In this circumstance, contract termination action by the Corps, at this early stage after award, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': clause is needed to provide a place for a HUBZone small business to indicate that it waives the statutory price evaluation preference should it wish to do so. Besides the fact that waiver can otherwise be included in an offeror\rquote s proposal, each offerors\rquote proposal cannot be disclosed to other offerors during the award process. Thus no offeror can know whether the HUBZone price evaluation will be applicable or whether it has been waived by one or more HUBZone small business offerors. Only the government has this information as contained in each proposal. Price competition could not be affected by the presence or omission of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'The Rule of Two': to the extent that should the Corps of Engineers terminate plaintiff\rquote s right to perform Contract No. DACA 51\u821102\u8211C\u82110030, any new award decision for this contract shall be made on the proposals previously received, with the small business certification correction provided by the Small Business Administration size determination with respect to Delaney and with the HUBZone price evaluation mandated by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 100 - Razorcom Teleph And Net LLC v US.doc, Paragraph with 'The Rule of Two': The United States Marine Corps (hereinafter, \the agency\) issued a request for proposals, seeking telephone system maintenance services at the Marine Corps Support Activity, in Kansas City, Kansas. The request was originally a set-aside for small business concerns. Plaintiff, Razorcom Teleph & Net, LLC (\Razorcom\), was the only bidder. The agency estimated a cost of $90,000. Razorcom bid $321,368.44. Consequently, the solicitation was cancelled and re-issued on September 6, 2002, without the small business set-aside. The initial deadline for bids was October 10, 2002. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 100 - Razorcom Teleph And Net LLC v US.doc, Paragraph with 'The Rule of Two': In addition, it is far from clear that plaintiff would suffer an irreparable injury if the solicitation were not reopened. Razorcom asserts that losing the contract cost it \hundreds of thousands of dollars in lost profits.\ Even over the entire potential contract term, this assertion is difficult to credit, given the amount of the current contract. Moreover, Razorcom had an unimpeded shot at this procurement in September, 2002. Its base year bid, however, was more than three times the agency estimate. The rough validity of the agency\rquote s estimate is attested to by the subsequent bids, which included two that were relatively close to the estimate. Here it strikes the court as improbable, even with the understanding that the first procurement was a small business set-aside, that Razorcom would have been willing to underbid its original offer by some seventy percent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'The Rule of Two': On November 20, 2001, plaintiff re-submitted its proposal. The technical aspects of the proposal remained the same, but it lowered its price. At $3,648,900 plaintiff\rquote s price was lower than all other offers. Dr. Downing resubmitted her proposal with a price of $4,206,900. Dr. Downing\rquote s revised proposal package also claimed preferential status as a \Disabled Veteran Owned Small Business Concern,\ even though the status was irrelevant to the proposal and the representation may have been inaccurate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that Dr. Downing\rquote s claim that her business was a \Disabled Veteran Owned Small Business Concern\ was untrue. There is no evidence in the record, however, that evaluators gave any preference to Dr. Downing based on that alleged status. Plaintiff, therefore, cannot show that it suffered any prejudice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': , Circuit Judge, held that: (1) contractor did not have protected property interest in city water system contract, and (2) city\rquote s certification of successful bidder as small business enterprise did not violate contractor\rquote s equal protection rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': City\rquote s certification of contractor as small business enterprise, for city contracting purposes, despite allegation that its revenues exceeded small business enterprise revenue requirement, did not violate equal protection rights of African\u8211American owned competitor, where city human rights department did not inquire into race of contractor\rquote s principals during investigative process, and city and its chief legislative body had large majority of African\u8211Americans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': In April 1999, the City of Detroit sought bids on a contract to improve the water system. Competition for the contract was restricted to firms that were certified either as a \Detroit Based Business\ or a \Small Business Enterprise,\ which requires a showing that average revenues during the preceding three years were less than $17 million per year. The bids were opened and announced on May 27, 1999. The two lowest bids were from L. D\rquote Agostini & Sons, Inc., which bid $5,336,810.50, and the plaintiff, which bid $5,878,815.90. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': Because D\rquote Agostini had been certified as a Small Business Enterprise, and submitted the lowest bid, the contract was awarded to D\rquote Agostini. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': On June 3, 1999, the plaintiff sent a letter protesting the award of the contract to D\rquote Agostini. In the letter, the plaintiff asserted that D\rquote Agostini was neither a Detroit Based Business nor a Small Business Enterprise. The City rejected the protest, finding plaintiff\rquote s claims to be without merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': , and the department directives, ordinances, codes, rules, regulations and practices of the City of Detroit in administering and awarding contracts pursuant to the [Small Business Enterprise/Detroit Based Business] program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': and the department directives regarding the Detroit Based Business and Small Business Enterprise programs may serve to create a protected property interest. This assertion also is without merit. In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': Plaintiff asserts that D\rquote Agostini received preferential treatment because D\rquote Agostini was permitted to bid and receive the contract when its revenues exceeded the Small Business Enterprise revenue requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': In response, the City contends that plaintiff has presented no evidence that racial considerations played any part in the City\rquote s decisions. As support, the City submitted the affidavit of Jacelyn Lewis, who stated that \race played no part in my decision to recommend that the Human Rights Department issue a Small Business Enterprise certificate to D\rquote Agostini.\ Lewis also stated that she did not inquire into the race of the principals of D\rquote Agostini during the investigative process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 004 - Willie McCormick And Associates Inc v City of Detroit.doc, Paragraph with 'The Rule of Two': The Contract Compliance Division of the City\rquote s Human Rights Department is responsible for determining whether an applicant meets the requirements for certification as a Small Business Enterprise. The division certified D\rquote Agostini as a Small Business Enterprise on September 2, 1998. The certification was valid for two years, expiring on September 2, 2000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 005 - Schmidt v Lincoln County State of Wisconsin.doc, Paragraph with 'The Rule of Two': Plaintiff Alfred Schmidt is the owner of Merrill Pavers, L.L.C., a small business with gross sales under half a million dollars per year. Merrill Pavers is engaged in the grading of gravel, the laying of asphalt on private drives and the salting, sanding and removal of snow from roadways. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor could not maintain a cause of action based on statute and regulation governing the estimate of the government\rquote s fair market price in a Section 8(a) contract, as the provisions concerned internal operating procedures and existed primarily for the benefit of the government. Small Business Act, \u167 2[8](a)(3)(B)(ii), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': In November of 1994, the VA notified the Small Business Administration (\SBA\) that the contract at issue was eligible for a set-aside under the SBA\rquote s Section 8(a) program with an estimated cost between $500,000 and $1,000,000. The A & E contract was completed in early June of 1995, and estimated the cost of the VAMC project to be $771,690. The VA adopted the A & E estimate as its project cost estimate and established a fair market price of $900,000 for the fire alarm system project. On June 30, 1995, final solicitation specifications and drawings were forwarded to GEGC and the SBA. On July 25, 1995, GEGC submitted its first detailed cost proposal to the VA in an amount totaling $1,369,418. Over the next several days, GEGC and the VA discussed variances between the estimates and negotiated reductions in the scale and scope of the project. On August 1, 1995, GEGC submitted its best and final offer in the amount of $900,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 012 - Concrete Works of Colorado Inc v City and County of Denver.doc, Paragraph with 'The Rule of Two': small businesses face when seeking credit from financial institutions, and whether there is any difference in treatment among small business owners seeking credit based on their ethnicity.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 014 - City Solutions Inc v Clear Channel Communications Inc.doc, Paragraph with 'The Rule of Two': The central issue in the case regarded whether a private civil cause of action could be inferred from the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 017 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor did not establish that agency\rquote s focus on experience with dredge disposal area maintenance in the context of an indefinite delivery/indefinite quantity (ID/IQ) contract effectively converted the contract into an illegal sole source contract because incumbent contractor was the only qualified small-business contractor in the Small Business Administration geographic region that had experience with dredge disposal area maintenance; actual results of competition in which five eligible offerors submitted proposals that were found to be within the competitive range belied any notion that the solicitation was a disguised sole source procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 017 - Gulf Group Inc v US.doc, Paragraph with 'The Rule of Two': Gulf Intracoastal Waterway, Apalachicola, Chattahoochee, Flint River System, Alabama, Florida, and Georgia.\ The Solicitation contemplated the award of a fixed-price contract for a base year, with four option years. It was advertised as a competitive procurement under the Small Business Administration\rquote s (SBA) 8(a) Program, restricted to 8(a) firms in SBA geographic Region IV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 019 - Information Technology And Applications Corp v US.doc, Paragraph with 'The Rule of Two': In addition to the disputed ENs concerning RSIS\rquote s subcontractors, the Air Force sent ENs to RSIS seeking Small Business Administration certification and completion of sections G\u82115 and G\u82116 of the solicitation. It sent ENs to ITAC seeking additional information on its subcontractors, Small Business Administration certification and clarification regarding the estimated price for one of its subcontracts. It sent ENs to the third bidder seeking information regarding its subcontractors, Small Business Administration certification and completion of solicitation section I. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 022 - Eagle Design and Mgmt Inc v US.doc, Paragraph with 'The Rule of Two': , U.S. Small Business Administration, and Daniel J. Barry, U.S. Department of Health and Human Services, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 022 - Eagle Design and Mgmt Inc v US.doc, Paragraph with 'The Rule of Two': Eagle Design and Management, Inc. (\Eagle\), the plaintiff, objects to the Small Business Administration\rquote s affirmance of the contracting officer\rquote s selection of North American Industry Classification System (\NAICS\) code 561110, Office Administrative Services, as the appropriate code for this procurement. By virtue of this selection, Eagle, the incumbent contractor, will not be eligible for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 022 - Eagle Design and Mgmt Inc v US.doc, Paragraph with 'The Rule of Two': The background facts are set forth in the court\rquote s initial October 30, 2002 order, remanding the decision of the Small Business Administration, to the Office of Hearings and Appeals (\OHA\) for further consideration. In particular, the court ordered the OHA judge \to determine whether the contracting officer\rquote s selection of NAICS 561110 is the most appropriate for this solicitation or whether any other code is more appropriate. The OHA must also address the alternative proposed by Eagle that was not addressed in the ... OHA decision.\ On November 22, 2002, the OHA judge, after addressing the issues identified in the court\rquote s order, reaffirmed the contracting officer\rquote s (\CO\rquote s\) selection of NAICS code 561110 and denied Eagle\rquote s appeal. Eagle argues that the decision reaffirming that code selection is arbitrary, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 022 - Eagle Design and Mgmt Inc v US.doc, Paragraph with 'The Rule of Two': or services being purchased. Other factors considered include previous Government procurement classifications of the same or similar products or services, and the classification which would best serve the purposes of the Small Business Act. A procurement is usually classified according to the component which accounts for the greatest percentage of contract value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 022 - Eagle Design and Mgmt Inc v US.doc, Paragraph with 'The Rule of Two': In September 2000, the SIC codes were replaced by the new NAICS code system to determine the size standards in small business set-aside procurements. SIC code 8741 became NAICS code 561110. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 025 - Omega World Travel Inc v US.doc, Paragraph with 'The Rule of Two': Participation of small business and small disadvantaged business concerns was to be outlined in a narrative no longer than five pages. This narrative was in addition to the offeror\rquote s small business subcontracting plan. Past performance was assessed on an evaluation sheet including information from customers and other government agencies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 025 - Omega World Travel Inc v US.doc, Paragraph with 'The Rule of Two': During these protests, MTMC discovered that Sato and Carlson had exceeded the maximum page limitations for their small business and small disadvantaged business concerns narratives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 025 - Omega World Travel Inc v US.doc, Paragraph with 'The Rule of Two': In addition, Omega had failed to provide the requisite five page narrative in addition to its subcontracting plan. On April 8, 2002, MTMC decided to take corrective action in order to \eliminate any doubts concerning the reasonableness of [the small business narrative portion] of the evaluation and the resulting source selection.\ AR. at 2773, 3313. GAO dismissed Sato\rquote s protest the same day. After further clarifications by MTMC the revised narratives were due May 2, 2002. Carlson and Sato provided a five page narrative in addition to their initial subcontracting plan. Omega resubmitted its original plan without an additional narrative. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 025 - Omega World Travel Inc v US.doc, Paragraph with 'The Rule of Two': Omega alleges that only Carlson and Sato had failed to abide by the terms of the RFP\u8212submitting a narrative outlining their Small Business sub-contracting plans. Omega is correct insofar as it alleges that Carlson and Sato failed to stay within the prescribed five page limit for the required Small Business subcontracting narrative. However, all three offerors failed to meet the requirements of the RFP. Plaintiff submitted only a five page sub-contracting plan, without an additional narrative. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 033 - Shearin Const Inc v Mineta.doc, Paragraph with 'The Rule of Two': . In this case, there is no dispute over Plaintiff Tharpe\rquote s status as a \socially and economically disadvantaged individual\ because of her female gender. Likewise, there is no dispute that Shearin, the Plaintiff business, meets the definition of a small business as required by the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 033 - Shearin Const Inc v Mineta.doc, Paragraph with 'The Rule of Two': The designation of a business as a DBE is important because the Surface Transportation Act and related statutes require that no less than ten percent of funds spent on federally-funded highway and transit projects \shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals\ as defined. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency violated statute providing that offeror may not be evaluated favorably or unfavorably on factor of past performance when there is no information on past contract performance by assigning a quantitative value to \neutral rating\ given offeror on past performance subfactor of small business utilization factor pursuant to statute; rather, subfactor should have been completely eliminated from factor\rquote s evaluation, since subfactor was, in effect, \not applicable\ to offeror. Office of Federal Procurement Policy Act, \u167 6(j)(2), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Error in rating offeror \acceptable (A),\ rather than \highly acceptable (HA),\ on small business utilization factor of technical evaluation was not prejudicial where, although offerer\rquote s elimination from competition might not have occurred if had a higher technical ranking, offeror\rquote s overall technical ranking was not the direct result of the number of HA\rquote s given, since the technical evaluation board (TEB) had previously ranked offeror third despite the fact that all offerors, as of that date, had two HA\rquote s and three A\rquote s. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency properly applied Historically Underutilized Business Zone (HUBZone) evaluation preference when it added a 10% margin to bid prices offered by non-HUBZobe bidders to determine whether price of HUBZone bidder could be deemed lower than that of the other bidders, but not for purpose of determining whether non-HUBZone bidders should be eliminated from competition because their bid prices exceeded budget ceilings for line-items. Small Business Act, \u167 2[2](b)(3)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': COUNT III: The SSB Improperly Downgraded Metcalf\rquote s Rating For Factor C: Small Business Utilization Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (III) Although the Navy improperly evaluated plaintiff\rquote s overall rating for Factor C: Small Business Utilization due to its \NR\ rating in subfactor 1, the result was harmless error. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business concerns. The Offeror\rquote s price will be evaluated and compared against its relative technical quality of its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Factor C: SMALL BUSINESS UTILIZATION (Subfactors are of equal importance) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (1) Past Performance in Utilization of Small Business Concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (2) Participation of Small Business Concerns in this project Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The SSB Improperly Downgraded Metcalf\rquote s Rating For Factor C\u8212Small Business Utilization Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The subject RFP contained five component Technical Evaluation Factors: Factor A\u8212Past Performance, Factor B\u8212Qualifications and Experience, Factor C\u8212Small Business Utilization, Factor D\u8212Technical Approach, and Factor E\u8212Management Plans. This issue centers on the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': \Factor C represents Small Business Utilization comprising two equally weighed subfactors: (1) past performance on utilization of small business concerns and (2) proposed subcontracting of subject project.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': when it downgraded Metcalf\rquote s Factor C rating from \Highly Acceptable\ (HA) to \Acceptable\ (A). Pl.Mem. at 17. Inasmuch as Metcalf itself is considered a small business concern (\SBC\), it is not required to utilize other SBCs on its projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': \[I]n any case in which a contract is to be awarded on the basis of full and open competition, the price offered by a qualified HUBZone small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (other than another small business concern), if the price offered by the qualified HUBZone small business concern is not more than 10 percent higher than the price offered by the otherwise lowest, responsive, and responsible offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (III) Although the Navy improperly evaluated plaintiff\rquote s overall rating for Factor C: Small Business Utilization due to its \NR\ rating in subfactor 1, the result was harmless error. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Duly certified by the U.S. Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business concerns. The Offeror\rquote s price will be evaluated and compared against its relative technical quality of its proposal.\ (Emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business concerns. The Offeror\rquote s price will be evaluated and compared against its relative technical quality of its proposal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 039 - McRae Industries Inc v US.doc, Paragraph with 'The Rule of Two': On September 27, 2000, DSCP issued Request for Proposals No. SPO100\u821100\u8211R\u82110050 (the \RFP\ or \solicitation\) seeking offers to supply combat boots to the military. The RFP described the required boot as follows: \Boot, intermediate cold/wet with removable insulated booties, shall be manufactured in accordance with purchase description CRFD/PD 99\u821109...\ Administrative Record (\AR\) 90. The solicitation stated that half of the acquisition would be set aside for a small business with the remaining half unrestricted. The solicitation requested offers for a base period of one year with four option years. In the first year, the RFP provided that DSCP would order a minimum of 33,033 pairs of boots and a maximum of 68,820 pairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 039 - McRae Industries Inc v US.doc, Paragraph with 'The Rule of Two': After technical scoring and evaluation were completed, the agency awarded the small business set aside contract to Belleville and the general award contract to Wolverine on April 12, 2001. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with 'The Rule of Two': On December 11, 1995, the United States Army, White Sands Missile Range (Army) issued Request for Proposals (RFP) No. DAAD07\u821196\u8211R\u82110103 for the purchase of wire harness kits and test fixtures for the Flexible Engine Diagnostic System, a mobile testing facility used to test turbo-shaft engines. The requirement was offered to Process Control Technologies, a division of GMC Enterprises, Inc. (Process Control; PCT) as a sole source set-aside pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims would allow plaintiffs to supplement the record in bid protest with affidavit of executive director of plaintiff stating that plaintiff would not have qualified under small business set-aside guidelines, as issue was relevant to the matter, but not fully elucidated in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': This contract was issued as a small business set-aside. The solicitation originally provided for a performance period for the contract with a base period from October 1, 2000 through September 30, 2001 and with four one-year option periods. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': In an August 2, 1999 memorandum to the Commander of United States Army Forces Command, Walter H. Warfel, director of contracting, addressed the applicability of the Randolph\u8211Sheppard Act to the solicitation for full food services and dining facility attendant services at Fort Bragg. The memorandum stated that, as in the past, the Army would process the requirement for full food services and dining facility attendant services under one \umbrella\ food service contract which would cover all of the facilities. The memorandum also noted that previously the Army had treated the requirement as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': On March 3, 2000, Leslie D. Griggs in the IBO\rquote s Contracting Division of Fort Bragg sent a letter to NCDSB acknowledging NCDSB\rquote s interest in providing food service for the Fort Bragg dining facilities. The letter further states that on August 30, 1999, Fort Bragg was required to submit to the Army, through its higher headquarters Forces Command, an analysis concerning the full food and dining facility services that the solicitation would require so that the Army could determine whether the Fort Bragg solicitation should be offered pursuant to the Randolph\u8211Sheppard Act. After a review of DOD implementation guidance, Fort Bragg reported to its higher headquarters that its food services solicitation did not qualify under the Randolph\u8211Sheppard Act. Forces Command agreed with the Army\rquote s assessment and consequently, the Army concluded that it would proceed to issue the solicitation as a small business set-aside, as it had done in the past. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': The court will allow the affidavits filed by plaintiffs. Mr. Mitchell\rquote s affidavit is relevant and would assist in the judicial review of this matter because it sheds light on information contained in the administrative record, but not adequately explained elsewhere. In particular, Mr. Mitchell\rquote s affidavit describes the nature of the relationship between Mitchco and NCDSB and the reasoning behind the identical proposals submitted by Mitchco and NCDSB for the Fort Bragg contract. Likewise, Mr. DeLuca\rquote s affidavit offers information not contained in the administrative record. The affidavit states that NCDSB would not have qualified under the small business set-aside guidelines. This is an issue relevant to this matter, but not fully elucidated in the administrative record. Mr. Jones\rquote affidavit enables this court to understand issues concerning the meaning of the term \cafeteria\ in the Randolph\u8211Sheppard Act and the various duties performed by those vendors operating cafeterias. The court will also allow the contracting officer\rquote s January 8, 2002 letter to NCDSB as this letter contains an explanation of agency action that is not contained in the administrative record. The letter indicates when the Army received the Commissioner\rquote s letter concerning the Randolph\u8211Sheppard Act\rquote s applicability to the Fort Bragg solicitation and why the Army did not apply the Act despite Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': ; (2) effectively precluded NCDSB from responding to the solicitation by informing NCDSB that it would not apply the Act\rquote s priority but would instead issue the solicitation as a small business set-aside; and (3) informed NCDSB that any of its clients could submit solicitation proposals only eight days before the proposal due date, giving NCDSB only eight days to prepare a proposal. NCDSB also suggests, in support of its \substantial chance\ argument, that although it was not within the Army\rquote s competitive range, NCDSB was within the definition of competitive range contemplated by DOE in the original drafting of the Randolph\u8211Sheppard Act regulations. Therefore, because NCDSB contends that it was within this definition of competitive range, it had a substantial chance of receiving the award. NCDSB further submits that even under the Army\rquote s definition of competitive range it would have had a substantial chance of receiving the challenged award had it been allowed sufficient time for the preparation of its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': There is, however, no evidence in the administrative record that supports this contention. NCDSB asserts that while the Army did not specifically state that it could not submit a proposal, by determining that the solicitation would be issued as a small business set-aside, the Army, in effect, precluded NCDSB, which is not a small business, from submitting a proposal. NCDSB states that it did not submit a proposal until the Army specifically informed it that any of NCDSB\rquote s clients could submit a proposal under the terms of the solicitation. As a result, NCDSB\rquote s hurriedly prepared proposal was ranked second to last and excluded from the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': Nothing in the administrative record supports NCDSB\rquote s argument. Instead, the administrative record as well as counsels\rquote statements during the oral argument demonstrate that the Army issued the solicitation as a small business set-aside but at no time actually told NCDSB that it was prohibited from submitting a proposal. In fact, all of the correspondence between the parties during this period concerned the applicability of the Randolph\u8211Sheppard Act to the solicitation, not whether NCDSB was allowed to submit a proposal under a solicitation issued as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': By letter dated May 11, 2000, the Army informed NCDSB for the second time that it had determined the procurement was not covered by the Randolph Sheppard Act. At that point, NCDSB had two choices. First, NCDSB could have sought a declaratory judgment or injunctive relief from the appropriate tribunal with regard to its claim that the Randolph\u8211Sheppard Act applied to the Fort Bragg solicitation. Second, NCDSB could have chosen to prepare a proposal immediately, regardless of whether the Army applied the Randolph\u8211Sheppard Act to the solicitation. Had NCDSB chosen to prepare and submit a proposal, there would have been no last minute rush and plaintiff would have had ample opportunity to properly prepare its proposal by the original submission deadline of July 12, 2000. By preparing and submitting its proposal in a timely fashion, NCDSB would have also been in a position to timely challenge any rejection of that proposal by the agency, irrespective of whether the basis of the Army\rquote s rejection was founded on an argument that NCDSB was not a small business or that the Act did not apply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': agency to submit a proposal under a small business set-aside procurement. Of course, at the outset, NCDSB had no way of knowing whether the Army would have permitted it, an entity which was obviously not a small business, to submit a proposal. However, the only method by which NCDSB could find out whether its proposal would be accepted (either under the rules governing small business set-asides or under the application of the Randolph Sheppard Act) was to submit a proposal and then challenge any rejection of that proposal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 041 - North Carolina Div of Services For Blind v US.doc, Paragraph with 'The Rule of Two': If the Army had rejected plaintiff\rquote s timely submitted proposal for any reason, including the fact that NCDSB was not a small business or that the Randolph\u8211Sheppard Act did not apply to permit plaintiff to submit a proposal, the appropriate time for NCDSB to have challenged the Army was prior to July 20, 2000, the final deadline for the submission of proposals or, at the very latest, prior to November 30, 2001, the date of contract award. NCDSB could not wait to see whether or not it won the contract before challenging perceived problems with the solicitation. Acceptance of such a practice would be disruptive, unfair to the other offerors and would serve to undermine the soundness of the federal procurement system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) costs and attorney fees incurred by bidder in responding to a Small Business Administration (SBA) size protest and investigation for purposes of an SBA certificate of competency (COC) were not recoverable as \bid preparation and proposal costs\ within meaning of the Tucker Act; (2) where allowable and unallowable costs were aggregated into a single claim for $5,092 and the Court could not discern from the record before it what portion was allowable as bid preparation costs, the entire claim had to be disallowed; and (2) plaintiff failed to met its burden of proof on claim for overhead costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Costs incurred by bidder in responding to a Small Business Administration (SBA) size protest and investigation for purposes of an SBA certificate of competency (COC) were not recoverable as \bid preparation and proposal costs\ within meaning of the Tucker Act, where eligibility to bid was not predicated on size, and compliance with COC investigation was not a term of the bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Bidder who prevailed in bid protest was not entitled to award of 5,625.00 in attorney fees incurred in the course of responding to a Small Business Administration (SBA) size protest and investigation for purposes of an SBA certificate of competency (COC), as such fees were not allowable bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s Statement of Bid Proposal Costs calls for resolution of the issue whether attorneys\rquote fees and other costs incurred by plaintiff in responding to a size protest filed with the Small Business Administration and an investigation for purposes of a Certificate of Competency are recoverable as bid preparation and proposal costs under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': . On November 22, 2000, the United States Department of Agriculture (the \USDA\) issued an invitation for raisin handlers to bid on two government contracts for school lunch programs, Invitation 923 and Invitation 924. Upon receipt of plaintiff\rquote s bids, the USDA requested a Certificate of Competency (\COC\) for plaintiff and initiated a size protest against plaintiff with the Small Business Administration (the \SBA\). Shortly before the bids were to be awarded, and before the SBA determined plaintiff\rquote s competency, the USDA suspended plaintiff from participating in government contracts for a period of one year. This court found that, as to Invitation 923, the USDA acted arbitrarily and capriciously in suspending plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': at 954. Under the circumstances of this case, particularly the timing of the USDA\rquote s requests to the SBA, it is fair to say that plaintiff\rquote s SBA-related costs were incurred \for the contract.\ Yet, this court cannot make a preliminary finding that the USDA conditioned the contract on compliance with the SBA requests so as to support a finding that plaintiff\rquote s SBA-related costs thereby were incurred \specifically for the contract.\ Neither invitation referenced a set-aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': , regardless of whether a small-business set-aside is involved, before rejecting a small business\rquote s bid on grounds of non-responsibility, an agency must refer the matter to the SBA, which, in its discretion, may issue a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Suspension under the FAR does not offend the purpose of the referral, which is to protect the small business bidder from arbitrary findings of non-responsibility based upon the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': fact that it is a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': (because SBA has exclusive jurisdiction to determine small business competency, agency does not review decision to refer); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 049 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': [The spreadsheet] is self-explanatory. The $200.00 per hour charge for 160 hours is a combination of the hours expended by Al Lion, President, Dan Lion (Vice President) and myself for our own time spent on our bid proposal costs, dealing with the Small Business Administration, the size protest, the calculations and the ultimate decision as to what to bid on Invitation Number 923. As can be seen from Exhibit \A,\ many others at Lion also worked on this project (calculated at their hourly paycheck rate) for the hundreds of hours spend on this multi-million dollar bid .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 052 - JWK Intern Corp v US.doc, Paragraph with 'The Rule of Two': On September 24, 2001, JWK International Corporation (JWK), a minority-owned small business, submitted an initial private sector competitive proposal in response to the Solicitation\u8212the only proposal received. The TEB report, submitted October 31, 2001, assessed JWK\rquote s technical and management proposal as poor with high risk for the government. For both of the key factors reviewed, the TEB identified numerous specific weaknesses (instances where the proposed methods were less than desirable) and deficiencies (instances where the proposal did not conform with the solicitation requirements). For example, the report identified 10 weaknesses and 7 deficiencies in connection Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 058 - American Federation of Government Employees (AFL-CIO) v US.doc, Paragraph with 'The Rule of Two': . There, a defense contractor challenged the race-based set-asides in Section 8(a) of the Small Business Act, as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Prospective bidder brought pre-award bid protest, challenging decision of the Small Business Administration (SBA) upholding contracting officer\rquote s change of the North American Industry Classification System (NAICS) classification code for a contract for ice storm debris removal from a \construction\ code to a \service\ code. On cross-motions for summary judgment, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor challenging determination of the Small Business Administration (SBA) as to the proper North American Industry Classification System (NAICS) code for a solicitation must establish that the code determination had no rational basis or that in making the decision, the SBA violated an applicable procurement statute or regulation in a manner which was prejudicial to the potential offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Decision of the Small Business Administration (SBA), upholding contracting officer\rquote s change of the North American Industry Classification System (NAICS) classification code for a contract for ice storm debris removal from a \construction\ code to a \service\ code, lacked a rational basis, where the SBA failed to explain its departure from its own previous decisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Prospective bidder on solicitation for ice storm debris removal was prejudiced by irrational decision of the Small Business Administration (SBA) upholding contracting officer\rquote s decision to change the North American Industry Classification System (NAICS) code for the contract from a \construction\ code to a \service\ code, since code change rendered prospective bidder ineligible to compete for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Prospective bidder whose pre-award bid protest resulted in declaratory judgment invalidating determination of the Small Business Administration (SBA) as to the proper North American Industry Classification System (NAICS) code for the solicitation, was not entitled to an injunction staying the procurement pending appeal after judicial review, considering that prospective bidder did not deconcentrate a likelihood of success on the merits, or that it would suffer irreparable harm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': This is a pre-award bid protest in which plaintiff, Ceres Environmental Services, Inc. (\Ceres\), a Minnesota corporation, objects to solicitation number NRCS\u82113\u8211OK\u821102, issued by the United States Department of Agriculture\rquote s (\USDA\) Oklahoma Office of the Natural Resources Conservation Service (\NRCS\). This solicitation is one of several for ice storm debris removal work in a number of Oklahoma counties. Specifically, this solicitation is entirely set aside for small businesses and seeks bids for ice storm debris removal in Johnston County, Oklahoma. The solicitation was issued on January 11, 2002 and the bids are currently scheduled to be opened on March 18, 2002. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Ceres\rquote main objection is addressed to the February 6, 2002 decision, issued by the Small Business Administration Office of Hearing Appeals (\SBA\u8211OHA\), which affirmed the decision by the Contracting Officer (\CO\) to change the North American Industry Classification System (\NAICS\) classification code for this type of contract from a \construction\ code, NAICS 234990 (All Other Heavy Construction), to a \service\ code, NAICS 562119 (Other Waste Collection). Ceres asserts that previous contracts for similar work in other Oklahoma counties were classified under NAICS code 234990 (All Other Heavy Construction) and that the CO did not offer any explanation for the change. Accordingly, Ceres argues that the SBA\u8211OHA decision is arbitrary and capricious because it affirmed the CO\rquote s unexplained amendment to this type of contract. Ceres suggests that the SBA\u8211OHA\rquote s rationale for affirming the CO\rquote s decision was inadequate. Further, plaintiff asserts the SBA\u8211OHA decision violates both the Competition in Contracting Act as well as the Small Business Act because the changed solicitation requirement unduly restricts competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': (by agreement of the parties). Specifically, CICA allows procurement of property or services \using competitive procedures but excluding concerns other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act expressly provides that in the government procurement arena certain contracts are to be reserved for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': . Pursuant to the Small Business Act, Congress has conferred responsibility for establishing which entities qualify as small business concerns, as well for making particular size assessments, upon the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': The implementing regulations promulgated by the SBA establish applicable size standards on the basis of the NAICS codes, each of which describes a particular economic activity or industry and then specifies the maximum number of employees or annual receipts that a concern (and its affiliates) within that sector can have and still be considered a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': . Other considerations include previous Government procurement classifications of the same or similar products or services, and the classification which would best serve the purposes of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Five of the solicitations for debris removal in other Oklahoma counties issued since February 6, 2001, have been entirely set aside for small businesses and at least two of those solicitations, specifically in Leflore and Seminole Counties, definitively stated that the applicable NAICS code was 234990 (All Other Heavy Construction). Administrative Record (\AR\) 123\u821136; 234\u821147. The definition of work included under this designation as stated in the NAICS Manual is: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Following the Small Business Administration\rquote s (SBA) October 1, 2000, conversion to the 6\u8211digit NAICS codes as the basis for the SBA\rquote s small business size standards, SIC [Standard Industrial Classification] code appeals are now known as NAICS code appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': This is the Small Business Administration\rquote s final decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Following the Small Business Administration\rquote s (SBA) October 1, 2000, conversion to the 6\u8211digit NAICS codes as the basis for the SBA\rquote s small business size standards, SIC code appeals are now known as NAICS code appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': This is the Small Business Administration\rquote s final decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': (utilizing bid protest standard in reviewing SBA\rquote s final decision upon a responsibility evaluation). As outlined above, pursuant to the regulations promulgated under the Small Business Act, the SBA\u8211OHA, is vested with exclusive jurisdiction to review the CO\rquote s determination of the appropriate NAICS code designation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Deference is accorded to the Congressional policies underlying the Small Business Act, and the SBA\u8211OHA\rquote s final determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration SIC to NAICS Correspondence Table Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Beyond Ceres\rquote own conclusory allegations, plaintiff has not demonstrated that the NRCS has conducted this procurement without providing for full and open competition within the confines of the Small Business Act. Moreover, Ceres does not offer any evidence or argument to support the proposition that granting the stay would avoid substantial harm to other interested parties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration SIC to NAICS Correspondence Table Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': actually refers to the NAICS code as the SIC code. Effective October 1, 2000, the NAICS replaced the Standard Industrial Classification (\SIC\) system as the basis for the SBA\rquote s small business standards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 061 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': See U.S. Small Business Administration SIC to NAICS Correspondence Table. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 071 - Computer Sciences Corp v US.doc, Paragraph with 'The Rule of Two': In the present case, the PRAG conducted an extensive analysis of past performance information for each of the sources identified in the Solicitation and the source selection plan. This analysis included reviewing questionnaires that broke down the Mission Capability subfactors and Cost factor into sub-areas for evaluation. There were four evaluation areas for Cost and, with respect to the Mission Capability subfactors, there were seven evaluation areas for Technical Performance, ten for Program Management, two for Transition/Phase\u8211In, three for Employee Retention and Attraction, and two for Small Business. The PRAG also conducted interviews with the government program managers and contracting officers with knowledge of the offerors\rquote performance. The Air Force CPARS provided further assistance to the PRAG. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 075 - Information Technology And Applications Corp v US.doc, Paragraph with 'The Rule of Two': The Air Force set aside the entire TSSOS contract for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 075 - Information Technology And Applications Corp v US.doc, Paragraph with 'The Rule of Two': at 4. RSIS states \that where, as here, offerors are exempt from the small business affiliation rules because of the size of the procurement ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 075 - Information Technology And Applications Corp v US.doc, Paragraph with 'The Rule of Two': ), it is the small business \u8216team\u8217\u8212the individual small business submitting the proposal\u8212that is to perform 50% of the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 077 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Unknown to plaintiff, after the USDA received plaintiff\rquote s bids, it contacted the U.S. Small Business Administration (the \SBA\) to request a Certificate of Competency (\COC\) for plaintiff. In a December 14, 2000 letter, Susan E. Proden, Contracting Officer for the USDA, informed the SBA that the USDA believed plaintiff would be the successful bidder for the contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 077 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': However, the USDA requested a COC for plaintiff because the USDA\rquote s compliance office, the Agricultural Marketing Service (the \AMS\), just completed a preliminary investigation of plaintiff which revealed that certain raisin certifications had been falsified. The specific irregularities were that USDA inspector signatures had been forged and false moisture content readings were recorded. On at least one certificate, the grade of raisins had been changed from Grade C to Grade B. Further, the investigation determined that, over a three-year period, plaintiff fraudulently had received more than it was entitled to receive under government programs administered by the Raisin Administrative Committee. Ms. Proden also informed the SBA that the USDA had received numerous calls from the raisin industry accusing plaintiff of being a \large business,\ contrary to plaintiff\rquote s assertion it was a \small business,\ and thus the USDA had also initiated a size protest regarding plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 077 - Lion Raisins Inc v US.doc, Paragraph with 'The Rule of Two': Although neither invitation referenced a set-aside for small businesses, the SBA is authorized independently to enter into procurement contracts on behalf of qualified small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 080 - L Tarango Trucking v County of Contra Costa.doc, Paragraph with 'The Rule of Two': On December 9, 1997, the Board adopted an Interim Outreach program, which encouraged outreach to MBEs, WBEs, Small Business Enterprises (\SBEs\), and Local Business Enterprises (\LBEs\), without setting specific numerical goals for utilization of those types of businesses in County contracts. On August 11, 1998, the County adopted a Final Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 080 - L Tarango Trucking v County of Contra Costa.doc, Paragraph with 'The Rule of Two': On January 25, 2000, the Board of Supervisors adopted a Small Business Enterprise Program (\SBE Program\) for construction contracts of $25,000 or less, and purchasing and professional/personal services contracts of $50,000 or less. The SBE program is still in effect today. Under the SBE program, 50 percent or more of the total dollar amount of such contracts is expected to be awarded to SBEs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 080 - L Tarango Trucking v County of Contra Costa.doc, Paragraph with 'The Rule of Two': In the face of repeated changes in the law, the County has consistently attempted to find ways to assist women and minority contractors, small businesses, and local businesses. When the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 080 - L Tarango Trucking v County of Contra Costa.doc, Paragraph with 'The Rule of Two': 209 and began developing new affirmative action outreach programs that could legally provide assistance to women and minorities who wished to do business with the County. When Supervisor Uilkema noticed at a public meeting that many of the women and minority contractors who wanted to do business with the County were small businesses, she developed the SBE program, which sets aside certain contracts for small businesses. When the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': ). The Act established the HUBZone program, the purpose of which \is to a provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones, in an effort to increase employment opportunities, investment, and economic development in those areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': . The Small Business Administration (the \SBA\) is responsible for certifying qualified firms as HUBZone small business concerns (\HUBZone businesses\). FAR \u167 19.1303(a). Once a firm is HUBZone certified and its name appears on the SBA\rquote s List of Qualified HUBZone Small Business Concerns, the firm is eligible for HUBZone program preferences. FAR \u167 19.1303(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': Alternatively, the contracting officer may give HUBZone businesses price preferences. In full and open competitions, the \contracting officer shall give offers from HUBZone small business concerns a price evaluation preference by adding a factor of 10 percent to all offers, except ... [those from other small business concerns.]\ FAR \u167 19.1307(a), (b). When acquisitions are made on the basis of full and open competition, the contacting officer must insert into the solicitation, the clause at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business Concerns. FAR \u167 19.1308(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of HUBZone Small Business Set\u8211Aside; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business Concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': , Very Small Business Set\u8211Aside; and, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': (Chapter 14A\u8211Aid to Small Business); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff concluded that, because the \Notice of HUBZone Small Business Set\u8211Aside\ clause was one of the 28 enumerated clauses, it was incorporated into the solicitation. Not only does such a reading ignore the affirmative indication required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also relies on advice given by Ms. Smith, the procurement clerk: \Since the Contracting Officer was unavailable and the Technical Administrator could not answer the question, I was given to a Bonnie Smith who, when I asked whether this was a HUBZone contract, directed me in filling out the information to complete a HUBZone bid as a HUBZone contractor.\ R. Hadsell Aff. \u182 6. Mr. Hadsell states that Ms. Smith walked him through filling out information relating to plaintiff\rquote s status as a HUBZone small business. Even construing these statements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 084 - J And H Reinforcing and Structural Erectors Inc v US.doc, Paragraph with 'The Rule of Two': . The GAO dismissed the case on the ground that plaintiff was not entitled to the 10% preference because T\u8211C, Inc., is a small business concern and the preference is given to a qualified bidder only over non-small business concerns. The GAO also stated that the deletion of parts of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 085 - Maintenance Engineers v US.doc, Paragraph with 'The Rule of Two': On May 24, 2000, the Navy issued an RFP through solicitation No. N68711\u821100\u8211R\u82117603 for grounds maintenance and landscaping at eleven different Navy facilities in San Diego County, California. The RFP at issue represented a consolidation of work previously performed under seven separate contracts. The plaintiff, Maintenance Engineers, held two of the previous seven contracts. These two contracts had a total contract value of $3,475,753.13. The procurement at issue was a set-aside for small business and contemplated a firm fixed-price, indefinite quantity contract with one base year and four one-year options. The contracting officer issued five amendments to the solicitation to extend the deadline for the submission of offers and to answer the contractors\rquote questions about the solicitation. None of these amendments changed the evaluation criteria established in the solicitation, and none are at issue in the present case. Section M.2 of the solicitation provided that \[o]fferors are cautioned with [sic] award hereunder Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 085 - Maintenance Engineers v US.doc, Paragraph with 'The Rule of Two': On September 19, 2000, Maintenance filed a protest with the General Accounting Office (GAO), arguing that MLI \is not a small business concern.\ On September 25, 2000, the United States Small Business Administration issued a size determination, finding that MLI met the standard for a small business eligible for award. After Maintenance\rquote s request for a debriefing on September 19, 2000, the contracting officer held a post award debriefing on September 25, 2000. At the debriefing, the contracting officer revealed the TEB\rquote s technical evaluation of Maintenance and explained that \the SSB [Source Selection Board] and SSA [Source Selection Authority] looked at the difference in price [between Maintenance and MLI] to be minimal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 086 - DavisHRGM Joint Venture v US.doc, Paragraph with 'The Rule of Two': On May 23, 2001, the Corps\rquote Board of Award, consisting of representatives from the Contracting Division, Small Business Office, Office of Counsel, Construction Division, Engineering Division, and Programs and Project Management Division reviewed the bids. AR 493. It was determined that Plaintiff was the low bidder and met the requirements of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'The Rule of Two': , suggests otherwise. The bid protest in that case was brought by an engineering company that had been awarded a contract through the Small Business Administration to provide operation and maintenance services to the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'The Rule of Two': . Valenzuela then filed a protest claiming that the Air Force\rquote s decision had violated various FAR sections which implemented a provision of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'The Rule of Two': The GAO dismissed the protest as untimely, but opined in a footnote in a subsequent letter to the Secretary of the Air Force that the Air Force\rquote s decision to proceed under the Economy Act did not exempt the Air Force from the requirements of FAR provisions implementing the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'The Rule of Two': while \Economy Act transactions are generally exempted from the competition requirements contained in [CICA] and FAR [,][t]here is no similar exemption from the requirements of the Small Business Act and its implementing regulations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'The Rule of Two': overlooked by Corel\rquote s argument. The Small Business Act is nowhere to be found in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) contracting officer (CO) in contract procurement set-aside for small businesses did not abuse her discretion in determining that contract awardee qualified as a small business; (2) protestor was not prejudiced by contracting officer\rquote s post-award notification which did not contain either the correct name or the awardee, or the awardee\rquote s bid price; and (3) protestor did not establish that CO\rquote s cost and technical tradeoff analysis was arbitrary, capricious, or irrational. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) in contract procurement set-aside for small businesses did not abuse her discretion in determining that contract awardee qualified as a small business, notwithstanding that CO did not consult a listing of small businesses officially maintained by the Small Business Administration (SBA), where CO pursued other avenues of information about the bidders via a reputable financial service. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor was not prejudiced by contracting officer\rquote s post-award notification which did not contain either the correct name or the awardee, or the awardee\rquote s bid price, notwithstanding protestor\rquote s claim that faulty notification caused it to delay filing a size protest with the Small Business Administration (SBA), as neither piece of information was critical to protestor\rquote s decision to file a size protest with the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest is before the court after argument on cross-motions for judgment on the administrative record. The issue to be decided is whether the United States Department of Agriculture acted arbitrarily in awarding a contract procurement set-aside for small businesses to a company that allegedly is not a qualifying small business. After a truncated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': The USDA set aside the procurement for small business concerns, which are businesses that meet certain criteria as defined by the Small Business Administration (the \SBA\). Although the contract was awarded without negotiation, insofar as the concept contemplates interaction between the owner and offeror, the applicable FAR regulation treated the procurement as negotiated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': One criterion for an SBA set-aside is that an eligible business has annual receipts under the small business threshold set for the Standard Industrial Classification (\SIC\) Code under which the proposed contract services fall. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': The proposed mail services fell under SIC Code 8744 (\Facility Support Management Services\), which set a maximum size standard of $5.0 million in annual receipts. In response to the RFP, Tech Systems, Inc. (\plaintiff\); Guilltone Properties, Inc. (\Guilltone\); and 12 other offerors submitted proposals to the USDA. Both plaintiff and Guilltone certified that they qualified as small business concerns for purposes of the proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': requires a contracting officer, in advance of contract award, to notify unsuccessful offerors of the name and address of the apparently successful offeror, when the procurement is set aside for small businesses, in order to permit unsuccessful offerors to file a size protest with the SBA, unless the contracting officer documents the urgency of making an award without notice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': The basis of plaintiff\rquote s size protest was Guilltone\rquote s profile on the SBA\rquote s PRO\u8211Net database, which, according to plaintiff, demonstrates that Guilltone did not qualify as a small business for the purposes of the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': ) failed to award the procurement to a small business; 2) failed to reasonably investigate the awardee\rquote s size; 3) failed to give pre-award notification to the other offerors; 4) failed to give proper post-award notice to the offerors; and 5) failed to articulate a basis for its best-value tradeoff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': and abused its discretion by awarding the procurement to Guilltone, which, plaintiff argues, does not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': In particular, plaintiff charges that the contracting officer abused her discretion by accepting Guilltone\rquote s self-certification as a small business without verification \through such means as, by way of example and not of limitation, consulting SBA\rquote s PRO\u8211Net database; and by USDA\rquote s failing to inquire of [Guilltone], or to institute a Contracting Officer size protest when [plaintiff] brought to the Contracting Officer\rquote s attention that [Guilltone\rquote s] listing in PRO\u8211Net indicated that it was ineligible for award.\ Am. Compl. \u182 35. Plaintiff also charges the contracting officer with abuse of discretion for granting the award prior to notifying the unsuccessful bidders. Finally, violations of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff posits that \[i]t is axiomatic that when a procurement has been set aside for small businesses, statute and regulations provide that award may only be made to small businesses, as defined under the regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': \ Pl.\rquote s Br. filed May 7, 2001, at 4. However, the issue before the court is not whether the contracting officer erred in believing Guilltone to be a small business, but, rather, whether such a belief was reasonable and whether the contracting officer\rquote s discretion can be faulted due to her failure to consult PRO\u8211Net. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': even though plaintiff was denied access to the single arbiter for small business size disputes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': The delays in the procurement process occurred while the contracting officer was negotiating whether the contract must be awarded to the National Institute for the Severely Handicapped or to a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 098 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': \PRO\u8211Net\ is a listing of small businesses officially maintained by the SBA. PRO\u8211Net is available 24 hours per day, every day, over the Internet. According to the SBA\rquote s website, PRO\u8211Net \is a search engine for contracting officers\ and \an Internet-based database of information on more than 195,000 small, disadvantaged, 8(a), HUBZone, and women-owned businesses.\ Businesses profiled on the PRO\u8211Net system can be searched by SIC Codes, key words, location, and other criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': , which permits the United States Department of Defense (\DOD\) to preferentially select bids submitted by small businesses owned by socially and economically disadvantaged individuals (\SDBs\). The 1207 program operates by increasing the bid of a non-minority-owned firm by up to ten percent via a mechanism called a \price-evaluation\ adjustment. Rothe Development Corporation (\Rothe\) appeals the April 27, 1999 decision of the United States District Court for the Western District of Texas granting summary judgment in favor of the government that the 1207 program is constitutional, as enacted and as applied in this case in which Rothe lost an Air Force contract to a SDB due to application of the 1207 program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': A. small business concerns ... owned and controlled by socially and economically disadvantaged individuals (as such term is used in section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The 1207 program was initially enacted as a three-year pilot program. In 1989, Congress extended the program from 1990 until 1993, with the hope that the \additional three years [would] provide the [DOD], and the defense industry, with the opportunity to vigorously pursue the program\rquote s fundamental objective: to expand the participation of disadvantaged small business concerns ... in the defense marketplace.\ H.R.Rep. No. 101\u8211331, at 614, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The race-based preference program challenged in this case was established pursuant to \u167 1207, and incorporated portions of the Small Business Act (\Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Regulations promulgated pursuant to the statute provide that either a contracting officer, an unsuccessful bidder, or the Small Business Administration (\SBA\) may challenge an individual\rquote s presumptive status as socially or economically disadvantaged. 48 C.F.R. \u167 219.302\u821170 (1997). Bidding SDBs may elect to waive the price-evaluation adjustment. 48 C.F.R. \u167 219.7002(a). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Moreover, individuals who are not members of the presumptively disadvantaged groups can nevertheless be entitled to application of the price-evaluation adjustment to bids of competitors provided they demonstrate that they have been socially or economically disadvantaged because of their \color, ethnicity, gender, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar cause not common to small business persons who are not socially disadvantaged.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (citing H.R.Rep. No. 468, 94th Cong., 1st Sess. 2 (1975) (only three percent of American businesses were owned by minorities, while minorities made up sixteen percent of the population); Congressional Research Service, Minority Enterprise and Public Policy, 52\u821153 (June 9, 19 [7]7) (SBA\rquote s success in aiding disadvantaged firms described as \minimal\); Small and Minority Business in the Decade of the 1980s, 97th Cong., 1st Sess. 10, 33\u821134, 220 (1981); and H.R.Rep. No. 460, 100th Cong., 1st Sess. 18 (1987)). To support its conclusion that Asian Pacific Americans had been discriminated against, the district court referenced findings by the Small Business Administration (\SBA\), made prior to Congress\rquote inclusion of Asian Pacific Americans in the SBA\rquote s presumption in 1980. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 100 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': We conclude that this statistic itself is insufficient to support the constitutionality of the 1207 program as reauthorized. This report provides no data on how many minorities sought to own small businesses, nor does it take into account the particular industry of the contract at issue, let alone how many minority-owned small businesses in this industry were qualified, willing, and able to compete for DOD contracts, like the one at issue here. Further, the statistic does not take into account the fact that the sheer number of businesses owned by minorities may not be significantly correlated with the volume of business conducted by minority-owned businesses. Moreover, the statistic may be outdated, as it was already twelve years old at the time Congress initially enacted the 1207 program, and seventeen years old at the time of reauthorization. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 002 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': . Under the program, an agency may select products and services from a list of eligible contractors whose pricing schemes have been pre-approved by GSA. An agency procuring goods or services pursuant to an FSS contract need not comply with the more formal and rigorous procedures for negotiated procurements set forth in FAR Part 15. Because the \GSA has already determined the prices of items under [the FSS program] to be fair and reasonable,\ agencies \need not seek further competition, synopsize the requirement, make a separate determination of fair and reasonable pricing, or consider small business programs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 003 - Catholic University of America v US.doc, Paragraph with 'The Rule of Two': The solicitation specifies that offerors, including the University, are to be evaluated on the basis of six selection criteria: (i) Development Program; (ii) Urban Design, Architecture, Transportation and Historic Preservation; (iii) Development Schedule; (iv) Development Experience and Capability; (v) Economic Feasibility, Financial Capability, and Financial Compensation; and (vi) Small Business Set\u8211Asides/ First Source Employment Agreement Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 010 - Brickwood Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs may be required to engage in protracted court proceedings and insist on written opinions in every action brought against the government, even when the merits of the plaintiff\rquote s claims are clear. The purpose of EAJA is to provide access to the courts to small businesses and individuals for review of or to defend against unreasonable government action without inhibition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 012 - Automated Communication Systems Inc v US.doc, Paragraph with 'The Rule of Two': Mandatory procurement preference for blind vendors provided by the Randolph\u8211Sheppard Vending Stand Act, and Department of Defense procurement regulation implementing the preference, is not incompatible with disadvantaged business preference provided by the Historically Underutilized Business Zone Act; fact that blind vendor preference carries more weight in military vending procurement does not, per se, create a conflict. Small Business Act, \u167 2[3] (p), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 012 - Automated Communication Systems Inc v US.doc, Paragraph with 'The Rule of Two': This pre-award bid protest concerns request for proposal (\RFP\) F41636\u821100\u8211R\u82110150, offered by the Department of Defense (\DoD\) to obtain full food services at Lackland Air Force Base (\Lackland AFB\), Medina Annex, Kelly Annex, and Camp Bullis, all in Texas. Plaintiff Automated Communication Systems, Inc. (\ACSI\) plans to enter into a teaming agreement with a small business entity to submit a proposal pursuant to this solicitation, but challenges the validity of the selection process that will be used by the Air Force. ACSI contends that the Air Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 012 - Automated Communication Systems Inc v US.doc, Paragraph with 'The Rule of Two': On February 2, 2001, ACSI filed this bid protest action. ACSI contends that it qualifies for preferential treatment in government contracting as a HUBZone small business interest under the Historically Underutilized Business Zone Act of 1997 (\HUBZone Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 012 - Automated Communication Systems Inc v US.doc, Paragraph with 'The Rule of Two': The HUBZone preference provision provides that, in acquisitions conducted using full and open competition, except in specified circumstances, \[t]he contracting officer shall give offerors from HUBZone small business concerns a price evaluation preference by adding a factor of 10% to all [other] offers....\ FAR 19.1307(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder brought bid protest regarding award by United States, under competitive procurement pursuant to Small Business Administration (SBA) program, of contract for installation and repair of roofs at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Any error of United States in awarding, under competitive procurement pursuant to Small Business Administration (SBA) program, contract for installation and repair of roofs at Navy public works center to bidder whose bid did not comply with requirement in Request for Proposals (RFP) that bidders have formal Standard Industrial Classification (SIC) size certification, was not prejudicial to unsuccessful bidder; by the time the bid was awarded, SBA regulations required bidders only to meet SIC qualifications and no longer required formal certification, United States had ultimate authority to determine bidder\rquote s size, and new bid solicitation would not provide unsuccessful bidder with fair consideration of its bid, because new bidding would be conducted without the size certification requirement. Small Business Act, \u167 2[2](f)(2)(A,B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': . In its protest, Hawpe challenged the award to Biogenesis Pacific, Inc. (\BPI\) of a contract for the installation and repair of roofs at the Navy Public Works Center in Guam (\PWC\). The PWC contract was awarded under a competitive procurement pursuant to the Small Business Administration\rquote s (\SBA\rquote s\) 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': time the RFP for the PWC contract was awarded, however, the SBA had removed the requirement that a small business have a formal SIC Code certification in order to bid on an 8(a) contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': . Rather, the small businesses only needed to meet the qualifications set forth in the SIC Code. The court noted that the SBA was to make the ultimate determination as to size eligibility when it reviewed the potential contractors. The court reasoned that, under these circumstances, while the government \did technically violate the terms of its own RFP, it did so in a manner that did not harm consideration of [Hawpe\rquote s] bid, and considered [BPI\rquote s] bid in accordance with federal regulation and law. This fact, coupled with the realization that the SBA had the ultimate decision on size determination, including the requirement for SIC Code 1761 certification, prevents the court from granting [Hawpe\rquote s] request for permanent injunction.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 014 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': . Additionally, as in all small business contract procurements, either directly through the government agency or via the SBA, the SBA had the ultimate decision on size determinations. The SBA retains the ultimate right to determine whether its size requirements have been met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': LOTs I, IV and V of the solicitation were issued on an unrestricted basis. AR 64. LOT II was issued as a competitive small business 8(a) business development program set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': LOT III was issued as a small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': Section M.1(C)(3) stated that each offeror\rquote s Management proposal would be evaluated upon three subfactors, identified, \in descending order of importance,\ as Management Approach, Key Personnel and Small Business Subcontracting Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': Five days after the contract was awarded, on December 27, 2000, JWK filed a size protest with the Small Business Administration (\SBA\). AR 2658\u821170. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': Specifically, JWK averred that LTM was no more than a \front\ for IS, which was not qualified to compete for LOT III because IS was not a small business. AR 2663\u821165. On January 19, 2001, SBA issued a ruling in which it determined that for the purposes of the LOT III procurement, LTM is a small business. AR 2685. In its decision, the SBA noted that other than the allegation of an inappropriate affiliation with IS, JWK did not raise any other argument that LTM was not a small business. AR 2681. JWK did not appeal the SBA decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 020 - JWK International Corp v US.doc, Paragraph with 'The Rule of Two': The solicitation specifically states that the Small Business Subcontracting Plan subfactor would apply only to large businesses, and therefore was not a considered subfactor in evaluating offers upon LOT III, which was designated as a small business set-aside. AR 63. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 027 - Brickwood Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Congress recognized that the American Rule deterred individuals and small businesses \from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 031 - Schweiger Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The GSA issued Solicitation No. GS\u821106P\u821196\u8211GYD\u82110010 for what was defined as an \Indefinite Quantity Term Construction Contract\ on February 12, 1996. This solicitation sought sealed bids from qualified small businesses. According to the GSA, the work under the contract was to involve \relatively small, repetitive, unscheduled construction services in GSA owned or leased buildings in the Kansas City metropolitan area where, based on past needs or requirements, the government expected similar services would be required during the contract term.\ Compl. \u182 6. Within the solicitation, there was a price schedule and estimated quantities delineating the prices and quantities for each item of labor and material to be factored into the bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 031 - Schweiger Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Originally, the low bid factor was submitted by R & R International, Inc. Schweiger protested the award on the grounds that R & R was not a \small business\ that qualified for the award of the contract, and the protest was upheld. Thus, Schweiger, which had submitted the second low bid factor of .8316, was awarded the contract on May 30, 1996. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 032 - American Federation of Government Employees AFL-CIO Local 1367 v US.doc, Paragraph with 'The Rule of Two': docket entry 49, at 8, and docket entry 53, at 4, fn.2 (both citing to Air Force Solicitation No. F41689\u821199\u8211R\u82110031). According to defendant, the airfield support function was separated and set aside for small business competition. Docket entry 37, at 2 & fn.1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 040 - Cybertech Group Inc v US.doc, Paragraph with 'The Rule of Two': identify the contractors that appear to offer the best value (considering the scope of services offered, pricing and other factors such as contractors\rquote locations, as appropriate). When buying IT professional services under SIN 132\u821151 ONLY, the ordering office, at its discretion, may limit consideration to those schedule contractors that are small business concerns. This limitation is not applicable when buying supplies and/or services under other SINs as well as SIN 132\u821151. The limitation may only be used when at least three (3) small businesses that appear to offer services that will meet the agency\rquote s needs are available, if the order is estimated to exceed the micro-purchase threshold. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 040 - Cybertech Group Inc v US.doc, Paragraph with 'The Rule of Two': In the instant case, the government did comply with the requirements for transmitting the RFQ to contractors. Here, the contracting officer sent the RFQ to four small businesses, which exceeded the number recommended in the special ordering procedures. However, even if the contracting officer had not solicited three contractors, the provision of the special ordering procedures setting forth the number of contractors to receive the RFQ is advisory\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 040 - Cybertech Group Inc v US.doc, Paragraph with 'The Rule of Two': Orders placed pursuant to a Multiple Award Schedule (MAS), using the procedures in this subpart, are considered to be issued pursuant to full and open competition[ ]. Therefore, when placing orders under the Federal Supply Schedules, ordering offices need not seek further competition, synopsize the requirement, make a separate determination of fair and reasonable pricing, or consider small business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 040 - Cybertech Group Inc v US.doc, Paragraph with 'The Rule of Two': identify the contractors that appear to offer the best value (considering the scope of services offered, pricing and other factors such as contractors\rquote locations, as appropriate). When buying IT professional services under SIN 132\u821151 ONLY, the ordering office, at its discretion, may limit consideration to those schedule contractors that are small business concerns. This limitation is not applicable when buying supplies and/or services under other SINs as well as SIN 132\u821151. The limitation may only be used when at least three (3) small businesses that appear to offer services that will meet the agency\rquote s needs are available, if the order is estimated to exceed the micro-purchase threshold. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 040 - Cybertech Group Inc v US.doc, Paragraph with 'The Rule of Two': (b) Rotation of lists. By using different portions of a list for separate acquisitions, solicitation mailing lists may be rotated. However, considerable judgment must be exercised in determining whether the size of the acquisition justifies the rotation. The use of a presolicitation notice (see paragraph (c) below), time permitting, also should be considered. In rotating a list, the interests of small, small disadvantaged and women-owned small businesses (see 19.202\u82114) shall be considered. Whenever a list is rotated, bids shall be solicited from (1) the previously successful bidder, (2) prospective suppliers who have been added to the solicitation mailing list since the last solicitation, and (3) concerns on the segment of the list selected for use in a particular acquisition. However, the rule does not apply when such action would be precluded by use of a total set-aside (see part 19). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Paragraph with 'The Rule of Two': In order to benefit from the Act\rquote s bidding preference, a business must apply for minority certification and meet the statutory terms and definitions. The term \minority\ is defined as a person who is a lawful resident of the State of Oklahoma and is either Black, Hispanic, Asian American, American Indian or Alaskan Native. The term \minority business enterprise\ is defined to mean \a small business concern\ as defined by Section 3 of the Small Business Act, \which is owned and controlled by one or more minorities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Paragraph with 'The Rule of Two': A \minority business enterprise\ is defined as a small business concern which is at least fifty-one percent owned by one or more minorities, and whose management and daily business operations are controlled by one or more minority individuals. The Act requires a minority-owned business to comply with a fairly detailed procedure in order to become certified to bid as a \minority business enterprise.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Paragraph with 'The Rule of Two': It is recognized by this state that the preservation and expansion of the American economic system of private enterprise is through free competition, but it is also recognized that the security and well-being brought about by such competition cannot be realized unless the actual and potential capacity of minority business enterprises is encouraged and developed. Therefore, it is the intent of the Legislature that the state ensure that minority business enterprises are not underrepresented in the area of procurement of state contracts for construction, services, equipment and goods. It is further the intent that this state provide for the aggressive solicitation of minority business enterprises, provide a feasibility study on a Small Business Surety Bond Guaranty Program, provide other programs targeted for assisting minority business enterprises in qualifying for state bids, and establish a percentage preference bid program for minority business enterprises who desire to participate in such program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Paragraph with 'The Rule of Two': the United States Department of Transportation awarded the prime contract for a highway construction project in Colorado to Mountain Gravel & Construction Company. Mountain Gravel, as prime contractor, then solicited bids from subcontractors for the guardrail portion of the contract. Although Adarand Constructors submitted the low bid, the guardrail subcontract was awarded to Gonzales Construction Company, a certified small business owned and controlled by socially and economically disadvantaged individuals. Mountain Gravel\rquote s contract included a \Subcontractor Compensation Clause\ (\SCC\), under which Mountain Gravel received additional compensation for hiring a certified subcontractor. Adarand brought suit challenging the SCC, arguing that the use of a race-conscious presumption in determining which business owners were socially and economically disadvantaged for purposes of the SCC violated its Fifth Amendment Equal Protection rights. The district court upheld as constitutional, under intermediate scrutiny, the statutory provisions defining disadvantaged business enterprises and setting goals for participation by disadvantaged businesses in government contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 041 - Kornhaas Const Inc v Oklahoma Dept of Central Services.doc, Paragraph with 'The Rule of Two': According to the annual reports submitted by the Intervenors, staff members mailed vendor registration forms to minority vendors whose registration had lapsed; telephoned and mailed letters to minority vendors whose registration had lapsed; provided assistance to vendors in completing registration forms; assured that vendors received bid information for their vanous products and services; prepared a minority business directory and distributed it to all state agencies as well as municipalities and private businesses; periodically mailed construction project information to minority vendors; participated in various purchasing workshops and seminars; provided commodity information to minority vendors upon request; and provided information concerning the availability of commercial loans for small businesses seeking financial assistance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest, contending that contracting officer\rquote s decision not to set aside two solicitations exclusively for small business was arbitrary and capricious and in violation of procurement law. On cross-motions for judgment upon the administrative record, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that contracting officer\rquote s determination not to set aside solicitations for food service for the Marine Corps exclusively for small business concerns was not arbitrary or capricious or in violation of procurement law because it was a reasonable business decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': A contracting officer\rquote s decision not to set a solicitation aside for small business concerns is a matter of business judgment within the contracting officer\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Although section of the Federal Acquisition Regulation pertaining to small business set-aside does not require the use of any particular method for assessing the availability of small business offers, the contracting officer must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) may consider and base its decision to set aside acquisition for small business participation on such factors as prior procurement history, the nature of the contract, market surveys, or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s determination not to set aside solicitations for food service for the Marine Corps exclusively for small business concerns was not arbitrary or capricious or in violation of procurement law, where decision was based on a rational assessment of the scope and complexities of the solicitations, prior procurement history, input obtained from industry and consultations with the Small Business Administration (SBA) and the Marine Corps small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': , U.S. Marine Corps; Andrea Mayer, U.S. Small Business Administration, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': States Marine Corps (USMC) from awarding two contracts for regional garrison food service. Plaintiff contends that the contracting officer\rquote s decision not to set aside the two solicitations exclusively for small business was arbitrary and capricious and in violation of procurement law. For the reasons stated herein, Plaintiff\rquote s motion for judgment upon the administrative record is DENIED. Defendant\rquote s motion for judgment upon the administrative record is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The current food service contracts are provided on a base-by-base, messhall-by-messhall basis, using the traditional \cook-serve\ process by small businesses. According to Defendant, the regional approach to food service is driven by numerous considerations, including: (1) a savings of approximately $20 million per year; (2) budgetary shortfalls in operation and maintenance accounts; (3) the need to improve the consistency and quality of the food served; (4) advanced food technologies; and (5) the need to release Marines in the food service military occupational specialty to other Fleet operations. AR 3790\u82113806. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Under the solicitations, the number of full food service messhalls will increase to 35. USMC has current contracts for mess attendant services at 28 of the messhalls, including 18 serviced by MCS and 10 serviced by four other small business concerns. Under the solicitations, mess attendant messhalls will be reduced in number to 17 and will become management and mess attendant messhalls, with the contractors now also responsible for management of the messhalls (as well as furnishing mess attendant services). (Food preparation will continue to be performed by the USMC cooks at the management and mess attendant messhalls). The contractors also will become responsible under the solicitations for management and food preparation for three brig messhalls not previously contracted out. In addition, under the solicitations, the procurement of subsistence (food) and (after a transition period) maintenance and repair of government food preparation and serving equipment, previously the responsibility of the Government, will become the contractor\rquote s responsibility at all messhalls. Further, the number of messhalls set-aside under JWOD, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': In those protests, Plaintiff alleged, among other issues, that Defendant\rquote s decision not to set aside the two procurements exclusively for small business concerns was improper. AR 3744\u821189. After discovery and a hearing, on October 11, 2000, the GAO dismissed Plaintiff\rquote s protest, finding that the \USMC reasonably concluded that there was no reasonable expectation of receiving fair market price offers from at least two responsible small business concerns so as to warrant setting aside the requirements for small business concerns.\ AR ix-x. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff filed the present action on October 30, 2000, challenging Defendant\rquote s decision not to set aside these two procurements exclusively for small business concerns and seeking a temporary restraining order. On October 31, 2000, the Court held oral arguments and denied Plaintiff\rquote s motion for a temporary restraining order. The Court set a briefing schedule for cross-motions for judgment upon the administrative record. The parties filed briefs in support of their positions on November 14, 2000. Reply briefs were submitted on November 21, 2000. Plaintiff filed a motion seeking to supplement the administrative record through discovery. The Court held a status conference on November 22, 2000, at which time it denied Plaintiff\rquote s motion to conduct expedited discovery; denied Plaintiff\rquote s motion for leave to file a congressional report; and ordered that Exhibits 3\u82119 and 13 of Plaintiff\rquote s motion for a temporary restraining order and the Moore affidavit attached to Plaintiff\rquote s motion for permanent injunction be stricken from the record. Lastly, on December 4, 2000, the Court held oral argument on the parties\rquote cross-motions for judgment upon the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': 1. Small Business Set\u8211Asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $100,000 for small business participation when there is a reasonable expectation that: (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ...; and (2) award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists ... Although past acquisition history of an item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': . A contracting officer\rquote s decision not to set a solicitation aside for small business concerns is a matter of business judgment within the contracting officer\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B\u8211271071, May 20, 1996. Although the law does not require the use of any particular method for assessing the availability of small business, the contracting officer must undertake reasonable efforts to determine whether it is likely that offers will be received from at least two responsible small businesses at fair market prices for each regional contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B\u8211272461, Oct. 18, 1996. The contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': In this case, Plaintiff argues that Defendant\rquote s decision not to set aside the two solicitations exclusively for small business concerns was arbitrary, capricious and in violation of procurement law. Plaintiff presents essentially three arguments to support its position. First, Plaintiff maintains that the contracting officer never performed an analysis of whether a reasonable expectation existed that it would receive at least two offers from responsible business concerns at a fair market price because it assumed that the contract was too large for small business to perform. Plaintiff contends that the contracting officer\rquote s actions were unreasonable because he failed to investigate the capabilities of the small businesses that expressed interest in the solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Second, Plaintiff contends that the two regional contracts do not represent a new requirement, and can be handled by small business concerns currently performing food service contracts for the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': , prohibited the USMC from setting the procurements aside exclusively for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': In contrast, Defendant maintains that based upon the market analysis conducted by the USMC, the contracting officer\rquote s decision that offers could not be obtained from at least two responsible small business concerns at fair market prices was reasonable. Defendant contends that the two solicitations are a new and qualitatively different approach to food service because prior contracts were much smaller in scope and not as complex as the current requirement. Lastly, Defendant argues that the contracting officer properly determined that the Randolph\u8211Sheppard Act applied to the solicitations, thereby prohibiting the USMC from setting the contracts aside exclusively for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': 2. The USMC Efforts to Ascertain Small Business Interest and Capability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The USMC contends that it undertook the following efforts to determine whether the two solicitations should be set aside for small business concerns: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (1) On February 3, 1999, the contracting officer met with the Small Business Administration (SBA) to discuss the regional food service contracts. AR 4436\u821144. Because of these discussions, the USMC agreed to conduct two industry forums, one on each coast, to ascertain small business interest. AR 3792. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (2) On February 9, 1999, the contracting officer sent letters to all eight incumbent small business contractors providing advanced information concerning the regional food service initiative and asking for input from small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (4) On May 11 and May 13, 1999, the USMC held industry forums at Camp Lejeune, North Carolina and Camp Pendleton, California, respectively, in an effort to determine small business interest and capabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (7) On September 15, 1999, after consultation with the USMC small business specialist, the contracting officer notified the SBA of its decision to consolidate the requirement and issue the procurement as unrestricted. AR 4529\u821130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (8) On October 12, 1999, the SBA produced five letters from small business concerns, dated July 6, 8, 12, 13, 1999, which expressed an interest in the two contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4483\u821199. The contracting officer reviewed the five letters and determined that the information contained in them did not demonstrate that at least two responsible small business concerns would submit offers. AR 3797\u821198. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (9) The contracting officer also consulted, as he did in the past, with the USMC small business specialist, Ms. D\rquote Agostino, who agreed that it was inappropriate to set aside the two solicitations exclusively for small business. AR 4676. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (10) The decision not to set aside the solicitations exclusively for small business was also reviewed by several levels within the USMC. AR 3794. The SBA appealed the contracting officer\rquote s decision to the Head of the Contracting Activity (HCA) and the Assistant Secretary of the Navy for Research. Development, and Acquisition. AR 3795. Both of these appeals were denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (11) In response to a request made by the GAO on September 8, 2000, the USMC conducted further investigation into the capabilities of small business concerns using SBA\rquote s PRO\u8211Net system and Dun & Bradstreet reports. AR 4761. The USMC also requested additional information directly from small businesses concerning current DOD contracts for mess attendant and food service contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument that the USMC failed to perform an analysis of whether there were two responsible small business concerns that would submit offers at fair market prices is wholly without merit. This assertion is not supported by the record. On the contrary, the record indicates that the USMC went to great lengths to publicize the solicitations and to ascertain small business interest and capabilities. The contracting officer did not abuse his discretion in deciding not to set aside the two contracts exclusively for small business because his decision was based on a rational assessment of the scope and complexities Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': of the solicitations, the prior procurement history, input obtained from industry and consultations with the SBA and the USMC\rquote s small business specialist. Plaintiff may disagree with the contracting officer\rquote s chosen methods; however, Plaintiff has failed to prove that the decision was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Despite the efforts outlined above, Plaintiff nonetheless argues that the USMC did not conduct an analysis to ascertain whether there were at least two responsible small business concerns that would submit offers at fair market prices. Plaintiff places great emphasis on language contained in letters sent by the contracting officer to small business concerns. Specifically, Plaintiff refers to the following language in the March 3, 1999 pre-solicitation notice: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': A critical element of this acquisition is the socioeconomic considerations that the Government advocates by various statutes and implementing regulations. As can be seen on the following charts each mess hall presently under contract is receiving services from either a small business or a non profit agency performing under the Authority under the Javits Wagner Oday Act (JWOD) Act. We ask for your views, in response to this Pre-solicitation Notice on how the impact on the JWOD and the small business communities may be minimized; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4447 (emphasis added). Plaintiff contends that this language illustrates that Defendant assumed small business could not perform as a prime contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Because of this assumption, Plaintiff contends that no analysis, \let alone a reasoned one,\ was performed of whether at least two small business concerns would submit offers at fair market prices. Considering the scope and complexity of the new requirements, the Court cannot fault the USMC for questioning whether small business concerns were capable of performing the new requirements. But this does not prove that the USMC failed to perform any analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': As set out above, it is evident from the administrative record that the contracting officer used a variety of methods to ascertain small business interest and capabilities. The law does not require any particular method. For instance, in the cover letter of the pre-solicitation notice, the contracting officer stated: \Our goal is to gather as much information from the food service industry as possible with respect to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': note 4. This language evidences the USMC\rquote s attempt to ascertain small business interest. The failure on the part of small business to seize this opportunity reflects poorly on small business concerns not on the efforts of the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also relies on a statement made by the USMC small business specialist in response to questioning from the GAO: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Ques: What efforts did the agency take to investigate the capabilities of the small business concerns that made known, before the solicitation was issued, their interest in competing? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4679\u821180. Plaintiff argues that the above statement also supports its contention that the USMC did not conduct any analysis of whether there were two responsible small business concerns that would submit offers at fair market prices. Market surveys, however, are only one method of determining whether to set aside contracts exclusively for small business. The USMC small business specialist explained: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': This regionalization effort does not lend itself to the traditional market survey method, where a determination is made of the number of small business sources for a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': particular product or service, and how many offers are likely to be received under a solicitation. This is because the Regional Garrison Food Service initiative represents a new concept with no procurement history. There has been no comparable food service endeavor, in size or complexity, within the Department of Defense. While there are numerous smaller food service contracts, no such contract to date is of the magnitude contemplated by the solicitations in question. Thus there is no valid historical model that we can use to affirm that small businesses can compete and do the job, and a market survey will not identify small firms that can reasonably be expected to submit viable offers. Because the traditional market survey approach was not appropriate in this procurement, we used some other approaches to identify small business interest and capability to perform this fundamentally new and qualitatively different approach to the provision of food service in the Marine Corps. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4677\u821178. The Court finds the USMC small business specialist\rquote s assessment rational. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff appears to argue that the contracting officer had an affirmative duty to ask small business concerns, that expressed interest in the contracts, how they would perform the requirements of the contract. Specifically, Plaintiff refers to the small business concerns that submitted letters in July of 1999, to the SBA. To support its assertion, Plaintiff relies on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': of what it believes the USMC should have done to ascertain whether the solicitations should have been set aside exclusively for small business. The Court is not bound by GAO decisions. The case law, although instructive, does not mandate that a contracting officer must contact a small business concern in every instance and ask how they would perform a potential contract, as Plaintiff argues should be done. Particular circumstances may trigger an obligation on the part of the contracting officer to further inquire, but a duty to inquire, as argued by Plaintiff, is not mandated by statute or regulation. The determination to use one particular method over another in assessing whether a reasonable expectation exists that at least two small business concerns will submit offers is within the contracting officer\rquote s discretion. Moreover, the determination is highly dependent on the particular circumstances of the case. Thus, the cases are distinguishable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B\u8211280,851, October 29, 1998, the agency\rquote s decision was found to be unreasonable when, without supporting facts, its decision not to set aside the requirement for small business was based primarily on the complexity of the procurement and the fact that it was a first Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': at 3. The GAO determined that the contracting officer had not undertaken reasonable efforts in ascertaining small business capacity to perform the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Unlike the present situation, the GAO noted that there was no evidence in the record that the contract was beyond small business capability, or that the agency had surveyed the three small businesses that had expressed interest in the solicitations to assess their capabilities, or that there had been any attempt to coordinate its determination with its small business specialist or the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The Court notes that the GAO did not specify how the contracting officer was to survey the capabilities of small business, it merely stated that there was no evidence that it had done so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': at 1. The contracting officer concluded that the service areas were too large to be successfully serviced by small business but, unlike this case, had not performed a comparison of current requirements to those service areas successfully performed by small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': at 2. The GAO concluded that the contracting officer \did not conduct an adequate review of the potential small business market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': the agency did not contact any of the small businesses that expressed interest in the contract, or those with known REAM Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). In the present situation, the contracting officer sent letters to the small business concerns asking how they could service the USMC regional food service requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': it is evident that the contracting officer could have contacted the small businesses, but it was not a requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B\u8211251,411 March 31, 1993, the contracting officer\rquote s decision was found to be unreasonable when it was based upon outdated and incomplete information. In this case, the contracting officer\rquote s decision is supported by a recent assessment of small business capabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': In another case, unlike the present situation, a contracting officer\rquote s decision was found unreasonable where the contracting officer relied upon outdated procurement history instead of investigating the numerous small business responses to its announcement in the Commerce Business Daily, or performing a current market survey or consulting the small business representative or SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Comp. Gen. B\u8211270,259, February 20, 1996. A decision not to set a contract aside for small business also cannot be based solely on a procurement that is dissimilar in size and scope, especially when the current requirement is a reduction in size and scope from the previous requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The parties also are in disagreement as to whether the two solicitations are fundamentally new and qualitatively different. Plaintiff contends, although the contracts are larger, they are essentially the same because the Marines will be eating the same food. In contrast, Defendant argues that the two solicitations are not only larger but highly more complex. Because this factor played a large role in shaping the USMC efforts to ascertain small business interest and capabilities, Plaintiff challenges this contention. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': be essentially the same as the existing contracts, this would tend to favor small business because the USMC is currently contracting with small business. However, Plaintiff\rquote s position is without merit. After careful review of the requirements, the Court agrees with the USMC\rquote s assessment that the requirements are fundamentally new and qualitatively different. The following excerpt from a statement of the contracting officer highlights the differences in scope and complexity of the requirements: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': 5. My decision not to set aside the solicitation for small business was based on a number of factors. The first and most significant consideration was the scope of our regional efforts. Our existing contracts at each base call for messhall services, either full food services (encompassing both food preparation and mess attendant services) or mess attendant services only. The Marine Corps acquires the necessary food, provides the food to the contractor, and maintains the food service equipment on site. The contracts are structured on a firm-fixed price basis, with a base period of performance of one year or less, and three to five one-year options. In contrast, the regional contracts will involve multi-location responsibilities at all of our garrison messhalls within the continental United States. At most of the messhalls, the contractor will be required to provide full food service, at less than one-third of the messhalls the requirement will be for mess attendant services, and at three messhalls food preparation only will be required. The prime contractor will also be responsible for the acquisition, ownership, storage, and distribution of food, to both the central food production facility (if used) and to the messhalls. Maintenance of food service equipment will, starting in the second year of the contract, be a responsibility of the contractor. Thus the prime contractor will be ultimately responsible for not only the service element, as before, but also the supplies (raw and prepared food) in the messhalls, and equipment maintenance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': 6. The contract itself will be far more complex than anything the Marine Corps has attempted in the food service arena. A multi-year contract, with a base five-year period and three one-year options, is planned. This contract type was chosen in consideration of the possibility that the prime contractor may choose to make a substantial investment in advanced food technology early in the contract term to achieve long-term savings. Our multi-year contract offers the guarantee of at least a five-year contract (with a cancellation charge in the event of earlier termination), over which such investment costs can be amortized, and thus affords the contractor a significant level of protection against financial risk. It is noted that both small businesses and the SBA requested that we consider the use of a multi-year contract to help level the playing field with large businesses from the standpoint of risk. In addition, we require that offerors price the effort on a Fixed\u8211Price Incentive (FPI)\u8212Firm Target basis. We ask that all costs, with the exception of equipment maintenance and extended service hours, be consolidated into a single, per-meal price. There is no breakdown by meal (breakfast, lunch, breakfast brunch, etc.), by messhall, or by type of services required. All labor, subsistence and overhead must be rolled into each yearly per-meal line item. The contract will set forth, for each contract year, a single Target Cost and Target Profit figure for each meal served, with the amount of final profit paid based on whether actual costs incurred are above (overrun) or under (underrun) target cost. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': In this case, Plaintiff has failed to prove that the contracting officer\rquote s decision was unreasonable or in violation of procurement law. The record indicates that the contracting officer took reasonable efforts to ascertain small business interest and capabilities. According to the contracting officer, very little meaningful input was received from any small business concerns in response to letters sent or industry forums conducted. For instance the March 3, 1999, pre-solicitation notice sent to 33 companies elicited 13 responses, four of which were from small businesses. Those responses, the contracting officer determined, did not provide an indication that any small business could perform the requirements. Rather, the responses were criticisms and complaints concerning the regional initiative. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4455\u821167. The contracting officer also concluded that the coastal forums yielded little useful information concerning small business capabilities based on his assessment of questions and discussions with attendees. Furthermore, the record indicates that no small business concerns contacted the contracting officer to express interest in the solicitations after the industry forums. The Court also notes that no small business concerns responded to the Statement of Work issued on July 31, 1999. Thus, it was rational for the contracting officer to interpret the lack of response to the USMC initiatives as a lack of interest in the requirements of the contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The record indicates that the capabilities of small business continued to be evaluated after the contracting officer made his determination not to set aside the two solicitations for small business. Specifically, the contracting officer and the small business specialist analyzed the five letters brought to its attention on October 12, 1999, by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The Court finds it peculiar that the SBA received expressions of interest from five small business concerns in July of 1999, but did not forward these letters to the contracting officer until October 12, 1999, after the determination to issue the two solicitations as unrestricted was made. This is especially odd because the contracting officer met with the SBA in July to discuss the solicitations. Nonetheless, the record indicates that despite the late arrival of these letters, the contracting officer reviewed the letters and determined that they did not demonstrate that at least two responsible small businesses could reasonably be expected to submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': requirements, the contracting officer assessed that the information provided by small business concerns did not warrant a small business set aside. The Court concludes that the contracting officer\rquote s assessment of the letters was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer\rquote s decision is supported by a current market analysis. During the proceedings before the GAO, the parties were presented with the opportunity to provide additional information on the capabilities of small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer and the USMC small business specialist using the Small Business Administration\rquote s PRO\u8211Net system and Dun & Bradstreet reports further researched the capabilities of the business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 4761. The USMC small business specialist also requested additional information from small business concerns relating to current DOD mess attendant and food services contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': AR 5390. Even after consideration of the additional information, the contracting officer concluded that there was no basis for making a determination that there is a reasonable expectation of receiving offers from two small business concerns at fair market prices. The Court finds this assessment reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The information obtained concerning Rice Services indicated two contracts, one for messhall services ($2.6 million) and the other for full service ($543,576). AR 5391. The small business specialist ascertained that Rice\rquote s experience did not evidence an ability to manage a regional food service contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The record indicates that Selrico provided information on thirteen contracts, seven for mess attendant services, three for food service and three for full food service. AR 5391. Based on an evaluation of these contracts, the USMC small business specialist determined that there was no indication that the company could perform a regional contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': From the Court\rquote s own review of the information, there is nothing unreasonable or irrational about the contracting officer\rquote s or small business specialists\rquote assessment of the small business capabilities. Even assuming that Plaintiff would be a responsible offeror, the contracting officer reasonably concluded that there is not another responsible small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': solicitations exclusively for small business concerns was not arbitrary or capricious or in violation of procurement law because it was a reasonable business decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': As an incumbent Marine Corps food service contractor, you will likely be affected by and have an interest in this initiative. For this reason, we are writing you directly regarding the program ... We would ... encourage your participation and thoughts on: (1) how small businesses can best remain involved, and/or (2) how innovative techniques and technologies can best be applied to our requirement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The notice also stated, \... each mess hall presently under contract is receiving service from either a small business or a non-profit agency ... We ask for your views, ... on how the impact on JWOD and small business communities may be minimized; e.g., through teaming arrangements or subcontract relationships.\ AR 4447. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': On September 26, 2000, the USMC small business specialist provided the GAO additional information on small business capability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': The small business specialist indicates that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 044 - MCS Management Inc v US.doc, Paragraph with 'The Rule of Two': Information was requested directly from these companies as well as from the Small Business Administration, and from cognizant Government contracting officers and agency small business specialists. Triple P Services and Selrico Services provided information by fax. Rice Services responded orally. H & R Services promised to send information by fax, but nothing has been received despite several follow-up phone calls. The contract information for H & R Services was obtained from a contracting officer. The Small Business Administration has provided no information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 048 - Ryder Move Management Inc v US.doc, Paragraph with 'The Rule of Two': With respect to the move management solicitation, each offeror was required to submit a multi-volume proposal including: Volume 1: Past Performance/Experience; Volume 2: Financial Data\u8212Corporate Tax Return or Accountant Prepared Year End Statement; Volume 3: Overall Technical Proposal; Volume 4: Technical Statement of Requirements Proposal; Volume 5: Price Proposal; and, Volume 6: Small Business Subcontracting Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 048 - Ryder Move Management Inc v US.doc, Paragraph with 'The Rule of Two': Ryder alleges that for one SOR, SOR4, the contracting officer actually included an offeror that had received a \moderate\ overall performance risk rating in the best value tradeoff analysis, and that offeror consequently ended up receiving the contract award. According to Ryder, this highlights the alleged prejudice suffered by Ryder under the analysis for the seven contracts on which Ryder made an offer. What Ryder fails to mention is that SOR4 represents the Small Business Set Aside contract, and as such, only two offerors bid on the contract, both of which had more than one \moderate\ subfactor or factor rating. A.R. 2730. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': Disappointed bidders at auction for electromagnetic spectrum for provision of personal communications services (PCS) limited to small businesses and entrepreneurs petitioned for review of orders of the Federal Communications Commission (FCC), 1997 WL 643811, 1998 WL 130176, changing financial terms applicable to companies that had purchased licenses. The Court of Appeals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': Disappointed bidder at auction, limited to small businesses and entrepreneurs, for electromagnetic spectrum for provision of personal communications services (PCS) had standing to petition for review of Federal Communications Commission (FCC) rules changing financial terms applicable to companies that purchased licenses in original auction; bidder submitted bids in original auction but dropped out before securing any licenses, and bidder claimed that it would have bid more had it known that financial terms more favorable than those announced at time of auction would later be offered to winning bidders and also claimed that it intended to bid in, and had capital necessary for, future reauction of PCS spectrum. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': Although Federal Communications Commission\rquote s (FCC) changes to financial terms applicable to companies that had purchased licenses for electromagnetic spectrum for personal communications services (PCS) at auction limited to small businesses and entrepreneurs were retroactive, Commission had adequate reasons for adopting them, and it reasonably balanced competing goals; Commission justified each of its menu options as \enabling C block licensees to remain participants in the wireless market,\ which it found would hasten \the delivery of new services to the public\ and promote efficient use of the spectrum, and Commission reasonably exercised its discretion to balance fairness to losing bidders with needs of market and with public interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': Before us are petitions for review of two rulemaking orders of the Federal Communications Commission. The orders changed the financial terms applicable to companies that purchased licenses to provide personal communications services (PCS) at an auction in which bidding was limited to small businesses and entrepreneurs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': ). The Commission designated a portion of the spectrum for the provision of PCS and divided that portion into six blocks, which it labeled A through F. In keeping with its statutory mandate to \ensure that small businesses ... are given the opportunity to participate\ in spectrum auctions, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': (upholding the limitation). The Commission offered small businesses bidding for C\u8211block licenses an \installment payment plan\ under which they could pay 10% down and the balance \over a period of ten years, with interest only paid for the first six years and interest and principal for the remaining four.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': at \u182 8. (Entrepreneurs who did not qualify as small businesses were offered less favorable payment terms.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': The Commission states that in crafting this menu of options it \considered and balanced\ several policy goals: maintaining the integrity of spectrum auctions; ensuring fairness to actual and prospective licensees; resolving all issues promptly; and complying with its statutory mandates to \[p]romot[e] economic opportunity and competition in the marketplace,\ and to \ensure \u8216that new and innovative technologies are readily accessible to the American people by avoiding excessive concentrations of licenses and by disseminating licenses among a wide variety of applicants, including small businesses.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': at \u182 3. Airwaves claims that it is unreasonable for the Commission to adopt any policy that undermines a goal that the agency itself has styled \essential.\ This is an unduly cramped reading of the orders, however. The Commission reasonably can treat fairness and integrity as \essential\ goals and yet recognize that they are matters of degree. Thus, the Commission may choose to sacrifice some degree of fairness or integrity in order to gain other important objectives. Several of the goals that the Commission lists in addition (and therefore potentially in opposition) to fairness and integrity\u8212such as competition, speedy deployment of services to the public, efficient use of the spectrum, and participation of small businesses in the market\u8212are mandated by statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': In a similar vein, Airwaves complains that, contrary to the Commission\rquote s expectation, the rule will not promote the participation of small businesses in the wireless industry; that goal would be better effected by redistributing licenses to small businesses in a new auction than by reinforcing the current concentration of C\u8211block licenses in relatively few hands. The petitioner\rquote s position is again plausible, but it is also reasonable, again, for the Commission to expect that small businesses generally will be better situated to face their larger competitors in the wireless industry if those that already have licenses are able to build their businesses in at least some markets. Again, we defer to the Commission\rquote s expertise regarding such predictive issues. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 051 - US AirWaves Inc v FCC.doc, Paragraph with 'The Rule of Two': Having established that the Commission changed the rules in a way that could not be foreseen, the question is whether, under the circumstances, that was so unfair as to be arbitrary and capricious. We start from the intuitive premise that an agency cannot, in fairness, radically change the terms of an auction after the fact. At the same time, an agency must be allowed to adjust its policies to changing circumstances, within the framework of rules it established in advance of the auction. In this case the Commission determined that the statutory goals of speeding the delivery of service to the public and of facilitating the participation of small businesses in the wireless market required it to liberalize the financial terms available to C\u8211block licensees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation provided that the project was a \100 per cent set aside for small business\ and established a bid opening date of January 5, 2000. On December 23, 1999, the Corps issued Amendment 0001 to the IFB, which changed the contract completion time from 900 to 700 calendar days and made changes to the specifications and drawings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with 'The Rule of Two': 1. Unreasonable home office overhead rate for a small business set aside procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues that because the subject procurement is a \100% set aside for small businesses,\ defendant should have applied the 10 percent empirical rate attributable to small businesses in estimating home office overhead costs for this contract. Instead, defendant applied a 2 percent overhead rate, which is less than the empirical rate deemed typical for large contractors in the Corps\rquote Instructions. Plaintiff concludes that by failing to apply the appropriate home office overhead rate, defendant\rquote s cost estimate was unreasonable, arbitrary and capricious. Defendant counters by stating that the Corps\rquote cost estimator for this project, Gerald A. Brewer, applied a 2 percent overhead rate because a large amount of the contract work on this project is either to be performed by subcontractors or involves the procurement of materials. In his declaration, Mr. Brewer further indicated that he \included 2% of home office overhead within the estimated rate of 15.8 per cent ($289,242) for all of the prime contractor\rquote s overhead costs, in addition to allowing the prime contractor 10 per cent ($126,116) as overhead on subcontractor work.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with 'The Rule of Two': (\Home office overhead is generally a fixed cost that will not fluctuate with the volume of construction work that is undertaken.\) The defendant\rquote s Engineering Instructions buttress this view. They set forth a range of flat percentages that are not calibrated to the nature of the activities being conducted under a particular contract, but rather to the size of the businesses involved. The range established in the instructions\u8212typically between 3 percent of the contract amount for large companies to 10 percent of the contract amount for small businesses\u8212reflects an apparent assumption that a smaller business generally needs to recover more of its overhead expenses through a particular contract than does a larger business, which may be expected to have more contracts over which to spread such expenses. Consistent with this approach, it does not rationally follow that because the contract here envisions significant subcontracting and procurements that the prime contractor\rquote s home office expenses for items such as office space, senior management, utilities and taxes should be reduced. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Where it was law of the case that subcontractor had standing to challenge the race-based rebuttable presumption used in some certifications under the Subcontracting Compensation Clause (SCC) for federal highway contracts but not to challenge other programs, including generalized policy of maximizing contracting opportunities for small disadvantaged businesses, district court\rquote s judgment would be reversed to the extent it could be construed as having reached statutes, programs, and issues beyond the scope of subcontractor\rquote s standing. Small Business Act, \u167\u167 2[8](a), (d)(4\u82116), 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Insofar as Federal Lands Highway Program\rquote s (FLHP\rquote s) 1996 Subcontractor Compensation Clause (SCC) relied on Small Business Act\rquote s (SBA\rquote s) \u167 8(a) criteria, limiting duration of disadvantaged business enterprise (DBE) status, those criteria increased the narrow tailoring of the SCC race-conscious program, and current SBA \u167 8(d) program, incorporating regulations which provide for a certification of a business as socially and economically disadvantaged for three years after either the initial certification or other administrative determination, was narrowly tailored with regard to appropriate limitations on duration, for purposes of equal protection compliance, especially in light of extensive congressional debate prior to renewing the DBE program. Small Business Act, \u167\u167 2[5](b)(6), 2[7](j)(10)(C)(i), (j)(10)(G), 2[8](a), (a)(6)(B, C), (d), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Because Congress has evidence that the effects of past discrimination have excluded minorities from the construction industry and that the number of available minority subcontractors reflects that discrimination, the existing percentage of minority-owned businesses is not necessarily an absolute cap on the percentage that a remedial program might legitimately seek to achieve, though absolute proportionality to overall demographics is an unreasonable goal, and thus aspirational goals set in the Small Business Act (SBA) and transportation appropriation statutes that were above the current percentage of minority-owned businesses but substantially below the percentage of minority persons in the population as a whole were narrowly tailored to remedy past discrimination, and did not facially violate equal protection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[8](a), (d)(4\u82116), 2[15](g)(1, 2), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The government failed to carry its evidentiary burden insofar as the use of the 1996 Subcontractor Compensation Clause (SCC) for highway subcontracting was based on an ill-defined 12\u821115% minority goal apparently adopted by the Federal Highway Administration (FHA); that congressional findings supported the 5% and 10% aspirational goals in the Small Business Act (SBA) and transportation appropriation statutes, as well as the delegation of responsibility for setting individual goals to various agencies, did not vitiate the constitutional duty of those agencies to assure that the goals are supported by evidence that meets the requirements, and thus the 1996 SCC was not narrowly tailored to meet the compelling interest in eliminating effects of discrimination, and violated equal protection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[15](g)(1, 2), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The Small Business Act (SBA) \u167 8(d) program in place prior to 1999, focused on opening up federal subcontracting opportunities to a large number of small disadvantaged firms, accorded a presumption of economic as well as social disadvantage to minority individuals, while \u167 8(a), targeted towards a smaller number of firms and provides direct assistance and protection from open competition over a period of years, did not. Small Business Act, \u167 2[8](a, d), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a, d), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[8](a, d), 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': There was no constitutional relevance of the two slightly different definitions of economic disadvantage under different subsections of the Small Business Act (SBA), which has in any event disappeared in the current version of the regulations, and the two slightly different definitions did not create uncertainty as to who is a disadvantaged business enterprise (DBE), so as to preclude any finding of narrow tailoring, satisfying equal protection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a, d), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': At the time, Gonzales was certified as a small business owned and controlled by socially and economically disadvantaged individuals, while Adarand was not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': This litigation centers around the SCC, a clause which was included in CFLHD\rquote s prime contract with Mountain Gravel. The SCC provided \that Mountain Gravel would receive additional compensation if it hired subcontractors certified as small businesses controlled by \u8216socially and economically disadvantaged individuals.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': \), this Court affirmed the district court\rquote s judgment on different grounds. We concluded that Adarand had standing to challenge the SCC program as it pertains to minority business enterprises but not women-owned business enterprises and addressed our inquiry to the SCC as a program implemented pursuant to \u167 502 of the Small Business Act of 1958 (\SBA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The [SBA] ... declares it to be \the policy of the United States that small business concerns, [and] small business concerns owned and controlled by socially and economically disadvantaged individuals, ... shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency.\ \u167 8(d)(1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': In furtherance of the policy stated in \u167 8(d)(1), the Act establishes \[t]he Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals\ at \not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Where there are no DBE programs, women and minority-owned small businesses are shut out of the highway construction. The Federal DBE program serves to redress the inequality and redress the unfortunate fact that all across the country women and minorities would not otherwise have access to construction contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': See, e.g., Availability of Credit to Minority\u8211Owned Small Businesses: Hearing Before the Subcomm. on Fin. Insts. Supervision, Regulation & Deposit Ins. of the House Comm. on Banking, Fin. & Urb. Affs., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Survey of Small Business Lending in Denver Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': In this respect, too, we note that the government has modified its unconstitutional practices. The current \u167 8(d) program regulations specifically incorporate the certification requirements from the Small Business Administration regulations implementing the \u167 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': As noted, several statutes are implicated in this case, notably the Small Business Act of 1958 (\SBA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Subsection 8(d)(1) of the SBA states \[i]t is the policy of the United States that small business concerns, and small business concerns owned and controlled by socially and economically disadvantaged individuals, ... shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': . The required clause includes the following language: \The contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': further mandates annual reports to the Administration and Congress on the results of government agency efforts to increase contracting participation by small businesses, including those owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The relevant portions of \u167 8(d) in themselves require only the inclusion of a provision in federal contracts stating the government\rquote s policy of maximizing contracting opportunities for small businesses, including those owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Subsection (d) is relevant to this litigation, however, insofar as the definition set forth therein serves as a basis for certifying small businesses as disadvantaged for purposes Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': litigation after 1996. Virtually the only changes to these statutory sections were additions of language including other groups in the SBA\rquote s affirmative action program: 1995 (women); 1998 (\HUBZone small business concerns\); and 2000 (veterans). Likewise, the key language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': \u8212\The Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year\\u8212has not changed. However, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': has been amended at various times during the litigation to include government-wide contracting goals for other groups, such as women, service-disabled veterans, and HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': . The Small Business Administration explains that this change was meant to more narrowly tailor the \u167 8(a) program in light of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ..., the Department of Justice recommended the \u8216preponderance of the evidence\u8217 standard for government-wide disadvantaged business programs. [The Small Business Administration] ... continues to believe that the use of this standard strengthens the defense of the [\u167 ] 8(a) B[usiness] D[evelopment] program.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The language in STURAA, ISTEA, and TEA\u821121 concerning the DBE program is similar. Notably, the requirement that \not less than 10 percent of the amounts\ authorized under those Acts \shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals\ remains unchanged in all three statutes. TEA\u821121 \u167 1101(b)(1), 112 Stat. at 113; ISTEA \u167 1003(b)(1), 105 Stat. 1919; STURAA Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': The revised SCC retains the provision furnishing prime contractors with \[c]ompensation ... to locate train, utilize, assist, and develop DBEs to become fully qualified contractors in the transportation facilities construction field,\ but adds the explanation that this compensation is provided \to offset costs and anticipated risks associated with awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals (DBE).\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': Problems Facing Minority and Women\u8211Owned Small Businesses in Procuring U.S. Government Contracts: Hearing Before the Commerce, Consumer, & Monetary Affairs Subcomm. of the House Comm. on Gov\rquote t Operations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': provides for certain additional requirements for contracts to be awarded \pursuant to the negotiated method of procurement\ and exceeding certain dollar amounts. These requirements include an approved plan providing maximum opportunity for small business concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': , and provision for agencies to offer incentives to encourage subcontracting opportunities for small business concerns owned and controlled by socially and economically disadvantaged individuals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': [t]he President shall annually establish Government-wide goals for procurement contracts awarded to small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals.... The Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards for each fiscal year.... Notwithstanding the Government-wide goal, each agency shall have an annual goal that presents, for that agency, the maximum practicable opportunity ... for small business concerns owned and controlled by socially and economically disadvantaged individuals to participate in the performance of contracts let by such agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': \u8216[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the [Small Business] Administration pursuant to section 8(a) of the Small Business Act.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': ). However, examination of the statute reveals that, while providing for inclusion in most federal agency contracts of a clause stating that \[i]t is the policy of the United States that ... small business concerns owned and controlled by socially and economically disadvantaged individuals, ... shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'The Rule of Two': , the relevant provisions of \u167 8(d) do not require the particular contract provision at issue here: \[m]onetary compensation ... for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': Minority business which participated in Small Business Administration (SBA) program that set aside contracts for socially or economically disadvantaged contractors brought post-award bid protest. On defendant\rquote s motion for judgment upon the administrative record and plaintiff\rquote s cross-motion for summary judgment, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) plaintiff was an \interested party\ under the Tucker Act with had standing to protest award of contracts through the program; (2) agency\rquote s failure to hold a competitive procurement for contract to provide guard services for government buildings violated section of the Small Business Act and implementing regulation; and (3) plaintiff failed to show it was prejudiced by the violation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': Minority business which participated in Small Business Administration (SBA) program that set aside contracts for socially or economically disadvantaged contractors was an \interested party\ under the Tucker Act and had standing to protest award of contracts through the program; protester demonstrated a connection with the procurements, and an economic interest in them by attesting that it would have bid on the contracts had it been informed of them. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': Contracting agency\rquote s failure to hold a competitive procurement for contract to provide guard services for government buildings violated section of the Small Business Act and implementing regulation requiring award of contract on a competitive basis in disadvantaged contractor program when there is a reasonable expectation that at least two participants will submit offers, and the anticipated award price will exceed $3,000,000. Small Business Act, \u167 2[8] (a)(1)(D), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': supplied guard services for federal buildings located in Ohio under a contract with GSA. The second option year of that contract ended on September 30, 1999. Allstate\rquote s contract was awarded on a competitive basis under the Small Business Administration\rquote s (SBA) 8(a) Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act describes the circumstances under which SBA must award a contract on a competitive basis: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with 'The Rule of Two': . SBA regulations define \participant\ as \a small business concern admitted to participate in the 8(a) BD program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 071 - Associated Builders And Contractors of Rhode Island Inc v City of Providen.doc, Paragraph with 'The Rule of Two': the plaintiff was a subcontractor who had undisputedly lost the guardrail portion of a federal contract because of a \subcontractor compensation clause,\ which awarded compensation to the general contractor of the project if it hired \disadvantaged\ subcontractors, as that term was defined by the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with 'The Rule of Two': Minority business participating in program of the Small Business Administration (SBA) setting aside contracts for socially or economically disadvantaged contractors filed bid protest, alleging that contracting agency violated procurement statutes and regulations in awarding contracts for guard services in government buildings in Ohio, and asserting it would have submitted bids in the procurements if the agency had issued them for competitive, rather than sole source awards. On government\rquote s motion to exclude from consideration extra-record materials incorporated in plaintiff\rquote s appendix to its cross-motion for summary judgment, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with 'The Rule of Two': Where administrative record in bid protest did not identity all the contractors in Small Business Administration (SBA) program that contracting agency contacted or could have contracted, protester would be allowed to supplement the record with such information, as it was relevant to protestor\rquote s contention that contracting agency violated procurement statutes and regulations in awarding contracts. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with 'The Rule of Two': Evidence demonstrating that contract awardee did not become certified for minority contractor program until July 15, 1999 would be considered as supplement to the administrative record in bid protest; certification status of awardee was relevant to contracting agency\rquote s decision because it only sought to award the contract to companies certified under the program. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with 'The Rule of Two': Prior to October 1, 1999, Allstate Security and Investigative Services, Inc. (Allstate) supplied guard services for all federal buildings in Ohio under a contract with GSA. The second option year of that contract ended on September 30, 1999. Allstate\rquote s contract was awarded on a competitive basis under the Small Business Administration\rquote s (SBA) 8(a) Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'The Rule of Two': (contractor lacked standing to challenge constitutionality of SBA set-aside program for \socially and economically disadvantaged\ small businesses, because its inability to compete for a contract stemmed from fact that its eligibility had expired, not from set-asides). The plaintiffs will be found to lack standing if the court must accept speculative inferences and assumptions in order to connect the alleged injury with the challenged action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'The Rule of Two': when a defense contractor challenged the race-based set-asides in section 8(a) of the federal Small Business Act. The Circuit held that being deprived of an opportunity to compete for the set-aside contracts (and thereby being foreclosed from access to potential business) \clearly makes out an injury\ for standing purposes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'The Rule of Two': (small business had standing to challenge decision by NASA and Small Business Administration to consider only disadvantaged businesses for contract rather than allowing full and open competition for contract). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'The Rule of Two': The section would further clarify that Alaska Native Corporations and their subsidiary companies are minority and economically disadvantaged business enterprises for the purposes of qualifying for participation in the federal contracting and subcontracting programs, the largest of which include ... [the Small Business Administration\rquote s \section 8(a)\ program] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'The Rule of Two': The defendants were incorporated for the purpose of benefitting from government contracts awarded under the Small Business Act section 8(a) program, and both are participating therein. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': Dismissal of action, rather than entry of summary judgment in favor of defendant, was appropriate resolution of suit by highway construction contractor challenging small business set-aside program, following determination that contractor lacked standing to sue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': For many years the USDOT has administered a Congressionally-established DBE program to expend, except to the extent the Secretary otherwise determines, \not less than 10 percent of the amounts made available\ for certain federal highway programs on \small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': TEA\u821121 and its predecessor statutes define \socially and economically disadvantaged\ in accord with section 8(d) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': In determining eligibility for DBE status, applicants who are women, Black Americans, Hispanic Americans, Native Americans, Asian\u8211Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the Small Business Administration are rebuttably presumed to be socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': For purposes of the instant motion, the parties jointly stipulate that neither Interstate nor NES is a \small business,\ so as to be eligible for the DBE program. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': Interstate could not compete for 100% of the traffic control contracts because the DBE program allots not less than 10% of the highway construction funds to socially and economically disadvantaged small businesses and Interstate suffers neither type of disadvantage. Interstate argues unconstitutional reliance on race, gender and/or national origin underly the DBE program, causing its injury. Analysis of the role of the rebuttable presumption of social disadvantage, partially based on suspect characteristics, in the DBE program, however, demonstrates no necessary causal connection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': . The basic intent of the operative statute is to foster growth in small businesses owned by \socially and economically disadvantaged\ people. A small business may qualify as socially and economically disadvantaged in two ways: by relying on the race- or gender-based presumption of disadvantage (with additional certification) or by satisfying the race- and gender-neutral criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': The legislative intent \to foster development in small businesses whose owners have had to overcome social and economic hardship would remain even in the absence of the challenged presumption.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 080 - Interstate Traffic Control v Beverage.doc, Paragraph with 'The Rule of Two': Because the allegedly unconstitutional presumption is severable from the remainder of the DBE program, small business owners who could prove they were socially and economically disadvantaged would continue to gain the benefit of at least a ten percent segment of the highway construction market. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 088 - Mangi Environmental Group Inc v US.doc, Paragraph with 'The Rule of Two': The facts are set forth in the Administrative Record filed with this court on February 2, 2000, and are summarized as follows. On April 12, 1999, the Forest Service issued Solicitation No. WO\u821199\u821102 for competitive proposals from small business offerors for a contract to act as the Volunteer Clearinghouse for the PIT program. The PIT program is a Forest Service volunteer program providing opportunities to individuals and families to work with professional archaeologists and historians on historic preservation projects in national forests and grasslands nationwide. The projects include archaeological excavation, historic structure restoration, rock art recordation, archaeological surveys, archival research, interpretive display development and oral history. As stated in the solicitation, the function of the Volunteer Clearinghouse is to provide administrative services including, but not limited to, the development, production and distribution of the PIT Traveler, a bi-annual newsletter which announces volunteer opportunities; the development and maintenance of databases of volunteers and projects; maintaining an 800 phone number; designing, implementing and managing a web page and an internet address; responding to inquiries regarding volunteer services; accepting volunteer applications and coordinating volunteer applications with PIT project leaders; and responding to media requests for information. The solicitation described the contract as a firm, fixed-price contract with a base performance period of one-year plus four, one-year options. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer did not abuse his discretion in failing to set aside spot tug boat work for small business, where only evidence was that there were less than two such businesses available in area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': This case involves the Navy\rquote s procurement policies for certain tug boat services at Port Canaveral, Florida. Plaintiff, Petchem, Inc., (\Petchem\ or \plaintiff\) is a small business that had been providing these tug services at Port Canaveral since 1984. With Petchem\rquote s most recent contract due to expire in fall 1999, the Navy, in the summer of 1999, solicited bids for a new contract for the tug services. Petchem was one of seven small businesses to bid on the work. However, on November 23, 1999, the Navy announced that it was canceling its solicitation for a new contract on the tug work because all of the bids were deemed too high in comparison to market rates at Port Canaveral. The next day, plaintiff filed this lawsuit alleging a violation of the Competition in Contracting Act (CICA), 10 U.S.C. \u167 2304.a.1 and 41 U.S.C. \u167 253.a.1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Quantity (IDIQ) contract under which the government would pay for only the amount of services it actually used above a stated minimum. (Def.\rquote s Mot. to Dismiss at 4.) The solicitation was issued on July 9, 1999 as a small-business set-aside. However, large firms were also allowed to submit bids in the event that there were not at least two offers from qualified small business providers. The Navy reserved the right to award different portions of the work to different bidders unless the bidder specified that it would not accept a partial award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': MSC received seven bids from qualified small business concerns and, as a result, did not open the single bid submitted by a large business. Petchem was among the seven small business bidders. Petchem submitted an initial bid in early August, revised the bid to reflect MSC\rquote s concerns regarding pricing and technical issues, and submitted a final bid on September 29, 1999. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': The bids from the seven small business providers were all deemed too high in comparison to posted rates from the port\rquote s commercial operator, Port Canaveral Towing (PCT). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': On November 24, 1999, Petchem filed this lawsuit against the government, alleging violations of the Competition in Contracting Act (CICA), 10 U.S.C. \u167 2304.a.1 and 41 U.S.C. \u167 253.a.1, the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that although the small business bids were deemed unacceptably high, the Navy was not relieved of its statutory obligation to secure the tug services through \full and open\ competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Alternately, plaintiff argues that defendant is violating the general requirement that procurements over $2,500 but under $100,000 be reserved for small business providers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': . Since seven small businesses bid for original solicitation, plaintiff contends that it was reasonable for the contracting officer to expect at least two to bid on the tug work and, therefore, that these contracts should be a small-business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': In particular, it is troubling that several administrative documents generated in October seemed to anticipate that, if the original, small business solicitation were to be canceled, the MSC would go to a new solicitation or \free and open\ competition. (AR 1510, 1534, 1535) There is no clear explanation in the record as to why this idea was bypassed in favor of the current, piecemeal bidding approach. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': conducted a good faith competitive solicitation (albeit one potentially reserved for a small business provider), involving several rounds of negotiation. Only after bidders had been given a chance to revise their offers did the procurement officer determine the prices were too high and move to dissolve the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Here, there is ample support in the record that the government reasonably wanted to abandon the previous style of contract that supplied 24\u8211hour service at a premium price. Once the attempt to aggregate the tug jobs in an IDIQ contract yielded no viable bids, it was a reasonable option to simply bid on a piecemeal basis since those spot, commercial rates were the basis for finding the small business bids unreasonably high. While the government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': have re-solicited the tug work under an IDIQ contract with or without the small business restriction, it was not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': C. Small Business Set\u8211Aside Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': Each acquisition of supplies or services that has an anticipated dollar value exceeding $2,500, but not over $100,000, is automatically reserved exclusively for small business concerns and shall be set aside unless the contracting officer determines that there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of quality, price and delivery. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': , which states: \... If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer shall make an award to that firm.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': (citation omitted). Plaintiff contends that since seven small business companies submitted bids for the original solicitation, it was reasonable for the procurement officer to expect that at least two would bid for the tug work on a spot basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': The government argues that Petchem is the only small business company operating in Port Canaveral (Declaration of Juanita White, a contracting officer at MSC, at \u182 2, stating that Petchem and PCT are \the only two commercial tug operators at Port Canaveral.\) and there is nothing in the record to contradict this. It appears reasonable for the procurement officer to conclude that small business providers who did not have ongoing operations in Port Canaveral would not be available to bid on or have the capability to provide spot tug work on short notice. Indeed, Petchem itself had earlier represented that it would be forced to abandon the area if its contract were not extended or a new one approved. However, Petchem later notified the MSC that it was available to perform ongoing work and, accordingly, has been offered an opportunity to compete with PCT, the only commercial operator at the port. It is telling that no other small business bidder provided the government with such notice, either after the original solicitation was cancelled or since MSC began bidding the work on a spot basis. Therefore, this Court finds no basis to conclude that the contracting officer abused his discretion in deciding not to set-aside the spot tug work pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 091 - Petchem Inc v US.doc, Paragraph with 'The Rule of Two': (noting that \[s]ince bundled, consolidated or total-package procurements combine separate, multiple requirements into one contract, they have the potential for restricting competition by excluding firms that can furnish only a portion of the requirement.\) Moreover, it seems unlikely that the government would re-solicit the contract as a small business set-aside given that the original bids were deemed so far out of the acceptable price range. More likely, the government would issue a solicitation open to all bidders, large and small. It would be ironic if plaintiff were able to force such a solicitation through this lawsuit, when Petchem earlier protested the agency\rquote s effort to include large businesses in the original solicitation for the tug work at Port Canaveral. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) protester who asserted that awardee\rquote s bid was nonresponsive for failure to meet requirement in solicitation for a Small Business Administration (SBA) size certification was not required to exhaust administrative remedies before the SBA; (2) protester did not show that agency\rquote s decision to award roofing repair contract to another bidder was arbitrary and capricious; and (3) Although contracting agency committed technical error in procurement when it failed to enforce requirement in solicitation that bidders have obsolete Small Business Administration (SBA) size certification, or to amend the solicitation to remove requirement, protester was not prejudiced thereby. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Post-award bid protester who asserted that awardee\rquote s bid was nonresponsive for failure to meet requirement in solicitation for a Small Business Administration (SBA) size certification was not required to exhaust administrative remedies before the SBA, as protest was not concerned with size determination of awardee, but with whether the government breached implied-in-fact contract by not enforcing solicitation requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Although contracting agency committed technical error in procurement when it failed to enforce requirement in solicitation that bidders have obsolete Small Business Administration (SBA) size certification, or to amend the solicitation to remove requirement, bid protester was not prejudiced thereby, as the SBA would have confirmed awardee\rquote s status as an eligible bidder, and a new bid solicitation would not provide protester with fairer consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': This post-award bid protest is before the court on defendant\rquote s motion to dismiss and motion for judgment on the administrative record and plaintiff\rquote s cross-motion for judgment on the administrative record. Hawpe Construction, Inc. (plaintiff) claims that the United States government (defendant), acting through the United States Navy Officer in Charge of Construction, Marianas (OICC), improperly and unlawfully awarded a contract to BioGenesis Pacific, Inc. (BPI), because BPI did not meet a requirement for a Standard Industrial Classification (SIC) Code certification in the Request for Proposals (RFP) issued by the OICC. Plaintiff alleges that this unlawful award will severely prejudice and damage plaintiff\rquote s business. Defendant counters that the requirement in the RFP was mistakenly believed by the OICC to be required by the Small Business Administration (SBA), when in fact it was not; that the SBA, within its purview, properly found BPI to be a qualified small business despite its failure to meet the requirement in the RFP; and that plaintiff was not prejudiced by the OICC\rquote s failure to insist upon BPI\rquote s strict compliance with the RFP. Defendant in the alternative asserts that this court lacks subject matter jurisdiction due to plaintiff\rquote s failure to exhaust its administrative remedies, stating that this matter is essentially a protest over size determinations properly adjudicated by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': and also determined that the Contract could be performed by a small business as defined in the SBA regulations. The OICC therefore decided to solicit the Contract as a competitive procurement under the SBA\rquote s section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': The OICC had to meet certain requirements in order for its offer of the RFP to be accepted by the SBA. Usually, the SBA enters directly into a contract with the government agency, and then subcontracts the work to a private small business. The SBA itself determines which potential subcontractors meet the standards for certification as a section 8(a) small business. For Department of Defense (DoD) contracts such as the Contract in this case, however, the government agency contracts directly with the small business under the supervision and with the approval of the SBA. The agency essentially performs the work of the SBA, asking for information that directly affects a bidder\rquote s small business status, while taking guidance from the SBA itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': small business gained certification under an SIC Code apparently by application to the SBA, asking for the SBA\rquote s approval to include such SIC Code in its business plan. No specific document embodied the certification. Instead, the small business was permitted to include the SIC Code in its business plan information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': During the OICC\rquote s evaluation, Ms. Tarlton inquired into the small business status of both BPI and plaintiff, among other bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Under two new regulations, which went into effect July 31, 1998, and were still in effect when the RFP issued in May 1999, the SBA had removed the requirement that a small business have formal SIC Code certification in order to bid on a contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': . Instead, the small business only needed to meet the qualifications set out in the SIC Code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Defendant\rquote s motion fails for two fundamental reasons. First, this post-award bid protest is not concerned with the size determination of BPI. Plaintiff does not dispute that BPI was a small business qualified to receive the Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Defendant counters that the SBA alone determines the eligibility issues raised by the requirement, and that the SBA determined clearly that it was satisfied that BPI was qualified to bid for and perform the Contract. Defendant also maintains that plaintiff was on notice of the proper size requirement regulations because they were published in the Federal Register, and were readily available to potential small business bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Although Ms. Tarlton\rquote s and Mr. O\rquote Neill\rquote s handling of the mistaken requirement of SIC Code 1761 in the RFP could have caused small businesses to forego bidding for the Contract, plaintiff has neither provided any evidence that this actually occurred, nor has any unfairly excluded bidder intervened in this matter. If the court presumes that competition was stifled, however, this facial violation of CICA does not require a reversal of the Contract award to BPI. A violation of a statute does not constitute a per se breach of the government\rquote s duty to treat a bidder fairly and honestly. Such violation does not necessarily qualify as a ground for recovery in a bid protest action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': , which specifically requires that SIC Code 1761 be among the approved codes for a bidder to qualify as a section 8(a) small business under SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': . This regulation was in effect at the time of the RFP\rquote s issuance. As has been discussed, however, a sweeping change in requirements for section 8(a) small businesses had been made in 1998, stating that bidders did not have to attain certification under certain SIC Codes, but that they merely had to meet with the requirements of such codes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': As defendant has shown, the SBA\rquote s opinion on the matter is that the new provisions in the CFR override the old FAR provision. The court finds that the SBA\rquote s interpretation is correct, not only due to deference to the agency, but also due to its obvious earlier intent to rid small businesses of the burden of SIC Code pre-certification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 096 - Hawpe Const Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act creates a special program to set aside contracts for small disadvantaged businesses, such as those owned by women and members of certain minority groups. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed post-award bid protest, challenging source selection decision by Department of Veterans Affairs (VA), awarding to two veteran-owned small businesses (VOSBs) firm-fixed price, indefinite-delivery/indefinite-quantity (IDIQ) contracts for supply of medical cylinder gases to locations and facilities within Veteran\rquote s Integrated Service Networks (VISNs) spanning 20 states. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Filing period for incumbent contractor\rquote s motion to alter or amend judgment began to run on date that initial judgment was entered, partially granting contractor\rquote s motion for judgment on administrative record and granting permanent injunctive relief preventing Department of Veterans Affairs (VA) from awarding veteran-owned small business (VOSB) contracts to supply medical cylinder gases to VA medical centers, rather than on date of amended judgment granting contractor permission to apply for bid preparation and proposal costs, since merits of contractor\rquote s bid protest were settled by initial judgment and explicitly undisturbed by amended judgment that related only to collateral issue of costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor that was seeking to prevent Department of Veterans Affairs (VA) from resoliciting veteran-owned small business (VOSB) contracts to supply medical cylinder gases to VA medical centers was not completely faultless for predicament as to its limited legal options for challenging VA\rquote s decision to resolicit contracts, and thus, contractor lacked extraordinary circumstances justifying relief from final judgment on administrative record granted to contractor in post-award bid protest and grant of permanent injunction preventing VA from awarding contracts to awardees, since contractor\rquote s objection to judgment arose from case decided five months before judgment was granted, but contractor failed to address that case before entry of judgment or in its motion for reconsideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 002 - Rivada Mercury LLC v United States.doc, Paragraph with 'The Rule of Two': The SSEB ultimately produced several reports documenting its conclusions, including a Past Performance report; a Small Business Subcontracting Plan report; and, for each individual offeror, a Business Management Evaluation, a Technical Evaluation, a Pricing Evaluation, and a Preliminary Responsibility Assessment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 005 - Mercom Inc v United States.doc, Paragraph with 'The Rule of Two': The evaluation criteria in Section M of the RFP stated that the agency would conduct a best value analysis and award the contracts based on an assessment of five factors: (A) reseller relationships/agreements, (B) technical capability, (C) past performance, (D) small business participation, and (E) price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 008 - Sigmatech Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction, pursuant to the Administrative Dispute Resolution Act (ADRA), over contractor\rquote s bid protest, challenging Army\rquote s decision to issue solicitation for bids as small-business set-aside, where contractor alleged that Army\rquote s decision violated regulations in connection with procurement or proposed procurement, in that analysis it undertook to determine that there was reasonable expectation that offers would be obtained from at least two responsible small business concerns was arbitrary, capricious, an abuse of discretion, and contrary to law, and that it failed to consider whether two or more small businesses would submit bids before issuing solicitation as small-business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 008 - Sigmatech Inc v United States.doc, Paragraph with 'The Rule of Two': On November 15, 2016, Sigmatech, Inc. (\Sigmatech\) filed a Bid Protest in the Government Accountability Office (\GAO\), challenging the United States Department of the Army Contracting Command\rquote s (\the Army\) decision to set aside Solicitation No. W91CRB\u821116\u8211R\u82110039 (\the Solicitation\) for small business concerns. Compl. at \u182 88. The GAO was required by law to issue a decision regarding the November 15, 2016 Bid Protest by February 23, 2017. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 008 - Sigmatech Inc v United States.doc, Paragraph with 'The Rule of Two': , because the analysis it undertook to determine that \there [was] a reasonable expectation that ... offers [would] be obtained from at least two responsible small business concerns\ was arbitrary, capricious, an abuse of discretion and contrary to law. Compl. at \u182\u182 97, 100, 102\u821104, 109, 119; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 008 - Sigmatech Inc v United States.doc, Paragraph with 'The Rule of Two': (\The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that ... [o]ffers will be obtained from at least two responsible small business concerns.\). Count III alleges that, in a prior bid protest regarding Solicitation No. W91CRB\u821116\u8211R\u82110039, the Army admitted that it did not consider whether two or more small businesses would submit bids before issuing the Solicitation as a small-business set-aside, and therefore decided to take corrective action. Am. Compl. at \u182 125. The Army\rquote s corrective action, however, did not cure the admitted defects. Am. Compl. at \u182 130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': Sometime in 2008, certain VA employees, including defendant Keith Waye, \the former lead contracting officer for Togus VA Medical Center, and current contracting officer for the\ Small Business Administration, doc. no. 17 at \u182 4, and defendant Ryan Lilly, the Director of the Togus VA Medical Center, decided that they wanted a new facility for the Rumford Clinic after Esterhill\rquote s lease expired the following year. In early 2009, Every learned that the VA was targeting the River Valley Tech Center (\River Valley\) as its new facility for the Rumford Clinic. Every felt that River Valley was not suitable for the Rumford Clinic because, for example, it had an unpaved parking lot that required patients to walk a lengthy distance from the lot to the clinic. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': On July 15, 2015, the Army issued Solicitation No. W9124J\u821115\u8211R\u82110064 seeking Military Housing Privatization (\MHPI\) support services. Compl. \u182 16. The solicitation used the lowest price technically acceptable procurement method, and required that the contract be awarded to a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': \u182 17. JLL, the incumbent contractor (and not a small business), filed a pre-award bid protest at the Government Accountability Office (\GAO\) over wording in the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': \u182 20. JLL also filed two additional pre-award bid protests at the GAO concerning the small business limitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': \u182 24. After submitting initial proposals, two small businesses advanced in the procurement: Concourse and RER. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': \u182 19. Both small businesses drew on the support of larger contracting organizations; Concourse\rquote s team included Alvarez & Marsal (\A & M\), and RER\rquote s team included JLL. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 011 - Concourse Group LLC v United States.doc, Paragraph with 'The Rule of Two': \u182 37 (\Concourse contended [at the GAO] that this vague Solicitation language and the Army\rquote s desire for Army experience was tipping the competition in favor of the small business backed by the incumbent JLL.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 015 - Limco Airepair Inc v United States.doc, Paragraph with 'The Rule of Two': 1. The Small Business Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 015 - Limco Airepair Inc v United States.doc, Paragraph with 'The Rule of Two': The salient facts in this bid protest matter are undisputed. On February 29, 2016, the Air Force issued a request for proposals for the remanufacture of F\u821116 heat exchangers as a small business set-aside (the \Small Business Solicitation\). AR at 497\u8211545; Am. Compl. at \u182 8. WCC submitted an offer under the Small Business Solicitation, which included a proposed price of $17,426.84 per unit. AR at 587\u8211636; Am. Compl. at \u182 12. After discussions with the Air Force, WCC reduced its proposed price to $15,950.54. AR at 644. During a second round of discussions for the Small Business Solicitation, WCC indicated that performance testing accounted for $1,500 of its proposed price per unit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 015 - Limco Airepair Inc v United States.doc, Paragraph with 'The Rule of Two': at 653\u821154. On June 20, 2016, the Air Force canceled the Small Business Solicitation because it deemed all of the offers to be too high. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Contract awardee brought post-award bid protest, challenging the National Aeronautics and Space Agency\rquote s (NASA) determination that awardee was not an eligible small business for a contract based on awardee\rquote s failure to meet the size standard in request for proposals (RFP) for small business set-aside contract. Awardee moved for judgment on the administrative record, and government moved to dismiss, or in the alternative, moved for judgment on the administrative record, and moved to supplement the administrative record with the declaration of the contracting officer for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Omission of declaration of contracting officer regarding evaluation of offerors\rquote small business status for procurement decision regarding small business set-aside contract did not preclude meaningful judicial review of post-award bid protest case, and thus supplementation of the administrative record with declaration was not warranted; issue of law was whether solicitation established a 500\u8211employee standard that contract awardee met, there already was an extensive administrative record detailing size standard and contract requirements, and government had already supplemented the record with documents related to award decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Government contract awardee alleged a violation of procurement law, by alleging that National Aeronautics and Space Agency\rquote s (NASA) determination that awardee was ineligible for award of small business set-aside contract based on awardee\rquote s failure to meet size standard in request for proposals (RFP) violated the Competition in Contract Act, Federal Acquisition Regulation, and the statutory non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Government contract awardee was an \interested party\ regarding small business set-aside contract, and thus awardee had standing to bring post-award bid protest action under the Tucker Act; awardee was an actual offeror that had been awarded the contract, Small Business Administration Office of Hearings and Appeals issued a decision finding that awardee was not an eligible small business for the contract, and if contract was terminated, awardee would no longer have been eligible to compete for work orders issued under contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Government contract awardee waived for judicial review by the Court of Federal Claims its challenge concerning alleged error or patent ambiguity with respect to size standard in request for proposals (RFP) regarding small business set-aside contract, where awardee failed to raise error or patent ambiguity before the close of the procurement process, agency addressed and attempted to clarify size standard requirement in agency\rquote s responses to several questions from offerors, agency published questions and answers on a website for procurement, information was readily available to all offerors, including awardee, and agency amended procurement to incorporate agency\rquote s responses to questions about size standard requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Contract awardee\rquote s challenge concerning alleged error or patent ambiguity with respect to size standard in request for proposals (RFP) regarding small business set-aside contract was unsupported by RFP and the statutory non-manufacturer rule; to the extent that awardee qualified as non-manufacturer with 500 employees or less under the statutory non-manufacturer rule, RFP required that awardee meet more restrictive North American Industry Classification System (NAICS) 150\u8211employee size standard to be eligible for contract award, but awardee did not satisfy 150\u8211employee size standard to compete for contract. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': , Of Counsel, Amber M. Hufft, Of Counsel, James A. Vatne, Of Counsel, National Aeronautics and Space Agency, Karen H. Holzen, Of Counsel, United States Small Business Administration, for defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff, York Telecom Company (\Yorktel\), brought this post-award bid protest matter, challenging the National Aeronautics and Space Agency\rquote s (\NASA\) determination that Yorktel was not an eligible small business for a contract to provide certain information technology products and services, because Yorktel failed to meet the size standard for the contract. Yorktel has moved for judgment upon the administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (\RCFC\). The government has moved to dismiss this matter or, in the alternative, for judgment upon the administrative record, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': In this post-award bid protest matter, Yorktel challenges NASA\rquote s determination that Yorktel was not eligible for a contract to provide certain information technology products and services (\SEWP V Contract\), because Yorktel failed to meet the size standard for this small business set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': at 1. The relevant portion of the solicitation at issue in this matter contemplated the award of small business set-aside contracts. AR at 1. And so, NASA utilized the North American Industry Classification System (\NAICS\) code and the accompanying size standards to determine whether an offeror was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': North American Industry Classification System (NAICS) code and small business size standard Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . This provision derives from a provision in the Small Business Act known as the statutory non-manufacturer rule, which provides that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': (ii) be a small business concern under the numerical size standard for the Standard Industrial Classification Code assigned to the contract solicitation on which the offer is being made; .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . The United States Small Business Administration (\SBA\) has promulgated two relevant regulations to implement the statutory non-manufacturer rule. First, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': (1) A firm may qualify as a small business concern for a requirement to provide manufactured products or other supply items as a nonmanufacturer if it: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': On November 25, 2015, Congress enacted the National Defense Authorization Act for Fiscal Year 2016 (\NDAA\) which, among other things, amended the Small Business Act to provide that the statutory non-manufacturer rule applies when a contract \has as its principal purpose the supply of a product.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . On January 26, 2016, the SBA promulgated a final rule providing that the supply component of a small business-set aside ITVAR contract is required to comply with the non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Standards: Industries with Employee Based Size Standards Not Part of Manufacturing, Wholesale Trade, or Retail Trade Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': at 1123. In response, NASA replied that a business with more than 150 employees would be considered \other than small\ and would need to complete a small business subcontracting plan to remain eligible for award, because the size standard for the contract was 150 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': In addition, question 951 asked, \[i]f an offeror is under 500 employees, is it considered a small business under Category B, Group D?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': at 2307\u821109, 2322\u821123, 2333\u821134. On April 22, 2015, Yorktel responded to Ms. Feimster explaining that Yorktel was a small business under the non-manufacturer rule size standard, as set forth in this solicitation at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': On or about April 29, 2015, Ms. Feimster filed a size determination protest with the SBA\rquote s Area 1 Government Contracting Office, requesting a \Post Award Size Determination of firm\rquote s Small Business size status\ under the 150\u8211employee size standard applicable under NAICS code 541519. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': at 2501\u821123. On May 18, 2016, the SBA\u8211OHA issued a decision finding that Yorktel is not an eligible small business for the procurement at issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': In this case, the government argues that supplementation of the administrative record with the proffered declaration is necessary \because the administrative record does not explain how NASA evaluated offerors\rquote small business status\ for the SEWP V Contract. Def. Mot. to Supp. at 2. But, as Yorktel correctly notes in its opposition to the government\rquote s motion to supplement, \[t]he issue [in this litigation] is not what the Contracting Officer believed at the time she awarded a contract to Yorktel or the reasonableness of those beliefs .... The issue of law for the Court is whether the Solicitation established a 500\u8211employee standard that plaintiff meets.\ Pl. Opp. to Def. Mot. to Supp. at 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': AR at 1184\u8211808, 2150\u8211294. The government also acknowledges in its briefs that Yorktel would have standing to bring this bid protest matter if the SBA\rquote s Office of Hearings and Appeals determined that Yorktel is not a small business for purposes of the SEWP V Contract, thereby requiring NASA to terminate Yorktel\rquote s contract. AR at 2620\u821130; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': Def. Mot. at 15 (\If OHA determines that Yorktel does not meet the required minimum size standard and recommends the termination of Yorktel\rquote s contract, only then could Yorktel attempt to file a bid protest....\). That is precisely the circumstance presented here. On May 18, 2016, the SBA\u8211OHA issued a decision finding that Yorktel is not an eligible small business for the SEWP V Contract. AR at 2620\u821130. And Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . at 1069. In response to question 861, NASA also clarified that the size standard for the contract was 150 employees and that businesses with more than 150 employees would be considered \other than small\ and would need to complete a small business subcontracting plan to remain eligible for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': North American Industry Classification System (NAICS) code and small business size standard Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . The NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet (SF 1449). However, the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not itself manufacture, is 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': . While this provision is, perhaps, inartfully drafted, the Court reads the language in the first sentence of this provision, which states that \[t]he NAICS code and small business size standard for this acquisition appear in Block 10 of the solicitation cover sheet,\ to require that all offerors comply with the size standard imposed by this NAICS code. It is undisputed that the second sentence in this provision pertains to non-manufacturers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 019 - York Telecom Corporation v United States.doc, Paragraph with 'The Rule of Two': be a small business concern under the numerical size standard for the Standard Industrial Classification Code assigned to the contract solicitation on which the offer is being made; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 020 - Health Republic Insurance Company v United States.doc, Paragraph with 'The Rule of Two': In conjunction with these three reforms, the Affordable Care Act required the establishment of an American Health Benefit Exchange (\exchange\) in each state by January 1, 2014, to facilitate the purchase of \qualified health plans\ by individuals and small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 025 - National Star Route Mail Contractors Association Inc v United States Posta.doc, Paragraph with 'The Rule of Two': Maraney Decl. \u182 15; Pl. Mot. TRO & PI, Ex. 1, Att. C. Plaintiff further alleges that the termination of these contracts will impact \more than 70 individuals and small businesses,\ which \will lose revenue totaling more than $57 million annually.\ Pl. Mot. TRO & PI at 3. Plaintiff conclusorily asserts representational standing to bring this action on behalf of its members. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 026 - It Shows Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging award by United States Agency for International Development (USAID) of small business set-aside contract to provide human resources support services to Bureau for Global Health. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 026 - It Shows Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protestor waived argument that United States Agency for International Development (USAID) performed flawed cost realism analysis by using protestor\rquote s ceiling rates for indirect costs, in awarding small business set-aside contract to provide human resources support services, since protestor had notice in request for proposals (RFP) that USAID intended to use bidders\rquote ceiling rates, but protestor failed to raise argument prior to close of bidding process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 026 - It Shows Inc v United States.doc, Paragraph with 'The Rule of Two': United States Agency for International Development\rquote s (USAID) cost realism analysis that used bid protestor\rquote s ceiling rates for indirect costs had rational basis, in awarding small business set-aside contract to provide human resources support services, since protestor\rquote s proposed ceiling rate for indirect overhead costs was nearly five times greater than its provisional rate, demonstrating high degree of uncertainty regarding stability of provisional rate, and similarly, protestor\rquote s ceiling rate for indirect general and administrative (G&A) costs was significantly different than provisional rate, so high degree of uncertainty in provisional rates created risk for USAID, which could have been contractually obligated to pay ceiling rates. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 026 - It Shows Inc v United States.doc, Paragraph with 'The Rule of Two': USAID issued request for proposal No. SOL\u8211OAA\u821114\u8211000024 (\RFP\ or \solicitation\) on March 7, 2014, seeking bids for a contract to provide non-direct-hire human resources support services to the Bureau for Global Health, related Washington, DC offices, and overseas field missions. The solicitation was for a cost-plus fixed fee contract for a five-year term, and it was designated as a small business set-aside. The contract was to be awarded to the offeror presenting the \best value\ to the government. USAID prepared its own independent government cost estimate (\IGCE\) and estimated a total cost plus fixed fee of $333,743,205 for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 027 - Global Dynamics LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest challenging Army\rquote s decision not to award to bidder one of several small business set-aside contracts to provide nursing, medical, and ancillary services at military medical facilities in Hawai\rquote i and Guam. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 027 - Global Dynamics LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder for small business set-aside contracts awarded by Army for nursing, medical, and ancillary services at military medical facilities in Hawai\rquote i and Guam waived any objection to propriety of Army\rquote s price analysis informing bidder of its low prices compared to other bidders, in discussions that bidder claimed were misleading, arbitrarily induced bidder to raise its prices, and resulted in denial of contract award, since bidder failed to object to patent ambiguity, regarding Army\rquote s use of price comparisons, prior to raising its prices by 15%, which was based on bidder\rquote s own business judgment rather than pursuant to any instruction by Army. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 027 - Global Dynamics LLC v United States.doc, Paragraph with 'The Rule of Two': The Army issued request for proposals No. W81K04\u821114\u8211R\u8211001 (\the RFP\) on April 22, 2014. It solicited offers for medical and ancillary services staffing at military medical facilities in Hawaii and Guam. The solicitation was set aside entirely for small businesses. It anticipated award to a minimum of five offerors per labor specialty for an indefinite delivery and indefinite quantity of service provided under each contract. Offerors could bid on only one labor specialty or any combination of them: physician, traveling physician, nursing, traveling nursing, ancillary medical, and traveling ancillary medical services. Each specialty was further subdivided into multiple labor categories. Services were to be ordered by the issuance of task orders for which the contract holders would further compete. The task orders thereafter were to be on a fixed-price basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 028 - Field Training Support Services v United States.doc, Paragraph with 'The Rule of Two': This case is a pre-award bid protest challenging a determination made by the Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) that plaintiff, Field Training Support Services (FTSS), was not a small business eligible to compete for a contract award under the portion of a multiple award contract solicitation that was set aside for small businesses. In its decision, OHA determined that plaintiff, which is a joint venture, was not a small business because one of its members (LB & B Associates) is a large business. This decision, which reversed a finding by the SBA\rquote s Area Office, was based on a determination that plaintiff did not qualify for an exemption from the affiliation rules available to certain joint-ventures involving one small and one large business which have an approved \mentor/prot\u233g\u233\ relationship. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 028 - Field Training Support Services v United States.doc, Paragraph with 'The Rule of Two': . This is not the case here given that, as things now stand, OHA\rquote s determination in this matter remains\u8212until its decision is revoked or modified\u8212that plaintiff is not a small business and thus is excluded from the competition. Unlike a bid protest challenging the evaluation of proposals, for which a reevaluation is the standard relief, in this case plaintiff is not seeking a new decision from OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 028 - Field Training Support Services v United States.doc, Paragraph with 'The Rule of Two': The Clerk is directed to serve a certified copy of this order on the SBA\rquote s Office of Hearings and Appeals at: Office of Hearings and Appeals, U.S. Small Business Administration, 409 Third Street, SW, Washington, DC 20416. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed post-award bid protest, challenging source selection decision by Department of Veterans Affairs (VA), awarding to two veteran-owned small businesses (VOSBs) firm-fixed price, indefinite-delivery/indefinite-quantity (IDIQ) contracts for supply of medical cylinder gases to locations and facilities within Veteran\rquote s Integrated Service Networks (VISNs) spanning 20 states. Following intervention by one contract awardee as defendant-intervenor, parties cross-moved for judgment on administrative record, and contractor sought permanent injunction preventing VA from awarding contracts to awardees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) conducted reasonable evaluation of respective bidders\rquote past performance, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where VA first assigned one bidder neutral rating for its past performance, but after learning more from bidders during well-documented discussions, VA adjusted all bidders\rquote past performance ratings and technical capability ratings, and VA\rquote s reasons for its findings were supported by administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) scope of discussions with bidders was appropriate, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where VA advised bidders by letter of topics VA had developed to assist in evaluating bidders\rquote strengths, weaknesses, and deficiencies, and then VA discussed those same topics with each bidder in the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) discussions with bidders, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, complied with procurement regulation, providing that contract could be awarded without discussions if solicitation so stated, but if government determined discussions were necessary, government was required to document rationale for doing so, since VA had reserved right in both source selection plan (SSP) and request for proposals (RFP) to conduct discussions with bidders, and VA explained when establishing competitive range that objective of discussions was to maximize government\rquote s ability to obtain best value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) discussions with bidders did not treat incumbent contractor unfairly, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where contractor gave number of unimpressive responses to VA\rquote s questions, and those answers compromised VA\rquote s view of contractor\rquote s technical capability and past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs (VA) permissibly waived requirement in request for proposals (RFP) that bidders submit their proposals on compact disc, by allowing one bidder to submit its proposal in paper form, in accordance with procurement regulation permitting agency to waive informalities and minor irregularities in proposals received, since submission format requirement was informality. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs\rquote (VA) contract specialist and contracting officer conducted unequal and unlawful exchanges with one bidder prior to VA\rquote s evaluation of bidders\rquote initial proposals, in violation of procurement regulations prohibiting use of communications to cure proposal deficiencies or material omissions, materially alter technical or cost elements, and/or otherwise revise proposal and prohibiting exchange favoring one bidder over another; any duty of VA to hold exchanges extended to all bidders, not only one bidder, and VA\rquote s exchanges unfairly favored one bidder by allowing bidder to make untimely and significant modifications to technical and cost elements of its proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) technical evaluation team (TET) established competitive range, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, that was arbitrary, capricious, and did not comport with procurement regulations or request for proposals (RFP), requiring contracting officer, not TET, to establish competitive range; contracting officer\rquote s delegation of authority to TET to establish competitive range, failure to disclose to TET significant deficiencies in contract awardee\rquote s initial proposal, and failure to address those deficiencies at time prescribed in procurement process for informing competitive range determination was procedural violation so egregiously removed from fairness as to constitute abuse of VA\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) evaluation of bidders\rquote initial proposals, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, violated both solicitation and procurement regulations, requiring price to be compared against other evaluation factors to determine best value for government, requiring price to be considered before determining competitive range and to be evaluated in terms of fairness and reasonableness, and requiring contracting officer to establish competitive range based on ratings of each proposal against all evaluation criteria and to document rationale for any business judgments and tradeoffs, since contracting officer determined competitive range price before evaluating price and failed to document any tradeoff rationale. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs (VA) unfairly extended time for submission of revised proposal to only one bidder, in violation of procurement regulation, prohibiting unfair treatment of bidders, since VA treated bidder differently and preferentially by extending submission deadline to give bidder additional time to prepare bid without offering correlative time extension to other bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) corrective action source selection decision, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, misstated evaluation procedures set forth in source selection plan (SSP), providing that only past performance, veterans\rquote preference, and price would receive reevaluation by VA after competitive range determination, but not technical capability, where VA reevaluated technical capability and failed to set forth rationale for reevaluating proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) compromised competitive fairness in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, in manner that was prejudicial to incumbent contractor, by granting contract awardee extension of time to submit revised proposal, by allowing other awardee to address deficiencies in its proposal but not affording other bidders same opportunity, and by conducting reevaluation of proposals without conforming to procedures set forth in source selection plan (SSP), since incumbent contractor had substantial chance of receiving contract award but for VA\rquote s unreasonable award decision and unfair procurement process that treated bidders unequally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': On April 16, 2014, the VA issued its source selection decision, awarding the contracts to two veteran owned small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': , as to whether it qualified as a service-disabled small business (\SDVOSB\) or a veteran-owned small business (\VOSB\). Tab 9, AR 138. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . According to the Supreme Court, \u167 8127(a) of the \Veterans Benefits, Health Care, and Information Technology Act of 2006\ requires the VA to award contracts to a service-disabled small business or a veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . This requirement is triggered by the \Rule of Two,\ which requires contracting officers to restrict competition to either VOSBs or SDVOSBs when \the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ \u167 8127(d). The Supreme Court stated that \before contracting with a non-veteran owned business, the [VA] must first apply the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . But, the Supreme Court declined to determine \precisely what sort of search for veteran-owned small businesses the [VA] must conduct to comply with the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 033 - Level 3 Communications LLC v United States.doc, Paragraph with 'The Rule of Two': (1) The evaluation factors and significant subfactors that establish the requirements of acceptability shall be set forth in the solicitation. Solicitations shall specify that award will be made on the basis of the lowest evaluated price of proposals meeting or exceeding the acceptability standards for non-cost factors. If the contracting officer documents the file pursuant to 15.304(c)(3)(iii), past performance need not be an evaluation factor in lowest price technically acceptable source selections. If the contracting officer elects to consider past performance as an evaluation factor, it shall be evaluated in accordance with 15.305. However, the comparative assessment in 15.305(a)(2)(i) does not apply. If the contracting officer determines that a small business\rquote past performance is not acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination, in accordance with the procedures contained in subpart 19.6 and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 034 - Telos Corporation v United States.doc, Paragraph with 'The Rule of Two': Although the foregoing discussion demonstrates that Telos\rquote s motion cannot be granted, the Court will briefly address the other injunctive relief factors. Telos claimed that it would suffer irreparable injury in the form of lost profits, loss of proprietary information, an adverse impact on Telos and its employees, and \dire consequences\ for its small business subcontractors. Pl.\rquote s Mot. at 18\u821120. But these are the unavoidable results of its contract coming to an end. A bid protester who has lost its protest on the merits must show more than this to satisfy the irreparable harm factor, such as the prospect Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 039 - Strategic Business Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': , because the requirement \adversely impacted SBSI as it was the only small business/prime that had SIFM I IDIQ experience.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 039 - Strategic Business Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Opp\rquote n at 28\u821129. Specifically, in its complaint, SBSI alleged that \the last instruction in the redacting requirements violated CICA in that it required proposals [to] redact any and all references to SIFM I,\ which had the effect of \adversely impact[ing] SBSI as it was the only small business/prime that had SIFM I IDIQ experience.\ Transfer Compl. \u182 30(d). Because SBSI did not raise its objection to the solicitation\rquote s terms until after the award was made, however, the objection is waived. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 040 - CSC Government Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The RFP outlined five sub-factors within the technical-approach/technical-risk evaluation factor: (1) Technical, (2) Management Approach, (3) IT Systems Optional Tasks, (4) Engineering, and (5) Small Business Participation Plan. AR 5a\u8211972. The Technical sub-factor involved an assessment of the offerors\rquote \capability to perform IT Operations and Maintenance in a large multi-classified operational environment,\ specifically in the areas of: (1) \service center,\ (2) \end user provisioning,\ (3) \network services,\ (4) \servers,\ and (5) \enterprise database services.\ AR 5a\u8211957. The Management Approach sub-factor involved the evaluation of three aspects of the offerors\rquote program management approach: (1) the \phase-in\ plan, (2) \staffing, security clearances, certifications and skillsets,\ and (3) day-to-day program management. AR 5a\u8211957 to \u821158. The IT Systems Optional Tasks sub-factor primarily would assess the offerors\rquote plans for transitioning USSTRATCOM\rquote s IT capabilities to the new C2F headquarters. AR 5a\u8211958 to \u821159. This sub-factor also involved the evaluation of the operation and maintenance of USSTRATCOM\rquote s command and control phone-switching system, as well as the potential transition Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 040 - CSC Government Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Finally, the Small Business Participation Plan sub-factor would evaluate \the offeror\rquote s identification of and commitment to small business in contract performance on the ITCC II program\ in accord with the government\rquote s goals for small business participation in subcontracts. AR 5a\u8211959 to \u821160. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 040 - CSC Government Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The relevancy of each reference would be assessed under the following four sub-factors, which mirror the technical-approach/technical-risk sub-factors: (1) Technical, (2) Management Approach, (3) Engineering, and (4) Small Business Participation. AR 5a\u8211974 to \u821175. Each sub-factor, as well as the reference as a whole, would receive one of the following relevancy ratings: Very Relevant, Relevant, Somewhat Relevant, or Not Relevant. AR 5a\u8211976. Finally, each sub-factor and the reference as a whole would receive a qualitative performance rating of Exceptional, Very Good, Satisfactory, Marginal, Unsatisfactory, or Not Applicable. AR 5a\u8211976 to \u821177. Upon integrating the analyses for recency, relevancy, and performance, the government would assign each offeror one of five confidence assessments for the past performance factor: Substantial Confidence, Satisfactory Confidence, Unknown Confidence (Neutral), Limited Confidence, or No Confidence. AR 5a\u8211977. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed post-award bid protest against United States, challenging National Guard Bureau\rquote s award of small business set-aside contract to provide computer technology to assist Army Reserve National Guard in fulfilling its critical missions. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protestor had standing, under Tucker Act, to challenge National Guard Bureau\rquote s award of small business set-aside contract to provide computer technology to assist Army Reserve National Guard, since protestor\rquote s economic interest would be affected by outcome of bid protest action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': National Guard Bureau\rquote s amendment to request for proposals (RFP) prior to opening of bidding for small business set-aside contract to provide computer technology to assist Army Reserve National Guard was not arbitrarily or irrationally made for benefit of contract awardee, by permitting bidders to comply with capability maturity model integration (CMMI) certification requirement through their subcontractors rather than requiring bidders themselves as prime contractors to be CMMI certified, since Bureau did not amend certification requirement solely to enable awardee to qualify for contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s disagreement with his expert advisory panel\rquote s evaluations of bidders\rquote technical qualifications for small business set-aside contract awarded by National Guard Bureau to provide computer technology to assist Army Reserve National Guard, and instead increasing ratings of contract awardee in several instances to higher qualifying levels, was legitimate exercise of officer\rquote s discretion, where officer explained reasons for his disagreement with panel\rquote s evaluations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': National Guard Bureau\rquote s price realism analysis, conducted during process of awarding to lower-priced bidder small business set-aside contract to provide computer technology to assist Army Reserve National Guard, was reasonable, although Bureau did not discount contract awardee\rquote s technical rating based on its allegedly unrealistic labor rate estimates, since purpose of price realism analysis was to consider whether bidders understood request for proposals\rquote (RFP) requirements for performing contract, there was no evidence in administrative record that awardee did not understand contract\rquote s requirements, and awardee\rquote s labor rate estimates were irrelevant to price realism analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': National Guard Bureau\rquote s best value determination, finding that incumbent contractor\rquote s higher rating on technical factors did not justify $10 million price premium compared to lower technical rating and lower price offered by awardee of small business set-aside contract to provide computer technology to assist Army Reserve National Guard, was not arbitrary and capricious, since contracting officer gave supporting rationale for best value determination, noting that both bidders had solid record of past performance and that 60-day transition period would allow awardee to adjust to operational conditions and make other adjustments necessary for satisfactory completion of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': The National Guard Bureau issued a Request for Proposals for this re-compete of a firm fixed-price indefinite delivery, indefinite quantity contract in October 2014. The one-year contract is a 100% small business set-aside with four one-year option periods; plaintiff is the incumbent. The RFP provided that price would not be the sole determinant in awarding the contract, as various non-cost factors would be considered. The contracting officer would conduct a best-value analysis if necessary to determine whether a technically superior offer justified a substantially higher cost to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': Section L.23.2.1.6 of the Solicitation required offerors to submit a \Small Business Subcontracting Plan,\ stating: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': If the offeror is a large business, a subcontracting plan for Small Business and Small Disadvantaged Business concerns shall be submitted in this volume in accordance with FAR Clause 52.219\u82119. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': states that the offeror was required to provide \[g]oals, expressed in terms of percentages of total planned subcontracting dollars,\ that would be allocated to different types of small business concerns as subcontractors, as well as \[t]otal dollars planned to be subcontracted for an individual contract plan.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': AR 549. Along with this representation, Framaco submitted a six-page Small Business Subcontracting Plan, as required by the Solicitation and FAR Clause 52.219\u82119. AR 370\u821175. Framaco indicated the percentage of subcontracting dollars that would be allocated to each of six categories of subcontractors, but did not provide either the individual dollar amounts that corresponded to those percentages or the total dollar value of all planned subcontracting. AR 371. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': On September 29, 2015, the Contracting Officer and Contracting Specialist signed a Price Negotiation Memorandum, finding Framaco to be the lowest-priced, technically acceptable offeror. AR 1214\u821115. The same day, the Contracting Specialist sent Framaco\rquote s subcontracting plan to DOS\rquote Office of Small and Disadvantaged Business Utilization for review. AR 1215.1\u8211.2. The Office of Small and Disadvantaged Business Utilization initially rejected Framaco\rquote s small business subcontracting plan because Framaco did not indicate the amount in dollars that would be allocated to each type of small or disadvantaged business, but rather only indicated the percentage of subcontracting dollars that would be allocated to each type of small or disadvantaged business. In response, Framaco submitted a revised subcontracting plan, allocating individual dollar amounts to each of the six types of subcontractors in addition to the percentages\u8212which remained constant\u8212as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': In its subcontracting plan and revision, Framaco did not list the individual subcontractor entities that would fall into each \subcontractor type.\ AR 1215.5, 1215.54. Framaco represented that it would comply with the reporting and recordkeeping requirements of the small business entities it would employ during contract performance and would \notify both the cognizant Contracting Officer and the Office of Small and Disadvantage Business Utilization, U.S. Department of State of its submissions.\ AR 1215.58. After Framaco\rquote s revision, DOS\rquote Office of Small and Disadvantaged Business Utilization approved Framaco\rquote s subcontracting plan. AR 1215.64. Framaco indicated in its subcontract plan that it would subcontract an estimated [* * *] million of work, or approximately [* * *]% of the total value of the project. AR 1215.54. Framaco\rquote s final bid in its revised proposal was $95,875,381. AR 1085. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': , Caddell has failed to establish that it was \readily apparent\ that Framaco would not satisfy the LOS clause. Rather, Framaco consistently represented in its initial and revised proposals that it would subcontract less than 50% of the total value of the project. AR 332, 549, 1021. Framaco is bound by this representation. Framaco also represented in its approved small business subcontracting plan that it would subcontract approximately [* * *]% of the $95 million total project value, and the dollar value attributed to subcontracting was approximately [* * *] million thus supporting this representation. AR 1219.54, 1215.64. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': The Small Business Contracting Plan listed six types of small business concerns: Small Business, Small Disadvantaged Business, Woman\u8211Owned Small Business, HUBZone Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, and Other Than Small Business. AR 371. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 044 - Boarhog LLC v United States.doc, Paragraph with 'The Rule of Two': Boarhog is a small business headquartered in San Diego, California. Compl. \u182 5. On September 2, 2014, the Navy issued a competitive solicitation for a contract to provide engineering, logistical, and clerical support for U.S. Naval ships and vessels serviced in the Naval Region Southeast. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': Plaintiff Midwest Fence Corporation challenges federal and state programs that offer advantages in highway construction contracting to disadvantaged business enterprises, known as DBEs. For purposes of federally funded highway construction, DBEs are small businesses that are owned and managed by \individuals who are both socially and economically disadvantaged,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': . DBEs are small businesses owned and controlled by socially and economically disadvantaged individuals. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': IDOT uses a number of race- and gender-neutral initiatives to facilitate DBE participation in its contracts, including a DBE mentoring program, a highway construction training program, a Small Business Initiative to encourage smaller firms to participate in competitive bidding on prime contracts, a Small Business Advisory Committee to provide IDOT with input on small business issues, and an \unbundling\ effort to reduce contract size so that a greater range of businesses can bid. IDOT also operates DBE resource centers, works to eliminate barriers in the process required to qualify firms to bid on prime contracts, hosts networking and industry forums, and engages in numerous other efforts to draw DBEs into the market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': Like IDOT, the Tollway uses race- and gender-neutral measures such as unbundling contracts, implementing a Small Business Initiative, partnering with other agencies to provide supportive services, conducting seminars on doing business with the Tollway, and making information available on its website. Those measures have not produced substantial DBE participation, however, so the Tollway also sets DBE participation goals. It does so one contract at a time. Most of its goals are achieved through subcontract dollars. It sets those goals by comparing line items in its contracts to an availability table in a 2006 National Economic Research Associates study, which identifies DBE availability by industry code and serves as evidence supporting the Tollway\rquote s DBE program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': . For instance, the regulations specifically encourage states to make contracts \more accessible to small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': . Suggested means include establishing \a race-neutral small business set-aside for prime contracts under a stated amount,\ \u167 26.39(b)(1); facilitating the \ability of consortia or joint ventures consisting of small businesses, including DBEs, to compete for and perform prime contracts,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': \u167 26.39(b)(4); and \ensuring that a reasonable number of prime contracts are of a size that small businesses, including DBEs, can reasonably perform,\ \u167 26.39(b)(5). As USDOT argues, the federal program \explicitly contemplates [DBEs\u8217] ability to compete equally by requiring States to report DBE participation as prime contractors and makes efforts to develop that potential.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': Examples of successful FFP contracts include our work at the U.S. Marines Corps, where enhancements are included as part of our regular software releases and small businesses fulfill highly custom development requests by building the top of the foundation layer. Likewise, U.S. Immigration and Customs Enforcement continues to expand Palantir capabilities through a FFP contract that includes regular software updates and custom enhancements requiring less than a set number of development hours. More recently, following open competition, we were awarded a BPA for the IC ITE expansion at DIA [Defense Intelligence Agency] available to all IC agencies and affording a COTS solution at a FFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': which the Army stated was an opportunity to \[p]rovide a forum to answer Industry\rquote s questions and elicit their feedback regarding to [sic] the elements of the Increment 2 Acquisition Strategy and Acquisition Plan such as small business involvement and Data Management considerations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2015, the Army issued a third Request for Information, which \[w]as released to determine if [the] rule of two exists, as defined in FAR [Federal Acquisition Register] 19.502, and if a small business set-aside is appropriate for Increment 2 development.\ Palantir indicated that it was not a small business and, as with the previous Requests for Information, responded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': On December 16, 2015, the Army issued a recommendation for issuance of the solicitation, in which Ms. Shyu, as the Assistant Secretary of Defense (Acquisition), stated that DCGS\u8211A Increment 1 was \fully operational,\ but its \data architecture is over 10 years old and is based upon technology that is nearing obsolescence, with no growth margin.\ Ms. Shyu continued: \Increment 2 will provide a new Data Management Architecture, a new Workflow Management capability, improved fusion and pattern analysis, cyber security upgrades, upgrades to the DCGS Integrated Backbone and usability enhancements.\ After Ms. Shyu\rquote s recommendation for issuance of the solicitation, on December 23, 2015, the Army issued the solicitation at issue in this protest, Request for Proposals No. W56KGY\u821116\u8211R\u82110001, for engineering, manufacturing, and development services. The solicitation required a single contractor to be the system data architect, developer, and integrator for DCGS\u8211A Increment 2. The solicitation had four evaluation factors: (1) Technical; (2) Cost/Price, (3) Past Performance, and (4) Small Business Participation Plan. The solicitation contemplated the award, on a best value basis, of a single indefinite-delivery, indefinite-quantity contract, with the simultaneous issuance of a cost-reimbursement type task order and the period of performance contemplated a six year term from contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': , contended that \the FAR does not authorize the use of IDIQ contracts for a major construction project,\ relying on \the anti-bundling provision of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': , which requires \u8216each Federal agency\u8217 to \u8216avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors,\u8217 and the similar limitation on \u8216consolidation\u8217 of procurement in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': Examples of FFP contracts include our work at the U.S. Marines [sic] Corps, where enhancements are included as part of our regular software releases and small business [sic] fulfill highly custom development requests by building the top of the foundation layer. Likewise, U.S. Immigration and Customs Enforcement continues to expand Palantir capabilities through a FFP contract that includes regular software updates and custom enhancements requiring less than a set number of development hours. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 047 - Palantir USG Inc v United States.doc, Paragraph with 'The Rule of Two': Inform Increment 2 on the role of small business[.]\ (emphasis in original). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 049 - Professional Service Industries Inc v United States.doc, Paragraph with 'The Rule of Two': at 153. Additionally, there was a small business subcontracting plan evaluation factor, but it was not weighted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 053 - Oxford Development Co v United States.doc, Paragraph with 'The Rule of Two': . Moreover, the issues relating to past performance and small business status would be incomprehensible without the knowledge that the intervenor was a one-off entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 053 - Oxford Development Co v United States.doc, Paragraph with 'The Rule of Two': (rejecting request that evaluation scores be redacted). The Court supposes it is possible that in an on-going procurement, knowledge of the value attached to a particular feature could be akin to finding the answer key for an examination. But nothing of the sort is involved here. The mere mention of the government\rquote s use of a fifty-point scale in evaluating technical factors reveals nothing to the advantage of future offerors. The agency\rquote s peculiar decision to convert prices to points using the same scale could have been problematic had the rankings been different and had the points been dispositive rather than used for guidance. Knowledge that such an approach might be followed cannot possibly advantage an offeror. And the fact that three points were awarded for small business status could not affect the bidding strategy of any offeror\u8212you are either small or you\rquote re not. The requests of the plaintiff and the government to redact such information are unfounded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'The Rule of Two': On March 1, 2016, the VA issued a solicitation for electrical services in order to upgrade the Monument Circle lighting circuit at Wood National Cemetery in Milwaukee, Wisconsin. Complaint (hereinafter \Compl.\) at 6. The Solicitation is a 100 percent Service Disabled Veteran Owned Small Business (\SDVOSB\) set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'The Rule of Two': The Solicitation includes NAICS code 238210 and specifies that offerors should have a size standard of $ 15 million. AR 4. NAICS code 238210 is not included in ACG\rquote s SAM registry. AR 273. However, lacking a specific NAICS code will not preclude a potential offeror from receiving a procurement award. The Small Business Administration\rquote s (\SBA\) website says the following: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'The Rule of Two': Finally, plaintiff argues that ACG should not have been awarded the contract because it was not a registered service disabled, veteran-owned small business (\SDVOSB\). MJAR at 12. Plaintiff points out that the C.F.R. requires that \at least 25 percent of the cost of the contract performance incurred for personnel will be spent on the concern\rquote s employees or the employees of other eligible service-disabled veteran-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 056 - Tikigaq Construction LLC v United States.doc, Paragraph with 'The Rule of Two': at 117, 128-29. The RFP limited the competition to small business concerns certified under the United States Small Business Administration\rquote s (\SBA\) 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protestor, as small and disadvantaged business located in historically underutilized business zone (HUBZone), waived right to protest contract awarded in competitive procurement by Air Force to provide radiation-monitoring badges for personnel at air base; protestor alleged that award was unlawful due to Air Force\rquote s failure to set aside contract for small business and failure to conduct size determination, but Air Force\rquote s decision not to set aside procurement for small business was reflected on face of solicitation, protestor did not challenge that decision, which was term of solicitation, prior to deadline for submitting proposals, and competition was open to businesses of any size in absence of successful challenge by protestor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Approximately one month after the Air Force posted the NOI to award a sole-source contract, plaintiff sent a letter dated October 10, 2014, to the Small Business Administration (\SBA\) objecting to the Air Force\rquote s contract award to RDC. 3rd Am. Compl. \u182 29; Pl.\rquote s Ex. J. In its letter, plaintiff stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': By letter dated October 23, 2014, the SBA responded to Senator Warner acknowledging receipt of, and the bases for, plaintiff\rquote s protest. Pl.\rquote s Ex. H at 36-38. It explained that plaintiff\rquote s protest concerned whether the sole-source award to RDC was proper, whether the Air Force adhered to federal regulations, and whether there was a size standard requirement for the procurement and, if so, whether RDC qualified as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': On August 15, 2014, the Air Force posted a revised SSS to FBO with a response time of 5 calendar days. As a result of this second posting, one response was received from ... RDC .... No response was received from ... Proxtronics ..., or any other small business firms. Under Federal regulations ..., the Air Force was not required to set the procurement aside for small business because the FBO postings did not show that two or more small businesses existed which had the competence and capacity to satisfy the requirement at a fair market price. The Air Force had received only one response to both the initial and revised SSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Based on the market research findings, there was no basis for the Air Force to set this acquisition aside for small business. Therefore, whether [RDC] met the size standard of 500 employees was not a factor in making the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': The solicitation reflected that the procurement was not set aside for a small business, and provided a deadline of September 10, 2015, for the submission of proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': It also found that both offerors were small businesses. Hasen Decl. \u182 12. The Air Force then determined, after ascertaining the total evaluated price for each proposal, that RDC proposed a lower unit price than plaintiff. Pl.\rquote s Ex. S at 35. Thus, in accordance with the terms of the solicitation, the contracting officer selected RDC for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': \u182\u182 26-28, 31-32. Plaintiff further alleges, with respect to the 2015 procurement, that the Air Force failed to set aside the contract for a small business and failed to conduct a size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Having concluded that plaintiff cannot maintain its protest of the 2014 procurement, the court turns its attention to the 2015 procurement. With respect to this procurement, plaintiff alleges that the Air Force failed to set aside the contract for a small business and failed to conduct a size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': As an initial matter, plaintiff has standing to protest the 2015 contract award to RDC. Applying the interested party standard to the facts attendant to the 2015 procurement, the court finds that because plaintiff submitted a timely proposal to the Air Force, plaintiff was an actual offeror. And, because plaintiff had a substantial chance of being awarded the contract (if, as the court must assume for the purposes of its standing analysis, plaintiff\rquote s allegations regarding the Air Force\rquote s failure to set aside the procurement for a small business and failure to conduct a size determination are accurate), plaintiff had a direct economic interest affected by the award of the contract. Nevertheless, the court is unable to entertain plaintiff\rquote s protest because it waived its right to challenge the 2015 procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': On September 2, 2015, the Air Force issued a competitive, brand-name solicitation for Panasonic-brand TLD badges. The procurement was not set aside for a small business. The Air Force received two timely proposals by the September 10, 2015 deadline, one from plaintiff and the other from RDC. The Air Force concluded that both proposals were technically acceptable, that both plaintiff Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': and RDC were small businesses, and that RDC offered the lowest price. It therefore selected RDC for contract award and, on September 16, 2015, awarded the contract to RDC in the amount of $190,000. On September 17, 2015, the Air Force posted the notice of award on the FedBizOpps website and informed plaintiff that it had not been awarded the contract. Plaintiff requested a debriefing, which was provided on September 21, 2015. On December 30, 2015, more than three months after contract award, plaintiff filed its complaint in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': As noted above, plaintiff alleges that the Air Force failed to set aside the contract for a small business and failed to conduct a size determination. As explained in the FAR, \[t]he purpose of small business set-asides is to award certain acquisitions exclusively to small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': (2014). Contracting officers are required to \review acquisitions to determine if they can be set aside for small business,\ and must \perform market research\ before concluding that an acquisition should not be set aside for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': . Necessarily, the decision to set aside an acquisition for a small business must be made prior to issuing the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': (containing the solicitation provisions and contract clauses required when a contracting officer determines that an acquisition should be set aside for a small business). Moreover, contracting officers are required to \accept an offeror\rquote s representation in a specific bid or proposal that it is a small business unless (1) another offeror or interested party challenges the concern\rquote s small business representation or (2) the contracting officer has a reason to question the representation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': . If an offeror wants to challenge another offeror\rquote s small business representation, it must file a protest with the contracting officer \by the close of business of the 5th business day after ... receipt of the special notification from the contracting officer that identifies the apparently successful offeror ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': The Air Force\rquote s decision not to set aside the 2015 procurement for a small business is reflected on the face of the solicitation. And, plaintiff did not challenge that decision\u8212a term of the solicitation\u8212prior to the deadline for submitting proposals. Accordingly, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': , plaintiff waived its right to protest the decision in this court. Furthermore, the fact that plaintiff did not timely challenge the Air Force\rquote s decision not to set aside the 2015 procurement for a small business also disposes of plaintiff\rquote s size determination claim because in the absence of a successful challenge by plaintiff, the competition was open to businesses of any size and, therefore, RDC would have been awarded the contract regardless of its status as a small business. Accordingly, plaintiff\rquote s protest of the 2015 procurement also must be dismissed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': With respect to the 2014 procurement, plaintiff contends that despite the results of the market research, the Air Force knew or should have known that plaintiff was a potential source for TLD badges. Plaintiff further contends that the Air Force learned that plaintiff \filed a small business protest,\ but nevertheless failed to consider the \size standard and anti-trust violation issues\ plaintiff raised. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff then asserts, with respect to the 2015 procurement, that discovery is necessary to determine whether the Air Force complied with the applicable regulations for a small business procurement, claiming that although the Air Force \made the ... 2015 solicitation a small business set aside, with some size standard[, it] did not put the small business information into the solicitation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': at 2. Plaintiff argues that discovery is required to obtain the \small business size standard\ for the procurement, and to obtain proof that RDC is a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': at 5. Further, plaintiff argues that jurisdictional discovery is required to determine whether the Air Force properly conducted market research \to identify small business concerns capable of performing the work\ required by the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': More particularly, with respect to the 2014 procurement, plaintiff argues that despite the results of the market research, the Air Force should have considered plaintiff to be a potential source of TLD badges. However, as defendant correctly points out, the purpose of the Air Force\rquote s initial market research was to identify TLD badge manufacturers. Plaintiff is not a TLD badge manufacturer, but, rather, is a TLD badge distributor. Further, by posting the SSS, the Air Force did, in fact, conduct market research to identify entities that sold TLD badges. Plaintiff failed to respond to the SSS and thus was not included in that market research. Because there is no dispute as to these facts, jurisdictional discovery regarding the Air Force\rquote s market research is unwarranted. Moreover, there is no merit to plaintiff\rquote s argument that the Air Force failed to conduct market research to identify small businesses; the SSS clearly indicated that the Air Force was seeking responses from small businesses to determine whether the procurement should be set aside for one. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Nor is plaintiff is entitled to discovery related to the 2015 procurement. Plaintiff argues that the 2015 procurement was designated as a \small business set aside, with some size standard,\ and seeks discovery to establish that size. Disc. Mot. 2. Plaintiff is mistaken. It is clear from the face of the solicitation that the procurement was not set aside for a small business. Thus, there is no justification upon which plaintiff can legitimately claim a need for discovery to determine the size standard for the procurement. Plaintiff is not entitled to concoct a more desirable set of facts to persuade the court that discovery is appropriate or that a motion to dismiss is unsupported. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Moreover, plaintiff\rquote s contention that discovery is necessary to ascertain whether RDC was a small business lacks merit. Because the 2015 procurement was not set aside for a small business, it is irrelevant whether RDC is a small business. Accordingly, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': jurisdictional discovery regarding whether RDC was a small business is unnecessary. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Additionally, as explained above, there can be no legitimate factual dispute that plaintiff failed to protest the 2015 procurement before the due date for proposals. The contract was awarded on September 16, 2015, but plaintiff did not bring this protest until December 30, 2015, more than three months later, to complain that the 2015 procurement was required to be a small business set-aside and that the awardee, RDC, was not a small business. The waiver doctrine precludes plaintiff\rquote s protest, and there are no facts that plaintiff could obtain through discovery that would alter this conclusion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': For example, in Interrogatory 1, plaintiff requests that defendant \[i]dentify and describe any and all transactions, business deals, loans or investments, or any other professional endeavors you are aware of or have observed between RDC and Panasonic ....\ Disc. Mot. 6. Plaintiff requests in Interrogatory 6 that defendant \[i]dentify any litigation, legal actions, or mediation where you and/or any corporation, LLC or business you contracted with have been named or are involved as a party from January 1, 2010 through the present in any Small Business set aside protest, and/or antitrust violations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff claims that the 2015 procurement both was and was not set aside for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': 3rd Am. Compl. \u182 37 (noting that the SSN indicated that the procurement had not, at that time, been set aside for a small business, and challenging the Air Force\rquote s \failure to set aside\ the procurement for a small business), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with 'The Rule of Two': Disc. Mot. 2 (\Importantly, after filing of the instant action, it was discovered that Defendant made the subject 2015 Solicitation a small business set aside, with some size standard.\). As reflected on the face of the solicitation, the 2015 procurement was not set aside for a small business. Plaintiff fails to allege any facts, supply any evidence, or provide any explanation in support of its contrary contention. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Contract awardee brought post-award bid protest challenging decision by Small Business Administration (SBA) to decertify awardee for Historically Underutilized Business Zone (HUBZone) program. Both parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Contract awardee was \interested party,\ as required for standing to bring claim under Tucker Act regarding decision by Small Business Administration (SBA) to decertify it so that awardee was ineligible for participation in Historically Underutilized Business Zone (HUBZone) program, despite fact that awardee had already begun performance on the contract, since awardee\rquote s claims concerned violations of procurement law, rather than issues of contract administration, and SBA\rquote s decision to decertify awardee gave rise to a non-trivial competitive injury, in that awardee was no longer eligible to receive award it secured in connection with original solicitation, which allowed awardee\rquote s competitor to receive the award instead. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': All 82 individuals who worked a total of at least 40 hours during pay periods covering period for which contract awardee produced payroll records in response to its bid protest would be treated as \employees\ within meaning of Historically Underutilized Business Zone (HUBZone), for purposes of determining whether contract awardee was a small business concern so as to be eligible for certification to participate in the HUBZone program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims would not supplement administrative record on review of Small Business Administration\rquote s (SBA) procurement decision with payroll records and letter from SBA proposing to decertify contract awardee from Historically Underutilized Business Zone (HUBZone) program under prior regulations, which allegedly showed that SBA\rquote s determination that awardee did not have the requisite number of employees living in HUBZone areas for certification under the program was incorrect, where there was no allegation that court could not effectively review SBA\rquote s decision unless it considered the documents. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Even if the Small Business Administration (SBA) erred in excluding eight employees from contract awardee\rquote s list of Historically Underutilized Business Zone (HUBZone) resident employees, so that contract awardee could not meet 35% residency requirement for HUBZone certification, contract awardee was not prejudiced by any such error, since awardee scrupulously tracked its HUBZone status and had no reason to be, and in fact was not caught off-guard when census tract where those eight employees resided ceased to be qualified for low-income housing credit. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': The Small Business Administration (SBA) properly excluded three employees from contract awardee\rquote s list of Historically Underutilized Business Zone (HUBZone) resident employees, so that contract awardee could not meet 35% residency requirement for HUBZone certification, where awardee failed to provide sufficient information or supporting documentation to establish that those four employees resided in a HUBZone, since none of the documents submitted were either a driver\rquote s license or voter registration, and awardee did not submit a notarized statement declaring HUBZone residency as specified in SBA\rquote s instructions explaining what to do if driver\rquote s license or voter registration was not available. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': of Justice, Washington, DC, for Defendant. Beverley E. Hazelwood, Trial Attorney, Office of General Counsel, U.S. Small Business Administration, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Keywords: Post-Award Bid Protest; Small Business Administration; HUBZone Program; HUBZone Status Protest; Bid Protest Jurisdiction; 35% Residency Requirement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': . Further, the Court concludes that the Small Business Administration (SBA) did not err in deciding that certain individuals Dorado claims as its employees did not reside in HUBZones at the time of the award. Dorado concedes that if these employees do not count towards its total number of HUBZone-resident employees, Dorado cannot meet the HUBZone program\rquote s requirement that 35% of its employees reside in HUBZones at the time of the award. Therefore, Dorado\rquote s motion for judgment on the administrative record is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': To \encourage[ ] economic development in historically underutilized business zones\\u8212i.e., \HUBZones\\u8212Congress has created the HUBZone program for qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Reauthorization Act of 1997, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': , Tit. VI, 111 Stat 2592, 2627 (1997). Under the program, qualified small businesses receive federal contracting assistance in the form of contract set-asides and other preferences. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': To participate in the program, a small business must first obtain certification from SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': . To become certified, the small business must (among other things) meet the program\rquote s 35% residency requirement, which mandates that \[a]t least 35% of the [business\rquote s] employees must reside in a HUBZone.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': \u167 126.200(b)(4). After obtaining certification, a small business must still meet a variety of other requirements to secure a HUBZone award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': \u167 126.601. As is most relevant here, the business \must be a qualified HUBZone [small business] both at the time of its initial offer and at the time of [the] award in order to be eligible for a HUBZone contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': \u167 126.601(c). Thus, the small business must meet the 35% residency requirement both on the date of the offer and at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': On June 11, 2015, the U.S. Department of the Air Force (Air Force) issued Request for Proposals (RFP) No. FA3047\u821115\u8211R\u82110011 to secure \Municipal Solid Waste collection and disposal\ services for its installations at Joint Base San Antonio. Administrative Record (AR) Tab 3 at 11, 128. The RFP was 100% set aside for HUBZone small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': Finally, the AA/GCBD determined that because \Dorado was not an eligible HUBZone small business concern at the time of award, it is not necessary to evaluate compliance at the time of offer.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 058 - Dorado Services Inc v United States.doc, Paragraph with 'The Rule of Two': (asserting bid protest jurisdiction over challenge to SBA determination that plaintiff was not a qualified HUBZone small business concern, which led to cancellation of a contract awarded to plaintiff). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 059 - Allied Construction Industries v City of Cincinnati.doc, Paragraph with 'The Rule of Two': The apprenticeship requirements in Section 320-5 of the CMC require bidders and the bidders\rquote subcontractors to participate in an apprenticeship program for the primary apprenticeable occupation on the project that has graduated at least one apprentice from the apprenticeship program for each of the past five years. CMC 320-5. The apprenticeship requirement is inapplicable, however, a) if the construction contract is less than $400,000, and b) to a subcontractor that is a registered small business enterprise with the MSD or is a small business enterprise certified by the City, if the value of the subcontract with that subcontractor is under $250,000. CMC 320-5, 320-1-C1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 060 - Aegis Technologies Group Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation was a small business set-aside and provided that the Air Force would make an award of one IDIQ contract on the basis of a \best value, tradeoff source selection conducted in accordance with FAR Part 15, as supplemented by the Defense Federal Acquisition Regulation Supplement (DFARS) Part 215, Department of Defense (DoD) Source Selection Procedures, Air Force Federal Acquisition Regulation Supplement (AFFARS) Part 5315, and AFFARS Mandatory Procedures (MP) 5315.3.\ AR 395. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed pre-award bid protest challenging decision of Department of Veterans Affairs (VA) to award sole-source contract to provide eligibility verification services for Vets First Contracting Program, that awarded contracts to small businesses owned by veterans and service-disabled veterans, to proposed awardee allegedly in violation of Competition in Contracting Act (CICA) and for which proposed awardee was allegedly ineligible due to organizational conflict of interest (OCI). Contractor moved for temporary restraining order and preliminary injunction preventing VA from awarding contract pending resolution of merits of bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protestor was not actual or prospective bidder whose direct economic interest would be affected by award of verification services contract by Department of Veterans Affairs (VA), and thus, protestor lacked standing as \interested party,\ within meaning of Tucker Act, to pursue bid protest challenging VA\rquote s decision to award sole-source contract, since protestor did not satisfy small business size standard applicable to initial solicitation for contract, subsequent award of sole-source contract, or any new solicitation for verification services contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protester seeking preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest lacked likelihood of success on merits of claim that VA\rquote s award decision violated Competition in Contracting Act (CICA), that did not apply in case of procurement procedures otherwise expressly authorized by statute, since VA justified sole-source award under Veterans Benefits, Health Care, and Information Technology Act, authorizing award of contract to veteran-owned small business using other than competitive procedures, and contracting officer determined that proposed awardee satisfied requirements of that Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of the hardships weighed against granting preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest, where delay of award would result in increased costs and disruption in critical services needed to support VA\rquote s program awarding contracts to small businesses owned by veterans and service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': Public interest was best served by denying preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest, where enjoining award could result in backlog in verification process for VA\rquote s program awarding contracts to small businesses owned by veterans and service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': The United States Department of Veterans Affairs awards contracts to businesses owned by veterans and service-disabled veterans under the Vets First Contracting Program (\Vets First Program\). Am. Compl. at \u182 10; Partridge Decl. \u182 2. To identify veterans eligible to participate in the Vets First Program, the VA must verify that applicants seeking to participate in the program are either a veteran-owned small business or a service-disabled veteran-owned small business. Am. Compl. at \u182 11. The VA\rquote s Center for Verification and Evaluation (the \CVE\), an office within the agency\rquote s Office of Small & Disadvantaged Business Utilization, is responsible for overseeing this verification process Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': On June 29, 2016, the VA issued a solicitation seeking proposals to oversee the Vets First Program\rquote s verification process (the \June 2016 Solicitation\). Am. Compl. at \u182\u182 41-42; Def. Resp. at 4-5. It is undisputed that LHG was not eligible to compete for that contract as a prime contractor, because LHG did not meet the small business size standards for the North American Industry Classification System (\NAICS\) code applicable to the solicitation. Am. Compl. \u182 41; Def. Resp. at 5. In response to a protest filed before the Government Accountability Office by another contractor, the VA canceled the June 2016 Solicitation on August 2, 2016. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': . This Act allows the VA to award a contract to a veteran-owned small business using other than competitive procedures, if three conditions are met: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': In this regard, it is undisputed that LHG is not a small business under the NAICS code that applied to the June 2016 Solicitation. Am. Compl. \u182 41; Partridge Decl. at Ex. 5, 8. It is also undisputed that this same NAICS code apples to the sole-source award at issue in this dispute. Partridge Decl. at Ex. 9. Given this, it is reasonable to assume that this NAICS code would also apply to a new solicitation for this work and that LHG would be ineligible to compete for the award of that contract. And so, LHG has not demonstrated thus far in the litigation that it has standing to bring its bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'The Rule of Two': In this case, the current evidentiary record shows that, in awarding the subject contract to GCC, the VA relied upon the Veterans Benefits, Health Care, and Information Technology Act, which provides the contracting officer with the authority to award a contract to a veteran-owned small business using other than competitive procedures under certain conditions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 068 - Omran Holding Group v United States.doc, Paragraph with 'The Rule of Two': (finding an unsuccessful offeror had standing to challenge the award to the awardee, the only technically acceptable small business in the small business set-aside procurement); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 068 - Omran Holding Group v United States.doc, Paragraph with 'The Rule of Two': (ordering the agency\rquote s decision finding the protestor ineligible as a service-disabled veteran-owned small business (SDVOSB) to be set aside, and its status as an approved SDVOSB vendor reinstated in the relevant database, after finding the agency violated the protestor\rquote s due process rights in reaching its decision). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Small business that bid on Department of Defense (DOD) contracts brought action challenging Small Business Administration\rquote s (SBA) 8(a) business development program, which extended government contracting opportunities to individuals whose access to opportunities was impaired due their experience of racial or ethnic prejudice or cultural bias, under Due Process Clause. The United States District Court for the District of Columbia, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , granted summary judgment to SBA and DOD. Small business appealed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': definition of \socially disadvantaged\ in Small Business Act 8(a) program did not contain a racial classification; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': statutory goal of Small Business Act was not a racial classification that subjected Act\rquote s 8(a) program to strict equal protection scrutiny; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': provision of Small Business Act that declaring national interest in Act did not create a presumption that all individuals who were members of certain racial groups were socially disadvantaged, and thus did not create a racial classification that subjected 8(a) program to strict equal protection scrutiny; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': provision of Small Business Act that directed Administrator of SBA to determine whether a group had been subjected to prejudice or bias did not create a racial classification that subjected 8(a) program to strict equal protection scrutiny; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Congress did not unconstitutionally delegate legislative power to SBA in Small Business Act\rquote s 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Fact that parties and district court believed that Small Business Act (SBA) 8(a) program for contracting with socially and economically disadvantaged individuals was subject to strict scrutiny did not relieve Court of Appeals of its duty to assess independently the legal issue before it. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Definition of \socially disadvantaged\ in Small Business Act 8(a) program for government contracting with socially and economically disadvantaged individuals, which included \those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities,\ did not contain a racial classification, and thus strict scrutiny of 8(a) statute was not warranted based on such definition, in equal protection challenge to statute, where definition envisioned an individual-based approach that focused on experience rather than a group characteristic, a person of any racial or ethnic background may have suffered such discrimination, causing them to fall within definition, and not all members of a minority group had necessarily been subjected to racial or ethnic prejudice or cultural bias. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Statutory goal of Small Business Act, which was to award a certain percentage of government contracts to socially disadvantaged small business concerns, was not a racial classification that subjected Act\rquote s 8(a) program for contracting with socially and economically disadvantaged individuals to strict equal protection scrutiny, where Act\rquote s goal applied to more than just the 8(a) program and contracts made to socially disadvantaged small business concerns without the benefit of the 8(a) program\rquote s sheltered market still counted toward Act\rquote s goals, and \socially and economically disadvantaged individuals\ was not defined by the business owners\rquote race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167\u167 2[8], 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act that declared that it was in the nation\rquote s interest to expeditiously ameliorate the conditions of socially and economically disadvantaged groups so that they could fully participate in the economy and obtain social and economic equality did not create a presumption that all individuals who were members of certain racial groups were socially disadvantaged, and thus did not create a racial classification that subjected Act\rquote s 8(a) program for contracting with socially and economically disadvantaged individuals to strict equal protection scrutiny, where provision was located in findings section of Act, not in operative provision setting forth 8(a) program\rquote s terms and criteria for participation, and Congress\rquote s findings that individual business owners may have been unfairly subjected to race-based disadvantages did not impose or contemplate any race-based classification in statutory response. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167\u167 2[2], 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act that directed Administrator of Small Business Administration (SBA) to determine whether a group had been subjected to prejudice or bias, for purpose of identifying socially disadvantaged individuals who were eligible for participation in Act\rquote s 8(a) program for government contracting with socially and economically disadvantaged individuals, did not create a racial classification that subjected 8(a) program to strict equal protection scrutiny; although provision contemplated that SBA would identify group-salient traits and accompanying forms of bias that it could consider when evaluating claims of social disadvantage, it also contemplated that other determinations unrelated to group-based characteristics could be made and did not mandate that SBA employ a racial classification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167\u167 2[8], 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Small Business Act\rquote s 8(a) program for government contracting with socially and economically disadvantaged individuals was supported by a rational basis, as required for Act to survive small business owner\rquote s equal protection challenge to statute under rational-basis review, where Act sought to remedy effects of racial or ethnic prejudice or cultural bias that impeded business formation and development and suppressed fair competition for government contracts, and counteracting discrimination was a legitimate government interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Because Court of Appeals would have affirmed district court\rquote s grant of summary judgment to government even if district court abused its discretion in making its admissibility determinations regarding reports and deposition testimony of government\rquote s expert witnesses and of small business\rquote s expert witnesses, Court of Appeals would not review district court\rquote s admissibility determinations on small business\rquote s appeal of district court\rquote s determination that Small Business Act\rquote s 8(a) program for government contracting with socially and economically disadvantaged individuals did not violate equal protection, where expert witness testimony was not necessary to, nor in conflict with, Court of Appeals\rquote conclusion that 8(a) program was subject to and survived rational-basis review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Congress did not unconstitutionally delegate legislative power to Small Business Administration (SBA) in Small Business Act\rquote s 8(a) program for government contracting with socially and economically disadvantaged individuals, where Congress\rquote s delegation of power to SBA to enter into contracts with other federal agencies and to subcontract with socially and economically disadvantaged small business concerns was not broader than other delegations that directed agencies to act in the public interest or in a way that was fair and equitable, and Act\rquote s definition of \socially disadvantaged\ provided required intelligible guidance to SBA to implement 8(a) program. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Plaintiff\u8211Appellant Rothe Development, Inc. (Rothe) alleges that the statutory basis of the Small Business Administration\rquote s 8(a) business development program, Amendments to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ), violates its right to equal protection under the Due Process Clause of the Fifth Amendment. Congress created the 8(a) program to extend government contracting opportunities to small business owners whose access to such opportunities was impaired by those individuals\u8217 experience of racial or ethnic prejudice or cultural bias. Rothe contends that the statute contains a racial classification that presumes that certain racial minorities are eligible for the program. But, in fact, Congress considered and rejected statutory language that included a racial presumption. Congress chose instead to hinge participation in the program on the facially race-neutral criterion of social disadvantage, which it defined as having suffered racial, ethnic, or cultural bias. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': The challenged statute authorizes the Small Business Administration (SBA) to enter into contracts with other federal agencies, which the SBA then subcontracts to eligible small businesses that compete for the subcontracts in a sheltered market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Rothe is a small business that bids on Defense Department contracts, including the types of subcontracts that the SBA awards to economically and socially disadvantaged Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': We disagree, because the provisions of the Small Business Act that Rothe challenges do not on their face classify individuals by race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': . This case does not permit us to decide whether the race-based regulatory presumption is constitutionally sound, for Rothe has elected to challenge only the statute. Rothe alleged in its complaint that the \racial classification of section 8(a) of the Small Business Act, defined herein, is facially unconstitutional.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': The central question on appeal is whether section 8(a) of the Small Business Act warrants strict judicial scrutiny. The parties and the district court seem to think it does. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': ). Rothe advances only the first theory\u8212that, on its face, section 8(a) of the Small Business Act contains a racial classification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': 1 App. 68 (Compl. \u182 1) (seeking \to obtain a declaration that the racial classification of section 8(a) of the Small Business Act, defined herein, is facially unconstitutional\). \[A]ll racial classifications imposed by government \u8216must be analyzed by a reviewing court under strict scrutiny.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': According to Rothe, three provisions instantiate the statute\rquote s racial classification: (1) the statutory definition of socially disadvantaged individuals; (2) a government-wide goal of letting 5% of federal contracts to small businesses owned by socially disadvantaged individuals; and (3) the findings section of the statute, which Rothe contends includes a presumption that members of the specified racial groups are socially disadvantaged. In our view, none of the three components\u8212separately or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': or to any other portions of the Small Business Act. As a result, the only question before us is whether the statute itself classifies based on race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': \to award a certain percentage of prime- and sub-contracts to socially disadvantaged small business concerns.\ 1 App. 72\u821173 (Compl. \u182\u182 24\u821125). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': establishes several government-wide contracting targets, including an aspirational goal that at least five percent of the total value of the government\rquote s prime contract and subcontract awards for each fiscal year go to \small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': (declaring that one purpose of section 8(a) is to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals so that such concerns can compete on an equal basis in the American economy\). It explains that \many [socially and economically disadvantaged] persons are socially disadvantaged because of their identification as members of certain groups that have suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , they reflect Congress\rquote s determination that many individual business owners were socially disadvantaged because people who would otherwise have done business with them assumed, based on their group-related identifiers (race, ethnicity or culture), that they had disqualifying shortcomings. Congress reasoned that business owners, underrated due to bias or prejudice, were likely to have been deprived of the opportunities and experiences that help small businesses to develop. Congress\rquote s findings that individual business owners may have been unfairly subjected to race-based disadvantage do not, however, impose or necessarily contemplate any race-based classification in the statutory response, nor do such findings supplant the race-neutral definition of social disadvantage found in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , which defines socially disadvantaged individuals,] with respect to whether a group has been subjected to prejudice or bias shall be made by the Administrator after consultation with the Associate Administrator for Minority Small Business and Capital Ownership Development. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , which defines socially disadvantaged individuals,] with respect to whether a group has been subjected to prejudice or bias shall be made\ by the SBA Administrator after consultation with the SBA official responsible for minority small business development. To be sure, that clause contemplates that the SBA will identify group-salient traits and accompanying forms of bias that it may consider when evaluating claims of social disadvantage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , why would Congress announce a racial presumption in the roundabout way Rothe envisions when it straightforwardly enacted a racial presumption elsewhere in the Small Business Act? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': (When \Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.\ (citation omitted)). In section 8(d) of the Small Business Act\u8212a provision not at issue in this case\u8212Congress directed agencies to include in their prime contracts a clause for subcontracts that states, in part, that the \contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, and any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Small Business Act contains a race-based presumption. 515 U.S. at 207, 115 S.Ct. 2097 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': (referring to \existing administrative programs promoting minority opportunity in government procurement, particularly those related to \u167 8(a) of the Small Business Act of 1953\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': A State can, of course, act \to undo the effects of past discrimination\ in many permissible ways that do not involve classification by race. In the particular field of state contracting, for example, it may adopt a preference for small businesses, or even for new businesses\u8212which would make it easier for those previously excluded by discrimination to enter the field. Such programs may well have racially disproportionate impact, but they are not based on race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Rothe\rquote s first argument is premised on the idea that Congress has created a racial classification. As we have explained, Congress has done no such thing. Rothe\rquote s alternative argument also fails. Congress\rquote s delegation of power to the SBA to enter into contracts with other federal agencies and subcontract with \socially and economically disadvantaged small business concerns,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': My colleagues hold that the provisions of the Small Business Act (Act) at issue in this case are \facially race-neutral.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Administration\rquote s (SBA) implementation follows from its view that the statute contains a racial classification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': I. Section 8(a) of the Small Business Act Contains a Racial Classification Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , and the Small Business Act is no exception. Indeed, the section 8(a) program at issue classifies in all sorts of ways; as an example, for certain government contracts, it offers a preference to businesses that are \small\ if owned by \socially disadvantaged\ individuals who are also \economically disadvantaged.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Small Business and Capital Ownership Development.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Maj. Op. at 68 \u8211 69. Under the original House provision, only Black Americans and Hispanic Americans were presumed to be socially disadvantaged; an individual who was not a member of one of these two groups had to show \impediments to establishing, maintaining, or expanding a small business concern which are not generally common in kind or degree to all small business persons and which result from both social and economic causes over which such individual has no control.\ H.R. Rep. No. 95\u8211949, at 24\u821125. The definition of social disadvantage ultimately enacted, however, is different\u8212it focuses on \prejudice\ or \bias\ experienced because of group membership, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Designation of Eligibility Asian Pacific Americans Under Section 8(a) and 8(d) of the Small Business Act, 44 Fed. Reg. 42,832, 42,832 (July 20, 1979) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': The Small Business and Capital Ownership Development Program, 44 Fed. Reg. 30,672, 30,674 (May 29, 1979) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , 840. The legislative history of the 1980 Amendment is telling. A May 1980 House Small Business Committee Report states: \Present law specifies that, subject to certain specified constraints, \u8216socially disadvantaged\u8217 persons include \u8216black Americans, Hispanic Americans, native Americans and other minorities.\u8217 Therefore, these named groups Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': (1980) (Senate Select Committee on Small Business report on Senate bill with virtually identical provision). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': (\The contractor shall presume that socially and economically disadvantaged individuals include ... any other individual found to be disadvantaged by the [SBA] pursuant to section 8(a) of the Small Business Act.\). Given the different contexts, that the Congress would use different language to further the same overall goal should come as no surprise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': , the Congress wants the SBA to award prime contracts to small businesses based exclusively on the business owner\rquote s showing that he has personally experienced \prejudice\ or \bias.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': . But when such a chorus of voices rises in favor of a particular statutory interpretation, we should be slow to turn a deaf ear. In my view, the statutory language is plain and, for the reasons stated, the majority\rquote s defense of its alternative reading falls short of the mark. I would hold that the challenged portions of the Small Business Act include a racial classification and would therefore subject them to strict scrutiny. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': Small Business Act of 1958, Pub. L. No. 85\u8211536, \u167 8(a)(1)\u8211(2), 72 Stat. 384, 389\u821191, but otherwise cite the codified versions of the relevant provisions. We refer to the contracting program as a whole, including the SBA\rquote s regulations, as the \8(a) program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': and the \goal to award a certain percentage\ of government contracts \to socially disadvantaged small business concerns\ together \comprise \u8216section 8(a)\u8217s racial classification\u8217 \). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 071 - Rothe Development Inc v United States Department of Defense.doc, Paragraph with 'The Rule of Two': When the SBA first promulgated the regulatory presumption on December 1, 1980, it stated: \Congress did not mean to bestow 8(a) program benefits indiscriminately on small business persons.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 072 - McConnell Jones Lanier And Murphy LLP v United States.doc, Paragraph with 'The Rule of Two': at 42. The RFP was a small business set-aside that contemplated the award of a cost-plus-incentive-fee contract for a two-year base period with three one-year options. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'The Rule of Two': Original equipment manufacturer (OEM) of proprietary heat exchanger for aircraft filed bid protest challenging Defense Logistics Agency-Aviation\rquote s (DLA) decision to qualify a new manufacturer to supply heat exchanger and challenging DLA\rquote s issuance of solicitation for heat exchanger on a Service-Disabled Veteran-Owned Small Business (SDVOSB) sole-source basis. Competitor intervened as defendant. Parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims did not have jurisdiction to decide issue of whether new manufacturer of aircraft heat exchangers was entitled to Service-Disabled Veteran-Owned Small Business (SDVOSB) status, raised by original equipment manufacturer (OEM) of heat exchangers in its challenge to Defense Logistics Agency-Aviation\rquote s (DLA) qualification of new manufacturer as source of heat exchangers and DLA\rquote s decision to issue solicitation for heat exchangers on SDVOSB sole source basis to new manufacturer, where Small Business Administration (SBA) had jurisdiction over SDVOSB status determinations and SBA was still considering protest of new manufacturer\rquote s status at time OEM filed bid protest. Small Business Act \u167 2[36], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'The Rule of Two': This action comes before the Court on the parties\rquote cross-motions for judgment on the Administrative Record. Plaintiff, TAT Technologies, LTD (\TAT\), challenges the Defense Logistics Agency\u8212Aviation\rquote s (\Agency\) decision to qualify Wall Colmonoy Corporation (\WCC\) as a legitimate source to manufacture a heat exchanger originally developed by TAT. Plaintiff alleges that the Agency failed to follow applicable law and conduct a reasonable inquiry into WCC\rquote s qualification to manufacture the heat exchanger and inappropriately issued a solicitation on a Service-Disabled Veteran-Owned Small Business (\SDVOSB\) sole-source basis. Plaintiff requests that the Court do the following: (1) declare that the Agency\rquote s qualification of WCC to manufacture the heat exchanger was arbitrary, capricious, an abuse of discretion, and contrary to law; (2) require the Agency to perform or otherwise request an inquiry into WCC\rquote s right and ability to produce the heat exchanger, in strict accordance with applicable law; (3) enjoin the Agency from recognizing WCC as a qualified source of supply pending such inquiry; (4) require the Agency to procure the heat exchanger only from qualified sources; (5) declare that the Agency\rquote s SDVOSB sole source set-aside decision was arbitrary, capricious, an abuse of discretion, and contrary to law; and (6) enter a permanent injunction preventing the Agency from accepting offers under the Solicitation, as currently drafted. For the following reasons, the Court must deny plaintiff\rquote s motion for judgment on the administrative record and grant defendant and defendant-intervenor\rquote s motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'The Rule of Two': The Agency temporarily suspended its SDVOSB requirement after receiving TAT\rquote s March 21, 2016, email. AR 666. On March 30, the Agency re-opened the solicitation and stated its intent to award to WCC. AR 699. The Agency issued the Solicitation on May 31, 2016, which stated that the Agency intended to solicit with a SDVOSB set-aside to WCC. AR 704. TAT has complained multiple times that WCC was not in fact an SDVOSB because it is a wholly-owned subsidiary of another company. AR 642, 645; 744-70. On June 6, 2016, TAT\rquote s counsel presented documentation to the contracting officer suggesting that WCC is owned by another company, and not a service-disabled veteran. Defendant\rquote s Cross-Motion for Judgment on the Administrative Record (hereinafter \D\rquote s CMJAR\) at 12. On July 12, 2016, the contracting officer submitted a protest to the Small Business Administration (\SBA\) questioning WCC\rquote s SDVOSB status. The SBA has not yet decided the protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'The Rule of Two': The final issue is whether WCC is a valid disabled veteran owned small business. Plaintiff\rquote s argument raises the question of whether this Court has the jurisdiction to decide this issue. The simple answer is no. By statute, jurisdiction over SDVOSB status lies with the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 075 - Dellew Corporation v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on contract with United States Army to provide logistical support services at Army barracks in Hawai\rquote i filed post-award bid protest seeking declaration that award of the small business set-aside, best-value contract was contrary to law and the terms of government\rquote s request for proposals (RFP). Successful bidder intervened. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 075 - Dellew Corporation v United States.doc, Paragraph with 'The Rule of Two': On or about September 27, 2013, the Agency issued Solicitation No. W52P1J\u821113\u8211R\u82110038 for logistical support services at Schofield Barracks, Hawaii. Amended Complaint (hereinafter \Am. Compl.\) at 3. The RFP was issued as a set-aside for small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2015, the Army issued a third Request for Information, which \[w]as released to determine if rule of two exists, as defined in FAR [Federal Acquisition Register] 19.502, and if a small business set-aside is appropriate for Increment 2 development.\ As with the previous Requests for Information, Palantir USG indicated that it was not a small business and further responded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation had four evaluation factors: (1) Technical; (2) Cost/Price, (3) Past Performance, and (4) Small Business Participation Plan. The Technical factor included the five sub-factors: (1) Data Architecture, (2) Fusion Data Analytics, (3) Interoperability, (4) Visualization Framework/Usability, and (5) Data Rights. The solicitation also instructed that \[t]he Offeror shall complete and submit the PWS [Performance Work Statement] Compliance matrix located in section J of the RFP [solicitation].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Initially, there will be a DCGS-A Increment 2 software capability demonstration by the offeror evaluated on a acceptable/unacceptable basis. Only those offerors who successfully complete the demonstration will be further evaluated and considered for award. The award will be made based on the best overall (i.e., best value) proposal that is determined to be the most beneficial to the Government, with appropriate consideration given to the evaluation factors: Technical, Past Performance, Cost/Price, and Small Business Participation Plan. The Technical factor is significantly more important than Cost/Price. Past Performance and the Small Business Participation Factors will be rated on an acceptable/unacceptable basis. A rating of acceptable or neutral must be achieved for the Past Performance Factor. A rating of acceptable must be achieved for the Small Business Participation Factor in order to be eligible for award. Offerors are cautioned that the award may not necessarily be made to the highest technically rated or lowest cost or price offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Inform Increment 2 on the role of small business[.]\ (emphasis in original). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 082 - Precision Asset Management Corp v United States.doc, Paragraph with 'The Rule of Two': , Assistant Director, for defendant. Jonathan English, Trial Attorney for the Department of Housing and Urban Development and Christopher J. McClintock, Trial Attorney for the Small Business Administration, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 082 - Precision Asset Management Corp v United States.doc, Paragraph with 'The Rule of Two': the \SBA Response\) that was filed with the SBA Office of Hearings and Appeals (\OHA\), Docket No. SIZ\u82112016\u821103\u821122\u821123, on April 14, 2016, by the Small Business Administration (\SBA\), and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': In the small business context, where the offeror fails a solicitation requirement that encompasses a traditional responsibility factor, the proper course is for the agency to refer the matter to Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder did not show likelihood of success on merits of its appeal of denial of its post-award bid protest challenging award of contract from Environmental Protection Agency (EPA) for environmental remediation services, weighing in favor of denying preliminary injunction pending appeal, since case presented classic example of small business offeror\rquote s capability to meet responsibility-type technical requirement and EPA evaluation team disqualified proposal of unsuccessful bidder from consideration on basis of responsibility-type factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': , U.S. Environmental Protection Agency, 11201 Renner Blvd., Lenexa, KS 66219, Of Counsel. Christopher J. McClintock, U.S. Small Business Administration, 409 3rd Street N.W., Washington, D.C. 20416, Of Counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Stay Pending Appeal; Rule 62(c); Pass-Fail Responsibility-type Evaluation Factors; Referral to Small Business Administration for Certificate of Competency; Injunctive Relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': , and an injunction pending appeal to stop the Environmental Protection Agency (\EPA\) from allowing Coastal-Enviroworks Joint Venture (\Coastal-Enviroworks\) to begin performing environmental remediation services in lead-contaminated residential properties in Washington County, Missouri. EPA initially solicited offers to perform these remediation services on July 8, 2014, and, after a series of protests and corrective action, awarded a contract to Coastal-Enviroworks on September 29, 2015. Plaintiff protested this award at the Small Business Administration (\SBA\) and the Government Accountability Office (\GAO\) before filing a complaint in this Court on December 18, 2015. At that time, EPA voluntarily agreed to stay performance until March 30, 2016. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': In the small business context, where the offeror fails a solicitation requirement that encompasses a traditional responsibility factor, the proper course is for the agency to refer the matter to SBA. As the Court explained in its opinion: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': \[W]here traditional responsibility factors are employed as technical evaluation criteria and the evaluation renders an offeror\rquote s proposal flatly ineligible for award, the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (finding that, where \responsibility-type concerns\ result in an offeror\rquote s exclusion from the competition, \a de facto non-responsibility determination has been made and, in the case of a small business, referral to the SBA is required\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 083 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': involved a quintessential example of a nonresponsive proposal, while this case presented a classic example of a small business offeror\rquote s capability to meet a responsibility-type technical requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 086 - FlightSafety International Inc v United States.doc, Paragraph with 'The Rule of Two': The Solicitation specified that the award would be made based on the best value tradeoff. AR 203. To that end, the Solicitation described eight evaluation factors: (1) Facilities; (2) Quality Control; (3) Management; (4) Staffing, Recruitment, and Retention; (5) Aircraft and Simulators; (6) Past Performance; (7) Small Business Participation; and (8) Price. AR 204. Evaluation factors 1-3 were to be rated acceptable or unacceptable and would not be included in the trade-off consideration. AR 203. The evaluation factors 4-7, when combined, were to be weighed \approximately equal to price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 086 - FlightSafety International Inc v United States.doc, Paragraph with 'The Rule of Two': The Court disagrees. The Solicitation specified that the award would be made based on the best value tradeoff. AR 203. The Solicitation further provided the eight evaluation criteria: (1) Facilities; (2) Quality Control; (3) Management; (4) Staffing, Recruitment, and Retention; (5) Aircraft and Simulators; (6) Past Performance; (7) Small Business Participation; and (8) Price. AR 204. The Solicitation further advised that evaluation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 086 - FlightSafety International Inc v United States.doc, Paragraph with 'The Rule of Two': (Past Performance) and 7 (Small Business Participation), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Rule prohibiting an individual who is not an attorney from representing corporation before Court of Federal Claims precluded unsuccessful bidder\rquote s pro se action against the United States, alleging that United States Department of Army wrongfully rejected his unsolicited proposal and failed to comply with Federal Acquisition Regulation (FAR) during Navy\rquote s review process; bidder was not an attorney, and record suggested that actual offeror of unsolicited proposal was small business for which bidder worked, rather than bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': According to plaintiff\rquote s filings in this court, plaintiff purportedly developed what was described, among other designations, as a \Hybrid UGV/USV Breaching Module System,\ about which he, allegedly, had been communicating with a number of Navy personnel since 2013. Plaintiff alleges that, on September 28, 2015, he submitted an unsolicited proposal titled \Hybrid UGV/USV Breaching Module System,\ which was received by the Navy\rquote s Indian Head Explosive Ordnance Disposal Technology Division (IHEODTD), the division which handles proposals of Explosive Ordnance Disposal (EOD)-related technology development for the Navy. The unsolicited proposal listed the \Prime Offeror\ as \MERAD,\ identified in the unsolicited proposal as a \Small Business,\ not plaintiff, Mr. Diaz. Mr. Diaz was listed on the unsolicited proposal as the \Technical and Business Contact.\ According to plaintiff, the unsolicited proposal purportedly explained a \[t]echnology development ... for fragmentation protection with simultaneous downward reactions from shockwaves being patented modular Force Protection.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Claim 2) The Defendant failed to provide any opportunity for funding Research, Development, and Acquisition for the Plaintiff, a Small Business, as delineated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Plaintiff further alleges that defendant \has made an unreasonable decision\ in not considering \the relevant factor of Fragmentation Barriers within the Proposal.\ He also alleges that the FAR requirements were \manipulated subjectively in order to subvert opportunity away from the Small Business considered for funding for innovation development to be delivered to the Government,\ and that \the Contracting Office creates convoluted circumstances delaying technology development.\ Plaintiff asserts that the unsolicited proposal\rquote s content \satisfies the regulations as conditions to be met for evaluation.\ As a result, plaintiff alleges that \the Contracting Officer\rquote s review was not rational, was in error or did not exercise her discretion for not reviewing the Proposal\rquote s primary Fragmentation Barrier systems experimentation and is clearly an unreasonable determination.\ Plaintiff contends that he was \prejudiced by the error.\ Plaintiff alleges that the Navy had acted to obtain funding and indicated to plaintiff that it would continue to \pursue funding with [plaintiff] as opportunities arise\ for the technology proposed in the unsolicited proposal, and, according to plaintiff, that demonstrates that there was a \substantial chance\ that plaintiff would have received a contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': As a threshold issue, the court notes that plaintiff, Mr. Diaz, may be attempting to litigate the claims raised in the complaint on behalf of a business entity named \MERAD.\ Plaintiff\rquote s submissions to this court indicate that \MERAD\ is a \Small Business\ entity. Below is an excerpt from the unsolicited proposal\rquote s cover page: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Type of Organization: Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s sometimes confusing submissions to the court, including his complaint, allege that the Navy improperly reviewed the unsolicited proposal submitted to the agency. According to exhibits attached to plaintiff\rquote s complaint filed in this court, in September 2015, \MERAD,\ not plaintiff Diaz, submitted an unsolicited proposal to the Navy, in which MERAD was listed as the \Prime Offeror.\ As noted above, although it is not clear whether MERAD is a corporation, MERAD is described in the unsolicited proposal as a business entity. Specifically, MERAD was described as a \Small Business\ in the unsolicited proposal, with Mr. Diaz listed as the \Technical and Business Contact.\ In the November 2, 2015 decision letter from the IHEODTD contracting officer, the name \MERAD\ appears under plaintiff\rquote s name \Mark Diaz.\ \MERAD\ also appears in multiple e-mails, in which the unsolicited proposal was discussed between plaintiff and several Navy officials, whereas plaintiff identified himself in these e-mails as the \Project Manager for MERAD.\ For example, Plaintiff described himself as \the Project Manager for MERAD\ in an e-mail to the Navy on September 11, 2015, and he also identified himself as the point of contact for MERAD in the unsolicited proposal. Furthermore, the unsolicited proposal states that, \[t]he company MERAD was started in 2010 as a team effort.\ Plaintiff\rquote s complaint, however, sometimes identifies the offeror of the unsolicited proposal as MERAD, the \Small Business\ or \he,\ presumably, Mr. Diaz, or \Kevin Mark Diaz,\ On balance, the record suggests, however, that the actual offeror of the unsolicited proposal appears to have been \MERAD,\ a \Small Business,\ with Mr. Diaz working in some capacity for \MERAD.\ Because there is no evidence that Mr. Diaz is an attorney admitted to the bar of this court, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': In the above-captioned case, plaintiff argues that defendant wrongfully rejected the unsolicited proposal because the contracting officer failed to properly review the unsolicited proposal, \failed in the simple assignment to identify the Proposal\rquote s primary feature Fragmentation Protection,\ and violated FAR Subpart 15.602 to provide any opportunity for funding \Research, Development and Acquisition for the Plaintiff, a Small Business.\ The unsolicited proposal, included as an attachment to plaintiff\rquote s complaint, appears to describe a technology to dissipate shockwaves over time so that the \shockwave hitting the soldier, civilian, vehicle or robot is partially by-passed.\ According to the unsolicited proposal, \[t]he reaction dynamics within the device have the means and methods for wave dissipation and transmission to reduce the amplitude of the shockwave as it passes through this new advanced material and device.\ The unsolicited proposal mentions the words \fragmentation protection\ along with the \shockwave.\ The contracting officer\rquote s decision letter, dated November 2, 2015, states that, \[a]ccording to the abstract, the primary proposal seems to be the design of shockwave mitigation technology which could be integrated onto a UGV (based on context, presumed to mean \u8216Unmanned Ground Vehicle\u8217 (the acronym is never spelled out)[)].\u8217\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 088 - Diaz v United States.doc, Paragraph with 'The Rule of Two': Alternatively, plaintiff argues that defendant violated the policy in FAR Subpart 15.602 to \encourage new ideas from small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 093 - Starry Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Department of Health and Human Services (\HHS\) Program Support Center (\PSC\) issued Request for Quotations No. 15\u8211233\u8211SOL\u821100023 (\RFQ\ or \solicitation\) on November 13, 2014. The procurement was set aside for small businesses and called for award to the lowest priced, technically acceptable offeror. PSC sought to procure a range of business operations services to support HHS\rquote s financial management system known as the \Unified Financial Management System\ (\UFMS\). Starry is the incumbent provider of on-site operational support for UFMS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging Bureau of Prisons\rquote (BOP) determination that bidder was non-responsible due to lack of capacity to perform small business set-aside contract for horticulture instructor at federal prison camp, and challenging Small Business Administration\rquote s (SBA) denial of bidder\rquote s application for certificate of competency (COC). The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': Bureau of Prisons\rquote contracting officer had a reasonable basis for his non-responsibility determination that it was likely that disappointed bidder would be unable to comply with the proposed delivery schedule to perform small business set-aside contract for horticulture instructor at federal prison camp based on bidding history of failing to accept offers after submitting bids and protracted negotiations causing delays in agency procurement, even though contracting officer was mistaken in basing his decision as to ground that bidder had previously been referred to Small Business Administration for a certificate of competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) had a reasonable basis to deny application for certificate of competency (COC) with respect to disappointed bidder who filed post-award bid protest regarding set-aside contract for horticulture instructor at federal prison camp; SBA obtained information from government agencies having prior dealings with bidder, SBA reviewed bidder\rquote s past performance on other contracts, bidder had high percentage of offers that she had failed to accept, bidder had history of failing to provide qualified instructors after being offered contracts, and bidder neither employed any qualified instructors nor had binding commitments from them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': On September 19, 2014, the Bureau of Prisons (\BOP\) issued a solicitation for horticulture instructional services at the Federal Prison Camp in Alderson, West Virginia (\FPC Alderson\). The solicitation was designated as a small business set-aside contract. It required an instructor to provide classes at FPC Alderson with a regular work schedule from 8 a.m. to 2:30 p.m., five days a week. The contract was to be for one base year and four option years. The solicitation indicated that pursuant to an affirmative determination of responsibility, the offers would be evaluated to determine which quotation was most advantageous to the government, \considering technical capability, past performance, and price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': Finally, the contracting officer noted that Ms. Sims had previously been referred to the Small Business Administration for a Certificate of Competency and that the referral had been declined. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 097 - Sims v United States.doc, Paragraph with 'The Rule of Two': Based on those findings, the contracting officer determined that Ms. Sims would not be able to comply with the required performance schedule under the contract and made a determination of non-responsibility. On January 29, 2015, the contracting officer referred Ms. Sims to the Small Business Administration (\SBA\) to seek a Certificate of Competency (\COC\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 099 - Dynamic Systems Technology Inc v United States.doc, Paragraph with 'The Rule of Two': This objection amounts to nothing more than a disagreement with the balance struck and the conclusion reached by the agency in the exercise of its discretion. Nothing in the solicitation set a bar on the dollar value of a recent contract, below which it would be considered irrelevant. In fact, the contract was a 100% set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': The United States Department of the Air Force (\Air Force\) extended these solicitations on September 30, 2015 and October 15, 2015, respectively. Both solicitations contain service-disabled veteran-owned small business set-aside provisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': at the Youngstown, Ohio and Pittsburgh, Pennsylvania Air Reserve Stations. AR Tab 5, Tab 32. Both solicitations contain service-disabled veteran-owned small business set-aside provisions, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': Yet, the Air Force can only consider non-price factors, such as past performance, on an acceptable/unacceptable basis because these are LPTA procurements. This leaves the Air Force with two options for offerors with unknown past performance: (i) consider the proposal as acceptable or (ii) grade them as unacceptable and refer the offerors to the Small Business Administration (\SBA\) for a Certificate of Competency determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': . The SBA reviews offerors for competency once an agency has \determin[ed] and document[ed] that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'The Rule of Two': A combination of federal statutes and regulations authorized the Small Business Administration to administer a program for the benefit of \socially and economically disadvantaged\ persons who have experienced \economic disadvantage\ making them eligible for participation as a \Disadvantaged Business Enterprise\ (\DBE\) in subcontracting on federal highway projects by inducing prime contractors to work with them in exchange for payment of an incentive award equal to 10% of the amount of the DBE subcontracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'The Rule of Two': to the use of such efforts to encourage development of small businesses without regard for race, ethnicity and gender. The reported conclusion in the study that while these proposals may be helpful, they would not, in themselves be adequate to remedy the effects of past discrimination is unsupported by the evidence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'The Rule of Two': The Small Business Administration administers a small business and capital ownership development program under Sections 8(a) and 7(j) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'The Rule of Two': There are such limits in the federal DBE program administered by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 006 - Cube Corp v US.doc, Paragraph with 'The Rule of Two': electric dam, power plant, and pumping station, as well as campgrounds, parks and boating areas. The procurement is a 100 percent set aside for small business. The predecessor contractor, Ferguson\u8211Williams, Inc., could no longer qualify as a small business, but was proposed by Cube, a small business, as its major subcontractor on the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 007 - MVM Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act authorizes the Small Business Administration (SBA) to enter into contracts with other federal agencies and for the SBA to subcontract those contracts to disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 008 - MVM Inc v US.doc, Paragraph with 'The Rule of Two': The agency issued a solicitation for Courthouse Security Officers in the Eleventh Circuit. The Eleventh Circuit has nine judicial districts, including the Northern District of Florida. The solicitation alerted the prospective bidders that the agency might eliminate the Northern District of Florida to set it aside as reserved for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 008 - MVM Inc v US.doc, Paragraph with 'The Rule of Two': the awardee claimed small business status. This claim was wrong as a matter of law. When the awardee was eliminated from competition, the court could award the contract to the next lowest-priced qualified bidder. In this regard, the awardee\rquote s entitlement of small business status was completely unrelated to the protester. Here, in contrast, the problem with the solicitation affects both the protester and the awardee, as well as other bidders who are not involved in the litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 010 - Associated Utility Contractors of Maryland Inc v Mayor and City Council of.doc, Paragraph with 'The Rule of Two': The City Council also found that \[m]inority and women\rquote s business enterprises ... have had difficulties in obtaining financing, bonding, credit and insurance;\ that \[t]he City of Baltimore has created a number of different assistance programs to help small businesses with these problems ... [but that t]hese assistance programs have not been effective in either remedying the effects of past discrimination ... or in preventing ongoing discrimination.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 012 - Unified Architecture And Engineering Inc v US.doc, Paragraph with 'The Rule of Two': On November 2, 1998, NASA issued Solicitation No. 3\u8211095280 (solicitation) for competitive proposals from small business offerors for a cost-plus-incentive fee contract, which contained some fixed price elements, to provide maintenance, operation, recertification, and engineering services to support the major research facilities and systems at NASA\rquote s John H. Glenn Research Center and its Plum Brook Station in Ohio. The contract consolidates requirements previously obtained by NASA under four separate contracts. The facilities covered in this acquisition included, but were not limited to, the 10x10 Supersonic Wind Tunnel, the 8x6 Supersonic Wind Tunnel, the Engine Research Building, the Central Air Equipment Building, and the Cooler Tower Water Facility. The solicitation specified a base performance period of two years plus three, one-year options. The estimated cost of the contract over a five year term is 39 million dollars. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': It is the policy of the City of Jackson Department of Public Works (DPW) that small business concerns (DBE/WBE) ... shall have the maximum opportunity to participate in the performance of contracts financed in whole or in part with City funds. The Minority Business Enterprise Program will be implemented in such manner that participation of minorities and women will be equitably distributed throughout the construction industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': The Special Notice defined a DBE as \[a] small business concern which is owned and controlled by socially and economically disadvantaged individuals.\ In turn, \[t]he term \u8216socially and economically disadvantaged individuals\rquote has the meaning such term has under Section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': ) and relevant subcontracting regulations promulgated pursuant thereto.\ The Small Business Act (\SBA\) defines socially disadvantaged individuals as \those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': . Section 8(d) of the SBA pertains to eligibility for disadvantaged status under subcontracting provisions like the one at issue in the Special Notice. It states that prime contractors are to \presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': The Special Notice states under the heading \OBLIGATION\ that \[t]he Contractor and any subsequent Subcontractor shall ensure that small business concern (DBE/WBE) have [sic] the maximum opportunity to participate in the performance of the work included in this contract.\ Further, \[f]ailure on the part of the contractor to carry out the requirements set forth shall constitute a breach of contract....\ Under the subheading \GOALS,\ the Special Notice states that \[t]he goal may be attained by subcontracting to, procuring materials from, and renting equipment from small business concerns (DBE/WBE).\ Unlike the ordinance at issue in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': The Special Notice relies on Section 8(d) of the SBA for its definition of a DBE. As noted above, Section 8(d) states that prime contractors are to \presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 018 - WH Scott Const Co Inc v City of Jackson Miss.doc, Paragraph with 'The Rule of Two': (noting that, as relied upon in federal subcontractor compensation clauses, the relevant SBA provisions and regulatory schemes were overinclusive and underinclusive, and that the inconsistencies within them \preclude a finding of narrow tailoring.\). In response, the Small Business Administration amended the SBA\rquote s implementing regulations, lowering the evidentiary burden for nonminority applicants to claim eligibility for disadvantaged status from \clear and convincing evidence\ to \preponderance of the evidence\ (reducing under-inclusion), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 026 - ITT Federal Services Corp v US.doc, Paragraph with 'The Rule of Two': The general considerations were: (1) a pre-survey award, (2) a small, small disadvantaged, and women-owned small business subcontracting plan, (3) a government property plan, (4) a transition plan, (5) environmental, fire prevention, and health programs, and (6) a security plan. AR at 89\u821190. Except for the security plan, the general considerations are not part of this dispute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Corporation with annual gross receipts of more than $16.6 million was not eligible to participate as disadvantaged business enterprise (DBE) on federally-assisted Department of Transportation (DOT) projects. Small Business Act, \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Statutes and regulations authorizing disadvantaged business enterprise (DBE) program were not deficient due to fact that they did not separately define \gross receipts\ for purposes of determining eligibility for program. Small Business Act, \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': In an effort to assist business that it determines are disadvantaged, Congress requires a certain level of participation by DBE\rquote s in federal transportation programs. For example, the statute authorizing the use of federal highway funds, the Intermodal Surface Transportation Efficiency Act of 1991 (\ISTEA\), requires that \not less than 10 percent of the amounts authorized to be appropriated [under this Act] shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ ISTEA, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': , tit. 1, \u167 1101(b)(1), 112 Stat. 107, 113 (1998)). The statute defines \small business concern\ as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': The term \small business concern\ has the meaning such term has under section 3 of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': this program provide the same definition of small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': According to section 3 of the Small Business Act (\SBA\), a small business concern \shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': . \Meeting the small business provisions of section 3 of the Small Business Act is but one of two requirements to qualify as a small business concern under the ISTEA.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': In this case, DelDOT determined that Helmark did not qualify for DBE certification because the company\rquote s average annual gross receipts exceeded the $16.6 million cap. In its application for re-certification as a DBE in 1996, Helmark reported average annual gross receipts over the preceding three years of $34,166,000. While Helmark concedes that its average gross receipts between 1993 and 1995 far exceed the $16.6 million limit, Helmark contends that it qualifies as a small business concern because its average net income during the same period was less than $3,000,000. Helmark argues that DOT\rquote s regulation establishing the $16.6 million cap is unlawful because \gross receipts\ is not defined in the regulation and DOT\rquote s definition of that term conflicts with the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Helmark\rquote s argument is without merit. First, there is no conflict. The SBA actually authorizes federal agencies to use a gross receipts cap as one of four alternative methods for categorizing a business as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': . Therefore, Congress was free to establish a different method for categorizing a business as a small business concern when it enacted DOT\rquote s program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 028 - Helmark Steel Inc v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Congress required that to participate as a DBE on federal transportation projects, a business must qualify as a small business concern under the SBA and have average annual gross receipts of $16.6 million or less. \u167 1101(b)(2)(A), 112 Stat. at 113; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 029 - Synetics Inc v US.doc, Paragraph with 'The Rule of Two': The two elements to be evaluated in the Past Performance Area included: (a) Performance Risk; and (b) Small Business Participation. The Cost Area was to include an assessment by defendant of cost realism and reasonableness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 029 - Synetics Inc v US.doc, Paragraph with 'The Rule of Two': Desk, 89% for A/V\u8211Media, and 84% for Administrative Services.... NCI\rquote s Excellent ratings were: [...].\ Plaintiff\rquote s Motion for Summary Judgment (\Plaintiff\rquote s Motion\) at 35. Because Performance Risk was significantly more important than the other element comprising the Past Performance Area, Small Business Participation, plaintiff contends it would have been entitled to an overall rating of \Excellent\ in the Past Performance Area had it received an \Excellent\ on the Performance Risk element. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 029 - Synetics Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 037 - Safeco Ins Co of America v City of White House Tenn.doc, Paragraph with 'The Rule of Two': (a)(5) Using the services and assistance of the Small Business Administration and the Office of Minority Business Enterprise of the U.S. Department of Commerce, as appropriate; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 045 - Dubinsky v US.doc, Paragraph with 'The Rule of Two': p. 512. Daktronics was neither a small business nor an SDB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 059 - Webster v Fulton County Ga.doc, Paragraph with 'The Rule of Two': at 24). The Shapiro Study did provide extensive anecdotal evidence of barriers to female businesses in doing business with the County. This evidence included the testimony at a public hearing in October, 1989. At this hearing it was revealed that most of the participants never considered County contracts as a viable source of business for a variety of reasons. These reasons ranged from the types of services female-owned businesses typically provide and the difficulty in mainstreaming these professional services through the purchasing and contracting process to the difficulties associated with any small business such as bonding requirements. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 059 - Webster v Fulton County Ga.doc, Paragraph with 'The Rule of Two': at 40). The section also lists several other race and gender neutral opportunity business measures consisting of the following: (1) the Fulton County Purchasing Department, with the assistance of the Department, shall investigate the extent to which non-competitive procurement modalities such as sole source, multi-year, blanket and emergency purchases have been utilized excessively or unnecessarily to the detriment of competition; (2) the Department, Purchasing Department, Project Management Department, and using departments shall identify large Fulton County contracting opportunities to determine whether they may be segmented into two or more smaller bids to provide increased contracting opportunities for small businesses; (3) the Purchasing Department shall determine whether it is appropriate to segment multi-bids to provide increased procurement opportunities for MFBEs who may not have submitted bids on all items requested; (4) the Department and other appropriate departments will conduct seminars and workshops on how to do business with Fulton County; (5) the Department will work closely with local governmental entities in providing bonding assistance; (6) the Department shall assist small businesses in locating available financial resources within the Atlanta area; (7) the Department shall act as a clearinghouse for information on financial assistance programs for small businesses; (8) the Department will offer services to assist small businesses in construction management and technical services; (9) when a contract or service award has been made, the Department\rquote s Director and the purchasing agent shall furnish, upon request, a letter to the contractor stating the information that may be utilized by the MFBE to establish lines of credit with lending institutions and manufacturers; (10) Fulton County may make special provisions for reasonable progress payments during the performance of a contractual obligation by small MFBEs; and (11) Fulton County shall enforce all existing policies and regulations relating to the prompt payment of its bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 065 - Associated General Contractors of Ohio Inc v Drabik.doc, Paragraph with 'The Rule of Two': where he said that, during his administration, he was aware of the difficulties experienced by minority businesses and small businesses in obtaining state contracts, and that the cause of the difficulty was \the existence of an old boys\rquote club sort of relationship\rquote between state officials and a number of established and reputable firms with a good deal of experience that \u8216tended to get the lion\rquote s share of the business.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 065 - Associated General Contractors of Ohio Inc v Drabik.doc, Paragraph with 'The Rule of Two': administrative, and fiscal measures to enhance assistance to small businesses in general and to minority-owned businesses in particular. In October 1978, the task force issued its final report. The task force report contains various findings concerning the problems faced by small businesses in general, and minority businesses in particular. Under the heading \Capital Formation and Financing,\ the report states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 065 - Associated General Contractors of Ohio Inc v Drabik.doc, Paragraph with 'The Rule of Two': The public hearing testimony indicated that minority entrepreneurs are faced with the unique problems of minority businesses as well as traditional problems which befall most small businesses. Many minority businesses are located in the high crime, high unemployment and low income urban areas of the State. These factors lead to uncertain and unstable business environments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 065 - Associated General Contractors of Ohio Inc v Drabik.doc, Paragraph with 'The Rule of Two': carryout [sic] shops and beauty shops and the kinds of things, kinds of small businesses that you regularly find in minority communities which may not at all be interested or able to take advantage of the large volume kinds of contracts that are available in a state procurement opportunity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, business is deemed to be owned and controlled by a socially and economically disadvantaged person if such person owns at least 51% of the business and controls its management and daily operation. Small Business Act, \u167 2[8](d)(3)(C)(i),(ii), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': To qualify as a \socially and economically disadvantaged person,\ for purposes of the Small Business Act, an individual must have a net personal worth of under $750,000, excluding the value of his or her business and personal residence. Small Business Act, \u167 2[8](d)(3)(C)(i),(ii), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, certain groups, including Black Americans, Hispanic Americans, Asian Pacific Americans, and other minorities, are presumed to be both economically and socially disadvantaged. Small Business Act, \u167 2[8] (d)(3)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Presumption, under the Small Business Act, that certain minority groups are economically and socially disadvantaged may be rebutted by a contracting officer, a failed bidder, or the Small Business Administration (SBA). Small Business Act, \u167 2[8](d)(3)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Individuals who are presumptively disadvantaged under the Small Business Act are still required to meet the personal worth requirement for economically and socially disadvantaged persons. Small Business Act, \u167 2[8](d)(3)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, individuals who are not members of groups given the statutory presumption of being disadvantaged may offer proof that they have been socially disadvantaged because of their color, ethnicity, gender, physical handicap, or residence in an environment isolated from the mainstream of American society, and if they demonstrate that this disadvantage has adversely affected their status in the business community, they are considered to be economically and socially disadvantaged. Small Business Act, \u167 2[8](d)(3)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . The 1207 program points to section 8(d) of the Small Business Act in order to define economically and social disadvantaged businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, certain groups, including Black Americans, Hispanic Americans, Asian Pacific Americans, and other minorities, are presumed to be both economically and socially disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': That presumption may be rebutted by a contracting officer, a failed bidder, or the Small Business Administration (SBA). 48 C.F.R. \u167 219.302\u821170 (1997). Presumptively disadvantaged individuals are still required to meet the personal worth requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Government Contracting With Small Business in the Wake of the Federal Acquisition Streamlining Act, the Federal Acquisition Reform Act, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business as Usual? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Nor is the Court disturbed that the findings regarding Asian Americans come from the Small Business Association, a non-elected regulatory body. As the Government points out, the SBA\rquote s definitions have remained unaltered since their inception. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 074 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Government responds with evidence of Congress\rquote s efforts to reach out to minority businesses without relying on race as a criterion for preferences. The Government notes that Congress, in 1953, passed the Small Business Act, which allowed the Small Business Administration to subcontract federal contracts to small businesses. The preference scheme at issue here, the Government contends, resulted from the failure of this program and others to aid minority businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 078 - Anderson Columbia Environmental Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation contained other provisions relevant to this action. Section 00100, paragraph 42, required that all \large business\ bidders submit a small business subcontracting plan, due at bid opening. AR at 49. Section 00100, paragraph 43, required that all bidders submit pre-award survey forms, due at bid opening. AR at 49. Finally, the solicitation contained the clause at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 078 - Anderson Columbia Environmental Inc v US.doc, Paragraph with 'The Rule of Two': After reviewing each bid for responsiveness, the contracting officer (CO) concluded that plaintiff failed to comply with the solicitation in three major respects. AR at 990\u821192. First, plaintiff improperly inserted a price for CLIN 0001. AR at 991, 1002. Second, plaintiff altered CLIN 0239, replacing the estimated quantity of 20,000 with 2,000, resulting in an understatement of plaintiff\rquote s price by about $40,000. AR at 927, 990, 1002. Finally, plaintiff failed to submit the required small business subcontracting plan and pre-award survey information. AR at 990, 1002. Accordingly, in a letter dated September 23, 1998, the CO rejected plaintiffs bid as non-responsive. AR at 1002. The Corps awarded Tanner the contract on the same day. AR at 993. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 078 - Anderson Columbia Environmental Inc v US.doc, Paragraph with 'The Rule of Two': Because the court finds plaintiff\rquote s bid to be non-responsive based on its bid for CLIN 0001, it is unnecessary to discuss whether (1) plaintiff\rquote s failure to include a small business subcontracting plan and pre-award forms and (2) plaintiff\rquote s inadvertent substitution of an estimated quantity of 2,000 for 20,000 under CLIN 0239 also rendered plaintiff\rquote s bid non-responsive. In addition, plaintiff\rquote s claim that Tanner failed to properly submit a bid bond finds no support in the AR and thus must be rejected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 078 - Anderson Columbia Environmental Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff raises nine claims for relief: (1) plaintiff\rquote s pricing of CLIN 0001 did not render its bid non-responsive; (2) plaintiff\rquote s failure to include a small business subcontracting plan and pre-award forms did not render its bid non-responsive; (3) plaintiff\rquote s substitution of an estimated quantity of 2,000 for 20,000 for CLIN 0239 did not render its bid non-responsive; (4) Tanner\rquote s bid was non-responsive because its pricing was materially unbalanced; (5) Tanner\rquote s bid was non-responsive because it exceeded the solicitation\rquote s maximum dollar limitations; (6) Tanner\rquote s bid was non-responsive because it failed to submit a bid bond in the manner required by the solicitation; (7) the solicitation should be canceled because the bid prices substantially exceeded the solicitation\rquote s maximum dollar limitation; (8) the solicitation should be canceled because the estimated quantities had no reasonable basis; and (9) the solicitation should be canceled due to ambiguity over pricing for CLIN 0001. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 083 - Dubinsky v US.doc, Paragraph with 'The Rule of Two': In most circumstances, offerors would be aware of the use of simplified procedures. For example, the FAR requires, with a few limited exceptions, an agency to set aside solicitations under the $100,000 simplified acquisition threshold exclusively for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 083 - Dubinsky v US.doc, Paragraph with 'The Rule of Two': . Each solicitation under a small business set-aside must contain provisions and clauses prescribed by Part 19, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 083 - Dubinsky v US.doc, Paragraph with 'The Rule of Two': , which include the applicable small business size standard and product classification, and a clause notifying offerors of the existence of the set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on government small business set-aside contract brought action against United States, seeking injunctive relief, determination that successful bidder was \large\ business, and award of contract. Successful bidder intervened, and unsuccessful bidder moved for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': , granted motion and remanded issue of successful bidder\rquote s size determination to Small Business Administration (SBA). After SBA again found successful bidder to be small business, the District Court, Stanley Sporkin, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': , Circuit Judge, held that: (1) unsuccessful bidder satisfied its exhaustion requirements; (2) SBA\rquote s determination that, as of date successful bidder self-certified itself as small business, no agreement in principle existed as to anticipated acquisitions of businesses by bidder or related entities was reasonable and in accord with material facts contained in administrative record; (3) SBA\rquote s erroneous use of full-time equivalency formula to count number of temporary workers of successful bidder and its affiliates was harmless; and (4) in making size determination, SBA was not required to examine holdings of partners of successful bidder\rquote s affiliate beyond those of affiliate\rquote s managing general partner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for government small business set-aside contract satisfied its exhaustion requirements in challenging determination by Small Business Administration (SBA) that successful bidder was \small\ business when it made initial size protest before seeking judicial relief under Administrative Procedure Act (APA); appeal to SBA Office of Hearings and Appeals was not required by SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Determination of Small Business Administration (SBA) that, as of date that successful bidder for government small business set-aside contract self-certified itself as \small business,\ no agreement in principle existed as to anticipated acquisitions of other businesses by bidder or related entities was reasonable and in accord with material facts contained in administrative record, and thus was entitled to deference in face of challenge by unsuccessful bidder, given SBA\rquote s findings that respective letters of intent failed to resolve important terms of conditions of proposed transactions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) use of full-time equivalency formula to count number of temporary workers used by company and its affiliates, contrary to SBA regulations, was harmless error with respect to determination that company qualified as \small business\ under Small Business Act, given accountant\rquote s testimony showing that company\rquote s number of employees, when counted in manner consistent with regulations, did not exceed maximum for government procurement at issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': In making size determination for successful bidder for government small business set-aside contract, Small Business Administration (SBA) was not required to examine holdings of partners of bidder\rquote s affiliate beyond those of affiliate\rquote s managing general partner. 13 C.F.R. \u167 131.103(a)(1, 4). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': In making size determination for successful bidder on government small business set-aside contract, Small Business Administration (SBA) was not required to investigate further whether joint venture between bidder\rquote s affiliate and another business received financial assistance from SBA when, in testimony in hearing before district court at which SBA was represented and which occurred prior to size determination at issue, affiliate\rquote s controlling partner testified that joint venture had no relationship with SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': and R. Craig Lawrence, Assistant United States Attorneys, Glenn P. Harris, Trial Attorney, United States Small Business Administration, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Dae Shin Enterprises, Inc. (\DSE\) brought a disappointed bidder action in the district court against the United States of America, seeking to enjoin performance of a procurement contract between the United States Army (the \Army\) and the successful bidder, AMTEC Corporation (\AMTEC\). In support of its claim for injunctive relief, DSE alleged that a formal size determination of the Small Business Administration (the \SBA\), which found AMTEC to be \small\ under its applicable regulations, was arbitrary and capricious in violation of the Administrative Procedure Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': On remand, the SBA again found AMTEC to be a small business entity. Thereafter, the district court issued an order which dissolved the preliminary injunction and upheld the SBA\rquote s size determination. All other aspects of its previous order, including its assessment of the bond amount, were left in place. DSE appeals from this decision, alleging that, in several different respects, the SBA failed to follow its own regulations and adjudicatory precedent. This unexplained departure, it claims, was arbitrary and capricious, requiring us to set aside the SBA\rquote s size determination and to suspend performance of the contract. AMTEC filed a cross-appeal, contending that the district court lacked the authority to issue its no compensation order as the Tucker Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': a total small business set-aside, and assigned it Standard Industrial Classification (\SIC\) Code 3483. Under SBA regulations, a bidding Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': . The Army announced its intention to award the contract to AMTEC on January 21, 1998. Two days later DSE, a disappointed bidder next in line for the award and the incumbent producer, filed a protest with the contracting officer. Therein, it alleged that AMTEC did not qualify as a small business entity under SIC Code 3483, and that AMTEC\rquote s November 12, 1997 self-certification as small was erroneous. The Army contracting officer forwarded this challenge to the SBA\rquote s Office of Government Contracting Area Office (the \Area Office\) for a formal size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': When the Area Office became apprised that AMTEC may have had additional and undisclosed affiliates, it initiated another size protest. On April 16, 1998, the SBA concluded that AMTEC still qualified as a small business entity (the \Second Size Determination\). On April 23, 1998, after hearing oral argument, the district court granted a temporary restraining order and directed DSE to post a $5,000 bond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': On June 4, 1998, the SBA again found AMTEC to have been a small business as of the date of its self-certification (the \Third Size Determination\). After carefully reviewing the additional documentation submitted by AMTEC, the SBA concluded that there were no \unexecuted but final agreements\ or \agreements in principle\ in existence on November 12, 1997. With respect to each of the subsequent acquisitions, the SBA found that they had merely been in the negotiation stage as of that day; a number of unsettled material terms and conditions separated the parties, and the evidence was insufficient to establish that AMTEC had acquired any negative control over the targeted companies. Acknowledging the district court\rquote s determination that it had discretion to consider events occurring after a firm\rquote s selfcertification, the SBA declined, on the facts before it, to exercise that discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act (the \Act\) grants the SBA broad authority to craft general criteria for establishing which entities qualify as small business concerns, as well as to make particularized size assessments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': (\the Administrator may specify detailed definitions or standards by which a business concern may be determined to be a small business concern\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': . When submitting an initial offer or bid for a small business set-aside, a concern must include written self-certification that it qualifies as small under the specified SIC code as of the date of the submission. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Any disappointed offeror can make a size protest in connection with a particular procurement under the Small Business Set\u8211Aside Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': In an action brought under the APA, our inquiry is twofold. First, we examine the organic statute to determine whether Congress intended that an aggrieved party follow a particular administrative route before judicial relief would become available. If that generative statute is silent, as is the Small Business Act, we then ask whether an agency\rquote s regulations require recourse to a superior agency authority. Where an intra-agency appeal is discretionary, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration\rquote s Third Size Determination Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': , policed by \severe criminal penalties for knowingly misrepresenting the small business size status of a concern ... [or] for knowingly making false statements or misrepresentations to SBA,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 088 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': For the foregoing reasons, we uphold the Small Business Administration\rquote s Third Size Determination and affirm the district court\rquote s Order dated June 16, 1998. We remand the matter to the district court for the purpose of entering a formal judgment for the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 089 - Keefe Co v Americable Intern Inc.doc, Paragraph with 'The Rule of Two': upheld a district court judgment in a consulting firm\rquote s favor. The court found that the bona fide agency exception applied to a firm whose business was assisting small companies in obtaining government contracts and who had helped a textile wholesaler obtain government business by, among other things, gathering information on bid proposals. \Puma is in the business of assisting small businesses in procuring contracts with the government and other agencies. There is not even a hint of the selling of governmental influence.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 090 - DGS Contract Service Inc v US.doc, Paragraph with 'The Rule of Two': The procurement is a small business set-aside, set up in accordance with the Department of Treasury Acquisition Regulation (DTAR) 1019.503 and Federal Acquisition Regulation (FAR) Part 19, Small Business Programs. Plaintiff currently provides these services as the incumbent contractor under contract number TIR\u821193\u8211SW\u8211010. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 091 - National Airmotive Corp v Cohen.doc, Paragraph with 'The Rule of Two': Defendants move for dismissal of Plaintiff\rquote s third claim, contending that the Small Business Act (\SBA\) does not cover the procurement at issue. They also move to dismiss Plaintiff\rquote s fifth claim, arguing that they cannot restrict competition for the contract based on nationality. Furthermore, Defendants move for summary judgment on Plaintiff\rquote s entire complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 091 - National Airmotive Corp v Cohen.doc, Paragraph with 'The Rule of Two': C. Plaintiff\rquote s Small Business Act Claim Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 091 - National Airmotive Corp v Cohen.doc, Paragraph with 'The Rule of Two': The SBA sets forth the U.S. policy to promote the participation of small businesses in government contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 091 - National Airmotive Corp v Cohen.doc, Paragraph with 'The Rule of Two': bundling of contract requirements that precludes small business participation in procurements as prime contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Track record of past enterprises assisted and of the venture capital or other debt or equity capital institutions (e.g., U.S. Minority Small Business Investment Corporation) in which the prospective COP had a management role. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': *Small business development experience Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': The TEC expressed concerns regarding the three other positions, however. It questioned the lack of small business experience of Labat\rquote s proposed COP, Mr. Walker, and stated that, \[g]iven the otherwise very strong proposal ..., the firm should consider an alternative COP.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': Chemonics\rquote personnel candidates received generally favorable reviews by the TEC. The proposed COP, Leyland Hazlewood, was described as having \a wealth of A.I.D.-related experience in rural development, agriculture, and training. He is also founder and CEO of Dimpex (an 8(a) firm), with long-term links to [the Small Business Administration (\u8216SBA\u8217)].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': experience base,\ he lacked small business experience or an engineering background. The TEC rated his alternate, Robert Coldwell, higher, noting he would be an excellent choice.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': The August 16 telex to Chemonics contained only three technical questions and eight cost questions and clarifications. Again, as in the case of Labat, the contracting officer repeated the negative comments or concerns raised in the two memoranda he had received from the TEC. Chemonics was asked to address the impression (created in the mind of one TEC member) that Chemonics was not comfortable with the BECF component of the project and not confident of its success. The only other substantive question related to one of Chemonics\rquote candidates for the IDS position. The question stated that Hooper, the primary candidate in the proposal, lacked small business experience and an engineering background, and that the TEC considered Coldwell, the alternate, to be a better alternative. Chemonics was asked to verify the availability of Coldwell and provide a doctor\rquote s certification of his physical condition to allay the TEC\rquote s concerns regarding his health. One of the cost questions asked Chemonics to structure Coldwell\rquote s salary into its BAFO and provide a biographical data sheet for him. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 096 - Labat-Anderson Inc v US.doc, Paragraph with 'The Rule of Two': (quoting comments of Motshwane, Def.\rquote s App. at 190); and Tarr was noted for his \extremely relevant background in the South African corporate and small business development community.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': Section H of the contract sets forth the procedures by which Green Management, as part of its management function, agreed to procure supplies, materials, equipment and services. For procurements under $1,000.00, Green Management was authorized to procure supplies, materials, equipment, and services on a non-competitive basis. For items or services over $1,000.00, but under $5,000.00, Green Management agreed to procure on a competitive basis. For items or services for which the cost was over $5,000.00, Green Management agreed that the contract for services would be between HUD and the provider of the services and that, if requested, Green Management would conduct the solicitation process. To this effect, Green Management agreed that when required and requested by HUD, it would \solicit quotations from three or more responsible Contractors and assist in the development and processing of repair or purchase orders....\ Section H also required that Green Management conduct certain solicitations as small business set asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': 1. Goals in the use of small businesses and small disadvantaged businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': a. Small businesses; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': c. Woman owned businesses (small business) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': a. Small businesses; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': c. Woman owned businesses (small business) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 100 - Green Management Corp v US.doc, Paragraph with 'The Rule of Two': a. Include clause 52.219\u82119 (Small Businesses and Small Disadvantaged Business Subcontracting Plan). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 008 - F Buddie Contracting Ltd v Cuyahoga Community College Dist.doc, Paragraph with 'The Rule of Two': Specifically, the legislative enactments relied on by the defendants were found to be designed to advance the cause of small businesses in general in order to increase competition. That many minority owned businesses were small and would benefit from the legislation was incidental to that purpose. With respect to the state-commissioned study the court noted that the failure of the state to maintain records concerning minority procurement in state contracts prevented a significant enough sampling of minority businesses qualified for those contracts to create meaningful statistics. Moreover, the study revealed that, at most, MBEs were at a disadvantage due to societal discrimination which prevented them from developing their businesses with the same rapidity as non-minority businesses. There was, however, no evidence of actual discrimination on the part of the state which could justify a race conscious remedy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 009 - Summitt Investigative Service Inc v Herman.doc, Paragraph with 'The Rule of Two': debarment provision of the SCA against minority-owned and disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 010 - Maryland Minority Contractor's Ass'n Inc v Maryland Stadium Authority.doc, Paragraph with 'The Rule of Two': Counts 1 & 4 allege that the bidder prequalification requirement is discriminatory as applied to \certain large and lucrative M.S.A. \u167 construction contracts,\ reasoning that \[b]ecause [p]laintiffs and members of plaintiffs\rquote class tend to be small businesses which employ few full-time accountants and administrative staff necessary to efficiently comply with defendants\rquote contractor prequalification process, they are less positioned and capable of complying with defendants\rquote contractor prequalification process, and thus, are discouraged and precluded from bidding or otherwise disqualified from bidding on defendants\rquote construction projects.\ (Compl.\u182 22.) The plaintiffs further allege that the prequalification requirement is arbitrary, unnecessary and serves no legitimate purpose, but was implemented solely to discriminate. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': United States had failed to consider race-neutral alternatives to increase minority business participation in government contracting, as required under strict scrutiny equal protection analysis applicable to Intermodal Surface Transportation Efficiency Act (ISTEA) and implementing regulations, prior to passage of Act by Congress; only evidence of such consideration was Department of Transportation\rquote s assertion that small business interest subsidy program had been ineffective four years before enactment of ISTEA predecessor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': Section 105(f) of the STAA required that not less than 10% of its appropriated federal funds be paid to small businesses owned and controlled by socially and economically disadvantaged individuals, as defined by Section 8(d) of the Small Business Act. These businesses were known as Disadvantaged Business Enterprises, or \DBEs\. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': The STAA refers to the Small Business Act (\SBA\). Section 8(d) of the SBA designates classes of individuals who are presumed to be socially and economically disadvantaged: \[t]he contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': Section 1003(b) of the ISTEA defines a \small business\ as one with average annual gross receipts of less than $15,370,000 for the preceding three fiscal years, adjusted for inflation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': . Section 1003(b) incorporates the SBA\rquote s \u167 8(d) definition of \small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': 49 C.F.R. \u167 23.62 (1996); 49 C.F.R. pt. 23, subpt. D, App. C (1996). USDOT also recognizes, for purposes of USDOT-assisted programs, anyone found to be socially and economically disadvantaged by the Small Business Administration, under Section 8(a) of the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 015 - In re Sherbrooke Sodding Co.doc, Paragraph with 'The Rule of Two': USDOT offers only the fact that in 1978\u821220 years ago, and 4 years before Congress passed the first of these highway-funding Acts\u8212a small business interest subsidy program was only minimally effective. It points only to Section 8(d) of the SBA, which was, apparently, insufficient to aid minority owned businesses in overcoming discriminatory federal procurement barriers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': Through the DBE program, it has been the longstanding policy of the United States Department of Transportation to expend \not less than 10 percent of the amounts authorized to be appropriated\ for certain federal highway programs \with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Intermodal Surface Transportation Efficiency Act of 1991, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': \u167 1003(b)(1). Both the ISTEA and its predecessor statute, the STURAA, define \socially and economically disadvantaged\ in accordance with section 8(d) of the Small Business Act (\SBA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': (per curiam)). Here, the basic intent of the operative statute is to foster growth in small businesses owned by \socially and economically disadvantaged\ people. The ISTEA allows a small business entity to qualify as \socially and economically disadvantaged\ in either of two ways: first, by relying on the race- or gender-based presumption of such disadvantage, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': Based on this statutory framework, it is clear that the legislative intent to foster development in small businesses whose owners have had to overcome social and economic hardship would remain even in the absence Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 026 - Cache Valley Elec Co v State of Utah Dept of Transp.doc, Paragraph with 'The Rule of Two': The DBE program would continue even absent the disputed presumption, so that small businesses whose owners could prove they were disadvantaged\u8212and thereby qualify as DBEs\u8212would continue to have an advantage over businesses like CVE that are too large to qualify as DBEs. However, we recognize that CVE might nonetheless establish standing by demonstrating that a favorable judicial determination would \likely\ improve the terms of competition it faces. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on government small business set-aside contract brought action for injunctive and declaratory relief, challenging determination by the Small Business Administration (SBA) that successful bidder qualified as a small business. Unsuccessful bidder filed motion for preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': , granted motion, and remanded action for factual determinations. Following remand, the District Court, Sporkin, J., held that SBA\rquote s size determinations, including independent review of successful bidder\rquote s payroll records, established that successful bidder qualified as small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Successful bidder in government contract qualified as a small business, as required to be eligible for contract, based on several size determinations conducted by the Small Business Administration (SBA), including audit of successful bidder\rquote s payroll records by independent accounting firm which established that bidder had fewer than 1500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': This matter comes before the Court on Federal Defendants\rquote motion to dissolve the Court\rquote s May 6, 1998 Injunction. Plaintiff, Dae Shin Enterprises, Inc. (\DSE\) is an unsuccessful bidder for a contract with the Department of the Army for M550 Escapement Assemblies. The contract was to be awarded to a small business consisting of less than 1500 employees. DSE challenged the business size determination of the successful bidder, AMTEC Corporation (\AMTEC\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': made by the Small Business Administration (\SBA\). After an extensive preliminary injunction hearing, the Court issued a Memorandum Opinion and Preliminary Injunction on May 6, 1998. The Court remanded the matter to the SBA for further determination on two grounds. First, the Court held that the SBA\rquote s size determination was made without all the relevant information because AMTEC was not careful in making its disclosures to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': On remand, the SBA followed the Court\rquote s instructions. It concluded that AMTEC was still a small business under 1500 employees. The SBA considered the information brought forth during the preliminary injunction hearing. The accounting firm of Deloitte & Touche, LLP conducted a review of AMTEC\rquote s payroll records and concluded that the total number of employees was under 1500. On the issue of the two asset acquisitions, the final agreements of which were executed after the self-certification date, the SBA concluded that even though it had the discretion to consider them in its size determination, it was not appropriate in this case. The SBA found the letters of intent that preceded the final agreements for these asset acquisitions were not \agreements in principle.\ Consequently, the employees of the acquired companies were not to be considered in determining the total number of employees for the purposes of the SBA\rquote s size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 034 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Although this Court affirms the decision of the SBA, the actions of the agency in this case are puzzling. The SBA\rquote s having to make three size determinations in this case indicates that its deference to AMTEC was somewhat generous. More difficult to understand is why the SBA declined to give more weight to the letters of intent underlying certain acquisitions the negotiations of which were begun before the self-certification date. This seems to be somewhat inconsistent with the agency\rquote s mission and the public interest. Indeed, this Court has had to instruct the agency how to interpret its own regulations. What is now necessary in view of the agency\rquote s obstinance is for the SBA\rquote s top officials to review this matter in order to determine whether the SBA\rquote s actions were consistent with its mission of advancing the interest of small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor did not establish that its prior debarment was a significant factor in determination of the Small Business Administration (SBA) to deny contractor a certificate of competency (COC); although report of SBA official referred to history of debarment, official was not a member of committee who made decision, and committee\rquote s minutes did not mention debarment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor failed to establish that Small Business Administration (SBA) was arbitrary or capricious in denying its application for a certificate of competency (COC) with respect to its bid on solicitation for transportation by barge of reactor vessels and steam generators. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': , for Defendant. Maj. Daniel K. Poling, Department of Army, Office of Judge Advocate General, and Glenn P. Harris, Small Business Association, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': On December 2, 1997, CRC filed a bid protest of this award with the United States General Accounting Office (GAO) contending that, (1) the contracting officer\rquote s allegations about the supposed shortcomings in CRC\rquote s offer were false; (2) MTMC should not have rejected CRC\rquote s bid on grounds of \non-responsibility\ without first referring CRC to the United States Small Business Administration (SBA) under its mandatory Certificate of Competency (COC) program; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': Under the heading \COC ELIGIBILITY\ Roncaglio listed CRC\rquote s three year dollar average for the years 1995, 1996, and 1997. The three year dollar average was $155,000 with $0 income for the years 1995 and 1996. Therefore, Roncaglio concluded that CRC \is considered to be a small business eligible for COC consideration.\ Immediately below this determination Roncaglio, in an obvious attempt to explain why CRC had no income for the years 1995 and 1996, wrote \CRC had been debarred from government business until April 1996.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': SBC [Small Business Concern] has provided minimal financial information and it is not reliable, at that. For example, tax returns provided are virtually blank, reporting no revenue for 1996, cash flow projection reflects no debt service to match the reported $50m line availability, there is no corporate balance sheet yet the Principal\rquote s personal assets include $86m in \rigging equipment\, etc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration has given careful consideration to the application of your firm for a Certificate of Competency and finds a lack of assurance that the proposed contract would be completed as required by the solicitation and further finds no sufficient reason for disagreeing with the decision of the contracting officer. Your firm\rquote s technical, equipment, planning, performance, and financial capabilities are unsatisfactory for this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': We regret that present conditions do not justify issuance of a Certificate of Competency in this instance. I trust that your company will continue to avail itself of the many small business aids offered by this agency and hope that we may be of service to you in the future. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': A Certificate of Competency is the certificate issued by the Small Business Administration (SBA) stating that the holder is responsible (with respect to all elements of responsibility, including but not limited to capability, competency, capacity, credit, integrity, perseverance, and tenacity) for the purpose of receiving and performing a specific Government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': (a) Upon determining and documenting that a responsive small business lacks certain elements of responsibility (including, but not limited to, competency, capability, capacity, credit, integrity, perseverance, and tenacity), the contracting officer shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 038 - CRC Marine Services Inc v US.doc, Paragraph with 'The Rule of Two': (1) A notice that a small business concern has been determined to be non-responsible, specifying the elements of responsibility the contracting officer found lacking; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on government small business set-aside contract brought action for injunctive and declaratory relief, challenging determination by the Small Business Administration (SBA) that successful bidder qualified as a small business. Unsuccessful bidder filed motion for preliminary injunction. The District Court, Sporkin, J., held that: (1) SBA\rquote s determination that two asset acquisitions made by successful bidder were irrelevant to bidder\rquote s size was arbitrary and capricious in violation of the Administrative Procedure Act (APA); (2) SBA\rquote s determination that it did not have discretion to consider such acquisitions was inconsistent with its regulations; and (3) unsuccessful bidder was entitled to preliminary injunction barring action on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': When reviewing determination of Small Business Administration (SBA) under the Administrative Procedure Act (APA) with respect to government small business set-aside contract, district court is not empowered to substitute its judgment for the SBA\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': When reviewing determination of Small Business Administration (SBA) under the Administrative Procedure Act (APA) with respect to government small business set-aside contract, district court is required to give the SBA\rquote s decision a thorough, probing, in-depth review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Determination of Small Business Administration (SBA) with respect to government small business set-aside contract is arbitrary, capricious, or contrary to law in violation of the Administrative Procedure Act (APA) if SBA has entirely failed to consider an important aspect of the problem or has offered an explanation for its decision that runs counter to the evidence before it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Fact that Small Business Administration\rquote s (SBA) initial inadequate size determination of successful bidder on government small business set-aside contract was result of bidder\rquote s failure to disclose pertinent information did not preclude finding that such determination was arbitrary and capricious in violation of the Administrative Procedure Act (APA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) second size determination of successful bidder on government contract, made following SBA\rquote s discovery that bidder had not disclosed all relevant information before initial size determination, was not an advisory opinion, but rather a binding determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Following Small Business Administration\rquote s (SBA) discovery that successful bidder on government contract failed to disclose relevant information regarding its affiliates before SBA\rquote s initial determination of bidder\rquote s size, SBA\rquote s failure to apply the negative inference rule in making its second size determination, which rule mandated that all information not previously disclosed would be interpreted contrary to small business status, was not arbitrary and capricious in violation of the Administrative Procedure Act (APA), absent evidence that bidder\rquote s failure to disclose information was intentional or wilful. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination that two asset acquisitions made by successful government contract bidder were irrelevant to bidder\rquote s size was arbitrary and capricious in violation of the Administrative Procedure Act (APA), though acquisitions were not finalized until after date bidder self-certified its size; SBA failed to examine whether an agreement in principle regarding the acquisitions existed as of size certification date. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination that it did not have discretion to consider successful government contract bidder\rquote s acquisitions completed after date on which bidder self-certified its size was inconsistent with its regulations, which provided SBA with flexibility to look beyond date of self-certification in determining bidder\rquote s size. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on government small business set-aside contract was entitled to preliminary injunction barring action on contract, which was awarded to another bidder who failed to disclose all of its affiliates in its size self-certification; unsuccessful bidder would be irreparably harmed if contract proceeded, delay required for SBA to determine successful bidder\rquote s size would not be substantial, and public had interest in fair administration of federal procurement system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Brian J. Sonfield, U.S. Attorney\rquote s Office, Washington, DC, for U.S., U.S. Dept. of Army, TOGO West, Secretary of Army, Small Business Admin., AIDA Alvarez. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': This matter comes before the Court on Plaintiff\rquote s motion for a Preliminary Injunction. Plaintiff, Dae Shin Enterprises, Inc. (\DSE\) is an unsuccessful bidder for a contract with the Department of the Army for M550 Escapement Assemblies. DSE challenges the business size determination of the successful bidder, AMTEC Corporation (\AMTEC\), made by the Small Business Administration (\SBA\). The Court concludes that there are several problems with the SBA\rquote s size determination in this matter and will remand the case to the SBA for further proceedings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': On September 16, 1997, the U.S. Army issued Solicitation No. DAAA09\u8211970R00264 (the \Solicitation\) for the M550 Escapement Assembly. The Army issued the Solicitation as a small business set aside under the Standard Industrial Classification Code (\SIC\) 3483 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': ), which establishes a small business size standard of 1500 employees. Proposals were due and submitted on November 13, 1997. The Army concluded its proposal evaluations and awarded the contract to AMTEC on January 21, 1998. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': AMTEC is a manufacturer of fuses that are used within ammunition. AMTEC\rquote s President is Randall Lansing and its Board of Directors consists of Charles L. Palmer (Chairman) and R. David Bergonia. Mr. Palmer is a sophisticated businessperson who acquires small businesses for institutional investors, ensures that they are adequately managed, and later re-sells the businesses for a profit. AMTEC is owned 100% by AMTEC Precision Products, Inc. AMTEC Precision Products has the same Board of Directors as AMTEC Corporation. AMTEC Precision Products is owned by North American Fund II (\Fund II\), a venture capital fund. Mr. Palmer serves as the President of North American Business Development Company, L.L.C., which is the General Partner of Fund II. Mr. Palmer is also involved in two other entities, the North American Company, Ltd., a family owned limited partnership, and the North American Fund III. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': , a company may self-certify that it qualifies as a small business under the terms of the solicitation. Following this procedure, AMTEC certified that it qualified as a small business at the time it submitted its initial offer on November 12, 1997. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidders on small business set-aside contracts may protest to the contracting officer if they contend that a contract awardee does not meet the criteria for a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': . The contracting officer will then forward the protest to the local SBA Government Contracting Area Office. Upon a timely challenge, an SBA area contracting office will issue a \size determination\ as to whether the awardee meets the criteria to be a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': . Following this procedure, Plaintiff DSE challenged AMTEC\rquote s small business size status in a January 23, 1998 letter written to the Army\rquote s Contracting Officer, Mr. James Lonergan. In its letter, DSE alleged the existence of multiple companies affiliated with AMTEC whose employees, when added together, far exceeded the Solicitation\rquote s 1500 employee size standard. Mr. Lonergan forwarded DSE\rquote S challenge to the SBA\rquote s Office of Government Contracting, Area IV, for its review and determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': as a small business as of the date of its self-certification (November 12, 1997). On February 23, 1998, DSE filed a protest to the General Accounting Office (\GAO\). In its protest, DSE requested a stay of contract performance consistent with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': On March 27, 1998, the SBA\rquote s Office of Government Contracting in Chicago protested the size of AMTEC Corporation. The SBA initiated this protest because it became aware of new information suggesting that AMTEC might have additional affiliates of which SBA was not previously aware. The SBA concluded its second size determination on April 16, 1998, finding that AMTEC had 1369 employees and thus was still qualified as a small business for the solicitation at issue. On April 23, 1998, the Court issued a TRO, restraining any further action on the procurement contract. Beginning on April 27, 1998, the Court held a four-day hearing on Plaintiff DSE\rquote s motion for a preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the SBA failed to adhere to the requirements of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': In this case, AMTEC concedes that it did not disclose all the relevant information for the SBA to make its first size determination. Plaintiff argues that the SBA\rquote s second size determination was arbitrary and capricious because the agency should have applied the \negative inference rule\ and interpreted all information not disclosed the first time contrary to AMTEC\rquote s status as a small business. The negative inference rule is provided in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': presume that disclosure of the form, any information missing from it, or other missing information would show or tend to show that the concern is other than a small business (emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': While the Court finds that there is no evidence to support an intentional or fraudulent nondisclosure, the evidence does suggest that AMTEC was not careful in the way it was making its submissions to the SBA. Mr. Lansing testified that he self-certified by checking the box for small business. He said that he was a novice in dealing with Form 355 and that he had trouble figuring out what information had to be included on the form. Throughout this process, Mr. Lansing acted alone, without much guidance from Mr. Palmer or AMTEC\rquote s other director, Mr. Bergonia. Despite the fact that Mr. Lansing knew that AMTEC was owned by AMTEC Precision Products, which in turn was owned by a venture capital fund (Fund II), he did not consult with counsel or with Mr. Palmer or Mr. Bergonia before certifying that AMTEC was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': It is clear that the business structure of Mr. Palmer\rquote s companies was too decentralized and that there was inadequate communication between Mr. Palmer and AMTEC. When responding to Form 355, Mr. Lansing listed as affiliates only those companies immediately affiliated with AMTEC (its sister companies that were held by AMTEC Precision Products, Inc.). He did not know about the other companies Mr. Palmer owned. Despite the fact that Mr. Lansing was President of AMTEC and Mr. Palmer was on the Board of Directors of AMTEC and its parent, Precision Products, Inc., Mr. Palmer testified that he never met Mr. Lansing until the preliminary injunction hearing. Mr. Palmer was not aware that Mr. Lansing was seeking the government contract for AMTEC. When Mr. Lansing negotiated an acquisition of the assets of Allied Molding Co., Mr. Palmer was not involved. In short, Mr. Palmer did not know what Mr. Lansing was doing and Mr. Lansing did not know what Mr. Palmer was doing. The Court finds that it was this loose style of oversight and lack of communication that resulted in AMTEC\rquote s failure to provide adequate disclosure on its Form 355 for the first size determination. If AMTEC desires to continue pursuing government contracts as a small business, Mr. Palmer\rquote s group of companies must devise a better system of communication among the entities Mr. Palmer owns, manages, or controls. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Because of the organizational deficiencies of the Palmer entities, the Court lacks confidence in the SBA\rquote s second size determination. The SBA\rquote s ability to conduct an accurate size determination depends, in large part, on an applicant\rquote s voluntary disclosures. Ms. Craig testified that the SBA rarely looks beyond the disclosures made by the alleged small business concern. Given the lack of communication between AMTEC and the Board of Directors of its parent company, the Court has serious questions about whether AMTEC made all the relevant disclosures for the second size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': The first asset acquisition was of Actown\u8211Electrocoil and AEIC, Inc. by Mr. Palmer\rquote s North American Fund III. This acquisition was pursued by Mr. Palmer. Mr. Lansing, the President of AMTEC, had no knowledge of this acquisition. In connection with the acquisition, a letter of intent was signed on October 21, 1997, about 20 days before AMTEC self-certified that it was a small business. The final agreement for this asset acquisition was signed on January 13, 1998. AMTEC concedes that this acquisition would add approximately 200 to 250 employees for the purposes of its size status and would put it over the 1500 employee limit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': The second asset acquisition, in which AMTEC purchased the assets of Allied Molding Co., was negotiated by Mr. Lansing. Mr. Palmer had no knowledge of the details of this acquisition. A letter of intent was drafted on November 14, 1997 and signed on November 17, 1997, a few days after the date AMTEC self-certified that it was a small business. The final agreement was signed on December 30, 1997. AMTEC stated that the acquisition of Allied Molding Co. would add approximately 70 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': to the Small Business Administration (\SBA\) to address the issues raised in the Court\rquote s Memorandum Opinion. Specifically, the SBA shall consider the evidence brought forward at the preliminary hearing in this case; and it is further Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 041 - DSE Inc v US.doc, Paragraph with 'The Rule of Two': Agencies acting in the public interest must have flexibility if they are to carry out their responsibilities fairly and effectively. This case illustrates that if the SBA limits its discretion so that it cannot, under any circumstances, consider mergers or acquisitions after the self-certification date, the SBA can defeat the very purpose of its existence. The SBA\rquote s purpose is to further the interests of small businesses. Without the flexibility to look beyond the date of self-certification in special cases, companies can secure contracts set aside for small businesses while simultaneously planning to \bulk up\ shortly after obtaining the contract. For example, under the proposed interpretation offered by the SBA, even if AMTEC were acquired by General Motors soon after the self-certification date, the SBA would allow this new \big business\ to keep the contract. If the SBA were incapable of preventing such an abuse in promoting small business, then the rationale for the SBA\rquote s continued existence certainly would be in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 042 - Phillips And Jordan Inc v Watts.doc, Paragraph with 'The Rule of Two': . FDOT may establish annual goals for expending a percentage of state-administered highway funds with small businesses owned and controlled by socially and economically disadvantaged individuals and\u8212to that end\u8212may set aside contracts for competition only among disadvantaged business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 046 - Informatics Corp v US.doc, Paragraph with 'The Rule of Two': In response to the RFP, Informatics Corporation (\plaintiff\), designated a small disadvantaged business operating under the United States Small Business Administration\rquote s (\SBA\) 8(a) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 046 - Informatics Corp v US.doc, Paragraph with 'The Rule of Two': The successful SETA contractor may be called upon to write Statements of Work for Community Relations and related efforts for the existing small business administration contracts to perform Community Relations. The fact the Informatics holds one of these contracts would cause an OCI. The Informatics existing contract with AFCEE for Community Relations Support could not be modified into the SETA Statement of Work after award. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 046 - Informatics Corp v US.doc, Paragraph with 'The Rule of Two': Community Relations efforts are, first, out of scope of the SETA SOW, and secondly, they are reserved for award under the 8(a) Program to the Small Business Administration. Moving the work from the Informatics contract to another contract also presents scope issues, as these contracts were awarded regionally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 050 - Brothers Cleaning Service Inc v Chair Committee for Purchase from People W.doc, Paragraph with 'The Rule of Two': In 1992, Brothers contracted through the United States Small Business Administration to provide custodial services at facilities used by the Department of the Army at the Fort Leavenworth base in Kansas. The Army, through its contracting officer, orally requested in July 1994 that Brothers assume janitorial services for two newly constructed buildings, the Combined Arms Research Library and the General Instructional Facility, collectively referred to as Eisenhower Hall. Brothers agreed to perform and indeed performed custodial services at Eisenhower Hall from July 1994 through November 1994. However, a written contract modification was never drafted. Brothers submitted invoices and received payment for work performed during that period in accordance with the original oral request by the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 057 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': GSA\rquote s power to suspend Commercial and Milford from contracting with the government is not, as they contend, limited by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 057 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': . The Small Business Administration is responsible for certifying the integrity and responsibility of a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 057 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': . The Small Business Administration\rquote s regulations acknowledge this distinction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 059 - Syska And Hennessy Inc v General Accounting Office.doc, Paragraph with 'The Rule of Two': The Court based its rulings on the fact that the plaintiff\rquote s claims against the federal defendants are now moot. Those claims related to the GAO\rquote s consideration of a bid protest that had been filed by defendant Valenzuela Engineering, Inc. (\VEI\). VEI\rquote s protest alleged that the United States Army\rquote s award of a contract and task order to the plaintiff violated federal small business regulations. In its complaint, the plaintiff sought two forms of relief: (1) an order requiring the GAO to dismiss VEI\rquote s bid protest; and (2) a declaration that the plaintiff\rquote s contract and task order complied with federal regulations and that VEI\rquote s protest was therefore without merit. Subsequent to the plaintiff\rquote s initiation of this lawsuit, however, the GAO dismissed VEI\rquote s bid protest. Since the GAO\rquote s dismissal of VEI\rquote s bid protest was the very relief that the plaintiff sought against the government defendants, its claims against those defendants are moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 063 - W And D Ships Deck Works Inc v US.doc, Paragraph with 'The Rule of Two': at 28. The government designated the contract as a 100% set-aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Paragraph with 'The Rule of Two': County transit authority\rquote s apparent abandonment of racial \set aside\ as part of disadvantaged business enterprise (DBE) program for bids on contracts did not render equal protection challenge to program academic, in light of ability of authority to abandon race-neutral small business plan in favor of another race-based one through expenditure of little time and paper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Paragraph with 'The Rule of Two': The difference between the two programs is relatively minor; the federal program uses \minority,\ \socially and economically disadvantaged individuals,\ \small business concern,\ and \disadvantaged\ interchangeably while Metro uses \disadvantaged business enterprise.\ The essential commonality between them is that they require awarding contracts to people defined by sex, race, and ethnicity. The federal program requires the grant recipient to maintain a disadvantaged program with \practical\ numerical goals as a condition for federal grants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Paragraph with 'The Rule of Two': According to Metro, a disadvantaged business enterprise is a small business, managed and owned over 50% by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Paragraph with 'The Rule of Two': Metro has adopted a new plan that attempts to assist small businesses in contracting with Metro. The apparent abandonment of the racial \set aside\ program does not make this case academic. Adopting a plan is a moderately casual piece of business for Metro; it can abandon the race-neutral small business plan in favor of another race-based one through the expenditure of a little time and paper. The new small business plan must be revised to comply with the constitutional requirement of racial and sexual neutrality. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 068 - Houston Contractors Ass'n v Metropolitan Transit Authority of Harris Count.doc, Paragraph with 'The Rule of Two': The contractors have not attacked Metro\rquote s authority to support small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 075 - Delbert Wheeler Const Inc v US.doc, Paragraph with 'The Rule of Two': Criteria II is entitled \Participation of Small Businesses, Small Native American Businesses, and other Small Disadvantaged Businesses,\ and it instructs that the proposal identify and commit to the utilization of: (1) small businesses to complete at least 40% of the value of the contract; (2) small disadvantaged businesses (including small Native American businesses) to accomplish at least 30% of the total value of the contract: and (3) small Native American businesses to complete at least 25% of the total value of the contract. (A.R. at 63\u821164). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Corporation that provided architectural and engineering services brought action challenging refusal by Small Business Administration (SBA) to revise corporation\rquote s participation term in program for socially and economically disadvantaged businesses. The United States District Court for the District of Columbia, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Issuance of oral solicitation by Veterans Administration (VA) for proposals regarding project which was ultimately awarded to corporation did not render subsequent acceptance of that contract by Small Business Administration (SBA) into program for socially and economically disadvantaged businesses, for purpose of establishing corporation\rquote s program participation term, a violation of SBA regulation precluding acceptance of contract that was previously subject of public solicitation, as VA\rquote s solicitation was not of type specified in rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) had statutory authority to revise term of participation in program for socially and economically disadvantaged businesses once it was set, if contract on which term was based was granted in violation of federal regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Decision of Small Business Administration (SBA) not to revise corporation\rquote s participation term in program for socially and economically disadvantaged businesses was not arbitrary and capricious because SBA could have reached no other conclusion than that expiration date of corporation\rquote s program term was correct. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Affidavits submitted by corporation were properly excluded by district court in corporation\rquote s action challenging decision of Small Business Administration (SBA) where affidavits were not contained in agency record; even if court could consider nonrecord evidence that elaborated on information in record, affidavits at issue provided significant new information and did not fall within any exception to prohibition on consideration of nonrecord evidence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Glenn P. Harris, Trial Attorney, United States Small Business Administration, Washington, DC, argued the cause, for appellee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': IMS, P.C. (\IMS\), a corporation that provides architectural and engineering services, brought an action in the United States District Court for the District of Columbia to challenge the refusal by the Small Business Administration (\SBA\) to revise IMS\rquote s participation term in the SBA\rquote s section 8(a) program for socially and economically disadvantaged businesses. IMS\rquote s dispute with the SBA arose after the passage of the Business Opportunity Development Reform Act of 1988, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': In December 1985, IMS was accepted into the Small Business Administration\rquote s section Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': 8(a) program, which provides \small business concerns owned and controlled by socially and economically disadvantaged individuals\ with \contract, financial, technical, and mangement [sic] assistance.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': (i) Public solicitation has already been issued for the procurement as a small business set-aside in the form of an Invitation for Bid (IFB), Request for Proposal (RFP) or a Request for Quotation (RFQ). Providence of a general intent to set aside, such as Procurement Information Notices (PIN\rquote s), annual procurement forecasts or past procurements by set aside, is insufficient reasons [sic] to preclude the procurement from 8(a) consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': is consistent with the rest of the federal regulations and with the plain meaning of the regulation, we find it entirely reasonable. Under this interpretation of the regulations, even if the VA issued an oral solicitation to IMS and other small businesses in mid\u82111986, the SBA did not violate its own regulations when it accepted the contract into the section 8(a) program in early 1987. IMS has therefore failed to establish that its section 8(a) program term is incorrect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'The Rule of Two': Defendant\rquote s Memorandum of Points and Authorities in Support of Its Motion to Dismiss or, in the Alternative, Cross Motion for Summary Judgment and Opposition to Plaintiff\rquote s Motion for Summary Judgment, at 18\u821126. It should be noted that Ms. Gaughan\rquote s memorandum mentions that the SBA\rquote s file did not include a statement from the procuring agency that the proposed procurement had not been offered previously by public solicitation under a small business set aside, as was required by the regulations. However, the memo also indicated that such a statement had been made by an SBA employee and concluded that it was a matter of agency discretion whether the omission of the procuring agency\rquote s statement was fatal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 078 - Lyons Sec Services Inc v US.doc, Paragraph with 'The Rule of Two': INS conducted another survey of Lyons in January 1997. The Agency apparently had concerns about Lyons\rquote financial strength and its status as a \self-certified small business concern.\ The contracting officer referred the matter to the Small Business Administration for a size status determination and for a certification of competency pursuant to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 083 - CC Distributors Inc v US.doc, Paragraph with 'The Rule of Two': According to plaintiff\rquote s complaint, on August 3, 1995, the Air Force \published a notice in the Commerce Business Daily (CBD) to solicit potential contractors to provide \u8216Base Operating Support Services\rquote to be performed at Tyndall AFB, located in the northern panhandle of Florida.\ The contract was designed as \covering four \u8216functional area groupings,\u8217 including \u8216civil engineering,\u8217 \u8216transportation,\u8217 \u8216supply/fuels,\u8217 and \u8216information management.\u8217 \ This initial notice indicated that the Air Force intended to issue a request for proposals (RFP) in connection with a cost study being conducted pursuant to OMB Circular A\u821176 to determine whether the services should be contracted out to the private sector or performed in-house by government personnel. The August 3, 1995 notice also stated that the Air Force contemplated awarding a small business set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 083 - CC Distributors Inc v US.doc, Paragraph with 'The Rule of Two': On September 28, 1995, the Air Force published an amended notice in the CBD, expanding the solicitation field to include all potential offerors, large as well as small businesses, and adding a requirement for aircraft maintenance services in support of F\u821115 aircraft. The Air Force also announced that this contract could be partitioned, by functional area groupings, thereby allowing for different contractors for the various functional areas, and that the solicitation was scheduled to be released in November 1995. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 083 - CC Distributors Inc v US.doc, Paragraph with 'The Rule of Two': CCD\rquote s protest alleges improprieties in the solicitation and thus should have been filed prior to the closing date. CCD concedes that it was aware of the agency\rquote s procurement of the civil engineering services through both the August 3, 1995, CBD announcement seeking qualified small business sources and the September 28, 1995, announcement of the issuance of the RFP on an unrestricted basis. In the year between the announcement of the procurement and the closing date, CCD never requested a copy of the RFP and never sought clarification of the requirement. While we question CCD\rquote s assertion that the CBD announcements did not indicate that the COCESS function was included in the procurement, in any case, CCD had ample opportunity to seek clarification from the agency but failed to do so. In this regard, it is also clear from CCD\rquote s protest submission that it was concerned that the civil engineering function award may have included the COCESS function because CCD sought assurance from the contracting officer that exercise of its remaining option on its COCESS contract would not be affected by the award of the civil engineering function to DEL\u8211JEN. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 084 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': To qualify to participate in one of the MWBE programs, a business must be owned and controlled by one or more black, Hispanic, or female individuals, and it must have an actual place of business in Dade County. MWBE joint ventures must have at least one member that is certified under one of the three MWBE programs. Additionally, each MWBE participant must demonstrate that it does not exceed the size limits for \small business concerns\ as defined by the Small Business Administration of the United States Department of Commerce. However, an MWBE participant that exceeds the size limit may retain its certification if it demonstrates that \it continues to experience the kinds of racial [or gender] discrimination addressed by [the programs].\ Metropolitan Dade County Code \u167 2\u82118.2(3)(e). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 084 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': The State of Small Business: a Report of the President 201 (1986) ( \Relative to the distribution of all business, black-owned businesses are more than proportionately represented in the transportation industry, but considerably less than proportionately represented in the wholesale trade, manufacturing, and finance industries\).... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 084 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': Here, the County has clearly failed to give serious and good-faith consideration to the use of race and ethnicity-neutral measures to increase BBE and HBE participation in the County construction market. The legislative findings accompanying the BBE ordinance merely contain the conclusory statement that \race neutral programs cannot address the above problems and do not focus limited County money, efforts and personnel on the problems caused by racial discrimination.\ That conclusion was based on an equally conclusory analysis contained in the Brimmer study, and a report that the Small Business Administration was able to direct only five percent of SBA financing to black businesses from 1968 to 1980. In view of that perfunctory Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with 'The Rule of Two': Best Foam is a small, minority-owned manufacturer of foam products located in Chicago, Illinois. Best Foam has manufactured foam products for the government since 1983 and has successfully completed several hundred government contracts. The company qualified as a \small and disadvantaged business\ pursuant to section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with 'The Rule of Two': The Navy then decided to procure foam fuel cells for its entire UH\u82111N/HH\u82111N fleet. There was an urgent need for the product because many of the helicopters were flying either with older, lower quality foam inserts which were deteriorating or without any foam inserts at all. In fact, many helicopters were grounded because they were not equipped with adequate foam inserts. The procurement was to be conducted by ASO in Philadelphia, Pennsylvania. NADEP\rquote s engineers recommended to ASO that the foam fuel cells be purchased from Best Foam in light of its successful completion of the prototype and validation/verification contracts. No other sources were recommended. Based on NADEP\rquote s advice, by letter dated May 19, 1993, ASO offered the requirement for the foam fuel cells to the Small Business Administration (\SBA\) under the 8(a) program and identified Best Foam as the recommended source. By letter dated June 25, 1993, SBA accepted the offer and authorized ASO to negotiate a contract directly with Best Foam, subject to SBA\rquote s approval. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with 'The Rule of Two': Instead, in June 1995, ASO resolicited the government\rquote s requirement for the foam fuel cells on a competitive basis. The procurement was set aside for small businesses but was not restricted to 8(a) contractors. Based on a specific recommendation from Mr. Ryan, the solicitation included a requirement that the foam fuel cells be \newly manufactured.\ ASO received four offers ranging in price from $169,308.80 to $413,760.00. Best Foam submitted the third-lowest bid of $413,585.40. ASO awarded the contract to the low bidder at the price of $169,308.80. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](d)(2, 3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[8](d)(2, 3), 2[15](g), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': I grant Adarand\rquote s motion for summary judgment, and deny that of the Defendants. I issue an injunction enjoining the Defendants from administering, enforcing, soliciting bids for, or allocating any funds under the SCC program. This effectively precludes the implementation of the statutes or regulations that grant presumptive eligibility for government preference in contracting on the basis of race, i.e., the use of presumptions of social and economic disadvantage in \u167 8(d) of the Small Business Act, 72 Stat. 384, as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': According to the prime contract, Mountain Gravel would receive additional compensation from the government if it hired subcontractors certified as small businesses controlled by \socially and economically disadvantaged individuals.\ Whereas Gonzales is certified as such a business, Adarand is not. Despite Adarand\rquote s low bid, Mountain Gravel awarded the subcontract to Gonzales. An affidavit of Mountain Gravel\rquote s Chief Estimator states the company would have accepted Adarand\rquote s bid were it not for the additional payment received by hiring Gonzales. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including contracts and subcontracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': A \small business concern owned and controlled by socially and economically disadvantaged individuals\ is defined as a small business concern \which is at least 51 per centum owned by one or more socially and economically disadvantaged individuals,\ and \whose management and daily business operations are controlled by one or more of such individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The contractor shall presume that socially and economically disadvantaged individuals include Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities, or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Contractors acting in good faith may rely on written representations by their subcontractors regarding their status as ... a small business concern owned and controlled by socially and economically disadvantaged individuals.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The finding \by the Administration\ in the quoted passage refers to certification by the Small Business Administration under the 8(a) set aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': . The Administration will then \arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns ....\ who have been certified as \u167 8(a) program participants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': \presume that socially and economically disadvantaged individuals include [the specified racial groups] or any other individual found to be disadvantaged by the Administration pursuant to section 8(a) of the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The SBA further provides \[t]he President shall annually establish Government-wide [sic] goals for procurement contracts awarded to ... small business concerns owned and controlled by socially and economically disadvantaged individuals....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': In addition, the SBA requires each federal agency to establish goals for the participation by small business concerns owned and controlled by socially and economically disadvantaged individuals in procurement contracts of such agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': . These goals \shall realistically reflect the potential of ... small business concerns owned and controlled by socially and economically disadvantaged individuals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': are in furtherance of the policy stated in 8(d)(1), that small business concerns owned and controlled by socially and economically disadvantaged individuals have the maximum opportunity to participate in the performance of contracts let by any federal agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Section 106(c)(1) of STURAA requires that \not less than 10 percent\ of the funds appropriated under the act \shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ 101 Stat. 145. ISTEA, in \u167 1003(b), adopts the 10 percent goal found in STURAA. 105 Stat. 1919. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Monetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': A small business concern will be considered a DBE after it has been certified as such by the U.S. Small Business Administration or any State Highway Agency [sic]. Certification by other Government [sic] agencies, counties, or cities may be acceptable on an individual basis provided the Contracting Officer [sic] has determined the certifying agency has an acceptable and viable DBE certification program. If the Contractor [sic] requests payment under this provision, the Contractor [sic] shall furnish the Engineer [sic] with acceptable evidence of the subcontractor(s) [sic] DBE certification and shall furnish one certified copy of the executed subcontract(s). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Under the SCC at issue, \a small business concern will be considered a DBE after it has been certified as such by the U.S. Small Business Administration or any State Highway Agency. Certification by other Government [sic] agencies ... may be acceptable on an individual basis ...\ (Defs.\rquote Mot. Summ. J., Ex. 1 at I\u821124.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': states that to be eligible as a subcontractor under the program, a concern must be a small business or a DBE and that \Black Americans, Hispanic Americans, Native Americans, Asian\u8211Pacific Americans, Subcontinent\u8211Asian Americans\ are presumed to be DBEs. Further, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Appendix I recounts the relevant legislative history of the Small Business Administration concerned with developing small businesses, including those owned by socially and economically disadvantaged individuals and providing them with opportunities to participate in the economy, including the construction industry. Although some of the quotations in the appendix are by Senators or Congressmen who sponsored the bills, the Defendants submit this does not diminish the fact that Congress reasonably and correctly believed that the evidence of discrimination presented was sufficient to require corrective measures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Appendix I states that, since the enactment of the SBA in 1978, Congress has often reexamined the issue of disadvantage in federal contracting caused by racial discrimination and found such disadvantage to continue. The appendix cites various hearings between 1978 and 1988 evidencing continuing difficulty experienced by individuals suffering from social and economic disadvantage in establishing small businesses after years of discrimination. (Defs.\rquote Mem. Supp. Summ. J., App. I at 3\u82114.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , reaffirming its commitment to the elimination of discriminatory barriers faced by small businesses owned by disadvantaged individuals after a finding that discrimination and the effects of past discrimination continued to hinder their development. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The Defendants submit Congress utilized race-neutral measures for at least twenty-five years before amending the SBA in 1978. In 1953 it passed the SBA, allowing the Small Business Administration to enter into contracts with the federal government and subcontract them out to small businesses. However, the Defendants state, in the ensuing fifteen years, minority-owned small businesses continued to be disproportionately excluded from government procurement. As a result, Congress authorized the Small Business Administration to subcontract to socially and economically disadvantaged businesses in an attempt to help minority-owned small businesses. In 1970, to help small businesses obtain surety bonds, the Small Business Administration was authorized by the Housing and Urban Development Act, Pub.L. 91\u8211609, 84 Stat. 1813, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 003 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , government-wide goals are negotiated annually between the head of each agency and the Small Business Administration. They state Congress has reviewed evidence to determine whether the goals are achieving the desired result of remedying discrimination and the lingering effects of past discrimination nationwide and has determined there is a need to continue the DBE requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 006 - PCIRCI v US.doc, Paragraph with 'The Rule of Two': at 1460. Congress, by enacting the EAJA, sought to provide a means to prevent individuals, as well as small business concerns, from being deterred by potential costs of litigation from seeking redress for allegedly unreasonable government action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 009 - DIRECTV Inc v FCC.doc, Paragraph with 'The Rule of Two': (B) promoting economic opportunity and competition and ensuring that new and innovative technologies are readily accessible to the American people by avoiding excessive concentration of licenses and by disseminating licenses among a wide variety of applicants, including small businesses, rural telephone companies, and businesses owned by minority groups and women; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 015 - Marinette Marine v US Coast Guard.doc, Paragraph with 'The Rule of Two': On March 25, 1996, Marinette filed a protest challenging the small business status of Bollinger. On April 22, 1996, the Small Business Administration denied the protest and certified Bollinger as a small business boat builder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 019 - Ervin and Associates Inc v Dunlap.doc, Paragraph with 'The Rule of Two': Disappointed bidder, who alleged that he had been precluded from bidding on Department of Housing and Urban Development (HUD) contract because it was purportedly procured under Small Business Administration (SBA) program but that successful bidder was not a qualified SBA contractor and that HUD actually applied race-based criteria, had standing to seek a declaration voiding the contract, as disappointed bidder was qualified to be awarded the contract if it was rebid as a non-SBA contract and bidder had standing for equal protection claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 019 - Ervin and Associates Inc v Dunlap.doc, Paragraph with 'The Rule of Two': Disappointed bidder did not have standing to seek a declaration voiding Department of Housing and Urban Development\rquote s (HUD) award of contract under Small Business Administration (SBA) program, as bidder did not contest the SBA qualifications of the successful bidder and disappointed bidder was not qualified to bid for SBA contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 019 - Ervin and Associates Inc v Dunlap.doc, Paragraph with 'The Rule of Two': Similarly, with respect to the first Due Diligence contract, the government\rquote s standing argument fails because if Ervin prevails on his claim, he could be in a position to bid on and win the contract award. Ervin was precluded from bidding on this contract because it was purportedly procured under the Small Business Administration\rquote s 8(a) program, which benefits small, economically and socially disadvantaged businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 022 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act and Competition in Contracting Act provisions applicable when company is being considered for contract award are inapplicable to General Services Administration (GSA) action suspending or terminating government contract. Small Business Act, \u167 2[8](b)(7), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 022 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs filed their complaint on December 20, 1996, against the United States, Government Services Administration, GSA Contracting Officer Monica Gormley, and GSA Suspending Officer Donald Suda. Counts I\u8211VI of the complaint deal with the cancellation of the ongoing MAS contracts, alleging violations of due process, the Administrative Procedure Act, Federal Acquisition Regulations, the Small Business Act, and the Competition in Contracting Act. Count VII alleges that plaintiffs\rquote suspension from future contracts was in violation of due process, APA, federal acquisition regulations, and the Small Business Act. Count VIII alleges APA violations in connection with CDC\rquote s failure to obtain an order under one of the ongoing MAS contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 022 - Commercial Drapery Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs\rquote claims that GSA acted in violation of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Ineligible bidder for government contract offered as small business set aside brought action to challenge constitutionality of decision of National Aeronautics and Space Administration (NASA) and Small Business Administration (SBA) to offer contract only for disadvantaged small businesses. Bidder moved for preliminary injunction. The District Court, Sporkin, J., held that: (1) bidder had standing; (2) equal protection clause required SBA and NASA at least to explain belief in bidding contract as small business set aside and past societal disadvantages to be corrected; and (3) bidder was entitled to preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Potential bidder that was ineligible to compete for government contract offered as small business set aside had standing to challenge, as violation of equal protection clause, and Administrative Procedure Act (APA), decision by National Aeronautics and Space Administration (NASA) and Small Business Administration (SBA) not to allow full and open competition; bidder faced threatened injury of losing right to compete for valuable contract, injury was fairly traceable to decision to offer contract as small business set aside, and decision in favor of bidder would allow it to compete for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act authorizing set aside of government contracts for disadvantaged small businesses does not on its face violate equal protection clause, since government has compelling interest in combatting discrimination in government contracts and legislation and related regulations are narrowly tailored to extent that they limit set asides to minimum of 5% of government contracts and create only rebuttable presumption that minority contractors are eligible for the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': To comply with equal protection clause, agency proposing set aside contract for disadvantaged small business must engage in analysis proposed by Department of Justice (DOJ) and ask what underlying factual predicate of discrimination was, whether program was justified solely by reference to general societal discrimination, general assertions of discrimination in particular sector or industry, or statistical underrepresentation of minorities in sector or industry, whether evidence of discrimination was statistical or documentary, whether statistics were sophisticated and focused, and whether there was testimony or anecdotal evidence of discrimination in record underlying the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA), and National Aeronautics and Space Administration (NASA) offering government contract as small business set aside were required by equal protection clause to explain necessity of offering contract to disadvantaged small businesses and to explain past societal disadvantages to be corrected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Inability of government contractor to bid for follow-on contract since it was offered as small business set aside and contractor was no longer disadvantaged small business would cause irreparable injury supporting preliminary injunction against award of contract; contractor employed more than 500 persons, and existing contract represented 35% of total business. Small Business Act, \u167 2 [8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Preliminary injunction against offering government contract as small business set aside would not harm Small Business Administration (SBA) nor National Aeronautics and Space Administration (NASA) since contractor challenging set aside on equal protection grounds would continue to perform the work as incumbent contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': Plaintiff is a New Mexico-based corporation. In 1986, it was awarded a contract by the NASA Lewis Research Center (\LeRC\) pursuant to a set aside under Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': In 1995, NASA started the process of setting up a follow-on procurement. That procurement was to include all of the services currently provided under CLASS\u8211II, as well as additional services currently provided under smaller 8(a) contracts. The new contract is known as the Management and Operations Contract I (\MOC I\). Although the new contract would be larger than CLASS\u8211II, which had been the subject of full-and-open competition, NASA decided that the new contract should be offered as a small business set-aside. Initially, NASA sought to administer MOC I as an internal set-aside. However, on the advice of counsel who were apparently worried about the implications of the Supreme Court\rquote s decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': The 8(a) program is a business development program for small businesses owned by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': individuals who are both economically and socially disadvantaged. Small businesses owned and controlled by such individuals may apply to the SBA and, if certified by the SBA into the program, receive technological, financial, and practical assistance, as well as support through preferential awards of government contracts. The program allows the SBA to enter into contracts with other government agencies and then subcontract with qualified 8(a) participants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': In order for a firm to participate in the 8(a) program, the SBA must certify that it is a \small business.\ A business qualifies as \small\ if it is independently owned and operated, is not dominant in its field of operation, and has the number of employees or annual gross receipts not in excess of the level set by regulation for the industry in which the business operates. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': . A small business is \disadvantaged\ if at least 51% of the firm is unconditionally owned and controlled by an individual who is both socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': . However, social disadvantage may be demonstrated by any individual who presents evidence to the SBA that he or she has personally suffered social disadvantage as a result of \color, ethnic origin, physical handicap, long-term residence in an environment isolated from the mainstream of American society, or other similar cause not common to small business persons who are not socially disadvantaged.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': MOC\u8211I is offered as an 8(a) contract, plaintiff is not eligible to compete. The reason for this is threefold: first, plaintiff is no longer a \small business,\ under the SBA; second, plaintiff is no longer a socially or economically disadvantaged business; and third, the plaintiff has \graduated\ from the 8(a) program by participating for the maximum time allowed. But plaintiff would be eligible to compete for MOC\u8211I if defendant NASA offered it as to \full-and-open\ competition, as it did with CLASS\u8211II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': The Court agrees with the parties that facially, 8(a) meets constitutional muster. Congress first implemented the Small Business Act to combat serious unlawful discrimination in government contracting. In oversight and reauthorization hearings held since implementation of the act, Congress has continued to find such discrimination. Without question, there is a compelling governmental interest in combating such discrimination where it exists. In the case of 8(a), the legislation and related regulations are narrowly tailored to the extent that they limit set asides to a minimum of five percent of government contracts and create only a rebuttable presumption that minority contractors are eligible for the program. Furthermore, where necessary, Congress has amended the statute so that it may fulfill its purpose as swiftly and as fairly as possible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 030 - Cortez III Service Corp v National Aeronautics And Space Admin.doc, Paragraph with 'The Rule of Two': In 1990, the CLASS\u8211II contract was considered too large for a small business program and thus was made available for full-and-open competition. At the same time, smaller contracts at the NASA facility were made available to disadvantaged businesses under 8(a). Under MOC\u8211I, the CLASS\u8211II contract and those smaller contracts are being combined to make an Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 036 - IMCO Inc v US.doc, Paragraph with 'The Rule of Two': In December 1992, the United States Army Missile Command (MICOM) issued Invitation for Bids DAAHO1\u821193\u8211B\u82110001 (\solicitation\ or \IFB\), a small business set-aside, for the production of 127 dummy Hellfire missiles and thirty shoe alignment fixtures. IMCO and fifteen other small businesses submitted bids. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 036 - IMCO Inc v US.doc, Paragraph with 'The Rule of Two': In accordance with the Federal Acquisition Regulation (FAR), the agency referred its determination to the United States Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 038 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': To participate in the MWBE programs, a business must demonstrate that it does not exceed the size limits for \small business concerns\ as defined by the Small Business Administration of the U.S. Department of Commerce. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 038 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': Plaintiffs\rquote respond with several points the Court believes to be valid concerning the reliability of this anecdotal evidence. First, whether discrimination has occurred is often complex and requires a knowledge of the perspectives of both parties involved in an incident as well as knowledge about how comparably placed persons of other races, ethnicities, and genders have been treated. Persons providing anecdotes rarely have such information. Attributing an incident to discrimination when the practice is just aggressive business behavior, barriers faced by all new or small businesses, or bad communication is always a possibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 038 - Engineering Contractors Ass'n of South Florida Inc v Metropolitan Dade Cou.doc, Paragraph with 'The Rule of Two': (internal quotations and citations omitted). The evidence here suggests that serious, good-faith consideration of race and ethnicity-neutral alternatives was not undertaken by the County commission. The legislative findings to the BBE ordinance makes the conclusory statement that \race neutral programs cannot address the above problems and do not focus limited County money, efforts and personnel on the problems caused by racial discrimination.\ Ordinance 94\u821196, p. 4. This conclusion was drawn based upon an eight page analysis by consultant Andrew F. Brimmer as to the utility and efficacy of race-neutral alternatives. Defs\rquote Ex. A at 102\u8211110. This \analysis\ does not identify any specific race-neutral measures that the County ever has, or potentially could, engage in, nor does it even attempt to assess the strengths and weaknesses or potential for success or failure of possible race and ethnicity-neutral alternative. It simply concludes that race and ethnicity-neutral alternatives would not adequately remedy discrimination in Dade County. Defendants also cite as additional support for the Commission\rquote s conclusion a 1982 report of the Civil Rights Commission. Defs\rquote Ex. C. This report evaluated the Small Business Administration\rquote s efforts at providing financial assistance to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': , J., held that: (1) Navy conducted discussions with contract recipient prior to awarding contract, and was therefore required to conduct discussions with disappointed bidder and request best and final offers (BAFOs) from both of them; (2) disappointed bidder showed reasonable likelihood it would have been awarded contract had it received notice and opportunity to file BAFO, and thus remand for requests for BAFOs was necessary; and (3) Navy\rquote s determination to award contract to other finalist was not irrational on basis that recipient allegedly misrepresented employment status of supervisory engineer so as to qualify as small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': Disappointed bidder had standing to challenge award of Navy contract to another company, where bidder alleged that other company had misrepresented employment status of individual who was to serve as supervisory scientist and engineer, and that other company had misrepresented itself as a small business; allegations demonstrated injury to bidder\rquote s right to legally valid procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': Disappointed bidder on Navy contract showed reasonable likelihood it would have been awarded contract if given opportunity to file best and final offer (BAFO), as was required once Navy held discussions with other finalist concerning its application, and thus remand to request BAFOs was necessary; while bidder\rquote s proposed costs were $74,000 higher, bidder alleged it would have significantly lowered price in a BAFO, bidder was incumbent contractor, and its technical proposal was rated slightly higher, while other finalist might have been disqualified completely absent the discussions and may not have qualified as small business so as to be eligible even to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': Disappointed bidder on Navy contract exhausted administrative remedies with respect to issue of whether contract recipient qualified as a small business in view of evidence that its proposed supervisory engineer on contract was an independent contractor, and thus that issue was preserved for judicial review; bidder\rquote s initial failure to raise issue in its protest to Navy was not its fault because it had no way of knowing that engineer\rquote s employment status played key role in award of contract, and once having learned that information, bidder raised issue as soon as it could in its administrative appeal. 13 C.F.R. \u167 121.1707 (1995). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': Navy\rquote s determination to award contract was not irrational on basis that contractor allegedly misrepresented employment status of supervisory engineer on contract so as to qualify as small business; while contractor depicted engineer as an employee at times when he was only a consultant, contractor explained contradictions as inadvertent errors, engineer stated in letter to Navy that no misrepresentations were made about his employment, and Navy was entitled to accept those explanations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': After both SAI and MRI submitted their proposals, the Navy issued letters to each requesting \clarification to resolve minor irregularities and/or clerical mistakes.\ A.R., Vol. A, Tabs 11 and 12. The letter to SAI requested explanation of its response to the \Small Business Concern Representation\ question. SAI responded by letter of July 27, 1995, explaining that it had \inadvertently omitted filling out\ that section and enclosing a completed version of the section. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': The letter to MRI requested explanation of three items, two of which are the focus of this action: (1) MRI\rquote s response to the \Small Business Concern Representation\ question (the same question asked of SAI); (2) the rough square footage of MRI\rquote s 50\u8211person conference room; and (3) \the employment status of your proposed Supervisory Scientist/Engineer, Mr. Raymond F. Siewert.\ A.R., Vol. A, Tab 11. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': By letter of August 2, 1995, Patricia Coleman, President and CEO of MRI, responded as follows: She sent a completed version of the Small Business Response section, just as SAI had done. She provided a fuller description of MRI\rquote s conference room and included a floor plan. Finally, she described Mr. Siewert as \a part time employee [who] works an average of 32 hours per week.... Upon award of this contract, Mr. Siewert will immediately become available to work when, where and how ever long it takes to complete all associated tasks. A copy of his signed agreement letter is attached.\ A.R., Vol. A, Tab 14. The signed agreement letter offered Mr. Siewert employment as a \part-time employee\ in the position of \Scientist/Engineer.\ The letter to Mr. Siewert was dated April 7, 1995; Mr. Siewert\rquote s signature, acknowledging acceptance of the position, is also dated April 7, 1995. Plaintiff asserts that this letter was backdated, that MRI forged Mr. Siewert\rquote s signature and that at the time Mr. Siewert was a consultant to MRI, not an employee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': During this same period, SAI also protested MRI\rquote s small business status to the Small Business Association. On September 27, 1995, MRI filed its protest. A.R., Vol. B, Tab 1. On October 25, 1995, the SBA issued a size determination finding MRI to be a small business concern. A.R., Vol. B, Tab 4. SAI appealed this determination to the Office of Hearing and Appeals. A.R., Vol. B, Tab 5 at 2\u82113. On January 16, 1996, Hearing and Appeals dismissed SAI\rquote s appeal as moot because the contract had already been awarded. A.R., Vol. B, Tab 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': In view of the fact that MRI and SAI were the only two viable competitors for the project at the time discussions were held with MRI by the Navy, plaintiff has shown that there was a reasonable likelihood that it would have been awarded the contract absent the irregularities. First, SAI has demonstrated a strong likelihood that it would have significantly lowered its price had BAFOs been requested of both it and MRI, as they should have been. Second, SAI was the incumbent contractor, and its technical proposal was rated slightly higher than MRI\rquote s. A.R., Vol. A, Tab 19 at 3. Third, had the Navy not engaged in unilateral discussions with MRI, the lack of a letter of intent for Mr. Reidy, the lack of clarity about Mr. Siewert\rquote s employment status, and the failure to designate the capacity of the conference facilities could well have disqualified MRI completely. Finally, had the Navy known about Mr. Siewert\rquote s actual employment status as an independent contractor at the time of the bid, MRI might well have been disqualified as a small business and thus been eliminated from the bidding process altogether. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': The Small Business Act requires that 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': Defendant argues that because plaintiff did not raise Mr. Siewert\rquote s employment status in its initial protest on September 27, 1995, plaintiff has failed to exhaust its administrative remedies and is untimely with respect to this issue. It maintains that this Court therefore lacks jurisdiction to consider whether MRI would have qualified as a small business. The Court is unpersuaded. The SBA Administrative Law Judge thought that SAI had raised issues that should be considered on remand but for the fact that the contract had already been awarded, noting that \but for her mootness finding, she would have remanded the proceeding to the Area Office in view of the persuasiveness of Appellant\rquote s assertions in its appeal.\ A.R., Vol. B, Tab 16 at 3 & n. 3. Moreover, as of September 27, two days after MRI got the contract, SAI had no way of knowing that Mr. Siewert\rquote s employment status played a key role in MRI\rquote s having obtained the contract since SAI was not debriefed until October 2, 1995. A.R., Vol. A, Tab 26. Accordingly, SAI\rquote s initial failure to raise the issue was not its fault, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 121.1707 (Jan. 1, 1995); SAI raised the issue as soon as it could through its appeal. The Court concludes that SAI has exhausted its remedies with respect to this issue and that the Court therefore may consider the small business status of MRI at least in determining whether SAI has demonstrated prejudice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 040 - Associated General Contractors of America v City of Columbus.doc, Paragraph with 'The Rule of Two': Mr. Dudley testified that \there\rquote s almost a non-existence of private market for any small businesses[.]\ Tr. V\u8211II, p. 138. He asserted that the Limited Company had just spent millions of dollars but did not hire any minority or female companies. He testified that the state had an excellent MBE set-aside program and he was critical of the city for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 040 - Associated General Contractors of America v City of Columbus.doc, Paragraph with 'The Rule of Two': In the predicate study which was delivered to the city in August, 1992, BBC and MBELDEF recommended that the city consider various race- and gender-neutral measures, including: a small business networking and technical assistance program; reducing or eliminating bonding and insurance requirements; waiving bonding requirements for contracts under $100,000 for small businesses that have been prequalified; and a small business goals program in which a prime contractor would be required to demonstrate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 040 - Associated General Contractors of America v City of Columbus.doc, Paragraph with 'The Rule of Two': that a certain proportion of the contract would be performed by small businesses or newly formed businesses. BBC\rquote s implementation plan for the proposed EBO legislation as set forth in the Management Study anticipated that financial assistance, bonding assistance and mentoring programs would be implemented on a race- and gender-neutral basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 040 - Associated General Contractors of America v City of Columbus.doc, Paragraph with 'The Rule of Two': The city has regularly provided funding to the Columbus Chamber of Commerce to assist various programs it operates for small, minority and women owned businesses. The Chamber of Commerce conducts a number of such programs, including the Urban Economic Development Program, the Minority Business Center, the Columbus Minority Supplier Development Council and the Minority Female Entrepreneur Program. These programs are funded with contributions from many sources, including Chamber members, charitable foundations, the state of Ohio, and the Small Business Administration. There was no evidence that any of the Chamber\rquote s programs specifically address the problems which M/FBEs or other small or disadvantaged businesses would encounter as prime or subcontractors on city construction projects. Finally, the court is not aware of any cases which hold that programs sponsored by a private organizations to assist small, minority and women-owned businesses satisfy a municipality\rquote s duty to consider race- and gender-neutral alternatives before resorting to legislation which grants race- and gender-based benefits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 045 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': To calculate an index only for black contractors, Dr. Brimmer used data for black contractors in place of data for MBEs. The Brimmer Study was based on data from: (1) the federal government\rquote s 1982 Census of Construction Industries, which included the Philadelphia construction industry; and (2) data from the City consisting of (a) a directory and one-page summary of minority business enterprises (MBEs) in the Philadelphia area in 1982, prepared by the City, and (b) a report that the City submitted to the U.S. House of Representatives Committee on Small Business, dated March 1982, which contained the total dollar value of City-financed prime contracts awarded to minorities in fiscal years 1979, 1980, and 1981. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 045 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': The legislative history of the Ordinance is generally devoid of any consideration of race-neutral alternatives. Joseph Coleman was a Council member when the Ordinance was passed, and was the only such Council member to testify. He could testify only that he had been aware of the Philadelphia Plan and Urban Coalition program and could not recall any details of them. The only reference in the legislative history to race-neutral measures was a reference in the preamble to the failure of the federal Small Business Administration to increase the number of minority and women businesses. Examining the success or failure of a national program directed to businesses of all types, however, is not constitutionally adequate consideration of the potential effectiveness of race-neutral measures for a particular industry in a particular locality. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 047 - Firth Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The representations and certifications under 11(a) deal with the certification that a business is a woman-owned small business. The failure to include these representations and certifications is not important to the resolution of this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 050 - Varicon Intern v Office of Personnel Management.doc, Paragraph with 'The Rule of Two': It is the policy of the Government, under FAR, part 5, to publicize procurements in order to increase competition, broaden industry participation in meeting the Government\rquote s requirements and assist small businesses, 8(a) businesses and labor surplus area concerns. However, because publication of this procurement in the Commerce Business Daily (CBD) would not further the promotion of these policies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 051 - Scheduled Airlines Traffic Offices Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': standing. It contends that the Department\rquote s policy of combining unofficial and official travel along with the requirement to deposit unofficial travel concession fees into Morale Funds places Sato at a competitive disadvantage relative to larger travel companies \because the combined contract is too large for small business concerns ... to handle,\ thus making it more difficult for smaller companies like Sato to offer high concession fees for unofficial travel. Ursini Oct. 2, 1994 Decl. \u182 24. Sato therefore alleges a \causal relationship\ between its injury and the challenged conduct. Moreover, a favorable decision would likely redress Sato\rquote s injury to its right to a legally valid procurement process. Although one result of a favorable decision would be the transfer of unofficial travel concession fees from the various Morale Funds to the United States Treasury, another would likely be the elimination of unofficial travel concession fees as a factor in the procurement selection process, thus ensuring a \legally valid procurement process,\ precisely what Sato seeks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 055 - Ali v US.doc, Paragraph with 'The Rule of Two': , Rodney Benson, Alan Schoenberg, Marc R. Weisman, Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; Philip Lader, Administrator, United States Small Business Administrator; Richard W. Naing; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor brought suit claiming that Small Business Administration\rquote s set aside program for \socially and economically disadvantaged small business concerns\ was unconstitutional. On cross-motions for summary judgment, the District Court, Charles R. Richey, J., held that: (1) contractor lacked standing under Article III, and (2) contractor lacked standing under Administrative Procedure Act (APA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor, whose eligibility to participate in Small Business Administration\rquote s set aside program for \socially and economically disadvantaged small business concerns\ had expired, lacked Article III standing to challenge constitutionality of the program or its administration by federal defendants, since contractor\rquote s ability to compete for contract was not fairly traceable to the alleged constitutional infirmity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': Government contractor, whose eligibility to participate in Small Business Administration\rquote s (SBA) set aside program for \socially and economically disadvantaged small business concerns\ had expired, was outside zone of active consideration for contract, and thus lacked standing under Administrative Procedure Act (APA) to challenge the program or award of contract to another contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': , United States Small Business Administration, and Mark Langstein, United States Department of Commerce, were on the briefs, for federal defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': The plaintiffs, a government contractor and the owner thereof, filed a Verified Complaint for preliminary and injunctive relief, declaratory judgment, and money damages against the United States, the Small Business Administration (SBA), the National Oceanic and Atmospheric Administration (NOAA), Naing International Enterprises, and Richard Naing, claiming that they were denied the opportunity to compete for a contract for computer support services in violation of the Administrative Procedure Act, the Equal Protection Clause, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': As the incumbent contractor, Ellsworth requested that the Follow\u8211On Contract be opened for competitive bidding from all small businesses regardless of race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': Under the Section 8(a) Program, the SBA may award government procurement contracts to \socially and economically disadvantaged small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 061 - Ellsworth Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In order to obtain certification, a small business must first be small. A business is considered small if it is independently owned and operated, not dominant in its field of operation, and satisfies certain standards regarding the number of employees and gross receipts for its particular industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': , WA; Small Business Administration; Convention Marketing Service, Inc., an Oregon Corporation, Defendants\u8211Appellees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Low bidder challenged Small Business Administration\rquote s (SBA) determination that it was not a Small Disadvantaged Business eligible to bid on contract in question. The United States District Court for the Northern District of California, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Trial court could not sustain Small Business Administration\rquote s determination that apparent low bidder on contract set aside for Small Disadvantaged Business did not have requisite status based only upon statement by owner that her husband (a nondisadvantaged individual) actually ran business, even though low bidder had not submitted affidavit in support of its status; as statement regarding husband had no support in record, opposition was not required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Plaintiff, Jet Investments, Inc. (\Jet\), appeals the district court\rquote s denial of declaratory and injunctive relief and grant of summary judgment in favor of defendants. Jet contends that the Small Business Administration (\SBA\) improperly determined that it was not a \Small Disadvantaged Business\ under the Small Business Act Minority Small Business and Capital Ownership Development Program (\the 8(a) program\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Jet submitted a bid for a contract with defendant Department of the Army Directorate of Contracting to provide lodging, meals, and transportation to armed forces personnel applicants of the Military Entrance Processing Station in Oakland, California. The bid solicitation was restricted to small businesses. Defendant Convention Marketing Service, Inc. protested the Department of the Army\rquote s restriction of bidding to small businesses. Pending resolution of that protest, the Department of the Army invited three qualified bidders to tender bids for an interim contract. Jet won this bid and was awarded the interim contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': The Department of the Army contracting officer forwarded the protests to the Division of Program Certification and Eligibility (\DPCE\) of the Office of Minority Small Business and Capital Ownership Development. The DPCE Director determined that Jet did not qualify for disadvantaged status because it did not satisfy the regulatory standards governing the participation of nondisadvantaged individuals in a Small Disadvantaged Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Jet appealed the DPCE Director\rquote s determination to the Associate Administrator of the Minority Small Business and Capital Ownership Development Program. The Associate Administrator upheld the Director\rquote s finding that Jet did not qualify as a Small Disadvantaged Business. The principal basis for the Small Business Administration\rquote s determination was the role in the operation of the business allegedly played by the husband of its sole owner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': In light of the Small Business Administration\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Judicial review of the actions of the Small Business Administration is governed by the Administrative Procedure Act (APA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': To qualify as a Small Disadvantaged Business, the business concern must be a bona fide small business that is at least 51% owned, managed and controlled by individuals who are socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': The Small Business Administration denied Jet Small Disadvantaged Business status primarily because it determined that Lee Breece controls the company. The DPCE Director based his conclusion in part on the assertion that Juliana Breece told a Small Business Administration official that she had transferred sole authority to Lee Breece to make business decisions for the company, including all decisions related to the Army bid solicitation for which Jet had been designated the lowest bidder. There is nothing in the administrative record that supports the allegation that Juliana Breece ever made any such statement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': The district court rejected Jet\rquote s argument that the Small Business Administration\rquote s determination was arbitrary and capricious because it was based on a statement found nowhere in the administrative record. The district court also rejected Jet\rquote s contention that the corporate records submitted to the Director definitively demonstrated that Juliana Breece was in \total and absolute control\ of Jet. Instead, the district court affirmed the SBA\rquote s determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': We need not decide whether \the potential for indirect negative control\ would warrant disqualification in other circumstances, or whether factors which merely \appear\ to exist would be sufficient for that purpose. Here, there is nothing surprising or inculpatory about any of the arrangements with nondisadvantaged concerns identified by the Director; nor do any of those arrangements in any way suggest the surrender by Juliana Breece of any type of control over the business. Rather, the record reveals the kind of innocuous relationships one would expect any new small business to establish in order to minimize start-up costs as it commences operations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': We conclude that the Small Business Administration acted arbitrarily and capriciously Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': is intended to be used exclusively for business development purposes to help small businesses owned and controlled by socially and economically disadvantaged individuals, economically disadvantaged Indian tribes, including Alaska Native Corporations, and economically Native Hawaiian Organizations to compete on an equal basis in the mainstream of the American economy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': As well as challenging Jet\rquote s disadvantaged status, Convention Marketing Services and Specialized Contract Services challenged Jet\rquote s size. The San Francisco Regional Office of the Small Business Administration determined that Jet was in fact a small business and that determination was affirmed by the Small Business Administration Office of Hearings and Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': The Associate Administrator for Minority Small Business and Capital Ownership Development upheld the DPCE Director\rquote s decision. That decision constitutes the final decision of the Small Business Administration. 13 C.F.R. \u167 124.610(i). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': Convention Marketing Services alleged in its protest letter to the Army contract officer that Juliana Breece was not economically disadvantaged. The Small Business Administration\rquote s determination makes no mention of this claim and the defendants have not raised this issue before this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': note 3. Jet contends that the regional office should have forwarded the statements to the DPCE Director or that the information contained in the statements should have been considered when Jet appealed the disadvantaged status determination because Jet\rquote s appeal letter included the same information. Because we conclude that the agency\rquote s determination fails under the \arbitrary and capricious\ standard of review, we need not address what appears to be an argument by Jet that the agency\rquote s failure to consider the information at issue demonstrates that the Small Business Administration\rquote s factfinding procedures are inadequate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 062 - Jet Inv Inc v Department of Army.doc, Paragraph with 'The Rule of Two': A claim for damages may be entertained in the district court, regardless of the amount sought, because the \sue and be sued\ provision of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 063 - Davies Precision Machining Inc v US.doc, Paragraph with 'The Rule of Two': Davies Precision Machining, Inc., located in Lebanon, Pennsylvania, was founded in 1978, and since that time has participated in Government procurements directed at small businesses. It claims a niche in the small purchase procurement system that is characterized by high difficulty machining contracts that involve unstable materials, such as plastics, narrow tolerances, castings and forgings. Plaintiff participated in DLA unilateral small purchase procurements and bilateral procurements administered by the Defense Construction Supply Center (DCSC), Directorate of Contracting and Production, located in Columbus, Ohio. During the period January 1, 1989, to October 23, 1992, the total value of end items sold to the DLA exceeded $7 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 063 - Davies Precision Machining Inc v US.doc, Paragraph with 'The Rule of Two': On September 8, 1992, DLA gave plaintiff a notice of proposed debarment based on an investigation that placed plaintiff on the DLA CM/UPS list (counterfeit material/unauthorized product substitution). Investigation of plaintiff apparently involved 30 small business procurements, 15 of which were the basis for debarment. The proposed debarment included allegations of fraud, poor quality, and delinquent performance. The four unilateral purchase orders and two bilateral procurements in plaintiff\rquote s initial complaint and first amended complaint were among the 15 procurements on which the proposed debarment was based. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 063 - Davies Precision Machining Inc v US.doc, Paragraph with 'The Rule of Two': . Small business procurements and small purchase setasides are founded on specific statutory requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 063 - Davies Precision Machining Inc v US.doc, Paragraph with 'The Rule of Two': . Its purpose is to prescribe simplified procedures for small purchases in order to (1) reduce administrative costs and (2) improve opportunities for small business concerns ... to obtain a fair proportion of Government contracts. \u167 13.102. Contracting officers shall use the small purchase procedure that is most suitable, efficient, and economical in the circumstances. \u167 13.104. Purchases not exceeding $2,500 may be made without securing competitive quotations if the contracting officer considers the prices to be reasonable. For purchases over $2,500, contracting officers shall solicit quotations from a reasonable number of sources to promote competition to the maximum extent practicable. Generally, solicitation of at least three sources may be considered to promote competition to the maximum extent practicable. Generally, quotations should be solicited orally; written solicitations should be used when oral quotations are not considered economical or practical. \u167 13.106(b)(2). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Contractor having annual average gross receipts in excess of $15,370,000 was not eligible to participate as a disadvantaged business enterprise (DBE) on federal financially-assisted transportation projects even though it had fewer than 500 employees. Small Business Act, \u167\u167 2[3], 2[3](a)(2)(C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': By letter dated May 5, 1995, the PRHTA denied Betteroads\rquote application for DBE certification. Betteroads filed a writ of appeal, and the PRHTA subsequently denied the appeal by letter dated November 28, 1994, on the ground that Betteroads\rquote average annual receipts precluded Betteroads from qualifying as a small business concern under the DBE program. Plaint\rquote s 108(h) Stmt \u182 10; Def\rquote s Ctrstmt \u182 2. On April 11, 1995, Betteroads appealed the PRHTA decision to the Department of Transportation (DOT), and the DOT denied the appeal by letter dated October 13, 1995, finding that Betteroads average gross receipts between 1990 and 1992 \far exceed this Department\rquote s $16.6 million cap, and therefore, [Betteroads] is not considered a \u8216small business concern\u8217 \ eligible for DBE certification. Plaint\rquote s 108(h) Stmt \u182 13; Def\rquote s Ctrstmt \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': I. THE COURT SHALL UPHOLD DOT\rquote S DETERMINATION THAT THE PLAINTIFF DOES NOT QUALIFY TO PARTICIPATE AS A DBE BECAUSE THE PLAINTIFF IS NOT A \SMALL BUSINESS CONCERN\ AS CLEARLY DEFINED IN THE STATUTE AUTHORIZING THE DBE PROGRAM. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Dec. 18, 1991, 105 Stat. 1919, provides assistance to certain disadvantaged business enterprises by requiring that \not less than 10 percent of the amounts authorized to be appropriated [under this Act] shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ ISTEA \u167 1003(b)(1). The statute clearly states that in order to qualify as a \small business concern,\ for purposes of the ISTEA, the entity must be a small business, as defined by section 3 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': The term \small business concern\ has the meaning such term has under section 3 of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Therefore, unless an enterprise is a small business as described by section 3 of the Small Business Act and has average gross receipts of $15.37 million or less, it cannot participate in the DBE program as set forth in the ISTEA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': The plaintiff concedes that his business exceeds the $15.37 million average annual gross receipts limit. The plaintiff argues, however, that the Small Business Act precludes size determinations based solely on average annual gross receipts, and that such determinations must also consider the number of employees. The relevant provision of the Small Business Act states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': the DOT to make the determination based on average annual gross receipts. By comparison, numerous other statutes incorporate the definition of \small business concern\ as set forth in section 3 of the Small Business Act without such specific authorization. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': does not preclude the DOT\rquote s determination that the plaintiff is not a small business concern within the meaning of the ISTEA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': note 1), explains how to apply the size standards set forth in the Small Business Act, the DOT must rely upon the Small Business Act size standards to make the DBE determination. The Court disagrees. Meeting the small business provisions of section 3 of the Small Business Act is but one of two requirements to qualify as a small business concern under the ISTEA. Just because the regulations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': promulgated to implement the DBE program provide guidance for determining \whether or not a business is a small business concern as defined by section 3 of the Small Business Act,\ that does not eliminate the additional requirement set forth explicitly in the statute requiring that a business have less than $15.37 million in average annual gross receipts to qualify for the program. Additionally, the plaintiff all but ignores Appendix A, which explains the purpose behind the average annual gross receipts requirement\u8212firms are expected to \graduate\ from the DBE program \once their average annual receipts reached [$15.37] million.\ Appendix A also explains the method for calculating average gross receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': Small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 066 - Betteroads Asphalt Corp v US Dept of Transp.doc, Paragraph with 'The Rule of Two': means a small business as defined pursuant to section 3 of the Small Business Act and relevant regulations promulgated pursuant thereto except that a small business concern shall not include any concern or group of concerns controlled by the same socially and economically disadvantaged individual or individuals which has annual average gross receipts in excess of $14 million over the previous three fiscal years. The Secretary shall adjust this figure from time to time for inflation. (Emphasis in original). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The UNITED STATES of America, the United States Army Aviation and Troop Command, the United States Small Business Administration, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Supplier of water storage systems brought action against federal government, military agency and Small Business Administration (SBA), alleging that agency improperly awarded public contract to competitor and seeking declaration that certificate of competence which SBA awarded to competitor was invalid. On cross-motions for summary judgment, the District Court, Pooler, J., held that: (1) agency\rquote s alleged failure to follow its own regulations in bid process did not warrant invalidation of contract; (2) agency\rquote s decision to award contract to competitor had rational basis; (3) although supplier filed proper Walsh-Healey preaward protest, agencies\rquote failure to explicitly consider protest did not prejudice supplier; and (4) military agency\rquote s failure to process postaward protest did not prejudice supplier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Military agency\rquote s alleged failure to follow regulations in processing unsuccessful bidder\rquote s preaward Walsh-Healey protest relating to public contract for supplying water storage systems did not warrant invalidation of contract, as regulations which agency failed to follow were not applicable where agency was required by regulation to forward chosen bid to Small Business Administration (SBA) and agency could thus not immediately act on protest. Walsh-Healey Act, \u167 1 et seq., as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Military agency\rquote s decision to award public contract for supply of water storage systems to low bidder was rational and reasonable, as bidder was low by 25% margin, agency had prior successful contracting experience with bidder, and both preaward survey and investigation by Small Business Administration (SBA) confirmed bidder\rquote s ability to perform contract, notwithstanding bidder\rquote s alleged loss in fulfilling contract obligations or alleged factual disputes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for public contract suffered no prejudice by alleged failure of military agency and Small Business Administration (SBA) to explicitly consider bidder\rquote s pre-award Walsh-Healey protest, as agency addressed in substance each element of protest. Walsh-Healey Act, \u167 1 et seq., as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , United States Attorney, Northern District of New York, Syracuse, NY, for Defendants United States of America, United States Army Aviation and Troop Command, and United States Small Business Administration ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff J.G.B. Enterprises, Inc. (\JGB\) and defendants United States, United States Army Aviation and Troop Command (\ATCOM\), and United States Small Business Administration (\SBA\) cross-moved for summary judgment in this government contracts action. In the alternative, JGB opposed the government\rquote s summary judgment motion. Because there is no material issue of fact regarding the government\rquote s reasonable award of the disputed contract, I grant the government\rquote s motion for summary judgment and dismiss JGB\rquote s complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Bernhardt Aff. of 4/20/95, Ex. 1. The government uses the systems to provide safe, potable water to between 3,000 and 4,000 people at a time during military exercises and disasters. Smith Aff. of 4/26/95, \u182 3. The contract was subject to the requirements of the Walsh Healey Public Contracts Act (\Walsh\u8211Healey\) as well as a small business set-aside preference. Bernhardt Aff. \u182 4 & Ex. 1. Both JGB and Alpine submitted bids. According to plaintiff, JGB supplied similar water systems under a previous government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Uptain informed Alpine of ATCOM\rquote s determination by letter dated August 2, 1994. Uptain Decl. Ex. 8. By letter dated August 11, 1994, Uptain referred the issue concerning Alpine\rquote s accounting system to the SBA because \the contractor was notified of the [ATCOM] Contracting Officer\rquote s Determination of Nonresponsibility and the contractor has requested a determination of responsibility be made by the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': . The SBA is authorized to conduct its own review of the small business and issue it a \certificate of competency\ if the SBA is satisfied that the small business is a responsible bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': , ATCOM stated that \this certification by the SBA is conclusive (regarding both responsibility and Walsh\u8211Healy [sic] ), and the agency is required to award the contract to the small business concern \u8216without requiring it to meet any other requirement of responsibility or eligibility.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': \u82113(a)(4). Then, if either the low bidder or the protestor disagrees with the contracting officer\rquote s determination, they are entitled to additional review. If the low bidder is a small business and the contracting officer determines it to be eligible under Walsh\u8211Healey, then the file is to be forwarded \to the DOL, Administrator of the Wage and Hour Division, without referring Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff next alleges a factual dispute regarding ATCOM\rquote s failure to forward the pre-award protests to DOL both at the time it received the protests and after this lawsuit began. However, under the undisputed facts of this case, the regulations did not require ATCOM to forward the protests to DOL at any time. Furthermore, plaintiff raises the frivolous argument that ATCOM misled JGB into believing that the agency sent the pre-award protests to the SBA. Pl. Mem. at 15. The alleged misleading letter, however, correctly and clearly states that, \The pre-award survey on Alpine resulted in the request for review by the Small Business Administration (SBA) and the subsequent issuance by the SBA of a Certificate of Competency (COC).\ Bernhardt Aff. Ex. 7. No reasonable reading of the letter indicates that ATCOM sent plaintiff\rquote s pre-award protests to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff reminds me that in my decision denying JGB a preliminary injunction, I stated that I was \troubled\ that ATCOM did not consider JGB\rquote s pre-award protests on the merits because ATCOM already had referred the case to the SBA. Dkt. No. 28, Dec. at 8\u82119. At least one district court has interpreted the SBA regulations regarding certificates of competency as imposing a heavy \forwarding burden\ on the contracting officer to supply the SBA with any pertinent information regarding the small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 068 - JGB Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': (contracting officer \shall refer the matter to the SBA\ upon receiving small business\rquote request for review of nonresponsibility determination). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 076 - Widnall v B3H Corp.doc, Paragraph with 'The Rule of Two': quantity basis to provide technical support for the Air Force Material Command at Wright\u8211Patterson Air Force Base. The solicitation stated that evaluation of the offerors would be based on technical, managerial, and cost factors in descending order of importance. At issue in this case are the portions of that solicitation reserved for small businesses. Section M\u8211991 of the solicitation provided, in pertinent part, that \[t]he Government will award a contract resulting from this solicitation to the responsible offeror whose offer, conforming to the solicitation, will provide the best value to the Government.... The Government reserves the right to award to other than the lowest offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': Small business contractor under set-aside program of Small Business Administration (SBA) sought reformation of its contract with General Services Administration (GSA) to correct unilateral mistake in its bid, which arose from contractor\rquote s supplier\rquote s quoting price for wrong material. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s duty to verify bid does not necessarily arise because of price disparity among bids; variance from government estimates, prior procurement, market value, or other bids should be considered, and other factors may negate inference of contractor error, especially where they offer reasonable explanations for disparity. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': Contracting officer had no duty to verify small business contractor\rquote s bid, pursuant to set-aside program of Small Business Administration (SBA) to supply government with chain saw chaps, even though bid was based on material supplier\rquote s quote of $7.58 per yard, when cost was actually $19.78 per yard; General Services Administration (GSA) had no reason to believe that bid contained mistake, as its analysis compared bid to recent bids for similar products that were deemed to be fair and reasonable, and bid was within reasonable range of expectations based on previous contract prices. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a small business contractor pursuant to the section 8(a) set-aside program of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': As this contract was offered pursuant to the section 8(a) small business set-aside program, both SBA and GSA reviewed the bids. Correspondence from the SBA directed plaintiff to \itemize all materials costs,\ and it was plaintiff\rquote s practice to provide cost-element information. Plaintiff\rquote s president and his administrative assistant recall sending the information by facsimile and later by mail to the government. Government witnesses denied receiving this information, and it was not included in the original bid proposal that the government entered into evidence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 084 - Dakota Tribal Industries v US.doc, Paragraph with 'The Rule of Two': The SBA contracting officer reviewed the bid proposal and noted that the price was above the government\rquote s estimate for the work. Because of this, she did not believe that cost breakdowns would be necessary to determine whether the bid was acceptable. GSA conducted a cost and pricing analysis of the bid. The review compared plaintiff\rquote s bid to recent contracts of another small business providing the same product. GSA had reviewed that contractor\rquote s cost and pricing data to determine whether its prices were fair and reasonable. GSA believed that a comparison to those contracts would be consistent with the FAR and would indicate whether plaintiff\rquote s bid was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 087 - Transworld Products Co Inc v Canteen Corp.doc, Paragraph with 'The Rule of Two': (providing a detailed discussion of the DBE certification process). Only a small business owned and controlled by socially and economically disadvantaged persons will be certifiable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 087 - Transworld Products Co Inc v Canteen Corp.doc, Paragraph with 'The Rule of Two': the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': The claims in this case arise from DLA procurements issued by the staff responsible for supplies in the Clothing and Textiles Directorate (CTD) of the Defense Personnel Support Center (DPSC), located in Philadelphia, Pennsylvania. These procurements were administered by personnel in DLA\rquote s separate unit, Defense Contract Administrative Service Region (DCASR) in Dallas, Texas, and by personnel responsible for administrative, finance and quality control matters in two DCASR\u8211Dallas subordinate units: Defense Contract Administrative Service Management Area (DCASMA)\u8211San Antonio, for contractor activities in Laredo, or DCASMA\u8211New Orleans, for contractor activities in Gretna, Louisiana. The procurements involved policies applicable to Small Business and Labor Surplus Area (LSA) concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': and set asides for small businesses and LSA concerns. Their vehicle in this effort was SPI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': SPI was incorporated on June 16, 1982, in Louisiana, with Diane Zufle as the majority stockholder and Tim Zufle as the minority stockholder. Tim Zufle was employed by SPI as its president and chief executive officer; Diane Zufle was employed as its vice president, secretary and manager of administrative operations. SPI qualified as a woman-owned, small business subchapter S corporation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': (3) On April 8, 1987, SPI was awarded the small business portion of a contract to manufacture and deliver 657,600 chemical protective helmet covers (Helmet Cover contract). On April 16, 1987, Modification PO0001 awarded to SPI and LSA set aside which increased the quantity an additional 657,600 covers. Under the original delivery schedule, the first delivery date was November 19, 1987; after PO0001, the first delivery of 54,960 was due on November 27, 1987. The unit price was $1.7991 and the total contract price was $2,366,176.32. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': In simple IFB supply contracts, such as the four in issue, the government has no such concurrent obligations. The government\rquote s obligation is to pay a specified amount for goods timely delivered. DPSC does not become a partner responsible for contract performance as in the construction contracts cited by plaintiff. The policies behind the small business and women-owned business programs is to provide an opportunity to participate in government procurements. The government is not expected to be a guarantor of success. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': 5. On April 22, 1986, solicitation DLA100\u821186\u8211B\u82110421 was issued by the Defense Personnel Support Center (\DPSC\) requesting bids on 1,811,350 NBC bags. The procurement was a combined Small Business and Labor Surplus Area (\LSA\) set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': 6. Amendment A0001 to the NBC bag solicitation, effective May 5, 1986, allotted 905,700 NBC bags to the Small Business set aside and 905,650 NBC bags to the LSA set aside. The amendment also instructed bidders not to submit a bid price on the LSA set aside portion of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': 12. There was no protest of the Small Business set aside portion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 091 - Smith v US.doc, Paragraph with 'The Rule of Two': 133. On April 8, 1987, SPI was awarded the small business portion under contract DLA100\u821187\u8211C\u82114176 (\Helmet Cover\), a fixed-price contract to manufacture 657,600 chemical protective helmet covers with a first delivery date of November 19, 1987. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Towing company sought injunction after Small Business Administration (SBA) denied certificate of competency (COC) needed to haul fuel under government contract. On cross-motions for summary judgment, the United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims has jurisdiction to review Small Business Administration\rquote s (SBA) Certificate of Competency (COC) determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': When Small Business Administration (SBA) makes responsibility determination, for purposes of deciding whether to issue Certificate of Competency (COC) to government contractor, it is not limited to deficiencies cited in referring agency\rquote s non-responsibility decision, but may consider all aspects of responsibility it considers germane. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Decision by Small Business Administration\rquote s certificate of competency (COC) review committee, that contractor seeking to haul government fuel was nonresponsible, and thus not entitled to COC, was not arbitrary and capricious; committee noted its concern that contractor had not completed installation of fuel gauges and alarms on equipment it proposed to use, that contractor had not fully implemented safety program, and that contractor had unacceptable number of oil spills. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder could not recover barge clean-up costs incurred in preparation for contract to haul fuel, absent showing that Small Business Administration\rquote s (SBA) denial of certificate of competency, necessary to be awarded contract, was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': , Small Business Administration, and Karen Schools, Defense Fuel Supply Center, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': This case is before the court after argument on cross-motions for summary judgment. At issue is whether a determination by the Small Business Administration denying a barge operator a Certificate of Competency should be upheld. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': The following facts are drawn from the record developed before the Small Business Administration Certificate of Competency Review Committee, unless otherwise indicated. On November 16, 1995, the Military Traffic Management Command, Eastern Area (\MTMC\u8211EA\), Bayonne, New Jersey, issued Solicitation No. DAHC21\u821195\u8211B\u82110002 for the transportation of Department of Defense (\DOD\)-owned jet fuel by barge from origins in the Gulf Coast area and lower Mississippi River to destinations along the inland waterways of the United States and the Gulf Coast area. MTMC\u8211EA solicits and awards long-term contracts, standing route orders, and one-time spot movements for transportation of Government fuel on behalf of the Defense Fuel Supply Center (\DFSC\). The Defense Fuel Region\u8211South (\DFR\u8211S\), a subordinate activity of DFSC, coordinates the transportation of bulk fuel in the Gulf Coast Region and was the ultimate customer on the solicitation at issue. The contract was for a one-year period with two one-year renewal options. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': a Coast Guard approved \OPA 90\ document. Plaintiff submitted its OPA 90 document as its environmental safety program pursuant to section C.1.3.2 of the solicitation. Plaintiff asserts, and defendant agrees, that the OPA 90 was acceptable under the company\rquote s prior three-year contract for the same services (ending in late 1993); and, as the Small Business Administration (the \SBA\) noted, plaintiff\rquote s plan was approved by the Coast Guard Districts in which it performed. Plaintiff disputes additional bases of the contracting officer\rquote s referral to the SBA, including findings of lack of documentation on personnel training and lack of required materials documentation. Plaintiff claims that the contracting officer required \perfection\ as a past performance standard for issuance of the contract. Plf\rquote s Proposed Findings of Uncontroverted Fact Nos. 19\u821121, filed Sept. 14, 1995. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff was entitled, as a small business, to request an SBA determination of the company\rquote s responsibility under its Certificate of Competency (\COC\) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': . Under the program the SBA makes a determination of a small business\rquote responsibility to perform under a contract. After considering all aspects of a business\rquote responsibility, the SBA determines whether or not to issue a COC. If the SBA issues the COC, the procuring agency must accept the SBA\rquote s responsibility determination as final. However, if the SBA declines to issue a COC, the contracting officer nevertheless may award the contract based on independent judgment and new information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': Upon determining that a small business is non-responsible, the contracting officer must notify the SBA of its determination. The agency then withholds award of the contract for up to 15 working days following receipt by the SBA of the notice of that determination. By letter dated March 28, 1995, the cognizant SBA regional office notified plaintiff, as required, of the availability of the COC program. The notification letter included detailed instructions concerning the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': documentation that plaintiff should submit with its application. The SBA regional Office in Dallas, Texas (\SBA\u8211TX\), was responsible for making the initial recommendation to issue or deny a COC to plaintiff. On April 4, 1995, plaintiff applied for a COC and included additional information in response to all items requested by SBA\u8211TX. Plaintiff provided SBA\u8211TX with an extensive supplement to its COC application on April 11, 1995, in an effort to address specific findings of the contracting officer. The SBA\rquote s COC review is based upon information provided by both the procuring agency and the small business offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 095 - Stapp Towing Inc v US.doc, Paragraph with 'The Rule of Two': (according great deference to SBA\rquote s interpretation and application of its regulation on qualifying as small business); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 004 - Compubahn Inc v US.doc, Paragraph with 'The Rule of Two': In May 1993, the Advanced Research Project Agency of the Department of Defense (DARPA) published and mailed a solicitation of proposals to over 50,000 small businesses, as part of its Small Business Innovation Research (SBIR) program. The SBIR program represented a portion of the activities of DARPA\rquote s Technology Reinvestment Project (TRP), the name given to a cooperative effort of federal government agencies to implement parts of the Defense Conversion, Reinvestment, and Transition Assistance Act of 1992. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 004 - Compubahn Inc v US.doc, Paragraph with 'The Rule of Two': Between May and September 1993, the DTTC received 2,453 proposals from a variety of qualified small businesses. Each proposal was earmarked for one of 28 topic categories. Plaintiff submitted a proposal under the \Software Development Methods, Tools, and Environments\ category, numbered TRP 93\u8211003. Plaintiff\rquote s proposal was one of 101 proposals submitted under category TRP 93\u8211003. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Business sought review of determination of Small Business Administration (SBA) that it was not a small disadvantaged business concern (SDB) for purposes of set aside programs. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Finding by Small Business Administration (SBA) that 51% owner of business was not economically disadvantaged was supported by evidence that his income was approximately $400,000 for the two previous years and that value of his stock in the company was nearly $3 million, despite his claim that the value of the stock \may be nothing\ and that calculations on which SBA based the valuation were performed by the owner strictly for valuing small quantities of stock in the employee stock ownership plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': There is no requirement that Small Business Administration (SBA) compare economic status of different companies when determining whether individuals who own those companies are economically disadvantaged and entitled to participate in set aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Fact that company which was denied socially disadvantaged business status by Small Business Administration (SBA) failed to receive copy of protest of a competitor did not prejudice it, even if the SBA did consider the protest, where the determination to deny SDB status was based on findings not related to the challenges in the competitor\rquote s protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': This case involves an appeal from the Small Business Administration\rquote s (\SBA\) determination that plaintiff SRS Technologies (\SRS\) is not a \small disadvantaged business concern\ (\SDB\) for purposes of participating in government set-aside programs. Plaintiff contends that in reviewing plaintiff\rquote s SDB status, the SBA failed to follow its own regulations, willfully relied upon inaccurate information, and otherwise acted in an arbitrary and capricious manner, in violation of the Administrative Procedure Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 005 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': 1) SRS was not a small business because its affiliation with a proposed subcontractor made SRS a joint venture in violation of 13 C.R.R. \u167 121.402; and 2) SRS was not a disadvantaged business based upon its contractual relationship with this proposed subcontractor, because that subcontractor would have control over SRS in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 013 - Buffalo Cent Terminal v US.doc, Paragraph with 'The Rule of Two': Finally, Plaintiff points out the fact that Eigendorff interceded on behalf of WCA when WCA was given an unqualified financial rating prior to the lease award being made final. In addition, Plaintiff allege, and have submitted supporting documents, to show that, even though WCA added a third partner in order to obtain satisfactory financing to complete its obligations and to obtain the IRS lease, WCA did not disclose this fact to Defendants, and continued to represent itself to be a small business entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 014 - IMCO Inc v US.doc, Paragraph with 'The Rule of Two': On December 21, 1992, the United States Army Missile Command (\MICOM\) issued IFB DAAHO1\u821193\u8211B\u82110001 (\B\u82110001\) for the production of 127 Dummy HELLFIRE missiles and thirty Shoe Alignment Fixtures. The IFB was set aside for small businesses. On February 18, 1993, sixteen small businesses, including IMCO, submitted bids. In accordance with Federal Acquisition Regulation (\FAR\) 9.106, pre-award surveys were conducted on all of the prospective contractors. The four lowest bidders, including IMCO, each received a no-award recommendation. The recommendation as to IMCO was based on the asserted facts that it did not have the technical, productive, or manufacturing capability to perform, and that it had a record of unsatisfactory performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 014 - IMCO Inc v US.doc, Paragraph with 'The Rule of Two': After IMCO received its no-award recommendation in the pre-award survey, the matter was referred to the Small Business Administration (\SBA\) pursuant to FAR 19.602. On January 3, 1994, the Atlanta regional office of the SBA notified the Contracting Officer (\CO\) that it planned to issue a Certificate of Competency (\COC\) to IMCO. By letter dated January 13, 1994, MICOM requested the SBA to reconsider its decision to issue the COC. On January 26, 1994, the Atlanta office reaffirmed its decision. On February 3, 1994, MICOM appealed the proposed issuance of the COC to the SBA\rquote s Washington D.C. office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 016 - EW Bliss Co v US.doc, Paragraph with 'The Rule of Two': States Mint (the \Mint\), issued Request for Proposals Solicitation No. USM 93\u821114 (the \RFP\) for Contract No. TM 93\u82111073, which contemplated the refurbishment and remanufacture of coin presses, as a small business set-aside. The solicitation determined the feasibility of refurbishing and remanufacturing the Mint\rquote s aging coin presses at a reasonable price. The goal of the proposed press remanufacture program was to provide coining presses that met or exceeded the original factory specifications, while incorporating the latest industrial standards, mechanical components, governmental safety requirements, and advanced control technology. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 021 - IMS Services Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer received BAFOs from each of the offerors in the competitive range and determined that plaintiff IMS should be the awardee. All the BAFOs submitted by the competitive range offerors, including the BAFO received from SRS, proposed the Navy\rquote s MET cost estimates. On April 1, 1994, subsequent to the contracting officer\rquote s determination that IMS should be awarded the contract, the contracting officer transmitted a letter to all unsuccessful offerors indicating that IMS was the apparent successful offeror, and offered all the disappointed bidders the opportunity to protest the small business set aside status of IMS. As a result of the contracting officer\rquote s April 1, 1994 letter, several of the unsuccessful offerors, including SRS, requested a debriefing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 022 - TEAC America Inc v US Dept of Navy.doc, Paragraph with 'The Rule of Two': . They suggest that there must be additional aggravating factors beyond the possibility of lost profits and economic harm, factors such as that the disappointed bidder is the incumbent contractor and/or that it is a small business that would be likely to shut down as a result of the contract award decision. Disputing TEAC\rquote s claim that it is indeed the incumbent contractor and pointing out that TEAC is a multi-billion dollar business, the government maintains that such aggravating factors do not exist in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 024 - Mark Dunning Industries Inc v Perry.doc, Paragraph with 'The Rule of Two': and place the parties in approximately the positions they occupied before the decisions that ... [may well] ... be found unlawful, the Samson contract should be extended\u8212at least until the contracting officer can [if required] establish a new, fair means of awarding the Adak contract in accordance with all applicable rules and regulations, including the Small Business Act\u8212as it would have been had the government not acted in a manner ... [which may well] ... be found to be unlawful. There is sound precedent for such relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 026 - Central Arkansas Maintenance Inc v US.doc, Paragraph with 'The Rule of Two': One or two days before trial, plaintiff raised the issue of Ferguson\u8211Williams\rquote qualifications as a small business. Because the Arkansas Lakes Solicitation was a small business set-aside, the awardee had to avow that its average earnings over the preceding three fiscal years totaled less than $13.5 million. The procedures for protesting a size determination for a small business set-aside are located at 13 C.F.R. \u167 121.1601 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 026 - Central Arkansas Maintenance Inc v US.doc, Paragraph with 'The Rule of Two': Formal size determinations and protests are handled by the Administrator of the Regional Office of the United States Small Business Administration (\SBA\) in the region where the protester is located, and must be filed within five working days after bid or proposal opening. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 028 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': 16. Dr. Brimmer\rquote s \disparity study\ entailed a review of the following information: (1) the federal government\rquote s 1982 Census of Construction Industries, including the Philadelphia construction industry; (2) a directory and one-page summary of MBEs in the Philadelphia area in 1982, prepared by the City (the \Pre\u8211MBEC Directory\); and (3) a report that the City submitted to the U.S. Congress, House of Representatives, Committee on Small Business, in March 1982, which contained the total dollar value of City-financed prime contracts awarded to minorities in fiscal years 1979, 1980 and 1981. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 028 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': The Ordinance defines a \Disadvantaged Business Enterprise\ as any small business which is at least 51 percent owned by one or more \socially and economically disadvantaged individuals\ or, in the case of public corporations, one in which at least 51 percent of the stock is owned by one or more \socially and economically disadvantaged individuals.\ Phila.Code \u167 17\u8211501(10). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 030 - Control Data Systems Inc v US.doc, Paragraph with 'The Rule of Two': While Small Business Administration (SBA) or Navy may have had statutory duty to properly apply certificate of competency (CoC) requirements, it was not duty owed to incumbent contractor challenging proposed award of follow-on contract to another or to bidder responding to request for proposals (RFP), nor was it duty enforceable by Court of Federal Claims. Small Business Act, \u167 2[8] (b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 030 - Control Data Systems Inc v US.doc, Paragraph with 'The Rule of Two': because CC was a small business, should have been referred to the Small Business Administration (SBA), pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 030 - Control Data Systems Inc v US.doc, Paragraph with 'The Rule of Two': (large businesses lacked standing to challenge regulations defining \small business concerns\). Nor is it a duty enforceable by this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 030 - Control Data Systems Inc v US.doc, Paragraph with 'The Rule of Two': authorizes the SBA \[t]o certify to Government procurement officers ..., with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 030 - Control Data Systems Inc v US.doc, Paragraph with 'The Rule of Two': (\In any case in which a small business concern ... has been certified by the [SBA] to be responsible ..., the officers of the Government having procurement or property disposal powers are directed to accept such certification as conclusive....\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 034 - IMS Services Inc v US.doc, Paragraph with 'The Rule of Two': On April 1, 1994, subsequent to the contracting officer\rquote s determination that IMS should be awarded the contract, the contracting officer transmitted a letter to all unsuccessful offerors indicating that IMS was the apparent successful offeror and offered the disappointed offerors the opportunity to protest the small business set aside status of IMS. As a result of the contracting officer\rquote s April 1, 1994 letter, several of the unsuccessful offerors, including SRS, requested a debriefing. SRS contacted the contracting officer regarding the pending award on or about April 4, 1994. At that time, the contracting officer informed SRS of the approximate value of the contract award to IMS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Contractor brought bid protest action against United States upon Small Business Administration\rquote s (SBA) finding of nonresponsibility. On cross-motions for summary judgment, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) properly considered contractor\rquote s financial status in making responsibility determination, though contracting officer cited capacity as only basis for her nonresponsibility decision; SBA may consider all aspects of responsibility in making certificate of competency determination. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) is final arbiter on responsibility determinations in bid protest proceedings. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) was under no obligation to perform site visit to evaluate contractor\rquote s financial condition, given that subject of referral was another aspect of contractor responsibility. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Evidence that contractor had outstanding Internal Revenue Service (IRS) deficiency and that it omitted 1993 financial statement demonstrated that Small Business Administration (SBA) did not act arbitrarily and capriciously in failing to pursue additional information or seek clarification before making finding of nonresponsibility in certification of competency review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Burden rests with prospective contractor to demonstrate that it satisfies criteria underlying responsibility determination in certificate of competency proceeding with Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) may not be required to request additional information when applicant for certificate of competency (COC) did not put forth required effort to complete COC application, especially since SBA must issue COC decision within 15 days of receiving contracting officer\rquote s referral. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) may perform financial analysis in Miller Act cases, which require posting of performance and payment bonds for public contract award, but SBA must consider bonding requirement in assessing responsibility. Miller Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': , Small Business Admin., and Robert Oswald, U.S. Army Corps of Engineers, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': This bid-protest case comes before the court after argument on cross-motions for summary judgment. The overriding issue is whether the Small Business Administration (the \SBA\) may deny a certificate of competency (\COC\) for reasons other than those forming the basis of the contracting officer\rquote s nonresponsibility determination. Assuming that SBA review is not limited to the matters referred by the contracting officer, the issue becomes whether Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': C & G Excavating, Inc. (\plaintiff\), a Delaware corporation with a principal place of business in Peach Bottom, Pennsylvania, engages in the business of land excavation and dredging. Plaintiff submitted a bid in response to solicitation DACW65\u821194\u8211B\u82110009, a small business set aside issued by the United States Army Corps of Engineers (the \Corps\) on January 24, 1994, for the dredging of the Rudee Inlet in Virginia Beach, Virginia. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(b) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': (the \Act\), authorizes the SBA to provide various types of procurement assistance to small businesses. The specific procurement assistance program at issue in this case is the COC program, which allows the SBA \[t]o certify to Government procurement officers ... with respect to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern ... to receive and perform a specific Government contract....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': The COC program and the SBA\rquote s attendant involvement are implicated when the procuring agency\rquote s contracting officer determines that a small business contractor is not responsible to perform and receive a contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': defined the relationship between sections 8(a) and 8(b) of the Act, both of which contain programs for small business participation in the federal procurement process. Under the section 8(a) program, the SBA contracts with federal procuring agencies for a good or service and then subcontracts that work to a small business concern \owned by a socially or economically disadvantaged person.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': at 437. When a procuring agency recommends a small business to the SBA, the SBA will award the subcontract if the SBA determines that the disadvantaged business qualifies as responsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': (governing sole-source contracts). The regulations implementing the section 8(a) program are contained at 13 C.F.R. \u167\u167 124.308, 124.313 (1994), and clarify that even if the procuring agency recommends a disadvantaged small business concern to the SBA for a possible subcontract, the procuring agency does not become involved in the responsibility determination. 13 C.F.R. \u167\u167 124.308(e)(1)(ii), 124.313. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': . The court explained that in contracts governed by section 8(b), as opposed to 8(a), the contracting officer of the procuring agency determines the responsibility of the prospective contractor. The court further noted that the COC program enables small business concerns, after there bids are rejected by the contracting officer, to apply to the SBA for a COC; such an application disables the procuring agency from awarding the contract to another bidder for a specified period. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': held \that SBA responsibility determinations for disadvantaged small businesses seeking contracts under the \u167 8(a) program are covered exclusively by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Although the SBA regulations include a similar referral provision, the SBA\rquote s own regulations, not the FAR, govern SBA actions with respect to the COC program. The referral information is included in the SBA regulations as background information to lay the framework for the COC program; the SBA\rquote s regulations primarily describe the SBA\rquote s role once a case is referred by a contracting officer. The FAR, in contrast, published by GAO, DOD, and NASA, detail the acquisition procedures for government agencies. One aspect of these acquisition procedures includes the requirement that the contracting officer, after making a finding of nonresponsibility with regard to a small business concern, refer the case to the SBA for final disposition. In this case the contracting officer followed these regulations and referred the issue to the SBA as soon as she had made the nonresponsibility determination. Plaintiff appears to misunderstand the relevance and role of the regulations contained at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': . This provision stipulates that the SBA will \send a [ ] ... team to visit the concern to investigate it only for the specific elements of responsibility that the agency notice specified as lacking....\ The SBA complied with this provision and performed a site visit to investigate only plaintiff\rquote s capacity, the element listed as lacking by the contracting officer. In denying the COC, the SBA, however, based its decision on plaintiff\rquote s financial condition, not on capacity. According to plaintiff, Congress could not have contemplated a scheme whereby the SBA could deny a COC without sufficiently investigating the small business concern, especially in cases wherein the contracting officer originally had determined plaintiff\rquote s financial condition to be satisfactory. Thus, plaintiff maintains that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': A Certificate of Competency is the certificate issued by the Small Business Administration (SBA) stating that the holder is responsible (with respect to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': A conflict, however, still remains between these two regulatory provisions. Specifically, the SBA regulations appear to make the site visit discretionary for all aspects of responsibility, whereas the FAR make the visit obligatory for elements referred by the contracting officer. The requirement of a site visit to a small business concern\rquote s facility does not appear in the language of the statute authorizing the COC program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': Although the court shares plaintiff\rquote s view that the SBA exists to foster small businesses and is expected to work with them, a ruling for plaintiff in this case would mean that the SBA cannot disapprove financial condition based on a substantial unresolved tax deficiency. Such a ruling would divest the Government of its right to act within the bounds of rationality. Accordingly, because of the significant tax deficiency and omitted financial information, the SBA did not act arbitrarily or capriciously in denying the COC without seeking additional information or clarification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 040 - C And G Excavating Inc v US.doc, Paragraph with 'The Rule of Two': The House Conference Report addressing the COC program clarifies that \[t]he House Bill authorizes the SBA to make all determinations regarding the responsibility of a small business concern to perform a specific Government contract. The term \u8216responsibility\u8217 ... include[s] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': , J., held that: (1) Air Force had no duty to submit survey and cost data to Small Business Administration (SBA); (2) although Air Force should have made its own Walsh-Healey determination before it awarded contract, disappointed bidder did not suffer prejudice by Air Force\rquote s failure to make such determination; (3) Air Force could properly rely on fact that SBA was applying correct standard in its size determination; (4) Air Force properly conducted responsibility determination; (5) Air Force properly proceeded on contract with successful bidder after SBA determined that bidder met requirements of \small business offeror,\ even though second SBA determination found that bidder was not size-eligible; (6) Air Force conducted proper inquiry to determine if successful bidder complied with statutory requirements on subcontracting; and (7) Department of Labor properly found that successful bidder was \manufacturer\ under Walsh-Healey Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Air Force had no duty to submit survey and cost data to regional office of Small Business Administration (SBA) at time SBA made its first determination as to whether successful bidder of government procurement contract designated for small businesses only was qualified as small business under Small Business Act; pre-award surveys and cost data were not included on SBA\rquote s list of pieces of information that procuring agency had to forward to SBA for size determination, and unsuccessful bidder had filed valid pre-award protest and thus, SBA had opportunity to perform thorough investigation about size of successful bidder. 13 C.F.R. \u167 121.1603(c)(2). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Air Force could properly rely on fact that Small Business Administration was applying correct standard to government procurement contract designated for small businesses only when Administration stated that successful bidder performed at least 50% of its work with its own labor force, and thus was \small business offeror\ as was required under the Air Force contract. Small Business Act, \u167 2[15]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Statute governing government procurement contracts specifies seven factors which prospective contractor must satisfy in order to be deemed \responsible,\ including qualification under all relevant statutes and regulations, including Small Business Act (SBA) and Walsh-Healey Act. Walsh-Healey Act, \u167 1 et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Air Force properly relied upon Small Business Administration\rquote s (SBA) initial determination that successful bidder was small business, as was required under Air Force\rquote s procurement contract, despite fact that pre-award survey and cost information may have cast some doubt upon SBA\rquote s opinion; Air Force was under no duty to look beyond judgment of SBA, and Air Force had no legal obligation to forward information to SBA. Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Air Force properly proceeded on contract with successful bidder after regional office of Small Business Administration (SBA) determined that bidder met requirements of \small business offeror,\ as Air Force contract required, even though second SBA determination found that bidder was not size-eligible, and even though bidder challenging size determination claimed that Air Force itself requested second size determination; second determination was result of appellate decision on part of SBA\rquote s office of hearings and appeals, and thus, bidder challenging size determination lost its opportunity to have size protest applied retroactively when SBA\rquote s regional office first issued its determination, and any opinion expressed by Air Force employee that second size determination should proceed did not amount to \request\ for second size determination. 13 C.F.R. \u167 121.1603(a)(2). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': While Small Business Act provision stating that protests in connection with government procurements are timely if filed within five days of notification of apparently successful bidder, applies to protests and prevents procuring agencies from shutting out applicable protests by awarding contract before five-day period has run, Federal Acquisitions Regulations statute governing product or service classifications applies to postaward appellate decisions and does not apply retroactively; thus, two provisions are harmonious as Small Business Act regulation preserves prospective application of initial determinations on timely protests, and Federal Acquisitions Regulations provision limits prospective application of postaward appellate determinations. 13 C.F.R. \u167 121.1603(a)(2). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Air Force, in awarding contract, had no duty to conduct its own inquiry into whether successful bidder, whose bid involved participation of subcontractor, complied with statutory requirements on subcontracting where disappointed bidder filed protest with Small Business Administration (SBA) as contract required offeror to be \small business,\ and where SBA determined that successful bidder was eligible. Small Business Act, \u167 2[15]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': These kits are used to assemble double-layered walls to protect aircraft, vehicles, and other military equipment. Each kit consists of approximately 23 tons of corrugated steel panels and the pin fasteners and tools needed to assemble those panels into a wall. The kit also includes polyethylene film and wire screens to seal seams between panels. The RFP set a price of approximately $10 million for each set of 359 kits. The contract was set aside for a small business offeror, pursuant to Subpart 19.5 of the Federal Acquisition Regulations (\FAR\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': On November 10, 1993, the Air Force notified Marwais that EASI was the \apparently successful bidder.\ On November 18, Marwais filed a size protest claiming that EASI was not qualified as a small business under the Small Business Act (\SBA\) regulations. The next day, the Air Force forwarded Marwais\rquote protest to a Regional Office of the Small Business Administration (also \SBA\), but did not include the 55\u8211page result of the pre-award survey or the five pages of cost data. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': On December 8, 1993, the SBA Regional Office determined that EASI was a small business. Within hours of receiving the SBA\rquote s determination, the Air Force awarded the contract to EASI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': During the week of March 7, 1994, the Air Force provided the SBA regional office with copies of the pre-award survey and the cost data. On May 20, 1994, the Regional Office issued a new size determination, finding that EASI was not a small business. The basis for the new size determination was that EASI relied too heavily on EPIC, thus creating an \affiliation\ requiring that the two companies be considered together for purposes of the size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': Marwais requests a preliminary injunction prohibiting the Air Force from proceeding on the contract with EASI, a declaratory judgment stating that EASI is not a qualified small business nor a responsible prospective contractor for purposes of this procurement; a permanent injunction terminating the Air Force\rquote s contract with EASI and awarding it to Marwais, and a declaratory judgment overturning the Walsh\u8211Healey determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': (requiring compliance with all applicable statutes, thereby including the Small Business Act). However, simply because the COC regulations require the submission of preaward surveys does not mean that a similar requirement applies to the narrower size inquiry. The language and structure of the regulations discussed above shows that the forwarding requirements imposed on the contracting officer in a COC determination should not be imported into a size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': The Small Business Act requires that contracts designated for small businesses only be awarded to a concern if Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': As for the size determination issue, Marwais asserts that the Air Force should not have relied upon the SBA\rquote s initial approval of EASI, because the Air Force had information in the preaward survey and cost data showing that EASI\rquote s arrangement with EPIC circumvented the small business set-aside rules. However, the Small Business Act requires procuring agencies to \accept as conclusive the Administration\rquote s determinations as to which enterprises are [qualified small businesses].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': (drawing analogy between small business and small disadvantaged business provisions of SBA regulations). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 043 - Marwais Steel Co v Department of Air Force.doc, Paragraph with 'The Rule of Two': The statutory provision itself does not support Marwais\rquote s claim either. It only states that \[a] concern may not be awarded a contract ... as a small business ... unless the concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': Small Business Act provides no private right of action to enforce goals of encouraging government contractors to subcontract to small disadvantaged businesses (SDBs). Small Business Act, \u167\u167 2[8](a)(1)(B), 2[15](g), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': Defense Logistics Agency did not show that information compiled by government contractors regarding their compliance with Small Business Act\rquote s goals for subcontracting with small disadvantaged business (SDB) was privileged or confidential commercial information within Exemption 4 to Freedom of Information Act (FOIA) where data would have provided little, if any, help to competitors attempting to estimate and undercut contractor\rquote s bids. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': GC Micro is a small computer software and hardware distributor based in Novato, California. The owner and chief executive officer of GC Micro, Belinda Guadarrama, is a woman of Mexican\u8211American descent. GC Micro therefore qualifies as a \Small Disadvantaged Business\ (\SDB\) within the meaning of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': Congress amended the Small Business Act in 1978, mandating that the federal government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': The Small Business Act provides no private right of action to enforce SDB goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': GC Micro argues that disclosure of the SF 294\rquote s would promote the policy, enunciated by Congress in its amendments to the Small Business Act, of increasing small disadvantaged businesses\rquote involvement in government contracts. The DLA responds that the SF 295\rquote s, which it has already released, contain all the information necessary to gauge the agency\rquote s record in achieving its SDB goals\u8212namely, aggregate SDB subcontracting percentages and dollar amounts. The DLA further argues that the purpose behind GC Micro\rquote s request is irrelevant to whether or not information is confidential and subject to Exemption 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': . To the extent that releasing the SF 294\rquote s does not cause substantial harm to the competitive positions of the federal contractors involved, while encouraging federal contractors in general to set higher SDB subcontracting goals, congressional intent in passing both FOIA and the Small Business Act amendments will have been furthered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': To illustrate the point, consider that Boxes 12 and 13 [of the SF 294] contain information on subcontracting pricing and Boxes 15 and 16 contain actual purchase order commitments against a particular contract. The analysis of this historical data provides a profile of exactly how Loral Aeronutronic conducts its business with regard to the use of small business in various types of government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 048 - GC Micro Corp v Defense Logistics Agency.doc, Paragraph with 'The Rule of Two': Racal\u8211Milgo Government Systems, Inc. v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 051 - Croman Corp v US.doc, Paragraph with 'The Rule of Two': On August 1, 1990, the Bureau of Land Management of the United States Department of the Interior (\BLM\), Medford, Oregon, issued a Timber Sale Notice for the August 30, 1990 sale of twelve sites, including the Hoxie Griffin site, which is at issue in this case. The sale was set aside for purchase by small businesses. The sale notice included the following provision, which acknowledged the risk that consultation over the northern spotted owl could result in a delay in award or in the rejection of the bids: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': Navy did not act arbitrarily in entering into interim contract with qualifying successful bidder for maintenance and operation of Naval housing unit while bid protest was pending, where only other company mobilized to begin performance did not qualify as disadvantaged business under minority set aside program. Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': Unsuccessful bidders for contract to maintain and operate Naval housing units failed to demonstrate that they would suffer irreparable injury without injunction; allegations of irreparable harm were based on speculation that they would have been awarded contract, they did not make even slight showing that bidding process in action was improper, and costs would have been incurred in any event after contractor was disqualified from minority set aside program. Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': Public interest militated against granting injunction for unsuccessful bidder and original contractor in bid protest prohibiting Navy from overriding automatic stay imposed on original contract and enforcing four-month bridge contract entered with successful bidder, where issuance of injunction would award program at noncompetitive price to contractor that no longer qualified as disadvantaged business under minority set aside program, thereby harming eligible companies. Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': On November 1, 1989, plaintiff Louis E. Garcia, Inc. (\LEG\) was initially awarded a government contract for the maintenance and operation of approximately 2,300 Naval housing units in Murphy Canyon Heights. The contract requires that LEG perform refuse collection and disposal, pest control, and general maintenance and repair services for the public housing. The contract was awarded under a \minority set-aside,\ pursuant to the Small Business Association\rquote s 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 059 - Superior Services Inc v Dalton.doc, Paragraph with 'The Rule of Two': The Navy then granted a final extension, until March 31, 1994, to LEG. The defendant asserts this extension was necessary due to delays resulting from a protest filed by plaintiff Superior Services, Inc. (\SSI\) and the need to provide the health and safety services. The defendant further asserts the Small Business Association would not agree to further extensions on the contract because LEG was no longer a qualified business under the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 063 - Smith Setzer And Sons Inc v South Carolina Procurement Review Panel.doc, Paragraph with 'The Rule of Two': , to be eligible as an S corporation the entity must be a \small business corporation,\ which is a \domestic corporation\ that meets the various requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that it was for Small Business Administration, not Department of Defense, to determine whether joint venture qualified as small disadvantaged business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) participants, who are known as \section 8(a) contractors\ or \SDBs\ are helped to obtain and perform government contracts to foster the development of SDBs (small disadvantaged businesses) into economically viable firms capable of competing without special assistance. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Joint ventures are ineligible for continued, beneficial relationship with Small Business Administration embodied by \u167 8(a) program, but SBA rule will allow \u167 8(a) contractor to enter into a joint venture, if necessary to perform a specific contract. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Congress did not intend to delegate to the Department of Defense (DOD) the authority to promulgate rules defining small disadvantaged business (SDB) status but, rather, intended that the Small Business Administration (SBA) would make that determination, including the determination of eligibility of joint ventures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) has both the power and the duty to define the bounds of the phrase \small business concerns * * * owned and controlled by socially and economically disadvantaged individuals\ as used in Department of Defense (DOD) minority contracting program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Appropriate remedy upon finding that Small Business Administration (SBA) had improperly failed to make determination of whether successful bidder was a small disadvantaged business was to remand competitor\rquote s protest to the SBA for full adjudication. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) decision as to whether contractor qualifies as small disadvantaged business (SDB) must set forth its rationale with clarity, and must be justifiable on that basis; it must also be rational and properly founded in the statutory authority granted by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': This bid protest action is before the court following a hearing on the merits. Plaintiff asserts that the government has breached its implied-in-fact contract to consider plaintiff\rquote s bid fairly and honestly. It contends that the Small Business Administration (SBA), in derogation of statute and regulation, refused to determine whether the low bidder on a contract set aside for Small Disadvantaged Businesses (SDB) actually was an SDB. Defendant asserts that the SBA rightly declined to determine the low bidder\rquote s SDB status. The court concludes that SBA wrongly refused to adjudicate fully YSK\rquote s protest. It remands plaintiff\rquote s protest to the SBA in order that it fully consider it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (hereinafter section 1207)), which sets as a target for minority contractor participation 5% of certain DOD contract funds. Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': as a small business owned by socially and economically disadvantaged individuals. \Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': After the C.O. forwarded this decision to YSK, it filed an appeal with the Associate Administrator for Minority Small Business and Capital Ownership Development (AA/MSB & COD). On December 8, 1993, the AA/MSB & COD upheld the decision. She restated SBA\rquote s policy on determining the SDB status of joint ventures: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In 1987, Congress enacted section 1207, entitled \Contract Goal for Minorities,\ which set a 5% goal for minority participation in DOD contract work. Congress created the section 1207 program to increase minority participation in defense contracting above the existing levels already fostered by SBA\rquote s section 8(a) program for minority-owned small businesses. Maj. Robert L. Ackley, et al., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (1) small business concerns, including mass media and advertising firms, owned and controlled by socially and economically disadvantaged individuals (as such term is used in section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act sets forth a program that grants assistance to certain minority-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (section heading), Congress did not create a definition of \minority\ solely for purposes of this goal. Instead, it chose to import classifications from existing programs. DOD may meet the goal by contracting with minority-owned small businesses or with historically black colleges and minority institutions. For the definition of minority-owned small business, Congress referred to the Small Business Act. For the definition of the other classifications, Congress referred to the Higher Education Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': small business concerns, including mass media, owned and controlled by socially and economically disadvantaged individuals ( [as such term is used in] section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Section 1207\rquote s reference to the already-existing SBA statute and regulations indicates that Congress did not intend to define a new class of minority-owned small businesses. The phrase \small business concerns ... owned and controlled by socially and economically disadvantaged individuals\ is taken entirely from the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Congress\rquote incorporation of such a well-defined term in section 1207 indicates that it did not intend to delegate to DOD the authority to promulgate rules defining SDB status. Congress long ago had delegated that authority to SBA. Section 1207\rquote s reference to both SBA\rquote s statute and regulations indicates that Congress intended DOD to accept the definition of minority-owned small business already in place. Nothing in the language or structure of the statute indicates that Congress delegated to DOD the authority Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': if this title, or any other provision of Federal law that references such subsection [section 8(d) of the Small Business Act] for a definition of program eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Thus, the structure of the statutory program reveals that the power to interpret the term \small business concerns ... owned and controlled by socially and economically disadvantaged individuals\ is wholly and exclusively within the sphere of SBA\rquote s authority. When Congress delegates the authority to interpret a statutory mandate to an agency, the agency usually can choose between two modes of interpretive lawmaking\u8212rulemaking or adjudication. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': (holding that Congress did not authorize Navy to second-guess SBA\rquote s size determination under another DOD small business set-aside program that assigns SBA the authority to define eligibility and adjudicate protests). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The court finds that SBA has both the power and the duty to define the bounds of the phrase \small business concerns ... owned and controlled by socially and economically disadvantaged individuals.\ It has discretion in choosing whether to perform this function on a general or ad-hoc basis, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Congressional intent on this matter is, however, clear. The definition of an SDB should travel consistently, and in its entirety, from SBA\rquote s program, to DOD\rquote s program. The court emphasizes, however, that section 1207\rquote s adoption of SBA standards is limited to the concept of \small business concerns ... owned and controlled by socially and economically disadvantaged individuals.\ On the limited point of whether a business falls into the category defined by those words, the programs overlap completely. In other respects they may be widely different. For example, DOD allows contractors to self-certify as to their SDB status. SBA allows a contractor to participate in the 8(a) program only after SBA verifies its eligibility. These procedural differences are perfectly legitimate. In each instance, however, the substantive standard must be the same, and SBA must be the final arbiter of that standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The term SDB is used under the section 1207 program to refer to \small business concerns ... owned and controlled by socially and economically disadvantaged individuals.\ Under SBA\rquote s section 8(a) program, such concerns are called \section 8(a) contractors.\ This opinion uses the term SDB to refer to contractors under both programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 068 - YSK Const Co Inc v US.doc, Paragraph with 'The Rule of Two': The legislative history does not indicate the reason for this change. The most likely reason is that subsection (d) does not actually define the term \small business concerns ... owned and controlled by socially and economically disadvantaged businesses.\ Instead, it uses that term with reference to definitions contained elsewhere in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , Circuit Judge, sitting by designation, held that: (1) company had standing to challenge the section of the Small Business Act authorizing the challenged program, even though it did not identify that section in its complaint; (2) the proper constitutional test for program implemented under that statute was the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': ; (3) federal government, acting under congressional authority, can engage more freely in affirmative action than states and localities; (4) Congress was not required to mandate precise percentage goals to be adopted by agency for minority small business participation; and (5) the subcontracting compensation clause (SCC) implemented by the Central Federal Lands Highway Division (CFLHD), whereby prime contractors were given incentive payments for a specified percentage of subcontracting with DBEs, was narrowly tailored to achieve the remedial purpose of the applicable section of the Small Business Act and did not violate equal protection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Construction company had standing to challenge section of the Small Business Act authorizing program involving race-conscious subcontracting compensation clause for hiring of subcontractors on government contracts even though it did not charge in its complaint that that section was unconstitutional, where that section was the legislation authorizing the program challenged in the complaint. Small Business Act, \u167 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Proper test for constitutionality of race-conscious program with respect to awarding subcontracts on government contracts, authorized by Congress under the Small Business Act, was the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , even though the precise goals of the challenged program were fashioned and specified by agency and not by Congress. Small Business Act, \u167 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Though Congress did not dictate specific percentage goals for agencies to meet in award of government procurement contract to small business concerns owned and controlled by socially and economically disadvantaged individuals, language of relevant section of the Small Business Act clearly contemplates that agencies will exceed the government-wide disadvantaged business enterprise (DBE) participation goal of \not less than 5 percent.\ Small Business Act, \u167 2 [15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Central Federal Lands Highway Division (CFLHD) was acting within the bounds of the statutory authority of the Small Business Act in adopting subcontracting compensation clause (SCC) program whereby government contractors would receive incentive payments for specified percentage of subcontracting with disadvantaged business enterprises (DBEs), and the racial preference of the SCC program was not discretionary agency action, nor was Congress required to mandate precise percentage goals for minority small business participation. Small Business Act, \u167 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The subcontracting compensation clause (SCC) program of the Central Federal Lands Highway Division (CFLHD) whereby prime contractors on CFLHD contracts are given incentive payments for hiring as subcontractors requisite percentage of small business concerns owned and controlled by socially and economically disadvantaged individuals is narrowly tailored to achieve the remedial purpose of the authorizing section of the Small Business Act, and does not violate equal protection requirements, in that the program induces, rather than compels, prime contractors to hire disadvantaged business enterprise (DBE) subcontractors, and eligibility is based on economic disadvantage, so that it is not limited to members of racial minority groups and minority businesses that do not satisfy the economic criteria cannot qualify for DBE status. Small Business Act, \u167 2[15](g), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Third, Adarand contends that section 502 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , 145 (STURAA). Both Adarand and the Government filed cross motions for summary judgment with the district court. The district court also mistakenly determined that the challenged program was authorized by STAA and STURAA. For purposes of this appeal, both parties stipulate that the SCC program is authorized by section 502 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The Small Business Act provides the statutory authority for agencies to establish specific utilization goals for disadvantaged small Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': . In compliance with section 502 of the Small Business Act, the heads of the various federal agencies, including the DOT, must establish annual goals for small business participation in federal procurement contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': . These goals must present the \maximum practicable opportunity\ for small business concerns, including those Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The SCC program was implemented in 1979 by the Federal Lands Highway Program (FLHP) of the Federal Highway Administration (FHWA), an agency within the DOT, to satisfy the agency goals requirement of the Small Business Act. CFLHD and the other two regional offices of FLHP utilize the SCC program as a means of meeting their respective apportioned shares of the DOT goal for disadvantaged small business participation. Under the SCC program, a Subcontracting Compensation Clause is included in small-value contracts or where the prime contractor is a small business. Prime contractors whose DBE subcontracts exceed 10% of the overall contract amount are eligible for incentive payments of up to 1.5% of the original contract amount for utilization of one DBE, or up to 2% for hiring two or more DBEs. Small business prime contractors are not required to hire DBEs as a contractual condition of eligibility for award of the prime contract. Rather, the SCC program provides prime contractors with the option of either hiring DBE subcontractors and receiving commensurate incentive payments, or ignoring the option entirely. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': To qualify for eligibility under the SCC program, small businesses must demonstrate through an annual certification process that they are indeed socially and economically disadvantaged. The Subcontracting Compensation Clause and the eligibility criteria comport with section 502 of the Small Business Act. The eligibility criteria, however, are derived from the DBE regulatory program implemented pursuant to two transportation funding authority acts: STAA and its renewal act, STURAA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': ; 49 C.F.R. 23.2. Consequently, small business prime contractors awarded contracts let directly by the CFLHD do not have to satisfy the 10% DBE set-aside required of states and localities who receive STURAA funds for federally-assisted highway contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': STURAA, and previously STAA, define \socially and economically disadvantaged individuals\ with reference to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, a small business must be at least 51% owned and controlled by individuals who are socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': That presumption is rebuttable under the DBE criteria incorporated into CFLHD\rquote s SCC program. Both minority-owned small disadvantaged business enterprises (DBEs) and women-owned small business enterprises (WBEs) may be decertified if it can be established that they are not socially and economically disadvantaged. Non-minority-owned small businesses also are eligible for DBE certification by the Small Business Administration, provided that they satisfy the same eligibility criteria as minority-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': On September 15, 1989, the CFLHD awarded a $1\u8211million\u8211plus prime contract to a small business contractor, Mountain Gravel & Construction Company, for a federal highway project in Colorado known as the West Dolores project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Monetary compensation is offered for awarding subcontracts to small business concerns owned and controlled by socially and economically disadvantaged individuals * * * * Compensation is provided to the Contractor to locate, train, utilize, assist, and develop DBEs to become fully qualified contractors in the transportation facilities construction field. The Contractor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': entities), provided the controlling standard. The Government also argued that Adarand did not have standing, in any event, to challenge the regulatory program by which STURAA is implemented, because the SCC program was instituted pursuant to section 502 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': , and not STURAA. In its reply brief, Adarand acknowledged that the SCC program was implemented in response to the agency goals requirement of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Its opinion did not address the standing issue urged upon us by the Government, and made no reference to the SCC program. The existence of the Small Business Act and the Act\rquote s mandate of agency goals for socially and economically disadvantaged small business participation were virtually ignored by the district court. Rather, the district court concluded, erroneously, that CFLHD \was required by the federal regulations under which CFLHD operates\ to adopt STAA\rquote s and STURAA\rquote s 10% set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': As a threshold matter, we reject the Government\rquote s argument that Adarand does not have standing to challenge section 502 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Adarand and the Government, in their briefs to the district court, both identified section 502 as the statutory basis for the SCC program. As the Government itself points out, the analysis of the constitutionality of the SCC program under the authority of the Small Business Act is the same as that applied by the district court to STAA and STURAA. Furthermore, because we conclude that the district court reached the correct conclusion, its order denying Adarand\rquote s motion for summary judgment and granting summary judgment in favor of the Government can be affirmed, even though premised on an analysis different from the analysis we employ. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': In the instant case, Adarand acknowledges that if the CFLHD is merely doing what Congress ordered it to do, the agency\rquote s action is constitutional unless the underlying legislation is unconstitutional. For purposes of this appeal, Adarand has stipulated that section 502 of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': prevents the CFLHD from playing the role envisaged for it by the Small Business Act. The question of congressional action was not before the Court in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': By its enactment of section 502, Congress accorded broad discretion to agencies to implement the remedial goals of the Small Business Act. Although Congress did not dictate specific percentage goals for agencies to meet, the language of section 502 clearly contemplates that agencies will exceed the government-wide DBE participation goal of \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': \ for disadvantaged small business participation in federal procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Adarand\rquote s argument that the racial preference of the SCC program is a discretionary agency action ignores the entity which created the presumption of minority disadvantage. The challenged SCC program derives its eligibility criteria from STAA and STURAA, which in turn incorporated the presumption of section 8(d) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': By incorporating that presumption into STAA and STURAA, Congress reaffirmed its mandate that federal procurement opportunities be made more readily available to qualified minority-owned business enterprises. That rebuttable presumption also is found in the challenged SCC program. The SCC program thus provides subcontracting opportunities for the very type of small businesses that Congress had in mind when it enacted section 502 of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The conclusion that the CFLHD is acting within the bounds of the statutory authority of the Small Business Act is impelled by Adarand\rquote s own concession that the CFLHD\rquote s implementation of the SCC program was not beyond the agency\rquote s delegated power under section 502. Because the SCC program comports with the legislative design of the Small Business Act to increase subcontracting opportunities for minority-owned small businesses, it is reasonably related to the purposes of the enabling legislation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': We also disagree with Adarand\rquote s argument that Congress must mandate precise percentage goals for minority small business participation. Such a position ignores the principal lesson of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': was the model for the DBE program implemented by the DOT pursuant to STAA and STURAA, and utilized in the SCC program challenged by Adarand. Although the district court mistakenly treated the challenged program as being authorized by STAA and STURAA, its analysis is equally applicable in assessing the constitutionality of the SCC program under the authority of section 502 of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': We hold that the SCC program is constitutional because it is narrowly tailored to achieve its significant governmental purpose of providing subcontracting opportunities for small disadvantaged business enterprises, as required under section 502 of the Small Business Act. The qualifying criteria of the SCC program is not limited to members of racial minority groups. Because eligibility is based on economic disadvantage, non-minority-owned businesses also are eligible to participate. The SCC program is not overinclusive since minority businesses that do not satisfy the economic criteria cannot qualify for DBE status. Furthermore, the SCC program is \appropriately limited in extent and duration\ because federal procurement and construction contracting practices are subject to regular \reassessment and reevaluation by Congress.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Significantly, the SCC program does not require small business prime contractors to submit and adhere to a subcontracting plan with specific DBE goals. The prime contractor in this case had the option, not the obligation, of subcontracting with a DBE; it exercised its own judgment (albeit attracted by CFLHD\rquote s monetary inducement) in rejecting Adarand\rquote s bid for the subcontract. Because the SCC program induces, rather than compels, prime contractors to hire DBE subcontractors, it cannot be said to violate equal protection requirements. As Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': findings were necessary, and that the Small Business Act which authorized the SCC program meets constitutional requirements, we will affirm the district court\rquote s order of April 21, 1992 in favor of the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Section 502 of the Small Business Act provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The President shall annually establish Government-wide goals for procurement contracts awarded to small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals. The Government-wide goal for participation by small business contracts shall be established at not less than 20 percent of the total value of all prime contract awards for each fiscal year. The Government-wide goal for participation by small business concerns owned and controlled by socially and economically disadvantaged individuals shall be established at not less than 5 percent of the total value of all prime contract and subcontract awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': Notwithstanding the Government-wide goal, each agency shall have an annual goal that presents, for that agency, the maximum practicable opportunity for small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals to participate in the performance of contracts let by such agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': (emphasis added). These obligations were first codified in 1978 as an amendment to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': The head of each Federal agency shall, after consultation with the Administration establish goals for the participation by small business concerns, and by small business concerns owned and controlled by socially and economically disadvantaged individuals, in procurement contracts of such agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': shall realistically reflect the potential of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals to perform such contracts and to perform subcontracts under such contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': . Both STURAA and the Small Business Act also extends federal procurement opportunities to women-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 069 - Adarand Constructors Inc v Pena.doc, Paragraph with 'The Rule of Two': CFLHD includes within its jurisdiction the following states: Arizona, California, Colorado, Hawaii, Kansas, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, Texas, Utah and Wyoming. At the time of the contract award for the West Dolores Project, CFLHD\rquote s apportioned goal was between 12% and 15% DBE participation in all contracts let by the agency. The percentage goal represents the portion of dollars of CFLHD\rquote s total procurement program. Neither CFLHD nor any other federal agency is subject to sanctions for failing to satisfy its annual goal. The head of each federal agency, however, is required to justify any such failure in an annual report to the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 070 - Aerolease Long Beach v US.doc, Paragraph with 'The Rule of Two': (A) The Government shall have access to the leased space at all times, including the use of elevators, toilets, lights, and small business machines without additional payment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': UNITED STATES of America, Erskine Bowles, Administrator, Small Business Administration, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) court had jurisdiction under the Administrative Procedure Act; (2) untimely determination of Small Business Administration that contractor did not qualify as disadvantaged businessman could not be used by DOD to assign work under the contract to another contractor; and (3) individual\rquote s total assets could be considered in determining whether his corporation was a disadvantaged business, even though, to the extent those assets represented his ownership interest in his business, they could not be considered in determining his personal net worth. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Federal district court had jurisdiction under the Administrative Procedure Act to review actions of Small Business Administration (SBA) and Department of Defense (DOD) in taking away contract awarded to disadvantaged business by refusing to place further task orders under it and awarding the same contract to another contractor; case was not a contract case to be heard only in the Court of Federal Claims or the Armed Services Board of Contract Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Where Department of Defense (DOD) did not do anything against government contractor after Small Business Administration (SBA) initially ruled that contractor was not a disadvantaged business but began quickly taking actions against the contractor after the SBA final decision, DOD was reacting to appeal decision and not to protest decision and thus could not apply the decision to a contract which had been issued prior to the appeal decision due to failure of SBA to act on the protest within 15 working days. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) appropriately weighed individual\rquote s $4.6 million in total assets as its \another specific factor\ to be considered in determining whether his corporation qualified as a socially disadvantaged business, even though, to the extent that those total assets included his ownership interest in the business, they could not be considered in determining his net worth. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Plaintiff SRS Technologies (\SRS\) has participated in the Small Disadvantaged Business program (\SBD\) of the Small Business Administration (\SBA\) since the program\rquote s inception. To qualify under the regulations of that program, companies must (among other things) be owned and controlled by individuals who are socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': Seven days later, Science & Technology, Inc. (\SCITEK\), intervenor in this case, filed a protest challenging SRS\rquote s SDB status. The SBA received SCITEK\rquote s protest on August 2, 1993. Because initial SBA SDB decisions are due fifteen working days after the receipt of an SDB protest (48 C.F.R. \u167 210.302\u821170(g)), the SBA\rquote s initial decision on SCITEK\rquote s protest was due on August 23, 1993. Yet it was not until September 3, 1993, that the SBA\rquote s Director of the Division of Program Certification and Eligibility found that SRS was not an SDB after all. SRS thereafter filed an administrative appeal of this decision on September 21, 1993, and the decision was finally upheld by the SBA Associate Administrator for Minority Small Business and Capital Ownership Development on September 30, 1993. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': The appeal must be filed with the SBA\rquote s Associate Administrator for Minority Small Business and Capital Ownership Development within five working days after receipt of the determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': V. AGENCY ACTION OF THE SMALL BUSINESS ADMINISTRATION Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 073 - SRS Technologies v US.doc, Paragraph with 'The Rule of Two': On September 3, 1993, the SBA\rquote s Director of the Division of Program Certification and Eligibility found that SRS was not an SDB because of Mr. Sandhu\rquote s quite substantial personal assets. The SBA Associate Administrator for Minority Small Business and Capital Ownership Development subsequently upheld this determination on September 30, 1993. The SBA calculated that \the total current fair market value of [Mr. Sandhu\rquote s] personal assets [is] approximately $4.6 million,\ (SBA Letter of September 30, 1993, at 2), and based on that information, the SBA determined that Mr. Sandhu was not economically disadvantaged and his concern not entitled to SDB status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Contractors were barred from receiving injunctive relief against the Army Corps of Engineers concerning its administration of minority set-aside program, as Small Business Act precludes injunctive relief against Small Business Administration (SBA), and contractors could not obtain indirectly against Army what they could not obtain directly against SBA. Small Business Act, \u167\u167 2[5](b)(1), 8(a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Provision of the Federal Courts Improvement Act of 1982 (FCIA) allowing injunctive relief against the Small Business Administration (SBA) and, by extension, against agencies participating in SBA\rquote s programs applies only to cases brought before United States Court of Federal Claims, and does not apply to suits brought in district court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers\rquote three-month suspension of decisions regarding submission of new minority set-aside projects was supported by articulated nondiscriminatory reason that Corps\rquote practice of awarding large number of small business projects to minority set-aside program was improper, and contractors failed to show that articulated reason was pretext for discrimination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Contractors\rquote claims against employees of Army Corps of Engineers alleging that they were deprived of right to self-marketing in retaliation against nonminority contractors, without procedural due process, by employees\rquote refusing to meet with contractors during pendency of suit challenging minority set-aside program did not state cause of action, as there existed no legitimate claim of entitlement; contractors had no right to access of Corps personnel for such purpose, as the Small Business Administration (SBA) was authorized to contract as prime contractors with procurement agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Contractors, who claimed that by bringing suit challenging suspension of minority set-aside program they forced Army Corps of Engineers to resume program, were not entitled to attorney fees under civil rights attorney fees statute; even if contractors caused resumption of program, suspension was not based on any racial animus. Small Business Act, \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Contractors, who brought suit against Army Corps of Engineers challenging suspension of minority set-aside program, failed to allege any facts showing that defense position was not substantially justified, and thus, award of attorney fees under Equal Access to Justice Act was not warranted; suspension of program was based on adverse decision by federal district court. Small Business Act, \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': This case relates to the Corps\rquote administration of its set-aside program for minority businesses (the 8(a) program), as described in the Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': Under this program, the Small Business Administration (SBA) determines which minority businesses are eligible to participate in the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': we held that as to the Corps\rquote administration of the 8(a) program, \injunctive relief would be improper because a necessary party to the suit is the SBA, which administers the overall \u167 8(a) minority enterprise set-aside program. The Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': The Contractors now complain on appeal that they were denied needed discovery as to: (1) an October 17, 1990 memorandum prepared by a member of the Corps; (2) a November 15, 1990 memorandum prepared by the Corps\rquote assistant general counsel; (3) an undated memorandum by the Vicksburg district counsel; and (4) the September 1990 written recommendations of the Department of Justice, Small Business Administration, and the Department of the Army concerning the constitutionality of the 8(a) program. None of these matters were the subject of the Contractors\rquote Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 077 - Enplanar Inc v Marsh.doc, Paragraph with 'The Rule of Two': The Contractors also complain that the district court erred in granting summary judgment against EJA\rquote s claim concerning the Southwest Pass project. However, as explained above, the Corps had complete discretion concerning whether it would submit the project to the 8(a) program. The Contractors argue that EJA had already worked on the project the prior year and had an \expectation\ that it would receive the project again. They allege it did not receive the project because the Corps feared that too many of its small business set-asides were going into the 8(a) program. Assuming this explanation is true, it still does not suffice to sustain a finding that the Corps\rquote decision not to submit the project was based on a discriminatory intent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 083 - Domagala v US.doc, Paragraph with 'The Rule of Two': The contracting officer, Carol Saltarelli (\Saltarelli\), opened the bids for the new contract on March 28, 1991. Northeast\rquote s bid was fourth lowest of the five bids Saltarelli received. Saltarelli determined that the lowest bidder, Automation Management Services Co. (\AMSC\), was not responsible. While the Small Business Administration considered whether to issue a Certificate of Competency to AMSC, Saltarelli and Northeast agreed to extend Northeast\rquote s transcription services under the old contract until June 30, 1991. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 089 - Durable Metal Products Inc v US.doc, Paragraph with 'The Rule of Two': Even if Durable did not waive its arguments, however, Durable still failed to raise a genuine issue of material fact because it did not offer any evidence to establish that the documents would be helpful to its case. The Small Business Administration (SBA) documents concerning the SBA\rquote s refusal to issue a certificate of competency are no doubt highly relevant to the issue of the government\rquote s basis for its finding on Durable\rquote s responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) whether the government expected bidder to subcontract close to half of its work to existing contractor, allegedly to circumvent standard procurement requirements, was immaterial to claim as it would not show that there was intent to disregard proposal before solicitation was initiated; (2) expectation that plaintiff would contract portion of its work to existing large contractor would not violate Small Business Act; and (3) cancellation of negotiations after budget reduction, and contracting some additional work directly from existing contractor, was not shown to be arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': Agency\rquote s expectation that prospective contractor approved by Small Business Administration would subcontract portion of its work to large contractor would not violate Small Business Act nor constitute bad faith allowing recovery of bid preparation costs. Small Business Act, \u167 2[15]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act places on contractor, not contracting agency, obligation to certify that required percentage of work will be performed by the small business contractor itself. Small Business Act, \u167 2[15]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': Cancellation by Air Force of negotiations for additional work, and contracting some additional work directly from the existing contractor, was not arbitrary and capricious so as to entitle disappointed bidder to bid preparation costs, where there had been budget reduction and none of the categories of work that Air Force had been negotiating with disappointed bidder were contracted to existing bidder or any other contractor and where, in any event, there was no clear and convincing evidence that Air Force intended to disregard bid before it initiated the solicitation. Small Business Act, \u167 2[15]( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': In an effort to contract the needed support personnel, and in keeping with the policy of the Deputy Chief of Small Business for the Air Force District of Washington Contracting Office (AFDW) to review all new procurements for potential set aside under the Small Business Act\rquote s Section 8(a) Set Aside Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': , the Air Force met with fifteen Small Business Administration (SBA) approved Section 8(a) prospective contractors. Plaintiff, Tonya, Inc., was among the contractors selected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': ). The obligation of fair and honest treatment has also been implied in situations where a Section 8(a) company was involved under the Small Business Act\rquote s Set Aside Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': In its cross-motion for summary judgment, plaintiff alleged that (1) the Air Force\rquote s negotiations with plaintiff were merely a \pass-through\ attempt to reach Grumman without the need for competitive bidding; (2) the Air Force\rquote s alleged \pass-through\ attempt violated provisions of the Small Business Act and was therefore Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': 2. Defendant Did Not Violate the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also argued that the Air Force, by allegedly expecting plaintiff to subcontract a portion of its work to Grumman, violated the intention of the Small Business Act. However, the facts and the law do not support plaintiff\rquote s position. Even if plaintiff\rquote s allegation that it was expected to subcontract a portion of its work to Grumman were true, the mere holding of such expectation does not constitute bad faith. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': \[A] small business concern may subcontract a portion of a set-aside award to a large business concern....\ 7 John C. McBride et al., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': . Furthermore, decisions by the Comptroller General have consistently held that subcontracting up to 49% of the contract is not against the policy of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act expressly places upon the contractor, not the Air Force, the obligation to certify that the required percentage of the work will be performed by the small business contractor itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': . As a result, even if plaintiff\rquote s allegations as to \pass-through\ were true, the Air Force\rquote s expectation that plaintiff contract a portion of its work to Grumman, or any other contractor, would not violate the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 001 - Tonya Inc v US.doc, Paragraph with 'The Rule of Two': In response to plaintiff\rquote s argument that a procurement under the Small Business Act\rquote s Set Aside Program would be less time consuming, the court notes that the Set Aside Program is subject to the same competition requirements as other procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 002 - DTH Management Group v Kelso.doc, Paragraph with 'The Rule of Two': The Navy subsequently notified DTH on March 18, 1993, of its proposed award of the contract to FKW Incorporated (\FKW\). The United States Small Business Administration (\SBA\) sustained an objection by DTH and other disappointed bidders to the Navy\rquote s proposed award of the contract to FKW for reasons not pertinent in this case. Consequently, the SBA set aside the Navy\rquote s proposed award to FKW. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 008 - Arrow Office Supply Co v City of Detroit.doc, Paragraph with 'The Rule of Two': which a small business faces in an occupied market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 010 - Nicholson v US.doc, Paragraph with 'The Rule of Two': Borrower sued for declaratory and injunctive relief against federal government to prevent government from foreclosing on real property pledged as collateral to secure Small Business Association (SBA) loan. Borrower also sued for money damages for government\rquote s alleged breach of contract. On government\rquote s motions to dismiss for entry of summary judgment, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 010 - Nicholson v US.doc, Paragraph with 'The Rule of Two': Deed to secure debt executed by borrower in connection with Small Business Association (SBA) construction loan, whereby borrower purported to pledge additional properties, including her homestead, in order to secure her debt, would be enforced against borrower as written, notwithstanding her professed ignorance or its terms; borrower failed to present evidence of any fraud or undue influence that prevented her from reviewing deed or from obtaining legal counsel if language in instrument was too technical for her to understand. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 010 - Nicholson v US.doc, Paragraph with 'The Rule of Two': Borrower\rquote s 14\u8211year delay in protesting collateral provisions of deed to secure debt, on ground that deed incorrectly reflected that borrower was pledging her home and additional property in order to secure her construction loan obligation to Small Business Association (SBA), waived any rescission right that borrower otherwise may have had, even assuming that she had presented a scintilla of evidence of fraud in connection with deed\rquote s execution. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 010 - Nicholson v US.doc, Paragraph with 'The Rule of Two': Assumption agreement, pursuant to which purchaser of motel assumed vendor\rquote s obligations under Small Business Association (SBA) construction loan, but with no modification of SBA\rquote s rights against vendor and against property which she had pledged to secure construction loan, did not impose on SBA an obligation to proceed first against purchaser in event of its default, and did not confer on vendor any right to compel SBA to exercise its rights against purchaser, where agreement explicitly provided that every right, remedy, power and privilege granted to SBA would be cumulative and could be exercised, from time to time, in its sole discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 010 - Nicholson v US.doc, Paragraph with 'The Rule of Two': intended to erect a dwelling house on one parcel and later decided to build a motel on the other. After initiating construction of the motel, the plaintiff had prepared the first level for occupancy, but required additional financing to pay building suppliers and to complete construction of the remaining parts of the facility. Consequently, the plaintiff applied for a loan from the Small Business Administration (SBA), and on April 12, 1976, obtained a loan from the Commercial National Bank of Cedartown, Georgia, which was guaranteed by the SBA. On June 11, 1979, the Commercial National Bank assigned the debt at issue, with all rights, title, and interest thereto, to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 021 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'The Rule of Two': Concrete Works does not dispute that Denver enacted the Ordinance after or in conjunction with race-neutral means of increasing W/MBE participation in public contracting. Indeed, prior to enacting the Ordinance, Denver had already considered eliminating prequalification requirements and breaking down projects to facilitate small business participation, and had implemented bond guarantee programs, a prompt payment ordinance, a contractor mentor program, and a pre-apprenticeship program. Denver, Co., Rev.Mun.Code ch. 28, art. III, div. 3, \u167 28\u821152(a)(4). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 023 - Durable Metals Products Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff has been a small business government contractor for nearly thirty years. Through early 1987, the business successfully completed numerous government contracts. Plaintiff alleges that circumstances changed in April of 1987 when Dennis Kraft was assigned by defendant to plaintiff as plaintiff\rquote s Quality Assurance Representative (QAR). During the period between April 1987 and January 1988, plaintiff charges, Mr. Kraft embarked on a course of action \to degrade, delay, disrupt, and destroy plaintiff\rquote s business.\ Plaintiff contends that this course of action ultimately led to it being placed on two lists of deficient contractors: the Contractor Alert List and Contractor Improvement Program. As a result, plaintiff became ineligible for awards of government contracts involving more than $25,000.00, unless it first passed a pre-award survey. Between the spring of 1987 and the end of 1989, plaintiff failed to attain the award of a government contract involving more than $25,000.00. Plaintiff\rquote s allegations relating to Mr. Kraft\rquote s conduct, as well as that of his immediate superiors, are the basis of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 023 - Durable Metals Products Inc v US.doc, Paragraph with 'The Rule of Two': Shortly after submission of its quotation, plaintiff received a letter from the United States Small Business Administration (SBA) notifying it that the procuring contracting officer determined that plaintiff was non-responsible and, therefore, proposed to reject plaintiff\rquote s bid. Plaintiff responded to the notice by applying for a Certificate of Competency (COC). On December, 7, 1989, the SBA informed plaintiff that it had declined to issue plaintiff a COC for solicitation Y282, because plaintiff failed to \demonstrate satisfactory past and present production performance sufficient to give [the] agency a reasonable assurance that the requirements of the solicitation [could] be met.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Small business nondisadvantaged contractor sued Army Corps of Engineers after contract to build recreation park in Mississippi was designated for exclusive bidding by disadvantaged contractors. The United States District Court for the Northern District of Mississippi, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': , Chief Judge, granted summary judgment in favor of Corps. Contractor appealed. The Court of Appeals held that Corps was not required to conduct proportional impact analysis prior to offering contract into Small Business Administration (SBA) \8(a)\ program and reasonably interpreted federal regulations to require impact analysis only when recurring contracts were redesignated as exclusively available to disadvantaged contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': United States Army Corps of Engineers was not required to conduct proportional impact analysis before offering contract to build recreation park in Mississippi into Small Business Administration (SBA) \8(a)\ program for socially and economically disadvantaged small business concerns; Corps\rquote interpretation of federal regulation to require impact analysis only when recurring contracts were redesignated as exclusively available to disadvantaged contractors was well-reasoned and consistent with regulation\rquote s plain meaning. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Valley Construction Co. (Appellant) bids competitively on military and civil construction projects procured by the U.S. Army Corps of Engineers (Appellee) and other U.S. agencies. Appellant is a small business concern within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': but is not a socially and economically disadvantaged small business concern as defined in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': These disadvantaged small business concerns are known as \8(a)\ contractors, and may bid on contracts that are exclusively designated for the Small Business Administration\rquote s 8(a) Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Appellant, desiring to bid on the contract, sued alleging that the Corps failed to conduct a required proportional impact analysis to determine any possible effect exclusion would have on small business non\u82118(a) contractors, such as Appellant. Appellant argued that this failure caused Appellee to designate the contract for 8(a) contractors in an arbitrary and capricious manner. Appellant sought and was granted a temporary restraining order to prevent Appellee from awarding the contract. Appellant then sought a preliminary injunction, which was denied. Thereafter both parties requested summary judgment, and the district court ruled in favor of Appellee. Appellant appeals this ruling. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': only requires Appellee to consider whether the work being set aside for the 8(a) Program has \previously been acquired using small business set-asides.\ Appellee has interpreted this regulation to require impact analysis only when a contract previously available to all small businesses is redesignated as an exclusive 8(a) contract, thereby causing a non\u82118(a) small business to lose the contract; such analysis does not apply to new, non-recurring construction contracts because \a business cannot be historically dependent on a contract that it has never in fact obtained or performed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': ). Appellee\rquote s interpretation of the regulation to require impact analysis only when recurring contracts are redesignated as exclusively available to 8(a) contractors is well-reasoned. Furthermore, it is consistent with the plain meaning of the regulation, which states that Appellee should consider whether \the items or work have previously been acquired using small business set-asides.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': states in part \[f]or the purposes of this chapter, a small business concern, ... shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': 48 C.F.R. Subpart 19.8 sets forth the Federal Acquisition Regulations for contracting with the Small Business Administration (the 8(a) Program). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 026 - Valley Const Co v Marsh.doc, Paragraph with 'The Rule of Two': (e) Whether the items or work have previously been acquired using small business set-asides; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 031 - O'Donnell Const Co v District of Columbia.doc, Paragraph with 'The Rule of Two': As a condition of receiving federal funding of state highway construction projects, the District must comply with federal rules regarding contracting generally, and regarding STURAA in particular. States may certify as DBEs only those businesses that meet the eligibility standards in 49 C.F.R. section 23.62. Under 49 C.F.R. section 23.62, a firm is disadvantaged if it is a small business concern and is owned and controlled by individuals who are socially and economically disadvantaged. STURAA incorporated the definitions of social Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 031 - O'Donnell Const Co v District of Columbia.doc, Paragraph with 'The Rule of Two': disadvantage of section 8 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': All white contractors could not challenge federal minority set-aside program as applied to themselves on basis of New York state regulations in the absence of evidence tending to show that the New York Department of Transportation had deviated from the concededly valid federal regulations. Small Business Act, \u167\u167 2[3], 2[8](a, d), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': [e]xcept to the extent that the Secretary [of Transportation] determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals [disadvantaged business enterprises] as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': 96 Stat. at 2100. Section 8(d) of the Small Business Act states it is the policy of the United States that disadvantaged business enterprises (minority businesses) \have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency\ and creates a presumption of such status in favor of \Black Americans, Hispanic Americans, Native Americans, Asian Pacific Americans, and other minorities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': . The implementing regulations define a disadvantaged enterprise as a small business concern (within the meaning of \u167 3 of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 033 - Harrison And Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': ), that is at least 51 percent owned by one or more socially and economically disadvantaged individuals and whose management and daily business operation is controlled by one or more of those owners. 49 C.F.R. \u167 23.62. These regulations establish a rebuttable presumption that women, Black Americans, Hispanics, Native Americans, Asian\u8211Pacific Americans, Asian\u8211Indian Americans and those individually certified as minority enterprises under \u167 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 040 - Health Systems Marketing And Development Corp v US.doc, Paragraph with 'The Rule of Two': and submitted a concept paper to AID on October 25, 1989. Following an informal selection process involving other contractors, AID/Chad and the GOC selected HSMD for further negotiations based on HSMD\rquote s Concept Paper. On March 25, 1990, AID\rquote s Acting Assistant Administrator for Africa made a determination to limit competition on the TA contract to HSMD. This decision was made because HSMD did not fit the relevant requirements of the Small Business Administration (\SBA\) minority set-aside program. To have submitted the TA contract to SBA regulations would have delayed commencement and contract performance beyond the time the GOC was willing to wait. On March 27, 1990, AID signed an Action Memorandum allowing it to negotiate solely with HSMD, waiving a new SBA requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'The Rule of Two': (b) exclusion of particular source; restriction of solicitation to small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 047 - Hunt Paving Co Inc v City of Indianapolis.doc, Paragraph with 'The Rule of Two': 1. Certified as socially and economically disadvantaged by the Small Business Administration; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Minority business owners sued Small Business Administration (SBA) alleging that SBA\rquote s agreement with defense logistics agency (DLA) establishing pricing mechanism for delivery of petroleum products to various government installations under minority set-aside program violated Small Business Act and seeking damages for unjust enrichment. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': , J., held that: (1) \sue and be sued\ clause of Small Business Act waived sovereign immunity with respect to SBA\rquote s actions; (2) takings clause of Fifth Amendment, Small Business Act, federal statutes and federal common law provided grant of federal question subject matter jurisdiction; (3) action was not moot; and (4) actions of SBA amounted to taking of private property for public use without just compensation in violation of Fifth Amendment and United States Constitution entitling minority business owners to money damages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Sovereign immunity was waived by Small Business Administration (SBA) and its administrator by \sue and be sued\ clause in Small Business Act with respect to suit challenging legality of agreement entered into between SBA and defense logistics agency (DLA) establishing pricing mechanism for delivery of petroleum products to various government installations under minority set-aside program of Small Business Act. Small Business Act, \u167\u167 2[5](b)(1), 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Sovereign immunity is waived by Small Business Administration (SBA) outside Tucker Act by \sue and be sued\ clause of Small Business Act; however, such waiver applies only to agency involved, and not to United States generally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[5], 2 [5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': It is only funds over which administrator of Small Business Administration (SBA) has control to which sovereign immunity has been waived pursuant to \sue and be sued\ clause of Small Business Act, not general treasury funds. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[5], 2[5] (b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': \Sue and be sued\ clause of Small Business Act does not waive sovereign immunity when injunctive relief is part of case. Small Business Act, \u167 2[5] (b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Minority business owner\rquote s claims against Small Business Administration (SBA) challenging agreement between SBA and defense logistics agency (DLA) establishing pricing mechanism for delivery of petroleum products under minority set-aside program were not devoid of contractual basis so as to be subject to Federal Tort Claims Act with respect to waiver of sovereign immunity; although it appeared that SBA and its administrator breached statutory and regulatory duties by their actions, most of the SBA\rquote s responsibilities to the plaintiffs grew out of the interagency agreement itself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2 [5](b), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Theory of claim against Small Business Administration (SBA) may not be totally devoid of contractual basis in order to come within broad waiver of sovereign immunity under Small Business Act. Small Business Act, \u167 2[5](b), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': For district court to have jurisdiction in suit brought by minority-owned businesses against Small Business Administration (SBA) there had to be grant of subject matter jurisdiction, as well as valid waiver of sovereign immunity that was unequivocally expressed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Minority business owners\rquote claims challenging Small Business Administration (SBA) agreement with defense logistics agency (DLA) establishing pricing scheme for delivery of petroleum products to government installations under minority set-aside program were neither simply tort nor contracts such that they had to be considered and handled exclusively under Contract Disputes Act or Federal Tort Claims Act rubric; claims were constitutional in nature and related to both contracts and actions of federal agents injurious to plaintiffs, beyond those agents\rquote authority, causing unjust enrichment and at odds with purposes of Small Business Act set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Takings clause of Fifth Amendment to Federal Constitution, Small Business Act, and federal common law provided grants of federal question subject matter jurisdiction for suit by minority business owners against Small Business Administration (SBA) challenging SBA\rquote s agreement with defense logistics agency (DLA) establishing pricing scheme for delivery of petroleum products to government installations under minority set-aside program. Small Business Act, \u167\u167 2[5](b)(1), 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Minority-owned businesses had standing to complain about agreement between Small Business Administration (SBA) and defense logistics agency (DLA) establishing pricing mechanism for delivery of petroleum products to government installations under minority set-aside program of Small Business Act, where plaintiffs demonstrated that they each had been injured, in fact, as result of their participation in the program, that their injuries were directly traceable to SBA\rquote s actions, and that their injuries would be redressed by the relief they sought consisting of a declaratory judgment that the agreement was illegal as written and applied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': et seq.; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Case or controversy existed about legality of 1979 agreement between Small Business Administration (SBA) and defense logistics agency (DLA) establishing pricing mechanism for delivery of petroleum products to government installations under minority set-aside program of Small Business Act such that minority business owners\rquote claims challenging agreement were not \moot,\ even though agreement was superseded by subsequent agreement and was no longer in effect, where minority business owners\rquote injuries were directly traceable to actions of administrator of SBA in negotiating and implementing original agreement and business owners were presently harmed by those actions and likelihood and possibility of repetition still existed since there was no substantive difference between pricing mechanism of original agreement and present agreement. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) and defense logistics agency (DLA), by negotiating and implementing agreement establishing formulaic and inflexible pricing scheme for delivery of petroleum products to government installations under minority set-aside program, thwarted purpose of \u167 8(a) of Small Business Act and denied minority-owned trucking businesses benefit of that section. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) and defense logistics agency (DLA) violated minority set-aside provisions of Small Business Act by failing to include minority businesses in negotiating agreement establishing pricing scheme for delivery of petroleum products to government installations under minority set-aside program and businesses\rquote subcontracts; minority business owners had right to participate in both negotiation of agreement, since it outlined terms and conditions of subcontracts, and negotiations of subcontracts themselves. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Actions of Small Business Administration (SBA) in negotiating and implementing interagency agreement with defense logistics agency (DLA) establishing pricing scheme for delivery of petroleum products to government installations under minority set-aside program in violation of Small Business Act unjustly enriched SBA and resulted in taking of private property without just compensation in violation of Fifth Amendment to United States Constitution; thus, minority business owners were entitled to damages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), (a)(3)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': 1979, between the Small Business Administration (\SBA\) and the Defense Logistics Agency (\DLA\), a procurement arm of the Department of Defense, establishing a pricing mechanism for the delivery of petroleum products to various government installations under a minority set-aside program known as section 8(a) of the Small Business Act of 1953 (\the Act\), as amended, codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Each plaintiff formerly participated in a federal program designed to aid disadvantaged and small businesses in winning government contracts, known as the section 8(a) program. Plaintiffs brought this action in July of 1987, complaining that the Administrator of the SBA, and her Associate Administrator, acted illegally and beyond their statutory authority in negotiating and implementing an agreement known as the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': On December 5, 1979, William A. Clement, then Associate Administrator for Minority Small Business and Capital Ownership Development, United States Small Business Administration, signed the Interagency Agreement. It had previously been signed on November 28, 1979, by Charles T. Patterson, then Staff Director, Small and Disadvantaged Business Utilization, Defense Logistics Agency. The Interagency Agreement was applied between December 5, 1979 and July 17, 1985 by the DLA to all DFSC acquisitions of ground fuels from section 8(a) firms, including plaintiffs\rquote six subcontracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': There are many statutes by which consent to suit has been given. As above, one of those waivers is found in the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Ascot Dinner Theatre, Ltd. v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Claxton v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Carter v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Plaintiffs were all qualified minority contractors under section 8(a) of the Act. This authorizes the SBA \to arrange for the performance of ... procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': of such contract to concerns admitted to the section 8(a) program pursuant to section 8(a)(1)(c) of the Small Business Act, at prices which will enable a company to perform the contract and earn a reasonable profit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': The business development of an 8(a) concern is facilitated and enhanced by its successful performance of government contracts, particularly if it earns a reasonable profit. Accordingly it is the policy of SBA to enter into contracts with other government agencies and subcontract the entire performance of such contracts to eligible concerns, pursuant to section 8(a) of the Small Business Act, at prices which will enable them to perform and earn a reasonable profit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': that was utilized in these section 8(a) contracts. Since these small business firms had to purchase their fuel supplies from the larger oil companies and then resell to the government (DLA) at the lowest bid price, they could not survive economically. This arrangement was not only contrary to the purpose of the Small Business Act, it became the high road to economic ruin for these plaintiffs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': By negotiating and implementing the Interagency Agreement with its formulaic and inflexible pricing scheme, the SBA and its Administrator thwarted the purpose of section 8(a) of the Small Business Act, and denied plaintiffs the benefit of same. By failing to include plaintiffs in negotiating the Interagency Agreement and their subcontracts, defendants violated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Any modification or deviations from the foregoing procedure may be approved only by mutual agreement between the Defense Logistics Agency, Staff Director for Small and Disadvantaged Business Utilization, or his designee, and the Associate Administrator for Minority Small Business and Capital Ownership Development Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': of the U.S. Small Business Administration, or his designee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Small Business and Capital Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ORDERED, ADJUDGED AND DECLARED that the actions of the Small Business Administration, and its Administrator in entering into and implementing a certain pricing scheme as represented by an agreement between the Small Business Administration and the Defense Logistics Agency entitled Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ORDERED, ADJUDGED AND DECLARED that the Small Business Administration, and its Administrator have been unjustly enriched by these aforesaid actions; and it is further Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ORDERED, ADJUDGED AND DECLARED that plaintiffs were substantially injured as a result of their justifiable reliance on the Small Business Administration, and its Administrator to their detriment; and it is further Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ORDERED, ADJUDGED AND DECLARED that the aforesaid actions of the Small Business Administration, and its Administrator amount to a taking of private property for public use without just compensation in violation of the fifth amendment to the Constitution of the United States; and it is further Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': ORDERED that the Small Business Administration and its Administrator pay over to plaintiffs a sum certain in money damages to be determined by the Court after briefing and a hearing on damages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Moreover, forcing small businesses throughout the nation to file claims against the SBA for more than $10,000 in the Court of Claims in Washington, D.C. is, without doubt, at odds with the consideration prompting the enactment of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Small Business Act.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Munoz v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': United Penn Bank v. U.S.A. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': Defendants would have the Court focus on the fact that many of the FMP-setters are small businesses just like plaintiffs, and that plaintiffs themselves have successfully won and performed subcontracts under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 051 - A And S Council Oil Co Inc v Saiki.doc, Paragraph with 'The Rule of Two': solicitations. Def. Supp. Resp. at 7\u82118. These facts are irrelevant to this case which comes under a noncompetitive solicitation and which concerns not just small businesses, but socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Lawrence H. GARRETT, Secretary of the Navy, and Patricia Saiki, Administrator, Small Business Administration, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': , J., held that: (1) Navy as contracting agency, rather than Small Business Administration (SBA), had duty to make responsibility determination with respect to best bidder and competitive bid; (2) lowest bidder lacked integrity due to falsification of financial information and could not be found to be responsible; and (3) court could award contract to next lowest responsible and responsive bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Navy as contracting agency, rather than Small Business Administration (SBA), had duty to make responsibility determination with respect to best bidder and competitive bid. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': In their motion for reconsideration, the defendants have brought to the court\rquote s attention a recent D.C. Circuit case dealing with solicitations involving section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': . Aside from this statutory argument, since the section 8(a) program was designed to allow the SBA to contract with an agency and then subcontract with the small businesses participating in its program, it is logically appealing that the SBA, as the contracting entity, should do a responsibility analysis. In practice, however, the procuring agency and the disadvantaged small business normally deal directly with one another. John Cibinic, Jr. & Ralph C. Nash, Jr., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': at 962 (2d ed. 1986). As a result, in the case of sole source awards, both the SBA and the contracting agency have substantial contact with the small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Since the purpose of the competition is to make the bid procedure as realistic as possible within the protective confines of section 8(a) program eligibility, the contracting agency deals directly with the small businesses competing for the award. Structurally, and from a policy perspective, it makes little sense for the SBA to do a responsibility determination where the bid is competitive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': contract awards to small businesses in the section 8(a) program. The regulations state that \[w]hen it is in the Government\rquote s interest to do so, the contracting officer may directly determine a prospective contractor\rquote s responsibility.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 055 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Our concern is that neither agency seems to have performed the responsibility determination required by the regulations, whether contained in the Federal Acquisition Regulations or the regulations governing the Small Business Administration. 13 C.F.R. \u167\u167 124.308 & 124.313. Our desire is to avoid abuse of the section 8(a) program. This cannot be accomplished without proper investigation of the firm\rquote s business integrity by some person within the contracting process. We feel this determination is most appropriately situated with the contracting agency, which presumably functions most effectively following its normal bid procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': Computer equipment manufacturer sued Army, challenging Army\rquote s decision not to bid procurement for specialized computer equipment under small business set-aside program. Army moved for summary judgment. The District Court, Sporkin, J., held that Army\rquote s decision was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': Army\rquote s decision not to bid procurement for specialized computer equipment under small business set-aside program was reasonable, in light of Army\rquote s previous quality problems with computer hardware purchased from manufacturer challenging instant procurement decision, as well as legitimate concerns as to manufacturer\rquote s financial condition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': Plaintiff in this case manufactures computer hardware. The defendants are Army officials who are responsible for procuring computer equipment that the Army needs for a particular intelligence project. Plaintiff filed this action seeking declaratory and injunctive relief after the defendants determined that the procurement would not be bid under the small business set-aside program but would instead be made available for general bidding. Plaintiff contends Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': that federal law and regulations governing military procurement compel the Army to set aside this contract for small business. The defendants dispute this argument. The Court must review the Army\rquote s decision to put the contract out for general bid to see whether it meets the requirements of the applicable procurement statutes, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': In the course of preparing the solicitation for bids, the officer in charge of the procurement, Charles Thompson, and the contracting officer, Mary McHale, communicated with officers in the Army\rquote s Small and Disadvantaged Business Utilization Office (SADBUO) at Fort Monmouth, New Jersey as well as with individuals in the Small Business Administration (SBA) in the same location. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': Declaration of Charles W. Thompson, \u182 14, Defendants\rquote Motion to Dismiss. Arthur Widmaier of the SADBUO and John Kosciuch of the SBA initially disagreed and notified Thompson and McHale that it was their view that the procurement should be set aside for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': After reviewing the administrative record as well as all the submissions of the parties, the Court concludes that the defendants were neither arbitrary nor capricious in their decision not to set aside this procurement for small business. Under the applicable regulations, the Army is required to set aside a procurement for small business only Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': if the contracting officer determines that there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': the products of different small business concerns ... and (2) awards will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': (emphasis added). Only one small business company, Codar, could even marginally meet these requirements. This was because the Army was not fully convinced that Codar could meet the fair market price criteria. Attachment 8, Declaration of Charles W. Thompson, Defendants\rquote Motion to Dismiss or in the Alternative for Summary Judgment; Memorandum for U.S. Small Business Administration (April 9, 1992), Defendants\rquote Motion to Dismiss (authored by Mary McHale). No other small business including Solaris, the Genisco subsidiary was found to be a viable bidder. In this case, the defendants acted in accordance with the regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': The defendants had a reasonable basis for their decision not to set aside this procurement for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': . Their actions were neither arbitrary nor capricious. They adhered to the requirements of the applicable statutes and regulations, including the requirement that they consult with officials in the Small and Disadvantaged Business Utilization Office and the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 060 - Genisco Technology Corp v Stone.doc, Paragraph with 'The Rule of Two': In conclusion, the Court notes that the decision to make this procurement available for general bidding in no way prevents the plaintiff from bidding on this contract. Plaintiff will have the same opportunity to bid on the procurement as any other company. In fact, as one of the few companies that produces the hardware that the Army needs and as the only company that has already produced ruggedized workstations for the Army, the plaintiff should have a fair opportunity to compete for this contract even though it may be competing with larger companies. At this time, there is no legal basis for ordering the Army to set aside this procurement for small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 068 - Associated General Contractors of Connecticut v City of New Haven.doc, Paragraph with 'The Rule of Two': Defendant\rquote s Exhibit B at 55. An Office of Business Development was created to provide counseling and assistance to minorities operating small businesses. Funds were provided to private and quasi-public organizations that offered advice and provided consulting services to small businesses. Moreover, the city provided funds to the Greater New Haven Business and Professional Association in an attempt to increase minority business participation. By the late 1980s, the city had in place three small business assistance corporations\u8212the New Haven Development Corporation, the New Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 069 - Joseph L DeClerk and Associates Inc v US.doc, Paragraph with 'The Rule of Two': On May 29, 1985, the United States Army Communications\u8211Electronics Command (\CECOM\), Fort Monmouth, New Jersey, issued Solicitation No. DAAB07\u821185\u8211R\u8211K040 (Solicitation K\u8211040). Contract DAAB07\u821186\u8211CR005 was ultimately awarded. At first, Solicitation K\u8211040 called for a twelve month contractor effort to field the SINCGARS, with an option for six additional months of work related to the same task. The performance period subsequently was changed to an eleven month base period, with a twelve month option period. The procurement was specifically designated as a one-hundred percent set-aside for small business. Solicitation K\u8211040 directed interested parties to submit their proposals on or before July 1, 1985. Modification No. 0003 to Solicitation K\u8211040 notified interested contractors that the closing date for proposals was extended to July 8, 1985. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 069 - Joseph L DeClerk and Associates Inc v US.doc, Paragraph with 'The Rule of Two': did not give credit to the unsuccessful offeror for having small business status. Therefore, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 069 - Joseph L DeClerk and Associates Inc v US.doc, Paragraph with 'The Rule of Two': the point scheme in the instant case was accurately conveyed in the solicitation, which notified the bidders that technical factors weighed more heavily than cost and management factors, and actually assigned numerical weight to each category. Also, the plaintiff in the present case has not set forth convincing evidence that there was a failure to give the plaintiff credit for factors such as small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 070 - Adarand Constructors Inc v Skinner.doc, Paragraph with 'The Rule of Two': STAA and STURAA create federal programs designed to benefit socially and economically disadvantaged business enterprises. Section 105(f) of STAA and \u167 106(c) of STURAA both provide in pertinent part: \[e]xcept to the extent that the Secretary determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 070 - Adarand Constructors Inc v Skinner.doc, Paragraph with 'The Rule of Two': Federal regulations promulgated in response to STAA and STURAA define DBE\rquote s as small businesses which are at least fifty-one percent owned and managed by disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 070 - Adarand Constructors Inc v Skinner.doc, Paragraph with 'The Rule of Two': . Businesses not entitled to be presumed eligible for DBE status may apply and, upon sufficient showing, become certified by the Small Business Administration or the state as qualified for that status. Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 073 - Ellis v Skinner.doc, Paragraph with 'The Rule of Two': Except to the extent that the Secretary determines otherwise, not less than 10 percent of the amounts authorized to be appropriated under [the Act] shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Lawrence H. GARRETT, Secretary of the Navy, and Patricia Saiki, Administrator, Small Business Administration, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Government agency\rquote s failure to conduct responsibility determination prior to awarding procurement contract was material and not subject to correction by another agency\rquote s review; procurement regulations specifically require two separate evaluations of contracting firm\rquote s responsibility, one by contracting agency and one by Small Business Administration, and contracting agency can neither abdicate nor delegate its obligation to conduct responsibility determination. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Agency\rquote s failure to perform responsibility analysis of awardee prior to award of government contract constituted clear error prejudicial to disappointed bidder; contracting agency was required under applicable regulations to independently evaluate awardee\rquote s responsibility, and had awardee been found nonresponsible by agency and failed to receive certificate of competency from Small Business Administration, disappointed bidder would have had chance to win contract. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Government agency which had failed to conduct proper responsibility determination for awarding contract could be ordered to reverse its award and to award contract to next lowest responsive and responsible bidder where evidence of awardee\rquote s looseness in reporting its finances and of potential violations of federal and local law associated with those actions would not permit finding of responsibility. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Reversal of government agency\rquote s contract award, based upon finding of lack of integrity, did not violate awardee\rquote s due process rights; while finding of lack of integrity has serious business implications which raise due process rights, those rights are protected if party has notice and opportunity to be heard, and awardee was given notice of disappointed bidder\rquote s charges, was urged to intervene and respond to those charges, and failed to do so. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that the Department of the Navy (\Navy\) and the Small Business Administration (\SBA\) violated the Competition in Contracting Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': On July 1, 1991, the U.S. Navy, through Contracting Officer Willard Whisner, informed the Small Business Administration that it was offering a contract for guard services at the Vieques Island U.S. Naval Facilities in Puerto Rico in a competitive Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': . Section [8](a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': , created a program whereby the SBA can enter into a contract with a government agency which it then subcontracts to a small business certified by its program. Where, as here, the contract is valued at more than $3 Million, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': ., which establishes the policy for contractor qualifications, specifies that where the prospective contractor is a small business, the contracting officer, upon a finding of nonresponsibility \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': comply with subpart 19.6.\ This reference to 48 C.F.R. \u167 19, the section governing award of contracts to small businesses within 48 C.F.R. \u167 9, not only implies that 48 C.F.R. \u167 9 governs 48 C.F.R. \u167 19, but also explicitly requires that the normal procedure of a responsibility determination by the contracting officer must precede a certification of competency by the SBA. The structure of the sections implies that 48 C.F.R. \u167 19 is designed to supplement rather than supplant 48 C.F.R. \u167 9. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': One can easily surmise the purpose behind the reporting disparity. For SBA purposes, higher figures would make the contractor look like a solid and healthy small business. For local government reporting, the lower the figures, the lower the taxes paid. One fact remains clear. It is impossible to determine from this record which are the correct figures. There is evidence tending to show that there is a possibility that both sets of figures are inaccurate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 074 - Action Service Corp v Garrett.doc, Paragraph with 'The Rule of Two': A Certificate of Competency is the certificate issued by the Small Business Administration (SBA) stating that the holder is responsible (with respect to all elements of responsibility, including but not limited to capability, competency, capacity, credit, integrity, perseverance, and tenacity) for the purposes of receiving and performing a specific government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 075 - North Shore Strapping Co Inc v US.doc, Paragraph with 'The Rule of Two': This is a disappointed bidder case. Plaintiff North Shore Strapping Company, Inc. (North Shore) submitted an offer, which was rejected, for zinc coated steel strapping in response to a solicitation by agencies of Defendant United States of America. Plaintiff alleges that the Defendant Small Business Administration (SBA) exceeded its jurisdiction and acted in bad Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 079 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': Compliance also equates its disqualification with a \nonresponsibility\ determination which the procuring agency must first refer to the Small Business Administration, a referral not made here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': Susan ENGELEITER, Administrator, Small Business Administration, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': The Small Business Administration (SBA), having difficulty obtaining information from prospective small business contractor, advised procuring agency to recommend another contractor, and first small business sought judicial review. Motion of SBA for summary judgment was granted by the United States District Court for the District of Columbia, Thomas Penfield Jackson, J., and business appealed. The Court of Appeals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': , Circuit Judge, held that responsibility determination for small business seeking contract under \u167 8(a) program of the Small Business Act did not involve the procedures followed in Certificate of Competency proceeding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': When small business seeks sole-source contracts under the \u167 8(a) program of the Small Business Act, it will have its responsibility determined exclusively under statutory procedure whereby the Small Business Administration (SBA) is solely charged with determining responsibility, and the Certificate of Competency procedures applicable if small business seeks government contracts under \u167 8(b) do not apply. Small Business Act, \u167 2[8](a), (a)(16), (b), (b)(7), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': , Counsel, U.S. Small Business Admin., Washington, D.C., were on the brief, for appellees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': The Department of Health and Human Services (\HHS\) recommended to the Small Business Administration (\SBA\) that DAE Corporation, a disadvantaged small business, be awarded a contract under the \u167 8(a) program of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': For the reasons set out below, we hold that SBA responsibility determinations for disadvantaged small businesses seeking contracts under the \u167 8(a) program are covered exclusively by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': In order to put forth understandably the factual background of this controversy, we must first briefly review the statutory framework of the Small Business Act, particularly as it applies to the federal procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': Sections 8(a) and 8(b) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': , created two related but distinct programs for participation in the federal procurement process by small businesses. Under the \u167 8(a) program, the SBA contracts directly with federal procuring agencies for a good or service, and then subcontracts the work solely to a small business owned by a socially or economically disadvantaged person. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': 959\u821160 (2d ed. 1986). Once a procuring agency recommends a disadvantaged small business to the SBA, the SBA will award the subcontract upon determining that the prospective contractor is responsible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': ... of any small business concern ... to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': ). The COC program is available to all small businesses (including those owned by economically or socially disadvantaged persons) that have \submitted the most favorable acceptable offer\ for a contract but whose ability to meet certain responsibility criteria is questioned by the procuring agency\rquote s contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': When a small business\rquote s responsibility is questioned by a procuring agency, the agency must refer the matter to the SBA for implementation of the COC procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': . If a contractor obtains a COC, then it is deemed responsible, and a procuring agency may not withhold award of a contract to a certified small business on responsibility grounds. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': (\[T]he officers of the Government having procurement ... powers are directed to accept such certification as conclusive....\). Accordingly, one treatise refers to the COC as a \passport for small business to enter the land of Government contracts.\ 7 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': Late in 1989, the HHS initiated the Urban Youth Public Education Campaign, a multi-media public awareness effort to discourage drug and alcohol abuse among urban school children. Within HHS, the Office of Substance Abuse Prevention (\OSAP\) spearheaded this effort and decided to use a disadvantaged small business through the \u167 8(a) program. The OSAP conducted an informal technical review of several qualified contractors and in a letter to the SBA dated February 20, 1990, recommended that DAE be awarded the contract. This communication constituted an offering letter under 13 C.F.R. \u167 124.308(c), upon the receipt of which the SBA began conducting a responsibility determination under 13 C.F.R. \u167 124.308(e)(1)\u8211(2). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': did not apply to disadvantaged small businesses seeking contracts under the \u167 8(a) program. The parties also engaged in a factual dispute not at issue before us as to the reasonableness of the SBA\rquote s responsibility investigation of DAE. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': small business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': from its place within the Small Business Act. We decline the invitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': no doubt does mean what it plainly says\u8212but only where it applies. It is part of the \u167 8(b) program, and any small business proceeding under \u167 8(b) is entitled to its protections and its disadvantages. As the Comptroller General has affirmed, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': is designed to help small businesses overcome the hesitance a procuring agency may have in awarding an ordinary contract to a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': (explaining that the COC process \is provided by law to protect small businesses from arbitrary nonresponsibility determinations made by procurement agencies.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': The disadvantaged small business seeking a sole source contract under \u167 8(a), such as DAE, faces a vastly different situation. There, the procuring agency has asked the SBA to obtain the services of a specified disadvantaged small business\u8212no passport is necessary because the contractor has already been admitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': procedures are triggered as a matter of course whenever a disadvantaged small business is being considered for a \u167 8(a) contract, and not, as under the COC program, when a procuring agency contracting officer questions the responsibility of a small business. In this way, the SBA\rquote s role in a \u167 8(a) contract is analogous to an agency contracting officer\rquote s duty to make a responsibility determination for prospective contractors bidding to perform government work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': . As explained above, small businesses benefit from the COC program because it gives them an opportunity Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': DAE characterizes the SBA\rquote s position as an impermissible effort to lock out disadvantaged small businesses from the protections conferred by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': and the COC program. Brief of Appellant at 16. However, nothing in the SBA\rquote s brief or its presentation at oral argument lends itself to such a gross mischaracterization. In fact, its regulations define the term \small business\ for purposes of the COC program as including \small concerns owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': . This does not mean, however, that a small business can simultaneously enjoy the preferred status of a disadvantaged small business seeking a sole source contract under \u167 8(a) and the procedural protections offered by \u167 8(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': The Small Business Act creates two distinct modes for determining the responsibility of disadvantaged small businesses. When such businesses seek sole source contracts governed by the \u167 8(a) program, the SBA is solely charged with determining their responsibility. However, when these same businesses seek government contracts governed by \u167 8(b), then, as it would for any other small business, the SBA acts as an appellate mechanism after an agency contracting officer questions a contractor\rquote s responsibility. The language and structure of the Act demonstrate unambiguously that Congress intended this result, and we, like the agency, must heed Congress\rquote s clear command. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 084 - DAE Corp v Engeleiter.doc, Paragraph with 'The Rule of Two': (\If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.\) (footnote omitted). We therefore hold that when a disadvantaged small business seeks a subcontract within the friendly confines of the \u167 8(a) program, then it will have its responsibility determined exclusively under the Part 124 procedures promulgated pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Advertising agency brought action against United States to challenge Small Business Administration (SBA) regulation that included client billings in advertising agency\rquote s annual receipts to determine whether agency was small business. Agency and United States moved for summary judgment. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Advertising agency lacked standing to challenge award of government contract in its suit challenging regulation of Small Business Administration (SBA) that included client billings in advertising agency\rquote s annual receipts to determine whether agency was small business; National Aeronautics and Space Administration (NASA) considered merits of advertising agency\rquote s proposal as if it were eligible for contract award on basis of size and chose another agency\rquote s proposal on the merits. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Presumption of validity of agency action was not overcome by advertising agency\rquote s assertion of tainted review by government agent only after agency was determined not to be small business and not to be eligible for government contract; agency could not point to single conclusion of government official evincing taint or gratuity. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Advertising agency\rquote s complaint alleging loss of opportunity to certify itself as small business for purposes of set-aside contracts satisfied constitutional requirements of standing to challenge regulation of Small Business Administration (SBA) that included client billings in advertising agency\rquote s receipts to determine whether agency was small business. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Application to Small Business Administration\rquote s (SBA\rquote s) Size Standard Staff was inadequate and unnecessary and, therefore, did not need to be exhausted before advertising agency brought complaint challenging regulation that included agency\rquote s client billings in annual receipts to determine whether agency was small business; Staff lacked authority to change or otherwise alter existing regulation, and SBA did not require application to Staff before challenging regulation. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Rule making record by Small Business Administration (SBA) did not justify departure from nearly 30\u8211year practice of excluding client billings from calculation of advertising agencies\rquote annual receipts to determine whether agency was small business, even though exclusion was only one clause in 32 pages of regulations; SBA offered no explanation as to why travel and real estate agents should receive benefit of exclusion for client billings, but advertising and other agents should not. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA\rquote s) nearly 30\u8211year practice of excluding all agency client billings from calculation of annual receipts except commissions was not outside administrative record and should have been considered by SBA in rule making to include client billings in calculation of advertising agencies\rquote annual receipts to determine whether agencies were small business. Small Business Act, \u167 2[2](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration, of counsel), for defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': This matter comes before the Court on Plaintiff\rquote s Motion for Summary Judgment and Defendants\rquote Motion to Dismiss or, in the Alternative, for Summary Judgment. Plaintiff Stellacom, Inc. (\Stellacom\) challenges a 1989 amendment to a Small Business Administration (\SBA\) regulation defining annual receipts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': and enjoining SBA from attempting to enforce the regulation against Stellacom, as well as a judgment directing the SBA to return to its prior rule. In addition, Stellacom seeks a judgment declaring Stellacom to be an eligible offeror under a NASA television support services small business set-aside contract for which Stellacom had submitted a bid. For the following reasons, plaintiff\rquote s motion will be granted in part and denied in part, and defendants\rquote cross-motion will be granted in part and denied in part. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': . The administrator of the SBA has the authority to promulgate regulations necessary to implement the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': and the SBA is responsible for the promulgation of regulations that govern whether a business is to be considered \small\ for purposes of receiving awards of those contracts that have been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': , these client billings are counted to determine a business\rquote average annual receipts. The calculation of Stellacom\rquote s average annual receipts for small business set-aside purposes is thus significantly higher under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': In January 1991, the Johnson Space Center, part of the National Aeronautics and Space Administration (\NASA\), issued a Request for Proposal (\RFP\) soliciting offers for television support services. The RFP was a 100% small business set-aside and was subject to Standard Industrial Classification (\SIC\) Code 7819, \Services Related to Motion Picture Production.\ Under SIC Code 7819, a bidding firm\rquote s average annual receipts could not exceed $14.5 million in order to be considered \small.\ Stellacom submitted a proposal in response to the RFP. Stellacom self-certified that it was a small business under SBA regulations. However, Stellacom\rquote s small business size status was challenged on the basis that the receipts of its affiliates exceeded the $14.5 million threshold set forth in SIC Code 7819. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': The SBA Regional Office determined that Stellacom did not qualify as a small business. The SBA\rquote s Office of Hearing and Appeals later affirmed the decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': . The Claims Court then determined that SBA had properly applied the plain language of the regulation in determining whether Stellacom qualified as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': The government contends Stellacom\rquote s suit should be dismissed on standing grounds. The government asserts Stellacom lacks standing to bring this suit because it has not alleged an injury that is fairly traceable to the challenged action or an injury which is likely to be redressed by a favorable decision. Specifically, the government insists that Stellacom was not awarded the NASA contract irrespective of the SBA\rquote s determination that Stellacom did not qualify as a small business. The government asserts that after Stellacom had filed this suit, the Source Evaluation Board and the Source Selection Official (\SSO\) at the Johnson Space Center considered the merits of Stellacom\rquote s proposal as if it were eligible for a contract award on the basis of size, compared the merits of the three proposals submitted, and chose Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': it was a small business, but was deprived of that status by the promulgation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': prevents [it] from certifying that it is eligible to bid on any small business set-aside contracts with the Federal government.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': The Court agrees with the government that Stellacom lacks standing to challenge the award of the NASA contract. The Court finds that the SSO rejected Stellacom\rquote s bid on alternate and independent grounds. An order requiring NASA to resolicit bids thus would not redress the injury alleged by Stellacom. Stellacom\rquote s contention to the contrary, that the SSO\rquote s review was gratuitous and patently unfair, finds no fair support in the record. Although it is true that the SSO considered the merits of Stellacom\rquote s proposal only after Stellacom had been determined not to be a small business, Stellacom cannot point to a single conclusion of the SSO that evinces taint or gratuity. As such, Stellacom\rquote s assertion of taint cannot overcome the presumption that an agency action is valid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Here, Stellacom\rquote s amended complaint clearly alleges that it has lost the ability to claim that it is a small business under all relevant SIC codes, thus effectively and completely precluding it from the opportunity to bid on small business set-aside contracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': Stellacom\rquote s amended complaint sets forth that it has \regularly missed opportunities to compete for small business set-aside contracts involving television support services,\ and that it \could compete for these contracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': SBA\rquote s determination that it is not a small business.\ Amended Complaint, at 8 (emphasis added). In addition, Stellacom alleges that unless it recovers its right to certify itself as a small business, it \will probably not survive as a business entity, as it does not have the resources to compete as a large business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': at 9. The Court finds that Stellacom\rquote s amended complaint\u8212alleging the loss of the opportunity to self-certify itself as a small business for purposes of small business set-aside contracts\u8212satisfies the constitutional requirements of standing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': (1) Develop and recommend small business size standards; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': . Under these powers, the Size Standard Staff is empowered to consider Stellacom\rquote s challenges and criticisms with the new regulation and take \appropriate action\ on these complaints. The Court finds this remedy inadequate to redress the injuries alleged in Stellacom\rquote s complaint. The Size Standard Staff is not imbued with authority to change or otherwise alter the existing regulation. Rather, the Size Standard Staff is only empowered to consider criticisms with existing regulations and take \appropriate action.\ Moreover, the Court does not agree with the government that an application to the Size Standard Staff is a necessary administrative remedy to be exhausted. The Small Business Administration Act nowhere requires application to the Size Standards Staff before a challenges to existing SBA regulations may be brought. The Court therefore rejects the government\rquote s contention that Stellacom\rquote s complaint should be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': as implemented, the income of an advertising agency seeking small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': to be invalid as arbitrary, capricious, and contrary to law, and orders that the SBA be enjoined from attempting to enforce the regulation against Stellacom. The Court finds Stellacom lacks standing though to challenge the award of the NASA contract, and therefore denies Stellacom\rquote s request for a judgment declaring Stellacom to be an eligible offeror under the NASA television support services small business set-aside RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 088 - Stellacom Inc v US.doc, Paragraph with 'The Rule of Two': (b) to the extent it does not afford the exclusion for amounts collected for another from the calculation of receipts to any other agent who may be entitled to such exclusion pursuant to the standards developed in the rulings of the Small Business Administration\rquote s Size Appeals Board or Office of Hearings and Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 089 - Isratex Inc v US.doc, Paragraph with 'The Rule of Two': The following facts are undisputed. On March 25, 1991, the Department of Defense, Defense Logistics Agency (\DLA\), Defense Personnel Support Center (\DPSC\), issued Solicitation DLA100\u821191\u8211R\u82110120. DPSC is a supply center located in Philadelphia, Pennsylvania, that is maintained by DLA. The solicitation requested proposals for the manufacture of \792,408 EA Parka, Extended Cold Weather Clothing System (ECWS) Woodland Camouflage.\ Half of the quantity was set aside for small businesses. The solicitation requested that proposals be submitted by April 19, 1991. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 089 - Isratex Inc v US.doc, Paragraph with 'The Rule of Two': The number of parkas was 672,888, 336,432 of which were set aside for small businesses. The closing date for offers was extended to July 15, 1991. DPSC received 20 offers by the closing date. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 095 - Northeast Mississippi Community College Dist v Vanderheyden Const Co.doc, Paragraph with 'The Rule of Two': AMCA also claimed that Vanderheyden\rquote s bid failed to provide for the minimum requisite minority small business participation in accordance with Mississippi law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 095 - Northeast Mississippi Community College Dist v Vanderheyden Const Co.doc, Paragraph with 'The Rule of Two': Both the original and revised \Instructions to Bidders\ provision on minority small business participation asks only that the contractor \agree to take all actions necessary\ to insure that such concerns benefit through subcontract work. Neither bid instruction makes the allotment a true and absolute minority set-aside of a particular amount. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 095 - Northeast Mississippi Community College Dist v Vanderheyden Const Co.doc, Paragraph with 'The Rule of Two': of the Act to ensure that minority small business concerns, as that term is defined under the Act benefit from the expenditure of the ($2,500,000) ... granted by the State Major Economic Impact Authority hereunder, with a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 095 - Northeast Mississippi Community College Dist v Vanderheyden Const Co.doc, Paragraph with 'The Rule of Two': of fifteen percent (15%) of the grant funds to be expended with minority small business concerns.\ (emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 010 - Capeletti Bros Inc v Metropolitan Dade County.doc, Paragraph with 'The Rule of Two': Except to the extent that the Secretary determines otherwise, not less than 10 percent of the amounts authorized to be appropriated ... after the date of the enactment of this Act shall be expended with small business concerns owned and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 012 - Diebold v US.doc, Paragraph with 'The Rule of Two': bids and did cost comparisons several times during the next several years. Interested parties contested the process. One contract award to Colbar was cancelled and bids were resolicited because a Congressional Inquiry questioned compliance with the Small Business Administration regulations. Another award to Colbar was withdrawn following a protest by a disappointed bidder filed with the GAO. The GAO sustained the protest and directed an award to the protesting bidder. A solicitation was re-issued in May 1988, resulting in a tentative award to Colbar. This award, the subject of this litigation, was supported by the Army\rquote s calculation that it could save $6 million or almost 20% over 55 months: in-house costs of $33 million as compared to $27 million on Colbar\rquote s bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 012 - Diebold v US.doc, Paragraph with 'The Rule of Two': , the Court considered a disappointed bidder challenge to an Army decision not to allow the bidder to amend its bid so as to show that it fit the description of a small business. The Court found jurisdiction and law to apply in \u167 724 of the Defense Appropriations Act of 1981 and regulations set out in 32 C.F.R. \u167 2.31 (providing for correction of apparent clerical mistakes). The plaintiffs challenged the Army\rquote s refusal to allow amendment as arbitrary, capricious, and without substantial basis under 32 C.F.R. \u167 2:41 (1982). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 012 - Diebold v US.doc, Paragraph with 'The Rule of Two': , the Court considered a disappointed bidder\rquote s challenge to an award made under a Small Business set aside to a company that did not meet Small Business qualifications. The Court found jurisdiction under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 012 - Diebold v US.doc, Paragraph with 'The Rule of Two': Armed Services Procurement Act, the Small Business Act, and the regulations promulgated thereunder.\ 761 F.2d at 615 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 012 - Diebold v US.doc, Paragraph with 'The Rule of Two': , which is of particular interest to the majority, is a Small Business Act disappointed bidder case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small disadvantaged business concern from which Department of State withdrew offer based on accounting system deficiencies identified in audit brought suit alleging breach of implied contract to fairly and honestly consider business\rquote proposal submitted under government program to develop and assist minority-owned small businesses. On cross motions for dismissal and for summary judgment, the Claims Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) Government\rquote s duty to fairly and honestly consider proposal does not arise only in context of competitive bidding, and cause of action exists for breach of implied contract to fairly and honestly consider proposal submitted in small disadvantaged business environment; (2) certificate of competency program, which requires procuring agency negotiating with small business to refer to the Small Business Administration (SBA) any determination that business is not responsible to perform particular contract was not limited in applicability only to competitive procurements, and contractors could seek certificates of competency when negotiating with government agencies on noncompetitive procurements; (3) Department of State\rquote s violation of regulation by failing to notify the SBA of determination that disadvantaged small business was not responsible to perform typewriter repair contract prejudiced business by depriving it of opportunity to apply for certificate of competency and possibly be awarded contract, thus breaching implied contract to fairly and honestly consider business\rquote proposal and entitling business to recovery; but (4) damages recoverable by business for breach of implied contract to fairly and honestly consider business\rquote proposal were limited to bid preparation costs and could not also include costs of \gearing up\ to perform contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Government\rquote s duty to fairly and honestly consider proposal does not arise only in context of competitive bidding, and cause of action exists for breach of implied contract to fairly and honestly consider proposal submitted in small disadvantaged business environment. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small disadvantaged business concern is \small business concern\ for purposes of the Small Business Act and implementing regulations, as disadvantaged business participant qualifies as \small disadvantaged business concern\ and \small business concern.\ Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Regulations requiring procuring agency to refer contractor responsibility determinations to the Small Business Administration (SBA) apply to small disadvantaged business concerns, in accordance with the certificate of competency program, which requires procuring agency negotiating with small business to refer to SBA any determination that business is not responsible to perform particular contract. Small Business Act, \u167 2[8](a), (b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA\rquote s) review of prospective contractor\rquote s competency to perform is not limited to situation in which contract negotiations are successful and result in procuring agency proposing to SBA that program participant be awarded contract; certificate of competency program requires procuring agency negotiating with small business to refer to SBA any determination that business is not responsible to perform particular contract. Small Business Act, \u167 2[8](a), (b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Certificate of competency program, which requires procuring agency negotiating with a small business to refer to the Small Business Administration (SBA) any determination that business is not responsible to perform particular contract was not limited in applicability only to competitive procurements, and contractors could seek certificates of competency when negotiating with government agencies on noncompetitive procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Small business eligible for the certificate of competency program was entitled to have the Department of State notify the Small Business Administration (SBA) prior to terminating negotiations on noncompetitive procurement with business which qualified as disadvantaged small business based on accounting system deficiencies in business identified in audit; business would then have had opportunity to apply for SBA assistance in curing perceived deficiencies and might ultimately have qualified for contract award. Small Business Act, \u167 2[8] (a), (b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Exception to mandatory requirement that if small business concern\rquote s offer is to be rejected because of determination of nonresponsibility, contracting officers shall refer the matter to the Small Business Administration (SBA), which will decide whether to issue certificate of competency, did not apply to Department of State\rquote s rejection of disadvantaged small business for contract based on accounting system deficiencies identified in audit; exception applies if contracting officer determines business is unqualified because it does not meet standard of being \otherwise qualified and eligible to receive award,\ but different subsection lists as specific responsibility requirement that prospective contractor have necessary accounting and operational controls, so exception did not apply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Even if exception to mandatory requirement for referral to the Small Business Administration (SBA) if small business concern\rquote s offer is to be rejected because of determination of nonresponsibility applied to rejection of small disadvantaged business based on accounting system deficiencies identified in audit, Government violated referral requirement, as decision not to refer matter to SBA must be approved by chief of contracting office and no evidence was presented that chief of contracting office approved nonreferral decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Department of State\rquote s violation of regulation by failing to notify the Small Business Administration (SBA) of determination that disadvantaged small business was not responsible to perform typewriter repair contract prejudiced business by depriving business of opportunity to apply for certificate of competency and possibly be awarded contract, thus breaching implied contract to fairly and honestly consider business\rquote proposal and entitling business to recovery. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': This government contracts case is before the court on defendant\rquote s motion to dismiss or, in the alternative, motion for summary judgment or, in the further alternative, motion for partial summary judgment and on plaintiff\rquote s cross-motion for summary judgment. Plaintiff asserts that the defendant breached an implied contract to fairly and honestly consider plaintiff\rquote s proposal submitted under a government program to develop and assist minority-owned small businesses, and requests damages. Defendant argues that plaintiff fails to state a claim, plaintiff\rquote s proposal was fairly and honestly considered, and plaintiff\rquote s damages are limited to bid preparation costs. After careful consideration, and after hearing oral argument, this court denies defendant\rquote s motions to dismiss for failure to state a claim and for summary judgment on breach of contract, grants defendant\rquote s motion limiting damages, grants plaintiff\rquote s cross-motion for summary judgment on breach of contract, and denies plaintiff\rquote s cross-motion for damages exceeding bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Celtech, Inc. (\Celtech\) is a small disadvantaged business concern that sells computer and office equipment and provides third-party maintenance. Celtech was a member of the Small Business Administration\rquote s (\SBA\) Minority Business and Capital Ownership and Development Program (\8(a) program\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The 8(a) program, established pursuant to \u167 8(a) of the Small Business Act (\the Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': , is designed to develop and assist minority-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': the State Department should have provided the Small Business Administration with timely formal notification of the results of the DCAA\rquote s audit of Celtech\rquote s bookkeeping system. Timely notification would have given the District Office an opportunity to provide Celtech Inc. with 7(j) management assistance to correct any deficiencies in Celtech\rquote s financial record-keeping system that may have been cited in DCAA\rquote s audit report. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': acknowledged, for example, that a violation of procurement regulations could \follow from the defendant\rquote s failure to pursue the established procedures in selecting an awardee in a small business or labor surplus area set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The government breached the implied contract to fairly and honestly consider Celtech\rquote s proposal because State failed to refer to the SBA its determination that Celtech was not responsible, as required by the Small Business Act and implementing regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': 48 C.F.R. \u167\u167 9, 19 (1987). The government advances three arguments against this conclusion. First, the government seems to contend that an 8(a) concern is not a \small business concern\ for purposes of the Act and regulations. Second, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': 8(a) Participant as a \Small Business Concern\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The government argues that \[t]he major flaw in Celtech\rquote s position is that Celtech treats small businesses and 8(a) program contractors as though these categories are synonymous. In fact, there are substantial differences.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': of small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The FAR, which implements the acquisition-related sections of the Small Business Act, includes the 8(a) program for small disadvantaged business concerns within its scope. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Eligibility for participation in the 8(a) program requires the applicant to qualify as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': . Procurement assistance regulations for small business concerns, such as the Certificate of Competency (\COC\) program, state that small business concerns \include [ ] small concerns owned and controlled by socially and economically disadvantaged individuals....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': An 8(a) participant is both a \small disadvantaged business concern\ and a \small business concern\ for purposes of the FAR and the SBA regulations. 48 C.F.R. \u167 19; 13 C.F.R. \u167\u167 124, 125. Therefore, Celtech is a small business concern, as well as an 8(a) firm, under the applicable regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The government argues that certain procedures mandated for small businesses by the Act and applicable regulations are not required for 8(a) concerns. According to the government, the COC program does not apply to 8(a) program participants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The COC program requires the procuring agency negotiating with a small business to refer to the SBA any determination that the business is not responsible to perform the particular contract. Once a procuring agency notifies the SBA that a small business concern lacks certain elements of responsibility, the SBA must inform the business of the agency\rquote s determination and give it the opportunity to apply for a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': \The COC program empowers the Small Business Administration (SBA) to certify to Government contracting officers as to all elements of responsibility of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': small business concern to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). Therefore, COC\rquote s may be issued for 8(a) program participants because 8(a) participants are \small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': SBA has the power and duty, when necessary, to certify to government procurement officers a small business concern\rquote s responsibility, including its capability, competency, and capacity to receive and perform a specific government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': . The procurement officer may not preclude the small business concern from contract award without referring the matter to the SBA for final disposition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The SBA has the final say on responsibility determinations for all small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': (allowing the SBA to provide technical or management assistance to qualifying small businesses, including those eligible under \u167 8(a) of the Act). COC program eligibility requirements do not preclude 8(a) concerns from taking advantage of the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': . COCs, in contrast, are used when negotiations between the procuring agency and the 8(a) concern break down. The Certification of SBA\rquote s Competency is necessary because small disadvantaged business concerns providing services to the government through the 8(a) program act as subcontractors on SBA\rquote s contracts with the procuring activity. The assessment of a small business concern\rquote s competency required for a Certification of SBA\rquote s Competency does not require a special investigation or the issuance of a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The government argues that the COC regulations in 48 C.F.R. \u167 19.6 apply only to competitive procurements. To the contrary, through the COC program, SBA may certify an otherwise qualified small business concern as an eligible government contractor under the Walsh\u8211Healey Public Contracts Act, which applies to \u167 8(a) contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': Therefore, Celtech, as a small business eligible for the COC program, was entitled to have State notify the SBA prior to terminating negotiations on the non-competitive procurement. Celtech would then have had an opportunity to apply for SBA assistance in curing perceived deficiencies, and may have ultimately qualified for contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The FAR states that \[i]f a small business concern\rquote s offer that would otherwise be accepted is to be rejected because of a determination of nonresponsibility, the contracting officer Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': refer the matter to the Small Business Administration, which will decide whether or not to issue a Certificate of Competency (see Subpart 19.6).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'The Rule of Two': The law recognizes a claim for the government\rquote s breach of a duty to fairly and honestly consider a proposal under the 8(a) program. As a matter of law, this court finds that: 8(a) concerns are \small business concerns\ for purposes of the Small Business Act and the implementing regulations; the COC program applies to 8(a) concerns; the COC program applies to both competitive and non-competitive procurements; and the FAR requires contracting officers to refer nonresponsibility determinations for 8(a) concerns to the SBA. It is undisputed that the contracting officer in this case did not refer the nonresponsibility determination to the SBA. Based on the violation of this mandatory referral requirement, this court holds that the government breached the implied contract to fairly and honestly consider Celtech\rquote s proposal. Longstanding case law limits Celtech\rquote s damages to its bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 022 - Stay Inc v Cheney.doc, Paragraph with 'The Rule of Two': , this court held that a bidder for a Small Business Act set-aside contract which was not in fact a \small business\ could not receive the contract, and the DOD had improperly ignored the statutory requirements. \There is no question that a district court may \u8216[e]njoin the performance of a [government] contract if the award was the result of procedures not comporting with the law.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 022 - Stay Inc v Cheney.doc, Paragraph with 'The Rule of Two': Clearly the requirement for appointment of process agents differs significantly from the issue of small business set-asides however. While in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 022 - Stay Inc v Cheney.doc, Paragraph with 'The Rule of Two': there was a clear congressional interest in promoting small businesses which the DOD had improperly ignored, here the DOD and GAO could reasonably conclude that the congressional interest in having agents appointed for service of process in particular states at the time bids are submitted is not nearly so strong. The rule is designed for the government\rquote s protection, so that if the government has to collect on the bonds, the legal proceedings can go smoothly. However, unlike a large business, which cannot suddenly become a small business if it is awarded a contract earmarked for small businesses, AMPB\rquote s surety company could and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 024 - Tennessee Asphalt Co v Farris.doc, Paragraph with 'The Rule of Two': Except to the extent that the Secretary determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 026 - Coral Const Co v King County.doc, Paragraph with 'The Rule of Two': Moreover, the record shows that King County has adopted some race-neutral measures in conjunction with the MBE program. For example, the County annually hosts one or two training sessions for small businesses, covering such topics as doing business with the government, small business management, and accounting techniques. In addition, the County provides information on accessing small business assistance programs. Inclusion of such race-neutral measures is one factor suggesting that an MBE plan is narrowly tailored. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 033 - Crux Computer Corp v US.doc, Paragraph with 'The Rule of Two': for the John F. Kennedy Space Center, Cape Canaveral, Florida. The SMIS would check the physical integrity of shuttles before flight. Specifically, technicians would attach the SMIS to over 200 places on the heat-resistant tiles of the Shuttle. The SMIS would then vibrate the Shuttle in several ways. The results would be digitalized and analyzed by computer. The proposed contract was a small business set-aside; notice was sent to 56 small businesses. Nine of those companies participated in a walk-through of the Space Center. In response to the RFP, Crux and two other companies submitted proposals to NASA on August 31, 1988. On October 3, 1988, NASA determined that only Crux and Zonic Corporation were in the competitive range. NASA conducted oral and written discussions with both parties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 034 - Vigilantes Inc v Administrator Wage and Hour Div US Dept of Labor.doc, Paragraph with 'The Rule of Two': After qualifying as a minority contractor under section 8(a) of the Small Business Act of 1958 (\SBA\), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Paragraph with 'The Rule of Two': Except to the extent that the Secretary determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Paragraph with 'The Rule of Two': of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Paragraph with 'The Rule of Two': Section 106(c) of STURAA contained essentially identical language to section 105(f) of STAA. STURAA also provided that not less than 10 percent of the funds authorized under the statute shall be awarded to disadvantaged businesses. 101 Stat. at 145. In addition, STURAA included women as a group presumed to be disadvantaged, refined the definition of small business, and required the Secretary of Transportation to establish minimum uniform criteria for states to use in determining whether a business can be certified as disadvantaged. 101 Stat. at 145\u821146. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Paragraph with 'The Rule of Two': 9. Robert Anderson (\Anderson\), the Division Administrator of the Office of Small Business Liaison in the Bureau of Administration, testified that white male contractors have applied for DBE certification. In the past year, none have met the tests for establishing social and economic disadvantage. Tr. at 154, 255. Anderson testified that denials of DBE certification of minority or women contractors average approximately twenty percent a year. Tr. at 256. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 053 - Michigan Road Builders Ass'n Inc v Blanchard.doc, Paragraph with 'The Rule of Two': 10. On July 17, 1990, MDOT\rquote s Office of Small Business Liaison prepared a report entitled \Development of the 1991 Fiscal Year Overall Goal for DBE Participation.\ Def.Exh. 19. This report set out the methodology used by MDOT to calculate its recommendation of the 15% DBE goal for fiscal year 1991. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 054 - Technology for Communications Intern v US.doc, Paragraph with 'The Rule of Two': Because plaintiff is a small business, it was necessary for the contracting officer to forward his determination of nonresponsibility to the Small Business Administration (SBA) for a decision as to a Certificate of Competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 055 - Commercial Energies Inc v US.doc, Paragraph with 'The Rule of Two': (1) small business concerns, including mass media, owned and controlled by socially and economically disadvantaged individuals ...; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': , J., held that: (1) small disadvantaged business set-aside was inappropriate for warehousing services which had previously been acquired successfully on basis of small business set-aside; (2) Air Force\rquote s interpretation that warehousing services could not be set aside under Small Business Administration\rquote s Section 8(a) program on basis that contract had historically been set aside for small business participation was not unreasonable; and (3) interim solicitation was not repetitive contract but rather new and different requirement requiring open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s interpretation of Small Business Administration Section 8(a) program to mean that contract which had historically been set aside for small business participation could not be set aside under 8(a) program was reasonable interpretation not contradicted by plain meaning of regulations, and thus, interpretation was required to be accepted by district court. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Defense Department acquisition regulations precluded setting aside of interim contract for warehouse services at Air Force base for small socially and economically disadvantaged business, where warehousing services sought in solicitation had been previously acquired successfully on basis of small business set-aside. Small Business Act, \u167 2[8](a), (a)(4\u82116), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Record did not support bidder\rquote s contention that contracting officer acted arbitrarily and capriciously by not even considering possibility of minority set-aside for interim solicitation for warehousing services by Air Force, where bidder\rquote s own complaint detailed Air Force\rquote s consideration or rejection of procurement through minority set-aside. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Any error by Air Force in failing to include appropriate code for moving services in soliciting bids for warehousing services through small business set-aside was harmless, where any business small enough to qualify in warehouse trade was small enough to qualify in local business (moving services) trade. Small Business Act, \u167 2[8](a), (a)(4\u82116), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff Young\u8211Robinson Associates, Inc. (\Young\u8211Robinson\), a minority-owned small business based in Montgomery, Alabama, contends that the Air Force improperly solicited an interim contract for warehousing services at Gunter Air Force Base Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': in Alabama as a small business set-aside when that contract should have been reserved for small socially and economically disadvantaged businesses (\SDBs\). Accordingly, on February 21, 1991, Young\u8211Robinson filed the instant complaint and applied for temporary restraining order to, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': A hearing on Young\u8211Robinson\rquote s application for a temporary restraining order was held on February 22, 1991. The argument of counsel and the limited record at that stage precluded any ruling upon plaintiff\rquote s application. Instead, an Order of February 27, 1991 treated the application as a motion for a preliminary injunction and scheduled another hearing. Two days before that hearing, the United States filed a response to Young\u8211Robinson\rquote s motion and itself moved for summary judgment. The next evening plaintiff filed an opposition and a cross-motion for summary judgment in which it shifted the focus of its argument. No longer asserting that the interim contract clearly should have been solicited as an SDB set-aside, Young\u8211Robinson argued instead that the primary issue was \whether the failure of a contracting officer to consider matters left to his discretion, but which matters must be considered by lawful regulation, constitutes a failure to comply with mandatory procedures and regulations.\ Plaintiff\rquote s Memorandum in Support of Its Cross\u8211Motion for Summary Judgment at 1. At the hearing the next day, plaintiff\rquote s counsel also focused upon the possibility of procurement through the \8(a) Program,\ a Small Business Administration (\SBA\) program designed to promote economically and socially disadvantaged small businesses, rather than a direct Department of Defense SDB set-aside. Because defendant\rquote s counsel was unable to respond adequately to these new arguments, further briefing was ordered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Sections 8(a) and 7(j) of the Small Business Act established the Minority Small Business and Capital Ownership Program, commonly known as the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In this program, the SBA enters into contracts with other agencies and then \arrange[s] for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': (1) small business concerns, including mass media, owned and controlled by socially and economically disadvantaged individuals (as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': The 8(a) program and the Defense Department\rquote s SDB policy are potentially at odds with another procurement policy benefiting small businesses. Under FAR \u167 19.01 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': certain acquisitions are set-aside solely for small business competition. The potential tension between small business set-asides and minority set-asides is resolved on an agency-by-agency basis: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Once a product or service has been acquired successfully by a contracting office on the basis of a small business set-aside, all future requirements of that office or service not subject to simplified small purchase procedures shall, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': \u167 19.501(g) (emphasis added). The Defense Department gives \repetitive\ small business set-asides priority over its SDB set-asides: Exclusive SDB participation is prohibited when \[t]he product or service has been previously acquired successfully on the basis of a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': (a) A solicitation has already been issued for procurement as a small business set-aside ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': (b) The procuring agency has expressed publicly a clear intention to reserve the procurement as a small business or small disadvantaged business (SDB) set-aside ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': (c) The SBA has made a written determination that acceptance of the procurement for 8(a) award would have an adverse impact on other small business programs or on an individual small business....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Until 1982, these tasks were performed by Government employees, but in 1982 a one-year contract was awarded to D.K. Associates on the basis of a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Although Young\u8211Robinson has been certified as a small and disadvantaged business by the Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': it was awarded the \Old Contract\ as the result of a solicitation issued under the small business set-aside acquisition procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force, however, determined that the 8(a) program did not apply because \[t]he ECI contract has historically been set aside for small business participation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Young\u8211Robinson then sought the assistance of the SBA, but a representative of the SBA informed plaintiff that the agency \would not be allowed to accept under 8(a) due to previous history as a small business set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Young\u8211Robinson appealed that ruling to the Deputy for Small Business, but that appeal was rejected on November 28, 1990. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Interim Solicitation took the form of an amendment to the Future Solicitation. Like the Future Solicitation, it was designated a 100% small business set-aside. Unlike the Future Solicitation, the Interim Solicitation deleted references to the new mechanized material handling systems with the sole exception of some related training in the operation of a vehicle in the new warehouse. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': . In its complaint, Young\u8211Robinson claims that the Interim Solicitation and award of the Interim Contract to Data Monitor Systems was contrary to law because the Interim Solicitation should have been procured through a small and disadvantaged business set-aside (SDB) rather than a small business set-aside, or, in the alternative, the award of the Interim Contract should be vacated because the requirements in that solicitation should have been procured through the SBA\rquote s section 8(a) program. Given the undisputed facts, neither claim can be maintained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Young\u8211Robinson\rquote s first claim\u8212that the Interim Solicitation should have been an SDB set-aside\u8212is precluded by Defense Department acquisition regulations. Because the warehousing services sought in that solicitation had been \previously acquired successfully on the basis of a small business set-aside,\ an SDB set-aside was not appropriate. 48 C.F.R. \u167 219.502\u821172(b)(1) (citation omitted). In an affidavit filed with its final reply brief, George R. Young, III, president and chief executive officer of Young\u8211Robinson, asserts that the Administrator of the Old Contract informed him that the previous contractor for the warehousing services at the ECI was not a small business. Even assuming this assertion to be true, it does not raise a genuine issue because it is undisputed that the contract awarded to Young\u8211Robinson was a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Young\u8211Robinson has also failed to demonstrate that the Air Force decision not to procure the warehousing services under the 8(a) program was contrary to law. The SBA\rquote s regulations prohibit it from accepting proposed procurements if a solicitation has already been issued as a small business set-aside, if the procuring agency has clearly and publicly expressed an intent to reserve the procurement as a small and disadvantaged set-aside, or if the SBA has determined that procurement under the 8(a) program would have an adverse impact on a small business program or a particular small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 124.309. It is not immediately clear from these regulations how services previously performed by an SDB, but under a small business set-aside should be treated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force, however, rejected Young\u8211Robinson\rquote s \request to have the new contract set aside under the 8(a) program ... on the basis that the Extension Course Institute (ECI) warehouse operations had historically been set aside for small business participation.\ Letter from Harold R. Brown, Jr., to George R. Young, III; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Letter from Ramona N. Hicks to George R. Young, III, May 2, 1990, \u182 2 (noting that \[t]he ECI contract has historically been set aside for small business participation\). A representative of the SBA concurred in this interpretation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 124.309(c). This passage is not, however, clearly applicable. It does not appear in 13 C.F.R. \u167 124.309(a), the SBA regulation cited by the Glenn letter and relied upon by Air Force officials. Instead, it appears in a subsequent regulation prohibiting 8(a) procurement where the SBA finds that such procurement would have an adverse impact upon a small business or small business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Exhibit 1, Affidavit of George R. Young, III, at 3, 6 (filed March 11, 1991). As a consequence, even under plaintiff\rquote s interpretation of the regulations, the Interim Solicitation must be set-aside for small business procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': In addition to its stronger claim that the Interim Solicitation should have been procured through the 8(a) Program or set aside for exclusive SDB participation, Young\u8211Robinson has also made the weaker claim that the Contracting Officer acted arbitrarily and capriciously by not even considering the possibility of a minority set-aside. This contention is unpersuasive. Young\u8211Robinson repeatedly requested that the Future Solicitation be either an 8(a) procurement or an SDB set-aside, and those requests were repeatedly denied on the permissible ground that the Future Solicitation was a repetitive small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': Finally, the complaint urges that the award of the Interim Solicitation be vacated because the Air Force did not follow proper procedures for a small business set-aside. In particular, Young\u8211Robinson observes that while the Interim Solicitation included SIC Code Number 7389 for the warehousing services, it failed to include the appropriate code for moving services. The relevant regulations provide that \[i]f different products or services are required in the same solicitation, the solicitation shall identify the appropriate small business size standard for each product or service.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Because it obtained a certification as a small business in the moving industry, Young\u8211Robinson concludes that it was the only small business eligible to bid for the Interim Solicitation. This conclusion does not follow. A small business in the warehousing trade has $3.5 million or less in assets; a small business in the local trucking business has $12.5 million or less in assets. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 058 - Young-Robinson Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, any business small enough to qualify as a small business in the warehousing trade was small enough to qualify as a small business in the local business trade, and error in the Interim Solicitation was harmless. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 060 - O'Donnell Const Co v District of Columbia.doc, Paragraph with 'The Rule of Two': that meet the eligibility standards in 49 C.F.R. section 23.62. Under 49 C.F.R. section 23.62, a firm is disadvantaged if it is a small business concern and is owned and controlled by individuals who are socially and economically disadvantaged. STURAA incorporated the definitions of social Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 060 - O'Donnell Const Co v District of Columbia.doc, Paragraph with 'The Rule of Two': disadvantage of section 2[8] of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': (c) If the prospective purchaser is a small business concern and the Contracting Office determines that the purchaser does not qualify as a responsible purchaser on an otherwise acceptable bid, the Contracting Officer shall refer the matter to the Small Business Administration which will decide whether or not to issue a Certificate of Competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': As I explained in my letter to Mr. Yazbeck, if you do not submit the requested financial information, I will be unable to make an affirmative determination of your financial ability as required by CFR 223.101(a). Therefore, I would not be able to award the Sheep SSF Timber Sale Contract. This matter would then be referred to the Small Business Administration (SBA) for a Certificate of Competency. If SBA doesn\rquote t issue a Certificate of Competency, your bid on the Sheep SSF Timber Sale will be rejected, and your bid guarantee will be returned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': Contract. This matter would then be referred to the Small Business Administration (SBA) for a Certificate of Competency. If SBA doesn\rquote t issue a Certificate of Competency, Thomas Creek\rquote s bid on the Sheep SSF Timber Sale will be rejected, and their bid guarantee will be returned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': Having received no financial information in response to her October 26, 1990 request by letter dated December 3, 1990 (with a copy to plaintiff), the issue was sent to the Small Business Administration as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': By letter dated December 7, 1990, the Small Business Administration notified Thomas Creek of the referral as follows (in part): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration has been notified of the circumstances so that we may perform an independent survey of your firm to consider the issuance of the Certificate of Competency (COC), if you so desire. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': By letter dated December 12, 1990 to David H. Sorber, Small Business Administration, plaintiff\rquote s counsel proposed a limited disclosure of financial records as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': This limited disclosure was not acceptable to the Small Business Administration as persons other than Mr. Sorber would be involved in the decisional process. Plaintiff then determined not to apply for a Certificate of Competency. By letter dated December 18, 1990, the Small Business Administration so notified the Forest Service and concluded that \[a]ccordingly, this case has been closed and you may proceed with your procurement activity.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': Since you have failed to submit this information, and the Small Business Administration will not issue a Certificate of Competency in your behalf, I am unable to make an affirmative determination as required by CFR 223.101. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': , defendant argues that judicial action in this matter is precluded as, by deciding not to apply for a Certificate of Competency from the Small Business Administration, plaintiff failed to exhaust its administrative remedies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': , as Thomas Creek is a small business it was necessary for the contracting officer to refer the responsibility matter to the Small Business Administration for a decision as to whether a Certificate of Competency would be issued which would be binding on the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 061 - Thomas Creek Lumber and Log Co v US.doc, Paragraph with 'The Rule of Two': provides \but nothing in this paragraph shall require the processing of an application for certification if the small business concern to which the referral pertains declines to have the application processed.\ In this circumstance, it is considered that the decision by Thomas Creek not to proceed with the Small Business Administration certificate procedure should not preclude it from seeking preaward contract claim relief, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 068 - Daley's Dump Truck Service Inc v Kiewit Pacific Co.doc, Paragraph with 'The Rule of Two': are unsupportive of their position. In both those cases the plaintiff was the second lowest bidder on a job that another business won under a small business set-aside, and the plaintiff claimed that the winner did not meet government requirements for a small business. In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 069 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': 145. The Act offers the states financial assistance with highway construction. Of course this assistance comes with strings attached. Section 106(c)(1) requires that 10 percent of the amounts appropriated under the Act \be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Regulations issued by the federal Department Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': not less than 10 per centum of the amounts authorized to be appropriated under [STURAA and the prior highway aid appropriations act, the Surface Transportation Assistance Act of 1982] after the date of the enactment of this Act shall be expended with small businesses owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': A small business owned and controlled by a socially and economically disadvantaged individual, or a disadvantaged business enterprise (DBE), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': 49 C.F.R. \u167 23.62, is, almost invariably, a small business owned or controlled by a member of a minority group or a woman. Women, Black Americans, Hispanic Americans, Native Americans, Asian\u8211Pacific Americans, and Asian\u8211Indian Americans are presumptively socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': not less than 10 percent of the amounts expended from the State Transportation Trust Fund shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by the Surface Transportation and Uniform Relocation Assistance Act of 1987. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': is almost identical to the federal definition. A DBE is a small business that is fifty-one percent owned or controlled by a socially and economically disadvantaged individual. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': The regulations mandate that the Secretary, through the FDOT, must set an annual overall goal for DBE participation in FDOT expenditures in order to ensure that small businesses owned by socially and economically disadvantaged individuals have the maximum opportunity to participate in FDOT contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': The definition of an MBE is almost identical to the definition of a DBE, and the terms are interchangeable for the purposes of this opinion. An MBE is a small business 51% owned and controlled by a member of a minority group or a woman. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': . Minorities include Blacks, Hispanics, Portuguese, Asian Americans, American Indians, Alaskan Natives, and other groups or individuals found to be disadvantaged under section 2[8](a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': In addition to the presumptively disadvantaged groups, individuals already certified as socially and economically disadvantaged under section 2[8] (a) of the federal Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': No third party, however, may challenge the disadvantaged status of an individual already certified as socially and economically disadvantaged under section 2[8](a) of the federal Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'The Rule of Two': (prime contractor that lost bid had standing to challenge minority business provisions in the Small Business Act); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 071 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': (SBA program at issue authorized SBA to set aside contracts for placement with small businesses owned by disadvantaged persons; plaintiff not allowed to compete for contract in question; recipient of contract received premium price not available to non-disadvantaged businesses). That is not the case here; the 1984 Resolution permits Groves to bid for all Fulton County contracts. Other cases cited by Groves present much more concrete injuries than the injury Groves asserts in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 071 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': (f) Members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under section 8(a) of the Small Business Act, as amended ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 071 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': . \Minority business enterprise\ or \MBE\ is defined as \a small business concern ... which is owned and controlled by one or more minorities or women.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 071 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': a small business concern ... which is owned and controlled by one or more minorities or women. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 073 - Blount Inc v US.doc, Paragraph with 'The Rule of Two': Copy of Small Business Sub\u8211Contracting Plan Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 073 - Blount Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business and Small Disadvantaged Business Subcontracting Plan (subcontracting plan) contained in the IFB required bidders to provide a percentage and dollar value breakdown of the total amount of work to be subcontracted to small business concerns and small disadvantaged business concerns. The subcontracting plan also required bidders to indicate the total dollar value of all anticipated subcontracting. On October 29, 1990, the government issued Addendum 6 to the IFB (Item 1, Part 1, Section A), which modified the Small Business and Small Disadvantaged Business Subcontracting Plan submission requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': Where bidder for Navy contract was disqualified for appearance of impropriety that had nothing to do with bidder\rquote s status as small business, or its ability to perform contract, contracting officer was not required to refer matter to Small Business Administration before disqualification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': The Request for Proposals was a total small business set-aside procurement worth approximately $3.2 million, and the contract performance period was to extend from October 1, 1989 through September 30, 1994, including all options. The Request for Proposals stated that the bids submitted would be evaluated on the basis of the bidder\rquote s technical approach, management approach, personnel, corporate experience, and cost realism. The contract would be awarded to the bidder that submitted a technically acceptable proposal with the lowest evaluated total estimated cost-plus-fixed-fee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': Compliance argues that, since it is a small business, the Navy was required to refer the disqualification matter to the Small Business Administration, because the Navy\rquote s disqualification of Compliance was, in effect, a determination that Compliance was not a \responsible\ bidder. Compliance contends that the Navy\rquote s failure to refer the matter to the SBA deprived Compliance of the \safeguards of the review process.\ Compliance argues that, if the contracting officer believed Compliance\rquote s conduct was \improper,\ he should have made a nonresponsibility determination, as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': . Compliance points out that FAR \u167 19.602 requires a contracting officer to refer a determination that a small business is not \responsible\ because it lacks, for example, competency, capability, capacity, credit, integrity, perseverance or tenacity, to a regional SBA office before awarding the contract. Compliance argues that its disqualification implicates its integrity, which is an element of \responsibility\ under the FAR, citing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': In that case, the Federal Circuit found that the bidder was disqualified for an appearance of impropriety that had nothing to do with the bidder\rquote s status as a small business, or its ability to perform the contract. Moreover, the court specifically found that NKF\rquote s disqualification on the basis of the appearance of impropriety did not relate to NKF\rquote s integrity, but rather the disqualification focused on the integrity of the bidding system. Therefore, the Federal Circuit found that the Small Business Act did not require the contracting officer to refer the matter to the SBA before disqualification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': The same reasoning applies in this case. The disqualification of Compliance had nothing to do with its status as a small business. The Small Business Act, the Small Business Administration, and the FAR that plaintiff relies on are all aimed at preventing discrimination against small businesses \solely because of their smallness.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 074 - Compliance Corp v US.doc, Paragraph with 'The Rule of Two': finding of nonresponsibility that must be referred to the Small Business Administration for a responsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 075 - A-G-E Corp v US By and Through Office of Management and Budget.doc, Paragraph with 'The Rule of Two': Positive efforts will be made to utilize small business and minority-owned business sources of supplies and services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 075 - A-G-E Corp v US By and Through Office of Management and Budget.doc, Paragraph with 'The Rule of Two': Department of Agriculture; Department of Commerce; Department of Defense; Department of Education; Department of Energy; Department of Health and Human Services; Department of Housing and Urban Development; Department of the Interior; Department of Justice; Department of Labor; Department of State; Department of Transportation; ACTION; Commission on the Bicentennial of the United States Constitution; Environmental Protection Agency; Federal Emergency Management Agency; Federal Mediation and Conciliation Service; Institute of Museum Services; National Archives and Records Administration; National Endowment for the Arts; National Endowment for the Humanities; National Science Foundation; Small Business Administration; Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 076 - Girling Health Systems Inc v US.doc, Paragraph with 'The Rule of Two': applies to \C\ corporations but not to subchapter \S\ (small business) corporations. Accordingly, \S\ corporations may utilize either the cash basis or the accrual method of accounting at their election. On October 15, 1986, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Contractor that bid on government contract open only to small businesses brought declaratory judgment action challenging Small Business Administration (SBA) determination that it did not qualify as small business. The United States District Court for the Western District of Texas, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': the Court of Appeals issued opinion and held that: (1) substantial evidence supported SBA\rquote s determination that contractor was affiliated with other corporations through common ownership and common management, making contractor ineligible to bid on government contract open only to small businesses, and (2) any error administrative law judge may have committed by admitting deposition without certification and without contractor having had chance to cross-examine witness was harmless. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA\rquote s) determination that bidder on government contract was not qualified, small business was entitled to great deference on appeal. Small Business Act, \u167\u167 2[3], 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Substantial evidence supported Small Business Administration\rquote s (SBA\rquote s) determination that contractor was affiliated with other family owned businesses through common ownership and common management, making contractor ineligible to bid on government contract open only to small businesses; evidence indicated that contractor was affiliated through other companies through interlocking management and common stock ownership, and that contractor\rquote s president had identity of interest with his son, who ran one of the other companies. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': In determining whether contractor that bid on contract open only to small businesses qualified as a small business, contractor failed to rebut identity of interest presumption, based on ownership of affiliated business by father of contractor\rquote s owner, by demonstrating the father and son were not closely related in business matters; evidence that contractor\rquote s owner divested himself of his ownership and management interests in affiliated businesses did not suffice to prove lack of close business relationship between himself and his father, especially in light of extensive evidence of close business cooperation between contractor and affiliated businesses. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': In administrative proceeding held to determine whether contractor was qualified to bid on government contract as small business, administrative law judge\rquote s decision to allow deposition after record had closed was not error, where competing contractor raised significant questions concerning validity of facts alleged in witness\rquote affidavit as submitted by contractor, and administrative law judge allowed deposition in order to resolve discrepancies. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': In administrative proceeding held to determine whether contractor was qualified to bid on government contract as small business, admitting deposition without certification required by administrative rules and without giving contractor opportunity to cross-examine witness was error; contractor questioned accuracy of transcription of deposition. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': In administrative proceeding held to determine whether contractor was qualified to bid on government contract as small business, any error administrative law judge may have committed by admitting deposition without certification and without contractor having had chance to cross-examine witness was harmless; administrative law judge had ample evidence on which to base decision that contractor did not qualify as small business, and witness\rquote relatively insignificant testimony would not have changed result of case. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': In administrative proceeding held to determine whether contractor was qualified to bid on government contract as small business, contractor was not deprived of due process under Fifth Amendment when administrative law judge admitted deposition without certification and without giving contractor chance to cross-examine witness; contractor had ample opportunity to answer, submit documentation, and participate in proceedings, administrative law judge presented both sides of issues throughout his opinion, and contractor\rquote s objections to deposition were made part of record and identified in administrative law judge\rquote s decision. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Plaintiff\u8211appellant TCCI Contractors, Inc. (TCCI) appeals from the district court\rquote s grant of summary judgment in favor of the defendant\u8211appellee James Abdnor, Administrator (Administrator), United States Small Business Administration (SBA), and the denial of TCCI\rquote s cross-motion for summary Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': judgment. The district court\rquote s judgment affirmed an administrative decision by the Office of Hearings and Appeals (OHA) that TCCI was not a small business because of TCCI\rquote s affiliation with businesses controlled by family members. We affirm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': The Norfolk District Army Corps of Engineers (Corps) solicited bids for air conditioning and heating improvements to family housing units at Fort Belvoir, Virginia. The Corps set aside the procurement for small businesses in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': The Contracting Officer forwarded the ACI protest to SBA\rquote s regional office in Dallas, Texas for a determination of TCCI\rquote s size. The regional office concluded that TCCI was not affiliated with the McCarty group because Michael did not own stock in, and was not a director or officer of, any of the companies comprising the McCarty group. Michael had no financial interest in the McCarty group, the regional office reasoned, and the family relationship alone did not suffice to make TCCI an affiliate. The regional office concluded, therefore, that TCCI qualified as a small business for the solicitation in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': ACI appealed to the SBA\rquote s Office of Hearings and Appeals. The OHA determined that TCCI was not connected with the McCarty Group through interlocking management or common ownership. TCCI was affiliated with the McCarty Group, the OHA found, because of the identity of interest rule and the family relationship between Michael and William McCarty. Because the combined annual receipts of TCCI and the McCarty group exceeded seventeen million dollars, the OHA concluded that TCCI did not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': . Under the specific facts of this case, we cannot conclude that the OHA\rquote s admission of Wernli\rquote s deposition without certification and without TCCI having had a chance to cross-examine Wernli requires reversal. The ALJ had ample evidence on which to base his decision that TCCI did not qualify as a small business, and we cannot conclude that Wernli\rquote s relatively insignificant testimony would have changed the result in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': authorizes the Administrator to determine those enterprises which are to be designated \small business concerns\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 080 - Texas-Capital Contractors Inc v Abdnor.doc, Paragraph with 'The Rule of Two': involved the review of a Department of Defense Contracting Officer\rquote s interpretation of an SBA regulation. The regulation involved a concern\rquote s wrongful self-certification as a small business. The contracting officer allegedly knew of the impropriety, and the court found that the contracting officer had not followed SBA regulations and therefore acted in an arbitrary manner. The present case involves the SBA\rquote s own regulations, and its own application of those regulations. Under these circumstances, we think that the Eleventh Circuit\rquote s reasoning in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': There was insufficient evidence that government acted \clearly illegally\ or abused its discretion by concluding that successful bidder for contract for computer management and support services at naval air development center was a responsible small business concern that was capable of competently performing contract; evidence did not support disappointed bidder\rquote s contention that request for proposal required successful bidder to certify whether it was a women-owned small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': ARC, a Pennsylvania corporation, is a minority-owned small business that has its principal place of business in Warminster, Pennsylvania. Since 1976, ARC has provided NADC with computer management and support services for both the CCS complex and the Center\rquote s computerized drafting system, known as the Computer Aided Engineering and Documentation System (CAEDOS). A.R. BB at 122\u8211135; Drummond Declaration \u182 6. Between 1976 and 1983, NADC awarded ARC a succession of two separate but contemporaneous contracts to perform the discrete CCS and CAEDOS services. Each of those contracts was awarded to ARC on a sole source basis under the Small Business Administration\rquote s 8(a) program for minority contractors, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': In October 1988, NADC\rquote s Computer Department forwarded to the Center\rquote s Contracts Division a completed purchase request form for procurement of the CCS and CAEDOS services that were to expire under ARC\rquote s incumbent contract on November 30, 1989. Carl Ruzicka, one of NADC\rquote s contract negotiators, assumed the primary responsibility for handling the procurement. Drummond Declaration \u182\u182 5\u82117. In December 1988, Ruzicka\rquote s immediate supervisor, Contracting Officer James Cuorato, executed a Set\u8211Aside Review Form in which he determined to make the procurement a 100% small business set-aside. A.R. C; Drummond Declaration \u182\u182 7, 8. A week later, NADC sent to the Commerce Business Daily, for publication, a synopsis of the computer services being solicited. A.R. D. In a January 1989 letter responding to that synopsis, SelectTech expressed to NADC an interest in competing for the contract. In reply, Ruzicka informed SelectTech that the company would receive a copy of the complete solicitation when issued. A.R. E; Drummond Declaration \u182 9. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': On March 21, Ruzicka presented a Pre\u8211Solicitation Procurement Plan to NADC\rquote s Contract Review Board. A.R. I. That Review Board was composed of counsel, a small business specialist, and six senior contracting officers, among whom were Cuorato and defendant Frank J. Drummond, head of NADC\rquote s Contracts Division. The Procurement Plan sought to acquire CCS and CAEDOS management and support services through a competitive Request for Proposals (RFP or solicitation) that would provide for a one-year base contract period and four option years. A.R. I; Drummond Declaration \u182 11; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': On June 9, ARC and SelectTech each submitted offers to NADC. ARC proposed a total cost-plus-fixed-fee of $5,502,207.21 for Lot I of the RFP. A.R. BB. SelectTech proposed a total cost-plus-fixed-fee of $4,739,260.03 for that same Lot. A.R. CC. SelectTech represented that it was a small business and a women-owned small business. A.R. CC at 2, 37\u821138. ARC represented that it was a minority business enterprise and a small disadvantaged business concern. A.R. BB at 2, 35. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': FAR subpart 33.1, 48 C.F.R. \u167 33.1. In its protest, ARC contended that SelectTech had misrepresented its women-owned and small business status, that SelectTech and ARC\rquote s proposals were not technically equal, and that SelectTech was not a responsible offeror whose BAFO could be evaluated as having proposed the offer \most advantageous\ to the government in accordance with FAR 15.611(d), 48 C.F.R. \u167 15.611(d). A.R. BB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': Upon receipt of ARC\rquote s protest, Dunn investigated SelectTech\rquote s status as a small business. Her investigation, which included Dun and Bradstreet financial reports on SelectTech from NADC\rquote s Small Business Office, as well as inquiries made to various federal agencies, verified that SelectTech was a small business under the applicable size standard. A.R. CCC; Drummond Declaration \u182 43. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': In a November 30 letter, Drummond denied ARC\rquote s protest. A.R. FFF. A representative of the Small Business Administration later wrote to NADC on January 31, 1990 and stated that the SBA had determined that SelectTech was a small business under the seven-million-dollar size standard applicable to the Lot I procurement. Federal Defendants Motion for Summary Judgment, Exhibit B. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': Women\u8211Owned Small Business Status Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': ARC next advances the argument that, pursuant to 13 C.F.R. \u167 124 and the FAR, the RFP required SelectTech to certify whether it was a women-owned small business concern. Amended Complaint \u182 10. SelectTech\rquote s own technical proposal, ARC contends, indicates that SelectTech is largely operated by Dr. Finch and Mr. Riley, who are both men. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': ARC\rquote s Motion for Summary Judgment at 11 n. 4; ARC\rquote s Reply Brief at 14 n. 6. According to ARC, SelectTech certified falsely that it was indeed not only a small business but also women-owned, and SelectTech thus misrepresented its status in order to receive an enhanced evaluation score. ARC\rquote s Motion for Summary Judgment at 42\u821143. ARC alleges that the Federal Defendants therefore abused their discretion by finding SelectTech to be a responsible bidder whose proposal was the most advantageous to NADC. Amended Complaint \u182\u182 14, 21, 27(d); ARC\rquote s Motion for Summary Judgment at 63. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': There is insufficient evidence that the Federal Defendants acted \clearly illegally\ and abused their discretion by concluding that SelectTech was a responsible small business concern that was capable of competently performing the CCS contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': . NADC\rquote s RFP for the CCS services was simply a 100% small business set-aside and nowhere established a set-aside for a specifically Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': B\u8211239467, August 16, 1990 [available on WESTLAW, CG database], 1990 U.S.Comp.Gen. LEXIS 854, 4\u82115 (\there is no program in government procurement which establishes a set-aside for women-owned small business\); ARC\rquote s Motion for Summary Judgment at 63 (acknowledging that the CCS procurement was not a women-owned business enterprise set-aside). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': Hence, NADC\rquote s evaluation panel and Contract Review Board, in passing on the CCS proposals, were authorized to evaluate only SelectTech\rquote s small business status, not its women-owned status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': As previously noted, after NADC received ARC\rquote s award protest questioning SelectTech\rquote s small business status, Contract Negotiator Dunn investigated SelectTech\rquote s status and concluded that the company was a small business under the applicable size standard. Drummond Declaration \u182 43. In accordance with the FAR, Drummond and Commander Vanderslice then determined that ARC\rquote s protest allegations impugning SelectTech\rquote s small business status were merit and further determined that immediate award had to be made to SelectTech to prevent a severe curtailment of CCS services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': ; Drummond Declaration \u182 44. The award was then made. There is no evidence that NADC officials acted in any manner but rationally and according to procurement law in concluding that SelectTech was a small business. Furthermore, after the award was made, the SBA in a January 1990 size determination confirmed that SelectTech was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': SelectTech\rquote s Motion for Summary Judgment, Exhibit D, Answer to \u182 25 (ARC admitting in answers to SelectTech\rquote s interrogatories that SelectTech was a small business). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': B\u8211239303, August 15, 1990 [available on WESTLAW, CG database], 1990 U.S.Comp.Gen. LEXIS 853, 7. Where, as here, there is a dearth of evidence of fraud or bad faith, and where the Contracting Officers not only determined that SelectTech was a \technically competent and financially sound\ small business but also learned from various agencies that the company\rquote s reputation for quality work and responsiveness was good, no abuse of discretion exists and the affirmative determination of contractor responsibility must be upheld. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': The \certification\ in SelectTech\rquote s proposal that ARC refers to is merely a \representation\ that the government requires all bidders for government contracts to make concerning their women-owned small business status. That representation is routinely sought in such contracts where performance is to take place within the United States and where the contract cost exceeds $25,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': Turning to ARC\rquote s allegations in Count III that SelectTech misrepresented its women-owned status, the court need not reach SelectTech\rquote s arguments that such misrepresentation claims are preempted by federal law or that ARC has failed to demonstrate sufficient reliance on such alleged misrepresentations. As noted above, ARC\rquote s asserted dispute of fact as to SelectTech\rquote s misrepresentations depends upon a women-owned small business representation that was not material to the procurement process for the CCS services. Resolution of that asserted factual dispute could not affect the outcome of this case under the applicable substantive law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': Contrary to ARC\rquote s allegations, 13 C.F.R. \u167 124 is not material to the CCS services procurement. That provision concerns only awards set aside by the SBA under its 8(a) program and subcontracted to minority small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': are irrelevant to the CCS competition. Even were such provisions applicable, they state no more than a government policy to aid women-owned small business concerns; they do not mandate that such concerns receive any special treatment in any particular procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'The Rule of Two': , which defines \women-owned\ as \a small business that is at least 51 percent owned by a woman or women who are U.S. citizens Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 085 - Ace-Federal Reporter v FERC.doc, Paragraph with 'The Rule of Two': This case is back before the Court barely six months after the Court issued its decision concerning a related dispute between the parties. Very briefly, the underlying facts are as follows. FERC, acting through its Division of Procurement, issued Interim Solicitation No. DE\u8211RFQ39\u821191RC\u821100001 for interim stenographic services on August 28, 1990. The Interim Solicitation was for stenographic services at FERC for a period of four months plus a one-month option. The contract was to take affect on October 1, 1990, the day after FERC\rquote s contract with Ace\u8211Federal was to expire. The solicitation was limited to small businesses. Ace\u8211Federal did not participate in the Interim Solicitation bidding because it does not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 085 - Ace-Federal Reporter v FERC.doc, Paragraph with 'The Rule of Two': On September 28, 1990, plaintiff filed an application for a TRO with this Court. The Court heard arguments on plaintiff\rquote s motion for a TRO, and thereafter granted the TRO until October 10, 1990. Prior to the hearing on the motion for a preliminary injunction, FERC received a bid protest from Ann Riley & Associates (Riley), a small business that participated in the Interim Solicitation. At the preliminary injunction hearing, FERC stated that it had not yet taken a position as to the Riley protest. However, the Court has been advised that the Riley protest also results in an automatic stay as did plaintiff\rquote s protest. Thus, due to FERC\rquote s inability to state its position in regards to the Riley protest it appears that the status quo should be maintained in order to provide GAO with the opportunity to render a decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 085 - Ace-Federal Reporter v FERC.doc, Paragraph with 'The Rule of Two': Plaintiff asserts that the action of not exercising the option, refusing to abide by the statutory stay and limiting the solicitation to small businesses only was arbitrary and capricious and an abuse of discretion. In its motion for a preliminary injunction, plaintiff requests that the Court enjoin FERC from awarding the contract to any entity other than plaintiff pending resolution of this litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 085 - Ace-Federal Reporter v FERC.doc, Paragraph with 'The Rule of Two': Second, plaintiff contends that FERC improperly restricted the solicitation to small businesses. FERC argues that it is government policy to award a fair proportion of its contracts to small businesses. However, FERC notes that the Commission has repeatedly expressed its intention to open the long-term contract to all competitors. Therefore, FERC contends that there was no bias against plaintiff, and that FERC was justified in limiting the interim contract to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 085 - Ace-Federal Reporter v FERC.doc, Paragraph with 'The Rule of Two': Fourth, plaintiff contends that FERC was required to strictly adhere to its evaluation criteria. FERC argues that under the evaluation criteria for small business small-purchase set-asides in 48 C.F.R. \u167 13.106 and FAR \u167 13.106(b) the contracting officer has a wide latitude to exercise business judgment. However, from the hearing on the preliminary injunction, it appears that there is some question as to whether the Interim Solicitation qualifies as a small-purchase. Plaintiff contends that because the contract has a value over $25,000 the contract is not a small-purchase and that it is controlled by 48 C.F.R. \u167 13 and 48 C.F.R. \u167 19. FERC does not contest that the contract has a value greater than $25,000, but does assert that the solicitation is covered by 48 C.F.R. \u167 13. Therefore, there appears to be a question as to under which rules and regulations FERC issued the Interim Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 086 - Ellis v Skinner.doc, Paragraph with 'The Rule of Two': Federal DBE regulations establish a rebuttable presumption that small businesses owned and controlled by women and minorities (including Black Americans, Hispanic Americans, Native Americans, Asian\u8211Pacific Americans, or Asian\u8211Indian Americans and others) are DBEs. 49 C.F.R. \u167 23.62 (1989). Businesses that are presumed to be disadvantaged are subject to decertification of their DBE status if the participating state determines that they are not in fact disadvantaged. On the other hand, businesses that are not presumed to be disadvantaged may be certified as DBEs by the Small Business Administration or by the state upon a sufficient showing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 086 - Ellis v Skinner.doc, Paragraph with 'The Rule of Two': Utah participates in the federal DBE program and has adopted a DBE plan that mirrors the federal statutory and regulatory structure in every significant respect, including the annual goal requirement that 10% of all federally funded UDOT contracts be awarded to disadvantaged business enterprises as defined by federal law. Utah has never sought a waiver from the annual 10% set-aside, nor has the State made any findings of past discrimination in Utah\rquote s public construction industry. The State has a Civil Rights Coordinator who oversees implementation of the DBE program, and the State has published a directory in which 106 small businesses are listed as eligible to bid as DBEs on federally assisted UDOT construction projects. Some of these DBEs are located outside of the State. Utah\rquote s DBE program requires all DBE firms to recertify annually. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 086 - Ellis v Skinner.doc, Paragraph with 'The Rule of Two': not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': Section 106(c) of STURAA requires \not less than 10 percent of the amounts\ appropriated under the Act to be \expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Section 106(c) continues to employ the definition of \socially and economically disadvantaged individuals\ contained in the Small Business Act, with the exception that women are included as persons presumed to be disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': Disadvantaged businesses are small business concerns which are at least 51 percent owned by socially and economically disadvantaged individuals and whose management and daily business operations are controlled by one or more such individuals. Women and designated minority group members (e.g. Black Americans, Hispanic Americans, Native Americans, Asian\u8211Pacific Americans, or Asian\u8211Indian Americans) are rebuttably presumed to be socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': (Definitional section of Small Business Act incorporated into STURAA); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': . Unless the recipient receives a waiver from the Secretary, it must expend at least 10% of these funds with small businesses which are owned and controlled by disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 097 - Harrison and Burrowes Bridge Constructors Inc v Cuomo.doc, Paragraph with 'The Rule of Two': than 10% of the amounts [appropriated under the act are to be] expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ (Emphasis added). Moreover, the conference committee report makes clear that Congress intended the 10% goal as a minimum and not a maximum. H.Conf.Rep. No. 100\u821117, 100th Cong., 1st Sess. (Joint Explanatory Statement of the Committee of Conference) (1987), U.S.Code Cong. & Admin. News Vol. 2 (1987) (Legislative History) page 132 (\Some states may wish to establish a DBE goal which exceeds the minimum goal set by this section, and they are permitted to do so.\). Moreover, the Federal Highway Administration has apparently interpreted STURAA as permitting an upward deviation from the 10% goal because it has specifically approved the State DOT\rquote s 17% DBE participation goal. May 3, 1989 Affid. of Flowers, Exhibit A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 005 - Coflexip And Services Inc v US.doc, Paragraph with 'The Rule of Two': noted that recovery under that Act was limited to \qualified prevailing parties,\ and that \[Eastern Marine] is a \u8216prevailing party\u8217 as defined by the [EAJA] since it is a small business....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 008 - Commercial Energies Inc v US.doc, Paragraph with 'The Rule of Two': [A] goal of 5 percent of [funds obligated for contracts entered into with the Department of Defense] shall be the objective ... for contracts and subcontracts entered into with ... small business concerns ... owned and controlled by socially and economically disadvantaged individuals.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': Manufacturer of military and commercial spare parts sought disclosure of unclassified technical drawings for Navy\rquote s MK\u821146 torpedo in order to compete for requirements. On the parties\rquote cross motions for summary judgment, the District Court, Revercomb, J., held that: (1) contractor which was not capable of manufacturing entire torpedo was not entitled to disclosure of technical data under Small Business Act or Competition in Contracting Act, and (2) unclassified technical drawings for torpedo were exempt from disclosure under Freedom of Information Act as information prohibited from disclosure by another statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': Small business which manufactured and dealt military and commercial spare parts and admittedly did not have capacity to build entire torpedo was not entitled to obtain technical data on MK\u821146 torpedo in order to compete for requirements. Small Business Investment Act of 1958, \u167 223, as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': The plaintiff filed this claim against the defendant to obtain technical data on the MK\u821146 torpedo in order to compete for MK\u821146 requirements synopsized in the March 2, 1987 and July 27, 1988 issues of Commerce Business Daily. The plaintiff contends that the defendant\rquote s failure to provide the information violates the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': I. Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': The Small business Act provides that \[f]or any contract to be let by any Federal agency, such agency shall provide to any small business concern upon its request ... a copy of bid sets and specifications with respect to such contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 011 - Colonial Trading Corp v Department of Navy.doc, Paragraph with 'The Rule of Two': (Aug. 5, 1988 Letter from Counsel for Colonial Trading Corporation to Wade Anderson of Naval Sea Systems Command) (\Colonial is unable to supply the MK\u821146 torpedo\). Rather, plaintiff is a self-described small business which manufactures and deals military and commercial Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 012 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': (a) Small business shall mean a business which is independently owned and operated and which is not dominant in its field of operation as further defined in 13 Code of Federal Regulations, Part 121.3, incorporated herein, and made a part by reference ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 012 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': (b) Disadvantaged business enterprise or \DBE\ shall mean any small business; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 016 - Monchamp Corp v US.doc, Paragraph with 'The Rule of Two': . Apparently, the Forest Service does make nonresponsibility determinations, as it did in rejecting Rice\rquote s bid after a financial review conducted by the Small Business Administration. Plaintiff has alleged adequately that Sierra was nonresponsible and should not have been offered the sale at the price bid by Rice. The materials appended to defendant\rquote s motion indicate that in order to demonstrate its financial ability to perform before receiving contract award, Sierra exercised an option, under the Forest Service\rquote s own procedures for assuring financial responsibility, to forego financial review by providing the Forest Service with a stand-by letter of credit to guarantee its performance under the contract. The Forest Service thereafter awarded the contract to Sierra based on what it deemed to be adequate guarantees and prepayments. It appears that defendant could establish its entitlement to summary judgment on this basis if the case were to proceed further. However, defendant did not move on the ground that plaintiff could prove no set of facts establishing that Sierra was not a qualified bidder under the Forest Service\rquote s procedures for determining financial responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': , Administrator, Small Business Administration; and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Nonminority competing government contractors brought civil rights action seeking declaratory relief from 100% assignment of small business contracts to be let through Small Business Administration (SBA) in one geographic area for one fiscal year to SBA \u167 8(a) program. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': , J., held that 100% set aside of all available small business contracts for exclusive minority contractor bidding represented improper exercise of statutory and regulatory authority and resulted in statutorily prohibited discrimination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': One hundred percent set-aside by Army Corps of Engineers of all eleven available small-business contracts in one geographic area for exclusive minority contractor bidding under Small Business Administration (SBA) \u167 8(a) program was improper exercise of statutory and regulatory authority and resulted in statutorily prohibited discrimination against nonminority competing contractors; set-aside was overinclusive and did not effectuate limited and properly tailored plan to remedy past discrimination. Small Business Act, \u167 2 [8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': , Asst. U.S. Atty., Jackson, Miss., Helen M. Golberg, U.S. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Tried to the court without a jury on an earlier day, this case presents the question of whether the assignment of eleven contracts by the Army Corps of Engineers (Corps) to the Small Business Association (SBA) in fiscal year 1981 for minority enterprise consideration in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': The 8(a) program is established as part of the Small Business Act which is codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': . In order to further the policy of encouraging minority business enterprises, Congress authorized the SBA to act as an intermediary between the Government and minority businesses and to contract with governmental agencies such as the Corps. The SBA then \arranges for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns.\ See, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': . No small-business concern shall be deemed eligible for any assistance pursuant to this subsection unless the SBA determines that with contract, financial, technical and management support the small business concern will be able to perform contracts which may be awarded to such concern under paragraph (1)(C) and has reasonable prospects for success in competing in the private sector. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': The case involves a joint claim for declaratory judgment sought by the intervenor-plaintiffs, Fordice Construction Company and Four F Corporation (hereinafter plaintiffs), pertaining to the assignment of the aforesaid eleven contracts by the United States Army Corps of Engineers (Corps) to the Small Business Administration (SBA) in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': accordance with the Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': . Because all eleven contracts available for small-business set-asides to be let by the Corps in the Vicksburg area in 1981 were set-aside for \u167 8(a), three local non-minority contractors, including the above named plaintiffs, who were eligible for small business set-aside contracts, but not for \u167 8(a) set-aside contracts, brought this action pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': seeking to enjoin the 100% set-aside to the SBA under \u167 8(a). A temporary restraining order was granted by this court, Honorable Judge Dan Russell presiding. While the order was in effect, the parties obtained permission from the court for the Corps to dispose of the eleven contracts. Six were not funded and were therefore not awarded. Of the five remaining contracts, two were submitted for the SBA\rquote s \u167 8(a) program while three others were let under competitive bidding. Four F Corporation, one of the plaintiffs in this cause, received two of the three contracts. The district court thereafter dismissed the case as moot since all eleven contracts had been disposed of, and there was no more case and controversy. The plaintiffs appealed the dismissal to the United States Court of Appeals for the Fifth Circuit, and the dismissal of the plaintiffs\rquote claim for injunctive relief was affirmed. The Fifth Circuit held that the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': As the matter was conducted, the Corps took into consideration no guidelines or criteria for determining what its contract commitment to the \u167 8(a) program should be. The factors the Corps should have considered are set forth in 32 C.F.R. \u167 1\u8211705.5, especially 1\u8211705.5(c)(1)(B)(vi) which provides that consideration is to be given to impact where items such as these contracts have been acquired historically by small business or labor surplus set-aside. No impact studies were conducted at any level along the chain of command. No witness before this court expressed a contemporaneous awareness of the federal regulation or what it required. The plaintiffs assert that 100% of all the available contracts being relegated to \u167 8(a) caused them to suffer great detriment, especially when both relied almost wholly upon small business set-asides for their business existence. This detriment could have been avoided, according to the plaintiffs, if the regulatory scheme had been followed, and those responsible had not been so concerned with \u167 8(a) goal compliance. Further, continue the plaintiffs, compliance with the regulation, properly carried out, would have revealed the lack of local Vicksburg area \u167 8(a) eligible contractors, and would have verified the plaintiffs\rquote assertions that such a set-aside would leave non-minority small-business concerns with nothing. Hence, conclude the plaintiffs, the foundation for the creation of a 100% \u167 8(a) set-aside could and would not have materialized. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': Much of the information which could have been used in a local impact study was already known by or available to the SBA. Notwithstanding this, SBA participated in the Corps\rquote 100% set-aside without taking into consideration the fact that Vicksburg area contracts had historically been let through small business set-asides, and that no study of the local Vicksburg market had been conducted to determine if there existed any \u167 8(a) eligible contractors. SBA went instead to a list of sometimes dubiously qualified contractors in order to rapidly show results in the \u167 8(a) program. SBA proceeded without regard for its statutory directive to maximize participation in government contracting by both non\u8211\u167 8(a) eligible small-business concerns, and those small-business concerns owned and controlled by disadvantaged contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': However, the regulation states that the department within the Army receiving the SBA\rquote s request for contract commitment shall evaluate the business plan offered by SBA, giving consideration to the seven factors set forth in Section 1\u8211705.5(c)(1)(B) of the regulation. One of the factors to be considered is the impact of a minority business set-aside where items were acquired historically by small business or labor surplus area set-aside. This responsibility certainly falls upon the Corps to shoulder, especially where the set-aside was to consist of every available contract in a market area for a given fiscal year. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': SBA next contends that the Corps referred contracts to it for \u167 8(a) consideration knowing that not all of the projects would be accepted. Additionally, SBA relies upon the number of \u167 8(a) contracts let for 1979 and 1980 in the Vicksburg area being less than five percent of all available small business set-asides to justify the 100% offering in 1981. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': in the form of an opinion by this court that the actions of the defendants were arbitrary, capricious, or otherwise improper. The plaintiffs recognize that while this court may issue an order designed to prevent repetition of any found violations, the court may not impose an injunction against the SBA since this would be contrary to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': be let by the Army Corps of Engineers, Vicksburg District, in fiscal year 1981 to the Small Business Administration for exclusive \u167 8(a) program consideration was overinclusive and did not effectuate a limited and properly tailored plan to remedy past discrimination. The court further finds that the United States Army Corps of Engineers failed to give consideration to the impact of a 100% set-aside upon non\u8211\u167 8(a) eligible contractors in the Vicksburg area in accordance with its regulatory directive found at 32 C.F.R. \u167 1\u8211705.5(c)(1)(B)(vi). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': The court further finds that by participating in the furtherance of the 100% set-aside, the Small Business Administration ignored its statutorily directed policy pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': . The court hereby declares that the 100% set-aside of all available small-business contracts for exclusive \u167 8(a) consideration engaged in by the Army Corps of Engineers, Vicksburg District, and the Small Business Administration was an improper exercise of these defendants\rquote statutory and regulatory authority, resulting in discrimination against the plaintiffs prohibited by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': that it shall be the duty of the Administration (SBA) and it is empowered whenever it determines such action is necessary or appropriate, \to arrange for the performance of such procurement contracts by negotiating or otherwise letting subcontracts to socially and economically disadvantaged small business concerns for construction work, services or manufacture, supply, assembly of such articles, equipment, supplies, materials, or parts thereof, or servicing or processing in connection therewith, or such management services as may be necessary to enable the Administration (SBA) to perform such contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': \socially and economically disadvantaged small business concern\ means any small business concern which meets the requirements of subparagraph (B) and which is at least 51% owned by (I) one or more socially and economically disadvantaged individuals, (II) and economically disadvantaged Indian Tribe, or (III) and economically disadvantaged Native Hawaiian organization; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 017 - Fordice Const Co v Marsh.doc, Paragraph with 'The Rule of Two': It is 1\u8211705.5(c)(1)(B)(vi) which requires the Corps to conduct impact studies where contracts have historically been let by small business or surplus labor set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 018 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': , 145. Section 106(c) of the Act contained language establishing a ten percent goal for expenditures with disadvantaged businesses. In addition, it included women as a group presumed to be disadvantaged; refined the definition of small business; required states to compile an annual listing of disadvantaged business enterprises; required states to conduct on-site visits of disadvantaged business enterprises; and required the Secretary of Transportation to establish minimum uniform criteria for states to use in determining whether a business is disadvantaged. The regulations implementing the 1982 and 1987 acts are codified at 49 C.F.R. \u167 23. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 018 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': States may certify as disadvantaged business enterprises only those businesses that meet the eligibility standards in 49 C.F.R. \u167 23.62. Under 49 C.F.R. \u167 23.62, a firm is disadvantaged if it is a small business concern and is owned and controlled by individuals who are socially and economically disadvantaged. The regulation adopts the definition of small business in the Small Business Act and imposes the additional requirement that the business concern may not have annual average gross receipts in excess of $14 million. States are directed to make a rebuttable presumption that women and members of specified racial and ethnic minority groups are socially and economically disadvantaged and to determine on a case-by-case basis whether individuals who are not members of those groups are socially and economically disadvantaged. Also, as part of its certification procedure, the state must provide a procedure through which third parties may challenge the certification of individuals presumed to be socially and economically disadvantaged. 49 C.F.R. \u167 23.69. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 022 - Electronic Systems Associates Inc v US.doc, Paragraph with 'The Rule of Two': Because the Air Force proposed to conduct the procurement as a total small business set-aside, Electronic Systems filed a protest with the board on March 10, 1989. The protest alleged violation of several statutes and regulations, including the Small Business Act and the Federal Information Resources Management Regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 023 - Leslie and Elliott Co Inc v Garrett.doc, Paragraph with 'The Rule of Two': Very briefly, the underlying facts are as follows: IFB No. N62472\u821189\u8211B\u82113436 was issued by the defendant Department of the Navy (Navy) on or about July 19, 1989, and requested sealed competitive bids to undertake the demolition of a training tank, Building 70. IFB No. N62472\u821189\u8211B\u82113378 was issued by the defendant Navy on June 15, 1989 and requested sealed competitive bids to construct the ball field jogging path, Navy Submarine Base. These IFB\rquote s were restricted to bidders who are small business concerns and required that sealed bids be submitted in accordance with requirements of the IFB, the Armed Services Procurement Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 023 - Leslie and Elliott Co Inc v Garrett.doc, Paragraph with 'The Rule of Two': On or about August 14, 1989, plaintiff received a letter from the Small Business Administration (SBA) informing plaintiff that the Navy proposed to reject its bid on IFB N62472\u821189\u8211B\u82113378 as not responsive for capacity but plaintiff was given the opportunity to apply for a Certificate of Competency (COC) from the SBA. Plaintiff did so by letter dated August 19, 1989. Complaint paragraph 8. On August 29, 1989, plaintiff was sent a letter from the SBA informing the plaintiff that the Navy proposed to reject its bid on the demolition contract as nonresponsive for capacity. The letter stated among other things that \Leslie and Elliott has become an administrative burden requiring the office to spend in (sic) inordinate amount of time responding to extraneous issues raised by Leslie and Elliott in over eighty letters.\ Complaint paragraph 9, Complaint Exhibit 3. Plaintiff was given an opportunity to apply for a COC from SBA and plaintiff did so by letter dated September 5, 1989. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 031 - Medical Devices of Fall River Inc v US.doc, Paragraph with 'The Rule of Two': By telephone call and a subsequent letter dated July 18, 1988 to plaintiff, DPSC took the position that \Surgical Instrument Company of America has been debarred by the Defense Logistics Agency and is, therefore, not eligible to be a subcontractor for this procurement.\ On August 17, 1988 plaintiff transmitted a protest to the General Accounting Office (B\u8211232336) (GAO). By letter of August 29, 1988 to plaintiff, DLA rescinded the letter of July 18, 1988 and stated the position that plaintiff \is fully eligible to be considered for award.\ DLA\rquote s contracting officer did advise, however, that \if you do intend to use SICOA as a supplier, that fact will have a bearing on my determination of your responsibility to perform the contract.\ On September 14, 1988, GAO dismissed protest B\u8211232336 as \academic,\ as Medical Devices (MDI) \has received the relief it requested * * *.\ GAO noted that, as plaintiff is a small business, if it is found to be nonresponsible, \that determination would then be forwarded to the Small Business Administration (SBA) for possible issuance of a certificate of competency (COC).\ Because of SBA\rquote s role and the conclusive nature of the COC determination on the procuring agency, GAO declined to retain the matter for consideration as to any future small business nonresponsive aspect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 031 - Medical Devices of Fall River Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer forwarded his Findings and Determination of non-responsibility to the Small Business Administration. On August 23, 1989 a field visit was conducted at Medical Devices of Fall River by Industrial Specialist William F. Littlefield. His 15 page report concluded with the following summary and recommendation: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 037 - Mark Dunning Industries Inc v Cheney.doc, Paragraph with 'The Rule of Two': In October 1988, the contracting officer for the United States Army invited bids on a contract for refuse collection and disposal on a federal installation at Fort Polk. Interested small businesses were allowed to submit bids on either or both of two arrangements for disposal of the waste: \Schedule I\ required that the disposal of the waste be on a government-owned, on-site landfill; and \Schedule II\ required that the disposal be off the post on lands provided by the bidder. Schedule I further required that each bidder include in its bid price the cost of \covering\ and \turfing\ portions of the Fort Polk landfill that had been left unturfed by a previous contractor; these costs were not included in Schedule II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 037 - Mark Dunning Industries Inc v Cheney.doc, Paragraph with 'The Rule of Two': The contracts involved in that case were small business set-asides, and the contracting officer had not awarded the contracts because of a dispute as to whether the apparent low bidder was a \small\ business. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': Despite language in first paragraph of letter from contracting officer to authorized representative of bidder, that \your firm has been determined non-responsible,\ suggesting letter was finding that bidder was non-responsible in Small Business Act sense of that term, as would allegedly have required referral of finding to Small Business Administration, evidence established that letter was finding that bidder\rquote s proposal bond, rather than bidder, was nonresponsible; letter explained \[t]he basis of this determination is your inability to submit acceptable proposal bond within the allotted time frame.\ Small Business Act, \u167 2[8](b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': Record established that contracting officer did further Government\rquote s interest in awarding contracts to small businesses, such as successful bidder\rquote s, precluding reinstatement on that ground of solicitation cancelled by officer; officer extended deadlines on several occasions and in general gave bidder far more consideration and forbearance than law required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': RADVA asserts that defendant\rquote s actions in terminating negotiations and cancelling the solicitation entitle it to relief because (1) pertinent regulation required the contracting officer to give RADVA up until the time of the award to secure adequate bonding, (2) the cut-off of negotiations was based on a finding that RADVA was non-responsible and pertinent statute and regulation required such a finding to be referred to the Small Business Administration, (3) award of the contract would have been permissible only with an audit requiring 75\u821180 days, so RADVA was entitled to at least this amount of time after submission of its cost and pricing data to secure its bond, and (4) because inadequate bonding was the only reason for termination of negotiations, RADVA\rquote s cure of this problem prior to the alleged formal cancellation of the solicitation entitled it to have its proposal considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': Nor has RADVA raised a triable issue concerning referral of the alleged finding of non-responsibility to the SBA. Plaintiff urges that Major Sliwoski\rquote s October 13 letter was actually a finding that RADVA was non-responsible in the Small Business Act sense of that term. While this contention finds support in the language of the letter\rquote s first paragraph (\your Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': based on inadequacy of bid bonds does not have to be referred to the Small Business Administration, even if, as here, the bidder is a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': Moreover, the facts in the record make clear that when Major Sliwoski cited RADVA\rquote s \inability to submit acceptable proposal bonds within the allotted time frame,\ (Def. App. at 29), the Major was not saying RADVA \could not get [a bond], but [merely] that they had not produced one.\ Def. Reply App. at 35. Finally, the second paragraph of the October 13 letter is inconsistent with RADVA\rquote s assertion that the letter constituted the kind of non-responsibility finding that had to be referred to SBA. If Major Sliwoski were indeed finding RADVA non-responsible in the Small Business Act sense, i.e., lacking the \capability, competency, capacity, credit, integrity, perseverance, and tenacity\ to perform the design and construction project, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 048 - RADVA Corp v US.doc, Paragraph with 'The Rule of Two': Neither can plaintiff avoid summary disposition of its claims by alleging that \the contracting officer in the instant case did nothing to further the government\rquote s interest in awarding contracts to small businesses.\ Pl. Opp. at 31. The record resoundingly refutes this contention. The contracting officer extended deadlines on several occasions and in general gave RADVA far more consideration and forbearance than the law required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Unsuccessful bidders for small business set-aside contract brought action against contractors to recover for monopolization, racketeering, fraud, unfair business practices, interference with prospective business relations, malicious prosecution, and abuse of process in connection with efforts to obtain small business set-aside contract. Cross motions for summary judgment were filed. The District Court, Weigel, J., held that: (1) contractors committed fraud by using quarterly method for counting employees and misrepresenting number of employees; (2) contractors\rquote false statements were not privileged; and (3) bidders had no claim for racketeering violation or unjust enrichment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Prior court cases on contractors\rquote use of quarterly method for calculating number of employees, reliance on decision of regional administrator of Small Business Administration as to contractors\rquote size, and contractors\rquote trade secret claim did not deal with issue of fraud and did not collaterally estop relitigation of that issue in action by unsuccessful bidders. Small Business Act, \u167 2[16](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Government contractors competing for small business set-aside contract committed mail fraud for which they were being sued and acted with fraudulent intent under California law when they failed to disclose on Small Business Administration Form 355 that number of employee was calculated using quarterly method, rather than pay period method specified on form, and when they failed to disclose that they had fired and rehired employees under quarterly method to support claim of small business status; even if Administration knew that contractors had used quarterly method, contractors had duty fully to complete form; and contractors responded to Administration\rquote s request for declaration using pay period method only after contractors were awarded contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2] et seq., 2[16](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s knowledge that contractors used quarterly method for calculating number of employees did not absolve them of their duty to truthfully complete Form 355 for small business set-aside contract and to use pay period method. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': First Amendment and Noerr-Pennington doctrine did not protect public contractors\rquote false statements to Small Business Administration in order to obtain set-aside contract. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': California statute protecting allegedly defamatory publications made to further judicial, legislative, or other official proceedings and to promote interests of justice did not apply to Small Business Administration Form 355 and misleading letters and proposal submitted by government contractors in order to obtain small business set-aside contract; communications were intended to mislead Administration and Navy about contractors\rquote true size. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': , subd. 2; Small Business Act, \u167 2[16](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Government contractor defense did not immunize contractors from liability for fraud in order to obtain small business set-aside contract; Navy would have had no discretion to award contract if contractors had truthfully certified their size. Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Fact that Navy was only buyer in market did not preclude government contractors from obtaining monopoly in alleged market for small business set-aside contract. Sherman Anti-Trust Act, \u167 2, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Government contractors\rquote submission of false Small Business Administration Form 355, letters, and proposal did not amount to or pose threat of continuing racketeering activity; fraud occurred in context of Administration size determination which was designed to resolve controversies surrounding contractors\rquote use of quarterly method and misstatement of number of employees. Small Business Act, \u167 2[16](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Whether Navy would have awarded small business set-aside contract to second lowest bidder and whether contractors\rquote fraudulent statements to Small Business Administration and Navy caused harm to bidder were questions of fact precluding summary judgment in action to recover for mail fraud or fraud. Small Business Act, \u167 2[16](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Questions of fact precluded summary judgment on whether competitors for small business set-aside contract were entitled to lost profits in their action against government contractors for mail fraud, fraud, and monopolization of market. Sherman Anti-Trust Act, \u167 2, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': ; Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Unsuccessful bidders for small business set-aside contract had no right to contract with Navy and, therefore, had no claim for unjust enrichment by contractors and were not entitled to imposition of constructive trust under California law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Plaintiffs, ship repair contractors, allege that defendants falsely certified to the United States Navy and Small Business Administration (SBA) that they were a small business, allowing them to obtain \small business set aside\ contracts from the Navy that otherwise would have gone to plaintiffs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': From 1976 until 1983, plaintiffs and defendants competed for contracts to repair Navy vessels. The set-aside contracts they sought were designated for \small businesses\ pursuant to the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': The definition of \small business\ is set forth in regulations of SBA. For the category of contracts involved in this lawsuit, a business is \small\ if it has fewer than 1000 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Prior to 1976, SBA regulations allowed a business to calculate total employees under a \quarterly method\, based on the number of persons employed during the pay period ending nearest the last day of each of the past four calendar quarters. If the average of the four most recent quarterly tallies of employees exceeded 1000, the employer was not considered a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': . To eliminate this practice, SBA in March, 1976, amended its regulations for size determinations by introducing a \pay period method\ of counting employees. Under this method, an employer\rquote s \number of employees\ for purposes of determining small business status is defined as the average of the number of employees during each and every pay period of the preceding year. 13 C.F.R. \u167 121.2(b) (1988), formerly at 13 C.F.R. \u167 121.3\u82112(t). Amending the regulations, SBA declared Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': In May, 1981, defendants used the pay period method to calculate its employee totals. In October, 1981, defendants sought the advice of their attorney, Peter Jones, regarding the appropriate method for calculating size. In his letter, Jones reviewed both the pay period and quarterly methods, but advised that defendants use the quarterly method as provided in footnote 1 to Schedule B. Jones also advised that if defendants were required to submit a SBA Form 355 (Application for Small Business Size Determination), they should be aware that the form defines \number of employees\ according to the pay period method. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Defendants in February, 1982, followed their attorney\rquote s advice when SBA, in response to a protest, requested that they file a Form 355. Defendants submitted the form to SBA with a cover letter stating \[i]n calculating the number of employees on the enclosed Form 355, we have used the Schedule B method ...\ Letter of February 18, 1982. On March 31, 1982, the SBA regional administrator issued a \size determination\ which upheld defendants\rquote status as a small business under the quarterly method. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Between February, 1982, and September, 1983, it is undisputed that defendants periodically fired and then rehired employees to stay below an average of 1000 employees using the quarterly method. In one such instance, defendants fired 513 employees during the last week of 1982, then rehired 559 employees one week later. Defendants concede that \the sole purpose of quarter end layoffs was to maintain small business status.\ Defendants\rquote Memorandum in Support of Summary Judgment at 3, n. 4. Defendants never informed SBA of this practice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': In September, 1983, defendants\rquote status as a small business was challenged by plaintiff Triple A. In its letter dated September 29, 1983, SBA attached Triple A\rquote s letter of protest, which alleged that defendants, using the quarterly method, manipulated its number of employees by firing and rehiring them. SBA required that defendants complete Form 355, adding \[a]ttach any additional evidence you might wish to submit to support your position as a small business.\ In response, defendants submitted the form on October 4, 1989, stating \[w]e believe that the Form 355 information adequately resolves Triple A\rquote s allegations.\ Defendants did not disclose that their calculation of size was based on the quarterly method, nor did they disclose that they had fired and rehired employees to maintain their \small\ status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Section 16(a) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': , as amended, makes it a criminal offense punishable by fine of not more than $5000 and imprisonment for not more than two years, or both, to make a willfully false statement or misrepresentation to the Small Business Administration for the purpose of influencing in any way the action of the Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': On October 5, 1989, in response to a call from SBA\rquote s local counsel, defendants mailed an additional letter to SBA certifying that the \total employee\ information on Form 355 includes all employees \as defined in the Small Business Size Standards of the SBA Rules and Regulations (13CFR Part 121).\ Again, defendants failed to disclose (1) that they calculated size using the quarterly method rather than the pay period method specified in Form 355, and (2) that they periodically fired and then rehired employees. Finally, on October 24, 1983, SBA wrote defendants requiring that they complete a prepared Declaration specifying number of employees to be calculated using the pay period method. By letter dated November 7, 1983, defendants declined to execute the Declaration, stating they could not complete it because they calculated number of employees using the quarterly method. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': On December 6, 1983, SBA\rquote s regional administrator reversed her March, 1982, determination and found that defendants were not a small business. SBA decertified defendants from obtaining further set-aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Meanwhile, in May, 1983, the Navy had sought bids from small businesses for a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Plaintiffs and defendants submitted bids on the contract, certifying under penalty of perjury that they were small businesses. On October 12, 1983\u8212while SBA was investigating defendants\rquote small business status\u8212the Navy requested that defendants submit a Second Best and Final Offer as part of the process of evaluating defendants\rquote bid on the AOR contract. On November 2, 1983, the Navy awarded the contract to defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': In February, 1984, the Office of Hearings and Appeals upheld the regional administrator\rquote s decision decertifying defendants as a small business. This decision was appealed to the United States District Court for the District of Columbia. The district court in December, 1984, affirmed the agency decision. Both SBA and the district court found that defendants\rquote use of the quarterly method was a violation of federal regulations. The district court ruled that the notice and publication procedures followed with respect to the adoption of the 1976 amendments provided constructive notice that the quarterly method of counting employees was no longer acceptable. Further, the court ruled that defendants\rquote reliance on the March, 1982, decision of the SBA regional administrator, allowing the quarterly method, was unreasonable since that decision directly contradicted not only the regulations but also SBA Form 355. As to the equities, the court stated that the argument is weak indeed for protecting a size determination method highly susceptible to manipulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Finally, in September, 1987, the California Court of Appeal for the Fourth Appellate District decided an aspect of this controversy. Defendants here had filed suit claiming that their use of the quarterly method was a trade secret, kept confidential so that competitors would not become aware it was still permitted and to ensure that continued reliance on the method would not be jeopardized. The court of appeal held there was no trade secret, stating that the only \secret\ was the way defendants manipulated the quarterly method of reporting so they could \cheat\ and qualify as a small business when they were not. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': The evidence now clearly establishes that defendants manipulated the quarterly method of counting employees between February, 1982 and December, 1983, by periodically firing and rehiring employees for the purpose of retaining their small business status. Defendants did not disclose their manipulative practices to SBA. During this period, defendants certified in bids to the Navy that they were a small business, and were awarded the AOR contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Third, when confronted with specific charges of manipulation, defendants\rquote letter and Form 355 sent on October 4, 1983, as well as their letter dated October 5, 1983, failed to disclose to SBA that they had fired and rehired employees under the quarterly method to support their claim of small business status. It was not until November 7, 1983, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': section 16(a) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': (government contractor immunity does not apply when the contractor mis-manufactures military equipment). But for defendants\rquote fraudulent certification that they were a small business, the Navy would not have had any \discretion\ to award the AOR contract to them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': (SBA has sole responsibility to determine what constitutes a \small business\ eligible to bid on set-aside contracts and its determination is binding on all officers of the government having procurement responsibilities). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with 'The Rule of Two': Defendants challenge plaintiffs\rquote Sherman Act claim arguing that the nature of the market involved makes it impossible for plaintiffs to prove the necessary elements of their claim. Defendants first contend that plaintiffs improperly define the market by reference to the regulations limiting participants to small businesses. However, the \impact of regulation must be assessed simply as another fact of market life.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 055 - Pacific Fabrication Inc v US.doc, Paragraph with 'The Rule of Two': In April 1985 DPSC issued a solicitation for the purchase of 596,700 canteen cups. This solicitation was divided equally into an unrestricted portion (bids for 298,350 cups open to both large and small businesses) and a restricted portion (bids for remaining 298,350 cups set aside for small businesses only). In May 1985, bids were opened on the unrestricted portion of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 058 - OAO Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff was a disadvantaged contractor under the Small Business Administration\rquote s (SBA) 8(a) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Minority contractor brought action against Administrator of Small Business Administration, Director of National Park Service, and Director of Lowell Historic Preservation Commission of Department of Interior, challenging SBA\rquote s refusal to grant subcontract to minority contractor and its proposed partner under joint venture arrangement, and seeking injunctive relief requiring that contracts in question be awarded to partnership. On SBA\rquote s motion for summary judgment and Park Service and Commission\rquote s motion to dismiss, the District Court, Wolf, J., held that: (1) SBA had rational basis to refuse to subcontract projects; (2) injunction requiring award of contracts to minority contractor would not be warranted; and (3) doctrine of estoppel did not justify relief sought by minority contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration had rational basis for refusing to subcontract project to minority contractor and another contractor under joint venture arrangement even though contractors had previously worked together with SBA approval; nonminority contractor was undisputedly \large\ concern and had previously pled nolo contendere to charge of using another minority firm as front to obtain government contract without competitive bidding. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Summary judgment affidavit of minority contractor\rquote s president presented only conclusory statements of unidentified individuals which were inadmissible as evidence and, accordingly, could not support claim that Small Business Administration\rquote s stated reasons for refusing to grant subcontract to minority contractor and another contractor under joint venture arrangement were pretext masking actual motive of animosity between SBA officials. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Circumstances of Small Business Administration\rquote s refusal to subcontract project in national historic park to minority contractor and another contractor under joint venture arrangement did not put SBA\rquote s good faith in genuine dispute; SBA was not required to discuss its concerns with National Park Service or Lowell Historic Preservation Commission of Department of Interior or to provide minority contractor with opportunity to address SBA\rquote s concerns, and there was no violation of any established SBA procedure. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Minority contractor requesting that National Park Service and Lowell Historic Preservation Commission of Department of Interior be restrained from awarding certain construction contracts to anyone else and ordered to award those contracts to minority contractor and partner was not entitled to relief sought because contractor had not been deprived of contracts by any illegal behavior of Park Service or Commission but, rather, was deprived of contract as result of legally permissible actions of Small Business Administration. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming misconduct by National Park Service and Lowell Historic Preservation Commission of Department of Interior caused minority contractor to expect to obtain subcontract from Small Business Administration and, in reliance, to fail to solicit other business, invocation of principles of estoppel to order that contracts be awarded to minority contractor and another contractor under joint venture arrangement would be inappropriate absent allegation that SBA waived its discretion to determine whether proposed joint venture met its criteria and ought to be given subcontract; absent such waiver, minority contractor\rquote s reliance was not reasonable. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that National Park Service and Lowell Historic Preservation Commission of Department of Interior improperly designated construction project for Small Business Administration\rquote s minority business and capital development program in order to obtain services of nonminority contractor under joint venture arrangement with minority contractor, invoking principles of estoppel to order that contracts in question be awarded to the contractors\rquote partnership would be inappropriate, since it would frustrate congressionally enacted public policy realized in program\rquote s inherent system of checks and balances; SBA declined proposed joint venture, preventing alleged misconduct from succeeding. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': On January 5, 1989, Apex Construction Company, Inc. (\Apex\) brought this action against the Administrator of the Small Business Administration (the \SBA\), the Director of the National Park Service (the \Park Service\) and the Director of the Lowell Historic Preservation Commission of the Department of the Interior (the \Commission\). A motion for preliminary injunction was filed with the complaint. An amended complaint was filed on February 3, 1989. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Based upon her review, Ms. Kleeschulte concluded that the joint venture agreement should be declined by the SBA for the following reasons: 1) Marshall exceeded the size standard for a small business (Kleeschulte Aff. at \u182 15a; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': establishes a program that authorizes the SBA to enter into contracts with other agencies to perform certain services and to subcontract the performance of those services to firms eligible for participation in the program, which is intended to assist minority small business enterprises. The operation of the 2[8](a) program is described, and prescribed, by the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 064 - Apex Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': Whether Surface Transportation and Uniform Relocation Assistance Act section requiring expenditure of 10 percent of appropriated amounts with small business concerns owned and controlled by socially and economically disadvantaged individuals authorized procedure of setting aside funds for award to businesses of disadvantaged individuals would not substantially affect analysis of constitutionality of state program reserving $4 million in construction contracts for disadvantaged businesses, as the program was only means of implementing congressional intent motivating the Act. Surface Transportation and Uniform Relocation Assistance Act of 1987, \u167 106(c), 101 Stat. 132; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': Except to the extent that the Secretary determines otherwise, not less than 10 per centum of the amounts authorized to be appropriated under this Act shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals as defined by section 8(d) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': , 145. Section 106(c) of the Act contained language essentially identical to section 105(f) of the 1982 Act establishing a 10% goal for expenditures with disadvantaged businesses. In addition, it included women as a group presumed to be disadvantaged, refined the definition of small business, required states to compile an annual listing of disadvantaged business enterprises, and required the Secretary of Transportation to establish minimum uniform criteria for states to use in determining whether a business is disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': mandates that \[e]xcept to the extent that the Secretary determines otherwise, not less than 10 percent of the amounts authorized to be appropriated under [this Act or its predecessor, the Surface Transportation Assistance Act of 1982] shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ The term \small business concern\ is defined by section 2[3] of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': , and the term \socially and economically disadvantaged individuals\ is defined by section 2 [8](d) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': , except that the 1987 Act adds women to that definition. Section 106(c) also requires states to compile annually a list of small business concerns and to adhere to minimum uniform criteria for certifying Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': The definitions of small business and disadvantaged individual are identical to those used in the Act, in the implementing regulations, and in Wisconsin\rquote s other disadvantaged business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': (the Small Business Act). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': The Surface Transportation and Uniform Relocation Assistance Act of 1987, the Act currently in effect, includes a version of \u167 105(f) of the 1982 Act (it adds women as a disadvantaged group, refines the definition of small business, and imposes additional, uniform criteria on states). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': A preliminary review of these hearings does not reveal extensive testimony documenting past discrimination in the construction industry. However, Representative Mitchell testified at two of these hearings as to the general need for the provision and referred explicitly to hearings by the House Subcommittee on Small Business documenting the need for remedial measures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 065 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'The Rule of Two': Senate Hearing on the Disadvantaged Business Enterprise Program of the Federal\u8211Aid Highway Act at 5\u82116; House Hearing on Extension of the Nation\rquote s Highway Programs at 1350\u821154 (\Mr. Chairman, I offer for your information and files the [numerous] items presented to the Subcommittee on SBA and SBA Authority, Minority Enterprise and General Small Business Problems.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': Plaintiff\u8211Appellant J.E. McAmis, Inc. (\McAmis\) filed a complaint seeking a preliminary and permanent injunction prohibiting Defendant\u8211Appellee Colonel Wayne J. Scholl of the Army Corps of Engineers (the \Corps\) from awarding a construction contract to SN\u8211M, a joint venture. The Corps had invited bids for repairs and rehabilitation work on a 15\u8211mile stretch of the levee system along the Sacramento river. The repairs were necessary to remedy damage done by the severe floods of February, 1986. The contract was 100 percent set-aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': McAmis was the second lowest bidder. SN\u8211M was the lowest bidder. McAmis filed a timely bid protest on the grounds that SN\u8211M was not a qualified small business. While its protest was pending, McAmis filed this action seeking to enjoin award of the contract \unless and until the Small Business Administration [ (\SBA\) ] conducts a size determination of SN\u8211M and finds it to be a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': small business within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': McAmis challenges the district court\rquote s denial of its application for a Temporary Restraining Order (\TRO\) prohibiting the Corps from awarding the contract to SN\u8211M, and the subsequent dismissal of its suit. McAmis\rquote appellate brief describes this as a lawsuit challenging \the announced award of a public works contract by the [Corps] to SN\u8211M.\ But several days after the district court denied the TRO, the SBA found that SN\u8211M was not a qualified small business and the Corps awarded the construction project to McAmis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': The district court denied appellee\rquote s motion to dismiss on mootness grounds, but granted dismissal on the basis that the complaint failed to state a claim. Appellant argues that the district court misconstrued its claim as based on a private cause of action under the Small Business Act. Such a claim is arguably foreclosed by our decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': The principal defect appellant identifies in the relevant bid protest procedures is that the Corps has the authority to award a bid regardless of a pending bid protest. Following a bid protest, the Corps refers the protest to the SBA for its determination on the small business size status of the winning bidder. The SBA has 10 days to rule upon the protest, but the Corps can award the contract immediately if it concludes that the award must be made to protect the public interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 074 - JE McAmis Inc v Scholl.doc, Paragraph with 'The Rule of Two': court reasoned that the Corp\rquote s authority to award the contract despite the pendency of a bid protest indicated that \Congress, by enacting the set-aside provisions, did not intend to benefit small business at any cost.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': Low bidder on a contract for the repair and maintenance of land mobile radios at an Air Force base filed action challenging reasons set forth by the Small Business Administration for denying its application for certificate of competency. Bidder also challenged determination of contracting officer that it was not \responsible.\ On cross motions for summary judgment, the District Court, Joyce Hens Green, J., held that: (1) contracting officer was not required to make a preaward survey before issuing her decision; (2) contracting officer was entitled to rely on bidder\rquote s past performance under prior contract; and (3) decision of the SBA was not arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': Decision of the Small Business Administration denying firm\rquote s application for a certification of competency to perform a procurement contract for the Department of Defense was not unreasonable, arbitrary or capricious; firm was in reorganization and operating without an approved plan, and there was no assurance as to how long firm would continue to operate; moreover, the SBA had been required to pay out a total of $309,000 as surety on two bonds for government contracts that had previously been awarded to firm. Small Business Act, \u167\u167 2[2] et seq., 2[8](b)(7)(A, C), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': G. Paul Bollwerk, Sp. Asst. U.S. Atty., Mark K. Stephens and Kathleen E. Furst, U.S. Small Business Administration, Washington, D.C., for defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': Presently pending before the Court are cross-motions for summary judgment filed by plaintiff Tele\u8211Sentry Security, Inc. (TSSI) and defendants United States Department of Defense (Air Force) (hereinafter \DOD\), Secretary of Defense Frank Carlucci, the Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': Small business concerns seeking to show that they are \responsible\ are afforded an additional measure of protection under the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with 'The Rule of Two': , the SBA is empowered to certify that a small business concern is competent to perform a particular procurement contract. The SBA\rquote s decision to issue this statement, known as a certificate of competency (COC), is binding upon the procuring agency, which must then award the contract to that firm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': The Chief Justice also noted that Congress drew on its experience under \u167 8(a) of the Small Business Act of 1953, which had extended aid to minority businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': explanations for this dearth of minority participation, including past societal discrimination in education and economic opportunities as well as both black and white career and entrepreneurial choices. Blacks may be disproportionately attracted to industries other than construction. See The State of Small Business: A Report of the President 201 (1986) (\Relative to the distribution of all businesses, black-owned businesses are more than proportionally represented in the transportation industry, but considerably less than proportionally represented in the wholesale trade, manufacturing, and finance industries\). The mere fact that black membership in these trade organizations is low, standing alone, cannot establish a prima facie case of discrimination. Cf. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': A State can, of course, act \to undo the effects of past discrimination\ in many permissible ways that do not involve classification by race. In the particular field of state contracting, for example, it may adopt a preference for small businesses, or even for new businesses\u8212which would make it easier for those previously excluded by discrimination to enter the field. Such programs may well have racially disproportionate impact, but they are not based on race. And, of course, a State may \undo the effects of past discrimination\ in the sense of giving the identified victim of state discrimination that which it wrongfully denied him\u8212for example, giving to a previously rejected black applicant the job that, by reason of discrimination, had been awarded to a white applicant, even if this means terminating the latter\rquote s employment. In such a context, the white job-holder is not being selected for disadvantageous treatment because of his race, but because he was wrongfully awarded a job to which another is entitled. That is worlds apart from the system here, in which those to be disadvantaged are identified solely by race. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': was based upon an array of congressional and agency studies which documented the powerful influence of racially exclusionary practices in the business world. A 1975 Report by the House Committee on Small Business concluded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': Other Reports indicating the dearth of minority-owned businesses include H.R.Rep. No. 92\u82111615, p. 3 (1972) (Report of the Subcommittee on Minority Small Business Enterprise, finding that the \long history of racial bias\ has created \major problems\ for minority businessmen); H.R.Doc. No. 92\u8211194, p. 1 (1972) (text of message from President Nixon to Congress, describing federal efforts \to press open new doors of opportunity for millions of Americans to whom those doors had previously been barred, or only half-open\); H.R.Doc. No. 92\u8211169, p. 1 (1971) (text of message from President Nixon to Congress, describing paucity of minority business ownership and federal efforts to give \every man an equal chance at the starting line\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': H.R.Rep. No. 95\u8211949, pp. 2, 8 (1978) (Report of House Committee on Small Business, finding that minority businesses \are severely undercapitalized\ and that many minorities are disadvantaged \because they are identified as members of certain racial categories\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': (1978), U.S.Code Cong. & Admin.News 1978, pp. 3835, 3848, 3849; (Report of Senate Select Committee on Small Business, finding that the federal effort \has fallen far short of its goal to develop strong and growing disadvantaged small businesses,\ and \recogniz [ing] the pattern of social and economic discrimination that continues to deprive racial and ethnic minorities, and others, of the opportunity to participate fully in the free enterprise system\); S.Rep. No. 96\u821131, pp. IX, 107 (1979) (Report of Senate Select Committee on Small Business, finding that many minorities have \suffered the effects of discriminatory practices or similar invidious circumstances over which they have no control\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': , 4954 (Report of Senate Select Committee on Small Business, finding that government aid must be \significantly increased\ if minority-owned businesses are to \have the maximum practical opportunity to develop into viable small businesses\); H.R.Rep. No. 97\u8211956, p. 35 (1982) (Report of House Committee on Small Business, finding that federal programs to aid minority businesses have had \limited success\ to date, but concluding that success could be \greatly expanded\ with \appropriate corrective actions\); H.R.Rep. No. 98\u82113, p. 1 (1983) (Report of House Committee on Small Business, finding that \the small business share of Federal contracts continues to be inadequate\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with 'The Rule of Two': justified the set-aside by relying heavily on the aforementioned studies by agencies like the Small Business Administration and on legislative reports prepared in connection with prior, failed legislation. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': The apparent low bidder on a procurement contract for cable reel trailers filed a preaward bid protest, challenging the denial of a certificate of competency. The Claims Court, Nettesheim, J., held that: (1) the Small Business Administration was justified in denying a certificate of competency based on the bidder\rquote s lack of technical capability and a required quality assurance program, based on its late performance of a prior procurement contract, and based on its failure to provide financial information about an affiliated company, and (2) the bidder was not prejudiced by the SBA\rquote s failure to send a team to inspect the bidder\rquote s new production facility, as the other grounds would have been sufficient to justify denial of the certificate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': Apparent low bidder\rquote s lack of technical capability and required quality assurance program, its late performance on prior procurement contract, and its failure to submit financial information on affiliated company warranted Small Business Administration\rquote s denial of certificate of competency and its decision to award procurement contract to another bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': Apparent low bidder on procurement contract was not prejudiced by any violation of regulation that would have required Small Business Administration to send team to visit bidder\rquote s new plant facility before SBA awarded procurement contract to another bidder, where apparent low bidder\rquote s lack of technical capability and required quality assurance program, its past performance on earlier procurement contract, and its failure to provide financial information about affiliated company would have justified refusal to issue certificate of competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': William K. Olivier, Washington, D.C., with whom was Asst. Atty. Gen. John R. Bolton, for defendant. Captain Peter J. Comodeca, Judge Advocate General\rquote s Office, Dept. of the Army, and Joyce A. Oblon, General Counsel\rquote s Office, Small Business Admin., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': , to enjoin award and performance of a contract pursuant to a May 13, 1988 solicitation by the Department of the Army Tank Automotive\u8211Command (\TACOM\), Warrenton, Michigan, denominated as No. DAA07\u821188\u8211B\u8211JK330, for 41 cable reel trailers. The contract had been designated as a Small Business set-aside calling for completion 270 days after award. On or about June 10, 1988, plaintiff submitted a bid pursuant to the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': On September 27, 1988, the TACOM contracting office referred the contracting officer\rquote s nonresponsibility determination to the Small Business Administration (the \SBA\). The SBA reviews an application for a Certificate of Competency (\COC\) upon a finding by the contracting officer administering a given invitation for bids that a bidder is nonresponsible, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': In responding to the SBA\rquote s request for information, plaintiff listed Lakes as 100 percent owner of the voting block or business on SBA form 355, entitled \Application for Small Business Size Determination.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff charges broadly that the SBA did not fulfill its mandate \to [aid] small business firms to obtain a fair share of federal government procurement contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 079 - Reel-O-Matic Systems Inc v US.doc, Paragraph with 'The Rule of Two': This case had been scheduled for trial by order entered on November 8, 1988, to begin on November 21 and was transferred to this court to conduct trial. It was this court\rquote s view, stated at the outset of trial, that this matter should have proceeded on cross-motions for summary judgment, with affidavits as necessary to complement a record review. Thereafter, defendant represented that it had advised the then-presiding judge that, in defendant\rquote s view, since plaintiff was challenging a decision of the Small Business Administration (the \SBA\) declining to award plaintiff a Certificate of Competency (\COC\), the nature of the judicial inquiry should be confined to record review, rather than trial at which the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 080 - Vulcan Engineering Co v US.doc, Paragraph with 'The Rule of Two': , issued by the Naval Facilities Engineering Command (NAVFAC) for foundry modernization at the Norfolk Naval Shipyard in Portsmouth, Virginia. The IFB was a 100% small business set-aside. Vulcan contends that it is entitled to recover its bid preparation costs because the definitive responsibility criteria in the IFB were misapplied when NAVFAC determined Diamond to be responsible. Vulcan alleges that neither Diamond nor its proposed subcontractor, Foundry Systems Inc. (Foundry) possessed the experience with the installation of foundry process systems required by the IFB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 080 - Vulcan Engineering Co v US.doc, Paragraph with 'The Rule of Two': . Defendant alleges that Vulcan did not have a substantial chance because four events would have had to occur before plaintiff would have been considered for the award. These events were a determination that the lowest responsive bidder, Diamond, was nonresponsible, and then a review of that decision by the Small Business Administration (SBA), followed by a determination that the next lowest bidder, SMS, was nonresponsible, and then a review of that decision by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 082 - Waste Management of North America Inc v Weinberger.doc, Paragraph with 'The Rule of Two': On March 12, 1987, the contract was awarded to Shubin Services, Inc. Contracts for waste collection and disposal at the Base had been designated for \small business set-asides\ under the Federal Acquisition Regulations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 082 - Waste Management of North America Inc v Weinberger.doc, Paragraph with 'The Rule of Two': . Shubin was found to be the lowest bidder who also qualified as a small business concern. Shubin did not have a permit from Orange County to collect waste. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 088 - Honeywell Federal Systems Inc v US.doc, Paragraph with 'The Rule of Two': Presently pending before the Court is a motion for temporary restraining order (\TRO\) filed by plaintiff Honeywell Federal Systems, Inc. (\Honeywell\), requesting the Court to enjoin the United States Small Business Administration (\SBA\) from further performance of and payment under the Contract awarded September 30, 1988 to Xerox Corporation (\Xerox\) for a non-impact electronic printing system. The Court heard argument on the motion on November 8, 1988. By separate order, plaintiff was granted leave to file a supplemental memorandum and the defendant was granted leave to file a response by November 9, 1988. For the reasons set forth below, Honeywell\rquote s motion will be denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 099 - Hoke Co Inc v Tennessee Valley Authority.doc, Paragraph with 'The Rule of Two': where Congress has by \constitutional legislation\ recognized the legal right of a bidder for government contracts to benefit from the policy of granting a fair share of such contracts to small business concerns. Standing is conferred by Section 10 only when a relevant statute indicates congressional intent that the person or firm seeking review comes within the zone of interests sought to be regulated or protected. Absent such a congressionally created exception, the general rule of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 099 - Hoke Co Inc v Tennessee Valley Authority.doc, Paragraph with 'The Rule of Two': small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 099 - Hoke Co Inc v Tennessee Valley Authority.doc, Paragraph with 'The Rule of Two': who alleges that it is a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 099 - Hoke Co Inc v Tennessee Valley Authority.doc, Paragraph with 'The Rule of Two': and that an agency representative has acted illegally in failing to follow regulations designed to implement the congressional policy of awarding a fair proportion of contracts under the Act to small business concerns has standing to seek judicial review of such actions pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 07 - Parola v Weinberger.doc, Paragraph with 'The Rule of Two': The Navy and Army each issued bid solicitations for a new garbage collection contract in mid-April 1985. Parola submitted a bid in accordance with the rate structure imposed on his company by law as the exclusive franchisee of the City. In addition, just prior to the dates on which the sealed bids were to be opened, Parola filed a written bid protest with the GAO. The protest alleged that the bid solicitations had employed improper \business size\ standards pursuant to the Small Business Administration set-aside rules, and that the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 07 - Parola v Weinberger.doc, Paragraph with 'The Rule of Two': Parola filed this action on May 14, 1985, the day before the Navy\rquote s bid opening was scheduled. On June 24, the district court enjoined the federal defendants from taking any action in furtherance of a contract award until the GAO had an opportunity to rule on the bid protest. On July 16, the Small Business Administration ruled on the small-business set-aside issue raised by Parola, and disqualified the low bidder on the Navy contract. The second lowest bidder had placed a bid of $129,000, compared with Parola\rquote s bid of $250,452. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': James ABDNOR, Administrator of the U.S. Small Business Administration, et al., Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Minority-owned firms sued Small Business Administration and others after SBA had released Navy contract from minority business program. The District Court, John H. Pratt, J., held that: (1) standard operating procedure which pertained to release or retention of contract from minority business program was nonbinding general standard policy, not rule, and was thus exempt from notice and comment procedures of Administrative Procedure Act, and (2) decision of SBA to release Navy contract from minority business program was not arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s adoption of standard operating procedure pertaining to release of contracts from minority business program was exempt from notice and comment procedures required under Administrative Procedure Act, as standard operating procedure was nonbinding general statement of policy, not rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s decision to release Navy contract from minority business program was not arbitrary or capricious, as SBA based decision on fact that firm which had been awarded contract in past years and would no longer be eligible for contract if it remained in minority business program was substantially dependent on contract for its financial health, and competing minority-owned businesses did not need Navy contract to complete their business objectives. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Administration was not required to award Navy contract to one of two minority-owned firms, even though those firms were recommended by procuring agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Minority-owned businesses were not entitled to precontract costs allegedly incurred in connection with unsuccessful attempt to bid on Navy contract which was subsequently exempted by Small Business Administration from minority business program, as minority-owned businesses had not demonstrated that actions of SBA or Navy employees induced them to incur costs, and federal officials acting in accordance with standard operating procedure published by SBA were not liable for any harm or damages that minority businesses may have suffered, as conduct of SBA officials in reviewing Navy contract was clearly discretionary in nature and within perimeters of their official duties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 1. Systems Management American Inc. (SMA) was a Section 8(a) (\8(a)\) certified minority owned firm under the Small Business Administration\rquote s (\SBA\rquote s\) 8(a) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 10. The Small Business Administration did not respond to the Navy\rquote s offer letter regarding TAI and ISN within ten (10) working days of November 9, 1987, because it was evaluating whether SMA had a valid contract with the Navy. It also wished to give the plaintiffs an opportunity to make detailed submissions and to be heard in support of their position. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 12. Mr. James Chapman, President of TAI, contacted and met with Alfredo Gonzalez, Associate Administrator for Minority Small Business and Capital Ownership Development of the Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': the mission of the MSB [Minority Small Business] Program as provided in statute, regulation and SOP is best served by this recommendation. Further, leaving contract resolution to the Navy and those qualified disadvantaged firms which would bid in a competitive rather than a sole source environment is also consistent with the best interest of the firms involved and the program objective of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 19. On December 21, 1987, Delores Ellis, Associate Regional Administrator for Minority Small Business in Philadelphia, forwarded a lengthy analysis and her recommendation to officials in the Central Office that the SNAP\u8211II requirement be released from the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 20. The record is clear that plaintiffs and their experienced procurement counsel were well aware of SOP \u182 46(e). This is suggested by the fact that on December 22, 1987, counsel for ISN wrote the Small Business Administration and informed the SBA that it \understood\ the policy behind SOP \u182 46(e). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 22. On January 5, 1988, the Small Business Administration received a letter from Mark Andrews, on behalf of ISN and TAI, requesting review of the SNAP\u8211II requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 25. In a memorandum dated January 2, 1988, Ms. Ellis, the Philadelphia Associate Regional Administrator for Minority Small Business, evaluated, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 26. On January 26, 1988, the SBA declined the Navy\rquote s offering of the SNAP\u8211II requirement to SBA under the 8(a) program. It released the SNAP\u8211II requirements from the 8(a) program for competitive procurement so that SMA, the plaintiffs and other small and disadvantaged businesses could compete for the contract under the Department of Defense Small and Disadvantaged Business Program, or as a small business set-aside. The SBA concluded that this action was appropriate based on its extensive review of the situation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 29. The SBA reviews approximately 4,000 8(a) contracts annually and determines whether these contracts will further the interests of small business. In this case, the Small Business Administration conducted a detailed and thorough review of the information necessary to complete its discretionary analysis of the SNAP\u8211II requirement for release from the 8(a) program. The decision to release the requirement was made with the input of the plaintiffs and in accordance with the Small Business Administration\rquote s general policy of assisting small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 30. The public interest would be harmed if SBA\rquote s operations and decisions pursuant to SOP \u182 46(e) were enjoined. The SBA would be significantly impaired in completing its mission to assist small businesses if it were not allowed the discretion to examine, on a case by case basis, whether a specific contract should be released from the 8(a) program for the benefit of small businesses. In addition, the public interest does not warrant the relief requested by plaintiffs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': Misso Services Corporation v. United States Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 6. In conclusion, SOP \u182 46(e) is not a substantive rule requiring notice and comment, because it is a general statement of policy and procedure for the Small Business Administration to use in its discretion to review and determine assistance to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 9. The Small Business Administration was not required to accept the SNAP\u8211II requirements from the Navy for performance in the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 10. The mere offer of a contract to the 8(a) program does not create a binding contract with the Navy because, as noted, the Small Business Administration is not required to accept the contract for the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 12. The Small Business Administration can reject a contract offered by a procuring agency in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 13. Thus, the Small Business Administration was not required to award the SNAP\u8211II contract to TAI and ISN, even though they were recommended by the procuring agency. Even assuming Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': that the Small Business Administration was required to accept the SNAP\u8211II contract into the 8(a) program, SBA was not bound to award the contract to TAI and ISN. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 14. The plaintiffs have failed to demonstrate any binding contract between the United States Navy and the Small Business Administration that was developed for their benefit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 15. Thus, the Small Business Administration owed no contractual obligations to TAI or ISN, in connection with the Navy\rquote s offer letter or otherwise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': ). The additional time was utilized by the Small Business Administration for the benefit of the plaintiffs, as well as other interested parties. The additional time permitted plaintiffs to make repeated detailed submissions to the Small Business Administration, and to meet with Small Business Administration officials. Moreover, plaintiffs stated that they \understood\ the policy behind SOP \u182 46(e). Plaintiffs were provided with ample opportunity to present their views before the SBA reached its final decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 09 - Information Systems And Networks Corp v Abdnor.doc, Paragraph with 'The Rule of Two': 24. The plaintiffs have not shown that the Small Business Administration violated either the Department of Defense (DOD) policy to retain the level of 8(a) contracts, or the National Defense Authorization Act for FY 1988 & 1989, Pub. Law 100\u8211180, by allowing competitive bidding on the SNAP\u8211II contract under the Navy\rquote s small and disadvantaged business program. In any case, SBA is not bound by DOD policy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 14 - Gauvin v Trombatore.doc, Paragraph with 'The Rule of Two': , provides that at least 10 percent of federal highway assistance funds are to be expended for small business concerns owned and controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 19 - Abel Converting Inc v US.doc, Paragraph with 'The Rule of Two': Entirely separate from the absence of full and open competition, GSA\rquote s violation of the FAR and GSAR requires resolicitation of all line items. Abel is a small business that depends heavily on its relationship with the government. Potential revenues from the solicitation at issue are nearly equal to Abel\rquote s gross sales for the 1987 fiscal year. The practical exclusion of Abel from bidding, therefore, substantially threatens its viability. Under these circumstances, Abel has demonstrated a clear and prejudicial violation of procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on food service contract let by federal government under small business set-aside program brought action against low bidder under state law theories. The United States District Court for the District of Kansas, Earl E. O\rquote Connor, Chief Judge, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': entered judgment for low bidder, and appeal was taken. The Court of Appeals, Seymour, Circuit Judge, held that Small Business Act did not preempt state law claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act did not preempt state law claims of unjust enrichment, intentional interference with economic advantage in securing contract rights, and fraud and misrepresentation asserted by unsuccessful bidder against low bidder on food service contract under small business set-aside program. Small Business Act, \u167\u167 2[2]\u82112[23], as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Tombs & Sons, Inc. (Tombs) was the low bidder on a small business set-aside contract. Integrity Management International, Inc. (IMI), the second low bidder, filed a protest claiming that Tombs was not a small business within the meaning of the Small Business Act and its regulations. After the Small Business Administration determined that Tombs did not meet its small business standards, IMI brought this diversity suit against Tombs, claiming unjust enrichment, intentional interference with its economic advantage in securing contract rights, and fraud and misrepresentation. The district court held that state common law actions to enforce the Small Business Act are preempted by federal law, and ordered judgment to be entered in favor of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The Small Business Administration (SBA) administers a number of programs under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': . One of these, the small business set-aside program, is designed to ensure that small businesses receive a fair proportion of the federal government\rquote s procurement contracts. The businesses involved self-certify that they are in fact small businesses; the SBA makes size determinations only after a protest is made by a contracting officer or an interested party. 13 C.F.R. \u167 121.8(a) (1987). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Nevertheless, Tombs certified itself as a small business. After IMI filed its protest, Tombs revised its statements, thereby reducing the amounts shown to a level that complied with the SBA standard. Neither the original nor the revised statement included receipts from an affiliated corporation, Global Supply Company, that sold supplies to Tombs on the West Point and other projects. The SBA\rquote s Form 355 that Tombs submitted in response to IMI\rquote s protest showed only the revised amounts and did not include the receipts from Global. Based only on the information submitted, the SBA regional office determined that Tombs was a small business. The West Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': IMI then filed this action, asserting that Tombs had misrepresented itself as a small business in order to secure the contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Second, the focus of our inquiry is not federal procurement, or even small business set-aside contracts, but the remedy for violation of the Small Business Act and its regulations. It is entirely possible for the substantive area of the law to be an area of exclusive federal concern, and nevertheless for state common law remedies to apply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': (state tort actions not preempted by exclusive federal regulation of nuclear safety). Thus, in this case, the establishment of size standards under the Small Business Act and the determination of whether a business meets those standards is an area of exclusively federal law. The remedies available to those harmed by businesses that the SBA has found to violate those standards, however, need not necessarily be exclusively federal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': at 1898 (citations omitted). On the question of civil remedies for violations of the Small Business Act by bidders, Congress has preserved an immaculate silence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The objective of the Small Business Act is clearly stated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Tombs argues, and the district court agreed, that Congress\rquote \second primary goal\ in enacting the Small Business Act was \to assure that government contracts were performed in a timely and competent manner.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Brief of Defendant\u8211Appellee at 7. Although no citation to the Act or its legislative history is given to support this asserted goal, we recognize that Congress does, of course, have an interest in timely and competent performance of those contracts. However, aiding small businesses by limiting the number of eligible bidders for those contracts necessarily reduces this efficiency to some extent. We cannot infer from the mere existence of an efficiency goal how much efficiency Congress was willing to sacrifice to help small businesses. While Congress must have intended to strike a balance, state remedies for violation of the substantive provisions of the Small Business Act need not necessarily conflict with Congress\rquote overall goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Indeed, there are plausible and persuasive arguments both for and against preemption in this case. Arguments for preemption include: 1) the burden on successful bidders faced with lawsuits and the consequent disincentive to bid for and accept set-aside awards, 2) the incentive provided by a state law remedy for unsuccessful bidders to use that remedy, which holds out the potential for gaining contract profits without contract performance, instead of the federal regulatory scheme for protesting, and 3) the fact that a state law remedy, if any, would depend entirely on the existence of and standards set in the Small Business Act and would operate in an area\u8212federal procurement\u8212that can be of no interest to the states. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The argument that a private cause of action to remedy violations of the Small Business Act would unduly burden successful bidders was first made in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': right of action to enforce the Small Business Act. The court stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': right of action to enforce the Small Business Act may exist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Moreover, to whatever extent the availability of a state common law remedy produces negative effects on successful qualified bidders, these effects are at least partially offset by the positive effects of such a remedy on other bidders. While we recognize that the possibility of being sued is one that no business views with enthusiasm, we believe that the principal effect of such a possibility is that bidders will take greater care to ensure that they meet the SBA\rquote s size standards. Finally, a state cause of action to enforce the Small Business Act would discourage businesses that are not small, like Tombs, from improperly attempting to secure set-aside contracts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': \The Small Business Act applies to and effects [sic] only those involved in federal procurement. It reaches, not the public generally, but those having very specific [relationships] with the federal government itself. The law and the regulations promulgated under it regulate the relationship between the federal government and others, not between citizens themselves.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Brief of Defendant\u8211Appellee at 14, 19. Indeed, the highest court of one state has concluded that there is \absolutely no logic in interpreting the Small Business Act to allow a state cause of action.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Tombs argues that the effect of allowing state common law actions is that \fifty states [will] become involved in interpreting and applying the federal law and SBA regulations\ and that \the effective uniform administration of the small business set-aside program will be lost.\ Brief of Defendant\u8211Appellee at 14. The dissent agrees with these assertions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Small business set-aside contracts are not merely one kind of government procurement contracts, however. They do Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': more than provide the government with needed supplies and services; they embody a national policy of promoting free enterprise that the states have an interest in promoting as well. Moreover, unjust enrichment, intentional interference with securing a contract, and fraud are torts for which states have an interest in providing a remedy regardless of the means by which they are accomplished. Whether the kinds of misrepresentations Tombs has made in fact fall within the scope of a particular state\rquote s contract and fraud actions is not for this court to decide in the first instance. Nor do we believe that such actions would create the chaos Tombs predicts. IMI does not propose that the court below make its own determination of small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The federal Size Appeals Board has ruled that Tombs is not a small business. IMI merely urges the trial court to adopt this federal determination of small business status under the federal regulations as evidence of state law torts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': When IMI appealed to the Size Appeals Board the determination that Tombs & Sons was a small business, the regulations then in effect provided for proceedings \essentially fact-finding and non-adversarial in nature.\ Hearings, if provided, were characterized as \investigative in nature and not adversary.\ They were to be conducted \informally.\ 13 C.F.R. \u167 121.3\u82116(a), (e)(2)(ii) (1983). These regulations have since been revised to provide for a quasi-judicial hearing process. The purpose of the revision was \to avoid scheduling difficulties and delays previously associated with resolution of such appeals by the Size Appeals Board (Board) and to institute procedures that would better satisfy the requirements of due process by providing a more fair and efficient means for obtaining complete and reliable evidence....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': It is merely prohibited from bidding on future contracts until it is recertified as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': . These considerations guide us to the conclusion that Congress did not intend to preempt state common law remedies when it enacted the Small Business Act, and that the SBA has not done so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Whatever rights the plaintiff in this case may have, they arise from two federally legislated programs. The first is federal procurement. The second is a program designed to carry out federal small business policy by granting certain preferences in procurement contracts. No state procurement or small business policy is cited by or implicated by the plaintiff\rquote s claims. Whatever rights the plaintiff may have are determined entirely as a matter of congressional intent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The strongest argument about legislative intent is the fact that Congress knew it was legislating in two areas that at the time were inventions of its own: federal procurement and federal small business policy. It would seem contradictory to suggest Congress silently intended to rely on the random distribution of state enforcement mechanisms (or their absence, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': it is important to reemphasize that the obvious conclusion to be drawn from Congress\rquote explicit enforcement scheme is that its procurement needs take precedence over its policy of encouraging small businesses. While the majority takes considerable comfort from the fact that here we have a prior determination by the congressionally authorized agency that the defendant was not a qualified bidder, nothing in the majority opinion does or could logically suggest that along with an implied state cause of action there is an implied duty to exhaust federal administrative procedures. If the court is, in fact, suggesting otherwise, it seems to me it has shifted its theory from preemption to state enforcement of a federal cause of action. Since under the majority\rquote s approach these are state causes of action, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': has it over this federal court in interpreting federal congressional intention when it said there is \absolutely no logic in interpreting the Small Business Act to allow a state cause of action.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': To qualify as a small business for set-aside contracts in 1982, business receipts for the three years immediately preceding the date of bidding could not average more than $5.5 million per year. Tombs self-certified to the contracting office at West Point that it was a small business, although its accountant had advised in the summer or fall of 1981 that Tombs\rquote financial statements indicated that it had become a large business under SBA standards. Statutory penalties apply for false self-certification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': (holding that there is no federal private cause of action under the Small Business Act), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': was a 5\u82114 decision interpreting the law of Alabama. In our view, the dissent\rquote s rephrasing of the certified question better describes what is at issue: \Whether [the state] would use that portion of the Small Business Act which defines what a small business is, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': and the Small Business Administration\rquote s determination in a particular case as to what a small business is, as evidence Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 23 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': . There is case law to the effect that even if a successful bidder is found not to be a small business, it is a breach of contract for the government subsequently to award the contract to another bidder after the contract has been awarded or a notice of award has been sent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 24 - Rogers Truck Line Inc v US.doc, Paragraph with 'The Rule of Two': Karen S. Fishman, Washington, D.C., with whom was Asst. Atty. Gen. Richard K. Willard, for defendant. Claire M. Schenk, Small Business Admin., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 24 - Rogers Truck Line Inc v US.doc, Paragraph with 'The Rule of Two': On April 17, 1977 the Small Business Administration (SBA) approved a $200,000 loan for Rogers Truck. Of the loan proceeds, $125,000 was to pay for the above-mentioned authority and $75,000 was to be used for operating capital. This loan was evidenced by a note. It was secured by Rogers Truck giving SBA a security interest in all its assets, including the said common carrier authority. Additionally, Clifton and Phyllis personally guaranteed the note and gave SBA a mortgage on their personal residence to secure the guarantee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 24 - Rogers Truck Line Inc v US.doc, Paragraph with 'The Rule of Two': For reasons discussed above, defendant\rquote s motion for summary judgment is granted. The clerk is directed to enter judgment dismissing plaintiffs\rquote complaint and is further directed to enter judgment for defendant on its counterclaim against plaintiffs for $165,072.07, plus interest thereon as provided by the terms of the loan agreement between Small Business Administration and plaintiffs, Rogers Truck Line, Inc. No costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': Contracting officer did not abuse her discretion in failing to forward \responsiveness/responsibility\ protest of competing bidder for public contract to Small Business Administration, and thus bid bond surety for low bidder was not relieved from liability upon low bidder\rquote s default. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': 2. The IFB was set aside for 100% small business participation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': 4. With its bid, Vitoangelo submitted a certification that it was a small business concern. Vitoangelo\rquote s bid also included a bid bond for 20% of the bid price. Peerless Insurance Company (Peerless) wrote the bid bond and Gus Zervos, Peerless\rquote local agent, signed it on behalf of Peerless. The purpose of the bid bond is to \protect the United States in case the bid is withdrawn or the contractor fails to execute the contractual documents or fails to give a performance bond.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': 5. On or about September 3, 1985, ARTCO, the third low bidder, filed a bid protest with the Navy challenging (i) the responsiveness and responsibleness of Vitoangelo, and (ii) the small business qualifications of Dependable. Dolores O\rquote Malley, the government contracting officer, in a letter to ARTCO dated September 12, stated that ARTCO\rquote s protest with respect to Vitoangelo was without merit. In addition, O\rquote Malley did not at that time forward ARTCO\rquote s protest of Dependable\rquote s size to the SBA for a size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': 16. On January 14, 1986, the SBA determined that Dependable was a small business. On January 21, 1986, ARTCO appealed the SBA determination to the Board of Contract Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': \u82113(b)(2) (1986). Yet the Court finds that ARTCO\rquote s protest with respect to Vitoangelo was not a size protest, but rather a \responsiveness/responsibility\ protest. ARTCO\rquote s letter states that Vitoangelo is not a responsible or responsive bidder. In separate paragraphs, ARTCO specifically alleges that Dependable and Champagne\u8211Weber, Inc., the fourth low bidder, are big businesses and do not meet the small business set-aside criteria. Under these facts, the Court finds that the ARTCO protest of Vitoangelo was not a size protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': protest. She treated the protest solely as a responsiveness/responsibility protest, and testified that there was nothing in Dunn & Bradstreet or other reports to indicate that Vitoangelo was not within the small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 25 - Peerless Ins Co v US.doc, Paragraph with 'The Rule of Two': in any event, there was no evidence that Vitoangelo would not have met the small business requirement had ARTCO\rquote s protest been forwarded to the SBA. In making a responsibility determination, a contracting officer enjoys wide discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 27 - PNM Const Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s investigation of government contract bidder, resulting in denial of certificate of competency, was thorough and unbiased, and did not violate bidder\rquote s due process rights, absent any evidence that SBA deviated from its standard operating procedure or in any manner deprived bidder of its right to submit pertinent information and to explain its case for a certificate of competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 27 - PNM Const Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration did not exceed its statutory authority, in ruling on bidder\rquote s certificate of competence application, by considering the contract specifications and conformity of the bid thereto; that aspect of review was a proper exercise of SBA\rquote s investigative responsibilities, particularly in view of bidder\rquote s track record of marginal and unsatisfactory performance on other government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 27 - PNM Const Inc v US.doc, Paragraph with 'The Rule of Two': As plaintiff is a small business concern, the matter was referred to the Small Business Administration (SBA) under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 27 - PNM Const Inc v US.doc, Paragraph with 'The Rule of Two': however, involved a significantly different fact situation. Plaintiff therein, a small business engaged in the manufacture of sleeping bags, was low bidder on a government contract but determined by the contracting officer to be non-responsible based on the fact that plaintiff\rquote s president and sole shareholder, Mr. Martin, was consultant to another contractor which had been rejected on previous solicitations for lack of integrity, tenacity, and perseverance, and a poor performance record. At the time of the determination of non-responsibility the contracting officer advised plaintiff that not only its current bid, but Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 27 - PNM Const Inc v US.doc, Paragraph with 'The Rule of Two': \... we relied on the planning for the forthcoming job to see if it is that thorough to have anticipated the problems and to have prepared to deal with them if not already resolved.... If it is on the fence ... we would probably find in favor of the contractor ... we are here to help small businesses, and we are willing to see things their way if at all possible.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': , Raymond J. Pettine, Senior District Judge, invalidated certificate of competency issued by Small Business Administration and ordered United States Navy to award contract to next lowest, responsive and responsible bidder. Government appealed. The Court of Appeals, Davis, Circuit Judge, sitting by designation, held that: (1) district court\rquote s action setting aside improperly issued certificate of competency was not functional equivalent of alleged, improper injunction against SBA; (2) district court had jurisdiction to grant relief that it fashioned, even if invalidation of certificate was indirect injunction against SBA; and (3) district court properly required Navy to award contract to next lowest, responsive and responsible bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Declaratory judgment that set aside Small Business Administration\rquote s improperly issued certificate of competency did not enjoin effectiveness of SBA and was not functional equivalent of allegedly improper injunction against SBA, even though United States Navy was directed by the injunction to disregard invalid certificate of competency and to set aside contract award. Small Business Act, \u167\u167 2[5](b)(1), 2[8](b)(7)(A, C), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Statute, which states that no injunction may be issued against Small Business Administration, did not bar judicial review of SBA\rquote s issuance of certificate of competency obligating United States Navy to award contract to lowest bidder. Walsh-Healey Act, \u167 10(c), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Statute, which states that no injunction may be issued against Small Business Administration, protects agency from interference with internal workings by judicial orders attaching agency funds, etc., but does not provide blanket immunity from every type of injunction and does not bar judicial review of agency actions that exceed agency authority, where remedies would not interfere with internal agency operations. Small Business Act, \u167 2[5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': This is an appeal from an order of the United States District Court for the District of Rhode Island invalidating a certificate of competency issued by the Small Business Administration (SBA), by which the SBA had certified the responsibility of a low bidder for a contract to manufacture marine thruster units for the Navy. The district court ordered the Navy to award the contract to the next low, responsive and responsible bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Since TMI had certified that it was a small business, the Navy referred its file on TMI to the SBA pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': , a Government procurement officer may not exclude a small business from being awarded a contract because of a lack of responsibility without referring the matter to the SBA for a final disposition. \In any case in which a small business concern ... has been certified by the [SBA] ... to be a responsible or eligible Government contractor as to a specific Government contract, the officers of the Government having procurement ... powers are directed to accept such certification as conclusive, and shall let such Government contract to such concern ... without requiring it to meet any other requirement of responsibility or eligibility.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': . \The Small Business Administration is bound by the regulations and interpretations of the Department of Labor in making its determinations of eligibility under the [Walsh\u8211Healey] Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator [of the Small Business Administration] may Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 28 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Dubrow v. Small Business Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': concerning proposed legislation considered by the Michigan legislature during 1971 and subsequent years. The first of these memoranda concern House Bill (H.B.) 4394 (1971) which would have relaxed bonding requirements for state construction contracts. The memoranda conjectured a belief that the state\rquote s stringent bonding requirements prohibited most small businesses from effectively competing for such contracts. The proposed statute would have assertedly served the dual purpose of fostering the growth of small businesses in general and benefiting the state by increasing competition for state construction contracts. Fostering the growth of MBEs in particular was not a concern or purpose expressed in the legislative history of H.B. 4394. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': Senate Bill (S.B.) 885 (1975) would have set aside a percentage of state goods and services procurement contracts for small businesses. The asserted purpose of this proposed legislation was to foster the growth of small businesses in light of Michigan\rquote s \sluggish economy.\ Again, fostering the growth of MBEs was not a consideration for this proposed legislation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': would have also set aside an allotment of state contracts for small businesses. The executive memoranda commenting upon these enactments suggested that increasing the number of contracts awarded to small businesses would also increase the number of MBEs, which were predominantly small businesses, doing business with the state. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': Small and minority businesses traditionally have experienced problems in management, financing, and market development. These problems oftentimes result from the inability of small businessmen to generate sufficient capital to meet their operational needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': for a major segment of our society that can contribute more to economic stability. With regards to competition, what we have now in many industries is competition among the small operators and domination by a few large firms. Large businesses often can sell at a considerable lower price because of high volume of sales, more efficient distribution systems and more advertising and promotion. Small business cannot equitably compete because of these disadvantages of size. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': As reflected in Berman\rquote s testimony, the relative lack of MBEs doing business with the state was coupled with the objective reality that most MBEs were small businesses. Small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': The evidence consisting of executive action designed to increase small business and MBE participation was also insufficient to support a conclusion that the state had discriminated against MBEs. In 1975, the Governor issued Executive Directive 1975\u82114 creating a task force to study small business participation in state purchasing. After conducting two public hearings wherein witnesses testified that small and minority businesses\rquote size and lack of expertise prohibited them from effectively competing for state purchasing contracts, the task force issued its report recommending the adoption of policies and procedures to aid small and minority businesses in the state procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': The evidence most heavily relied upon by the defendants in this action was the report of a 1974 state-commissioned study by Urban Markets Unlimited, Inc. (Urban Markets). The report, entitled \A Public Procurement Inventory on Minority Vendors,\ was prefaced with the rather dubious statement: \Minority-owned business enterprises are often described as being synonymous with small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': 1. An Executive Memorandum concerning House Bill No. 4394 (1971). The bill was to help small businesses receive government contracts; MBEs considered to fall within the classification of a small business. Bill and Memorandum indicate early concern for plight of minorities. 571 F.Supp. 178\u821179. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': These bills addressed set-asides for small businesses, but were also designed to address the problems facing minority businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': 5. The Governor\rquote s Executive Directive 1975\u82114 (1975), creating a Task Force on Small Business Participation in State Purchasing. Directive emphasized minority businesses and the difficulty they have had getting into the mainstream of business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': The report offers no evidence for this proposition. While it may well be true that most MBEs are small businesses, the notion that the terms are synonymous is not persuasive. There are, no doubt, a substantial number of non-minority small businesses, which, because of their size, also experience problems in effectively competing for state contracts. This questionable proposition, upon which much of the report\rquote s analysis is based, seriously undermines the validity of the conclusions reached by Urban Markets. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 29 - Michigan Road Builders Ass'n Inc v Milliken.doc, Paragraph with 'The Rule of Two': As an indication that most MBEs were small businesses, Urban Markets reported that only 2,577 of Michigan\rquote s 8,112 MBEs had paid employees, and all 8,112 businesses employed a total of only 10,958 persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Business, which had graduated from Small Business Administration special program designed to benefit socially and economically disadvantaged business concerns and which currently held contract to provide custodial services at air force base, sought to require Small Business Administration and the Air Force to permit competitive bidding on their next awarding of contract. The District Court, Joyce Hens Green, J., held that: (1) SBA acted neither arbitrarily nor capriciously in awarding contract to disadvantaged small business participating in SBA program rather than to business which had held contract as program participant but which had subsequently graduated, and (2) air force decision to retain contract as a contract for disadvantaged small businesses did not violate National Defense Authorization Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Decision of Small Business Administration to award contract for provision of custodial services at air force base to disadvantaged small business participating in SBA program for socially and economically disadvantaged small businesses, rather than to business which had \graduated\ from program, was subject to judicial review given strong presumption in favor of judicial review of agency action and given that there was ample material from which to discern a departure from SBA\rquote s policies regarding its program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Disadvantaged small business which had graduated from Small Business Administration program for disadvantaged businesses, failed to demonstrate general and affirmative SBA policy allowing firms graduating from program to engage in competitive bidding after their term in program had expired, and therefore, SBA did not depart from its policy in preventing competitive bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Administration acted neither arbitrarily nor capriciously in awarding contract for provision of custodial services at air force base to disadvantaged small business participating in special program for socially and economically disadvantaged small business concerns, rather than to business which had graduated from program; agency considered relevant factors and articulated its reasons for reaching its decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Air Force\rquote s decision to keep contract for provision of custodial services at base within Small Business Administration program designed to benefit socially and economically disadvantaged small business concerns did not violate National Defense Authorization Act section, establishing goal of five percent of all Defense Department contracts be awarded to small, disadvantaged businesses, black colleges, and other minority institutions; statutory language stated that five percent contract figure was merely a goal that Defense Department should attain and plainly authorized use of special program awards to reach five percent contracting goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': both sides: the government attempts to withdraw benefits and the individual asserts continued eligibility and entitlement. This case, however, presents an interesting twist on that familiar scenario. Plaintiffs San Antonio General Maintenance, Inc. (SAGM) and Pedro G. Molina, Jr., brought this action for declaratory and injunctive relief against defendants James Abnor, Administrator of the Small Business Administration (SBA), and Edward C. Aldridge, Jr., Secretary of the Air Force. SAGM, which currently holds a contract to provide custodial services at Kelly Air Force Base in San Antonio, Texas, seeks to require defendants to permit competitive bidding on their next awarding of the contract; the SBA and the Air Force, however, have determined to retain the contract under a special program for socially and economically disadvantaged small business concerns. Simultaneously with the filing of its complaint, SAGM moved for a temporary restraining order and for a preliminary injunction, and defendants responded with a motion to dismiss or, in the alternative, for summary judgment. These matters were considered at a final hearing held in September 1987. For the reasons set forth below, plaintiffs\rquote requests for injunctive and declaratory relief will be denied and defendants\rquote motion for summary judgment will be granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': Section 2[8](a) of the Small Business Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': , established a special program designed to benefit \socially and economically disadvantaged\ small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': , the Act authorizes the SBA to enter into procurement and construction contracts with any federal agency. The SBA then subcontracts with qualifying small businesses, which actually provide the services directly to the federal agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': SAGM initiated discussions with SBA representatives in early 1987 in order to assure that SAGM would be permitted to bid on the Kelly contract when it was released into the competitive procurement process. In June 1987, however, the SBA and the Air Force decided that the Kelly contract would remain within the 2[8](a) program and be awarded to another disadvantaged small business, Rite\u8211Way Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': . On the merits, defendants assert that the SBA\rquote s general practice is embodied in the agency\rquote s Standard Operating Procedure (SOP) 80\u821105, not the regulations cited by plaintiffs. They contend that under SOP 80\u821105 the SBA\rquote s general policy is to retain 2[8](a) contracts whenever possible within the program; that, in selected instances, the agency can release such contracts for competitive bids; and that the SBA properly considered the factors set forth in SOP 80\u821105 in deciding that the Kelly custodial contract should be awarded once again on an 2[8](a) basis. Finally, defendants assert that section 1207 provides the Air Force with broad discretion\u8212which the Secretary properly exercised\u8212to determine whether to utilize 2[8](a) participants or other small businesses in meeting its set-aside goal under the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': section 8(a) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 31 - San Antonio General Maintenance Inc v Abdnor.doc, Paragraph with 'The Rule of Two': section 8(a) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Presentation made to government agency in connection with minority business\rquote efforts to obtain contract award was not the same as the response to a solicitation and did not create an implied-in-fact contract so as to confer jurisdiction on Claims Court to enjoin award of contract to another. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Neither Federal Aviation Administration nor Small Business Administration violated any statute or regulation or acted arbitrarily or in bad faith in implementing \u167 8(a) program by awarding contract to one particular minority business on the basis that it had initiated the efforts to have the contract in question awarded under the program, rather than awarding it to the minority business which the FAA thought the most qualified. Small Business Act, \u167 2[8] (a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Government agency is not compelled to accept \u167 8(a) minority business contractor selected by the Small Business Administration. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Minority business seeking to enjoin award of contract to competing minority business did not show that harm to minority business would outweigh harm to Government from grant of injunction. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Minority business which had submitted proposal for award of government contract under \u167 8(a) did not show that Government took its property by requiring that minority business to whom the contract was awarded use the technical solution proposed by the objecting minority business. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': defendant. Deirdre MacNeil, Small Business Admin., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff has, attendant to this complaint, filed a Motion For A Preliminary Injunction. In this motion plaintiff seeks a preliminary injunction restraining the Small Business Administration (SBA) and/or the Federal Aviation Administration (FAA) from making an award of a contract, identified as an Airport Weather And Information System (AWIS) procurement, to any supplier other than plaintiff. Defendant has responded by filing a Motion To Dismiss, or, in the alternative a Motion For Summary Judgment, as well as an opposition to plaintiff\rquote s motion for injunctive relief. Reply briefs were thereafter filed by the parties. Upon consideration of the submissions of the parties and a hearing on the matter, the court concludes that plaintiff is not entitled to injunctive relief and that its complaint should be dismissed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a minority owned small business corporation, with its principal place of business in Silver Spring, Maryland. It is certified by SBA as a Section 8(a) firm. For a discussion of a section 8(a) firm see Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Pursuant to Section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': ), the Small Business Administration is requesting your assistance in the identification of requirements in support of the approved business plan of Apoca Industries. Specifically requested are requirements for Programmed Teleprinter Digital Data Communication Terminals including support and maintenance service. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration may provide ongoing management, technical, and financial support to assist this concern to perform any contract which we mutually agree to be within its capability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Thanks for your interest in FAA acquisitions. We will continue to support Small Business Administration programs in any way we can. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': We have reviewed the technical evaluations of the contractors who are being considered for award of the AWIS contract under the 8(a) program. As you know, APOCA Industries has been instrumental in bringing the AWIS acquisition under consideration for an 8(a) award. Although the Small Business Administration (SBA) recommended APOCA for this work, your staff contacted additional 8(a) firms for a technical evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': The Federal Aviation Administration (FAA) was in the process of acquiring, through competitive, two-step solicitation, data communications terminals to comprise an airport weather and information system (AWIS). Prior to releasing the solicitation, the FAA was requested by the Small Business Administration\rquote s New York City District Office to set the requirement aside for award to Apoca Industries, Bohemia, NY, under the 8(a) program. The FAA agreed to allow Apoca Industries an opportunity to make a presentation of its technical capabilities to perform the requirement. The FAA then received a request from SBA\rquote s Seattle, Washington District Office requesting that the requirement be set aside for award to G & M Enterprises, Tacoma, WA, under the 8(a) program. FAA agreed to allow G & M Enterprises an opportunity to make a presentation of its capabilities to perform the requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': The Office of Program Development (OPD), Minority Small Business & Capital Ownership Development, Central Office of the SBA, through its Director, prepared a memorandum in response to FAA\rquote s letter of December 9, 1986. This memorandum, after recapitulating the FAA\rquote s December 9, 1986 letter, concluded as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': The Federal Aviation Administration (FAA) has a requirement for data communication terminals to comprise an airport weather and information system (AWIS). APOCA Industries of Bohemia, New York has been selected to perform this requirement under the Small Business Administration\rquote s (SBA) 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': By letter dated May 15, 1987, SBA submitted (on behalf of its subcontractor Apoca) a proposal to FAA\rquote s RFP for consideration of award under section 8(a) of the Small Business Act, as amended. The letter stated in pertinent part: \Should the proposed price be acceptable, please forward the prime contract and subcontract documents to this office for execution. If further negotiations are required, please provide this office with copies of the applicable pricing review, including audit and technical evaluations, if any. Should the pricing review be based on a Fair Market Price (FMP) determination, please provide the information; tripartite negotiations will be arranged.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': In section 8(a) cases, as is the situation at bar, the implied-in-fact contract concept is difficult to establish because of the nature of the procurement. The section 8(a) program is designed to help disadvantaged small business concerns owned and controlled by socially or economically disadvantaged persons to achieve a competitive position in the market place. Section 8(a) procurements are exempt from procurement procedures mandated for non-section 8(a) procurements and are also not subject to the Competition in Contracting Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 36 - Data Transformation Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that granting the injunction requested would not harm others involved in the litigation, i.e., the government. However, it is not unreasonable to expect that the granting of the injunction might well engender delay, confusion and chaos in the administration of the section 8(a) program, a program that exists and flourishes because of the discretion that is placed on the SBA and various government agencies in an effort to help small business concerns owned and controlled by socially or economically disadvantaged persons. Granting an injunction will harm another section 8(a) contractor, thereby impinging on the discretionary authority given SBA to select such contractors. It is conceded that the section 8(a) program may produce some inequalities among small business concerns as a class. But the court is leery of substituting its judgment for that of the SBA less it create more harm than may already exist. The above observation suggests that granting the injunction requested Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Low bidder on government contract brought suit challenging determination by Small Business Administration that it did not satisfy \small business concern\ requirement of solicitation. The Claims Court, Merow, J., held that: (1) determination that low bidder was not \small business concern\ was not arbitrary or capricious; (2) process by which Small Business Administration\rquote s Office of Hearings and Appeals obtained second low bidder\rquote s certification on notice of appeal letter was not prohibited ex parte contact; and (3) certification submission related back to original notice of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Low bidder on government contract was not \small business concern\ as required by solicitation and could not be awarded contract; \newly organized concern\ rule applied and compelled aggregation of receipts of both low bidder and affiliated large businesses, as three sons involved in low bidder had been key officers of dissolving, but still existing, large businesses owned by their father and uncle, and assistance was being provided by large businesses to low bidder, which occupied facilities and performed remaining contracts of those businesses. Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Process by which Small Business Administration\rquote s Office of Hearings and Appeals obtained second low bidder\rquote s certification on notice of appeal letter challenging low bidder\rquote s satisfaction of \small business concern\ requirement was not prohibited ex parte contact, even though it would have been better practice to call attention to omission in manner which notified all parties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s Office of Hearings and Appeals could relate back to original notice of appeal certification submission by second low bidder challenging low bidder\rquote s satisfaction of solicitation\rquote s \small business concern\ requirement, and thus notice of appeal came within five-day rule for pending procurement, as certification was treated by OH&A as in nature of an amendment to previous notice of appeal, and original filing provided adequate notice. U.S.Cl.Ct.Rule Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': In this pre-award contract claim matter, plaintiff, with respect to a pending Veterans Administration (VA) contract, contests the validity and applicability of a determination by the Small Business Administration (SBA) that it is not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': The VA solicitation was set aside for small businesses under the Standard Industrial Classification (SIC) Code 1711 (plumbing, heating (except electric), and air conditioning). To be considered a \small business concern\ under SIC Code 1711, a company\rquote s annual receipts for the past three years cannot exceed $7 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': On April 29, 1987 a representative of Gibson Hart telephoned the Medical Center\rquote s contracting officer and verbally protested that Three S was not a small business concern under the SIC Code 1711 size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': On May 29, 1987 the Regional Office issued its size determination on the protest relating to whether there was an affiliation with a large firm such as to deny Three S small business status. The Regional Office determined that Three S \is a small business when properly bidding on Government procurements with a size standard of $7,000,000.\ The determination analyzed the relationship between Three S and the large firms intended to be liquidated as follows (in part): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': It does not appear that SSS was formed in an attempt to circumvent the small business set aside policy. The \identity of interest,\ common officers, and bonding indemnification will have no bearing after liquidation of Sanders Ltd. and its holdings. The management agreement is of short duration and is not of a continuing nature, therefore a clear \line of fracture\ has been established. It is not reasonable to conclude that Sanders Ltd. and its related companies have the power to direct, influence, or control SSS, therefore there is no affiliation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': We would appreciate your review of the many inter-related factors involving this determination and conclude that on the bid date of April 23, 1987 Three S Constructors, Inc. should be considered a nonresponsive bidder based on the Small Business Administration requirements for IFB 611\u82111\u821187. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': We further certify that copies of this notice of appeal have been sent to the Contracting Officer, The Small Business Administration, Kansas City Regional Office and Three S Constructors, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': \In accordance with Small Business regulations, I have read this document and under the penalty of perjury and the sanctions imposed under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': cc: Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Based on these facts, the Regional Office found, in a determination dated May 29, 1987, that Three S was not formed to circumvent the small business set-aside regulations; that a clear \line of fracture\ between Sanders Company and Three S has been established; and that therefore Sanders Company does not have power to control Three S under the newly-organized concern rule set forth at 13 CFR 121.3(a)(vi)(C). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': We conclude that Three S Constructors, Inc. is other than a small business for procurements having a size standard of $7 million or less. The Regional Office\rquote s determination is REVERSED, and the appeal is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': This constitutes the final decision of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': . Deference must be afforded to the Congressional policy embodied in the Small Business Act which places the responsibility for size decisions in the SBA and makes the decision conclusive on government procurement offices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'The Rule of Two': Clearly, as is indicated by the Regional Office decision affording plaintiff small business status and the OH & A reversal on the same facts, the size determination requires informed construction of the SBA regulations concerning affiliates. Plaintiff argues that 13 C.F.R. \u167 121.3(a) requires that \consideration shall be given to all appropriate factors, including common ownership, common management, and contractual relationships: * * * \ but that the OH & A, instead, concentrated only upon the \newly organized concern\ portion set forth in 13 C.F.R. \u167 121.3(a)(vi)(C) under \Control through common management.\ However, given the language of the subsection on \Control through common management\ (13 C.F.R. \u167 121.3(a)(vi)) that \[a] concern may be found as controlling or having the power to control another concern when one or more of the following circumstances are found to exist, and it is reasonable to conclude that under the circumstances, such concern is directing or influencing or has the power to direct or influence the operation of such other concern,\ concentration by the OH & A on the following circumstance of \(c) Newly organized concern,\ is not unreasonable. Three S was a newly organized concern. The three sons involved had been key officers of the dissolving, but still existing, large concern. Assistance was being provided between the concerns involved in that Three S was occupying facilities and performing remaining contracts of the large concerns. The undisputed facts in the record before the OH & A support its conclusion that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 43 - Quality Transport Services Inc v US.doc, Paragraph with 'The Rule of Two': Joint venture which was successful bidder on interstate military \pack-and-crate\ contract could be eligible, even though it did not hold Interstate Commerce Commission operating authority in its own name, where one joint venturer held interstate operating authority, where both coventurers qualified as small businesses, so that use of joint venture was not subterfuge to avoid limitations on small business set asides or to put forward operating authority not held by a principal, and where certification requirement was intended to serve goal of having contractor provide both interstate and intrastate transport. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 43 - Quality Transport Services Inc v US.doc, Paragraph with 'The Rule of Two': Joint venture which was successful bidder on interstate military \pack-and-crate\ contract withstood scrutiny with respect to its eligibility to serve as contractor, even though joint venture did not hold Interstate Commerce Commission operating authority in its own name, where joint venture did not amount to subterfuge, or subvert purpose of awarding contract, in that both joint venturers were eligible small business contractors, and where no one put forward uncertified carrier as contractor responsible for performing carriage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 43 - Quality Transport Services Inc v US.doc, Paragraph with 'The Rule of Two': This pre-contract award action was commenced by plaintiff Quality Transport Services, Inc. (\plaintiff\), to enjoin award of a small business set-aside contract to the joint venture of intervenors/defendants M.R.W. International, Inc., and Zenith Van & Storage, Inc. (the \joint venture\). Defendant agreed to withhold contract award until the matter could be resolved on briefs. The parties, other than the joint venture which did not appear, were heard after the completion of briefing. The issue is whether the contracting officer abused his discretion or violated applicable regulations in determining to award a military \pack-and-crate\ contract involving interstate carriage to a joint venture that does not hold in its own name motor carrier authority from the Interstate Commerce Commission (the \ICC\), although one co-venturer has ICC operating authority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 43 - Quality Transport Services Inc v US.doc, Paragraph with 'The Rule of Two': 126 M.C.C. at 66. Presaging that the practice could subvert the purpose of small business set-asides, the ICC said: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 43 - Quality Transport Services Inc v US.doc, Paragraph with 'The Rule of Two': In this case both co-venturers qualify as small businesses, so that the use of the joint venture was not a subterfuge to avoid the limitations on small business set-asides or to put forward operating authority not held by one of the two principals. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 46 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': (f) Members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 46 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': section 8(a) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 46 - SJ Groves And Sons Co v Fulton County.doc, Paragraph with 'The Rule of Two': . \Minority business enterprise\ or \MBE\ is defined as \a small business concern ... which is owned and controlled by one or more minorities or women.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Contractor, which had been preselected by Small Business Administration and which had submitted bid for construction of Veterans Administration facility, brought action to recover costs incurred in preparing and negotiating contract after its bid was refused. Upon cross motions for summary judgment, the Claims Court, Moody R. Tidwell, III, J., held that VA\rquote s decision not to award contract due to appearance of conflict of interest, which was based on contractor\rquote s representation in negotiations by VA employee, was not arbitrary or capricious, and contractor was not entitled to recover bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In participating on behalf of contractor in contractor\rquote s negotiations with Veterans Administration or for construction of VA facility, VA employee did not violate executive order or VA standards of ethical conduct prohibiting giving of preferential treatment to any organization or person; contractor had been preselected by Small Business Administration, resulting in procurement being sole source procurement for which contractor had no competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In participating on behalf of contractor in contractor\rquote s negotiation\rquote s with Veterans Administration for construction of VA facility, VA employee violated executive order and VA regulations forbidding any activity adversely affecting confidence of public and integrity of Government; although contractor was preselected by Small Business Administration, resulting in contractor having no competition for contract, VA employee\rquote s actions in appearing on behalf of contractor and in misrepresenting to contractor that he had received permission from his VA supervisor to participate in negotiations created appearance of conflict of interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': By submitting proposal of contractor which was preselected by Small Business Administration and which was only company negotiating with Veterans Administration for construction of VA facility, Government impliedly obligated itself to treat proposal fairly, including obligation to accept proposal in absence of any serious intrinsic or extrinsic factors that would require denial of contract, and, upon rejection of contractor\rquote s claim, contractor was entitled to recover bid preparation costs if such factors were not present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': Veterans Administration\rquote s decision not to accept bid of contractor which had been preselected by Small Business Administration and which was only company negotiating with VA for construction of VA facility was not arbitrary or capricious, and contractor was not entitled to recover its bid preparation and negotiating costs; decision not to award contract was based on appearance of conflict of interest caused by contractor\rquote s representation during negotiation process by VA employee, in violation of executive order, VA regulations, and statute prohibiting government employee from acting as agent for anyone in connection with matter in which Government is party or has direct and substantial interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'The Rule of Two': In 1982 the Small Business Administration (SBA) identified plaintiff as an 8(a) minority small business contractor pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': The inclusion of \other small local businesses\ among those particularly disadvantaged by the city\rquote s haphazard contracting policies undercuts the city\rquote s approach somewhat. In the first place, it suggests that disadvantages suffered by MBEs and WBEs may be more a function of their size than the race or gender of their owners. Also, it leads to the inference that small businesses that are neither MBEs nor WBEs will now suffer a double whammy: the inequities of the prior system plus the further competitive disadvantage visited upon them by the ordinance. Normally, burdens of remedial measures should be imposed on the \group which was in position to benefit from those [discriminatory] practices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': A recent national study noted the differences in minority participation between various industries: \Relative to the distribution of all businesses, black-owned businesses are more than proportionately represented in the transportation industry, but considerably less than proportionately represented in the wholesale trade, manufacturing, and finance industries.\ United States Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': The State of Small Business: A Report of the President Transmitted to the Congress Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': The State of Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': Wall St. J., September 12, 1986, at 24, col. 4. Santa Clara County\rquote s MBE program includes a countywide listing of all MBE firms and a requirement that a certain percentage of a project\rquote s total value be procured from them. However, the requirement need not be met if a contractor shows it (a) contacted seven MBE or WBE firms (if that many are on the county\rquote s list); and (b) none of those contacted submitted the lowest bid. \The county has not assumed ... that it has a responsibility to assist MBEs and other small business to develop their capabilities by subsidizing them through limiting the award of contracts only to such firms. [The] real goal is to go out to those groups and get an honest bid back.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': The State of Small Business, supra Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 49 - Associated General Contractors of California Inc v City and County of San F.doc, Paragraph with 'The Rule of Two': The State of Small Business, supra Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Disappointed bidder on contract let as small business set-aside brought suit seeking award of damages based upon successful bidder\rquote s performance of contract for period of one year and upon successful bidder\rquote s conduct in obtaining award of contract. On successful bidder\rquote s motion to dismiss various counts of complaint for failure to state claim upon which relief could be granted, the District Court, Doumar, J., held that: (1) disappointed bidder had standing; (2) Virginia law would not allow disappointed bidder to maintain unjust enrichment cause of action; (3) under Virginia law, corporation cannot conspire with its own officers and directors; (4) disappointed bidder failed to state cause of action for fraud; (5) allegations of mail and wire fraud were sufficient allegations of predicate acts for count under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': ; and (6) disappointed bidder had no cause of action against successful bidder for negligence in submitting false information to Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Disappointed bidder on federal procurement contract as small business set-aside could have its state law claims against successful bidder heard by invoking diversity jurisdiction of federal district court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Disappointed bidder had no cause of action against successful bidder for negligence in submitting false information to Small Business Administration, since parties were not in privity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Plaintiff, John C. Holland Enterprises, Inc. (\Holland\) was the disappointed competitive bidder on a contract for solid waste disposal services that was let by the Norfolk Naval Shipyard as a small business set-aside. The contract was initially awarded to defendants (\Mascaro\). Plaintiff exercised its statutory protest rights, alleging that Mascaro was not a qualified bidder because it was not a small business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Mascaro was debarred from the contract upon a finding by the Small Business Administration that Mascaro was not a small business. The contract was subsequently rebid and awarded to the plaintiff. Plaintiff brought this suit seeking an award of damages based upon Mascaro\rquote s performance of the contract for a period of one year and upon Mascaro\rquote s conduct in obtaining the award of the contract. The suit is now before this Court on Mascaro\rquote s motion to dismiss the various counts of the complaint for failure to state a claim upon which relief can be granted, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': , did not preempt the field so as to preclude a state cause of action based upon the Act as a standard in determining whether the actions of fraud, unjust enrichment or interference with a business relationship are available to a second low bidder against a low successful bidder of a federal contract when the latter has misrepresented itself as a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': In Count I of the complaint the plaintiff alleges that defendants falsely certified Mascaro as a qualified small business when Mascaro submitted its bid proposal to the Norfolk Naval Shipyard with the intention of deceiving the United States Government and all other bidders. Plaintiff alleges that defendants knew or should have known that defendants did not qualify as a small business under applicable federal regulations. The Norfolk Naval Shipyard relied upon Mascaro\rquote s false certification in awarding the contract to Mascaro. Plaintiff claims that plaintiff was the lowest qualified bidder on the contract and that it would have been awarded the contract but for defendants\rquote false self-certification. Plaintiff seeks to impose a constructive trust on Mascaro for the profit realized during Mascaro\rquote s performance of the contract on the theory that Mascaro\rquote s misrepresentations caused a third party (the United States) to pay to Mascaro money that should have been paid to the plaintiff. Plaintiff also seeks an award of consequential damages stemming from the alleged fraud as well as an award of punitive damages. In response, Mascaro contends that there was no relationship between the parties as competing bidders that warrants the imposition of a constructive trust. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': In Count II, plaintiff alleges that the defendants \maliciously, and with intent to injure Plaintiff, conspired together to deprive Plaintiff of its reasonably anticipated profits on the contract in question by making a false self-certification to the Norfolk Naval Shipyard and by submitting documentation in support of that false certification to the Small Business Administration\rquote s Office of Hearings and Appeals. Complaint at 7. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': Count VII covers the period from April 1984 to June 1984 and alleges that defendants \maliciously, and with intent to injure plaintiff, conspired together to violate the duty of care imposed upon Mascaro by the Small Business Administration.\ Complaint at 16. Defendants\rquote motion to dismiss the conspiracy counts states that Pasquale Macaro was solely responsible for the preparation of the bid, and therefore cannot be said to have conspired with anyone else, and that, as a matter of law a corporation cannot conspire with its own officers, directors and shareholders, because they are deemed a single legal entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 54 - John C Holland Enterprises Inc v JP Mascaro And Sons Inc.doc, Paragraph with 'The Rule of Two': In Count VI, plaintiff alleges that defendants acted negligently in submitting information to the Small Business Administration which defendants knew or should have known was false. Plaintiff contends that, in so doing, plaintiff violated the standard of care prescribed by the Small Business Administration regulations, and that plaintiff was injured thereby. Defendants assert that there was no privity or relationship between plaintiff and defendants that gave rise to a duty owed by the defendants to the plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 55 - Isometrics Inc v US.doc, Paragraph with 'The Rule of Two': On June 18, 1986 the United States Marine Corps issued IFB No. M00027\u821186\u8211B\u82110035, which called for the delivery of 667 large water tank storage modules from a small business concern within 120 days of first article approval. Subsequently, in recognition that no small business could possibly supply 667 modules in 120 days, the Corps modified the IFB by extending the delivery date to require the delivery of 50 modules beginning 120 days after first article approval, and 50 modules per month thereafter until completion of delivery of all 667 modules. In all, it would take a total of 750 days under the modified delivery schedule to complete delivery of the modules. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': Disqualification of government contractor based on appearance of impropriety had nothing to do with contractor\rquote s status as a small business, its ability to perform government contract or government contractor\rquote s integrity, rather it focused on integrity of bidding system and was part of effort to keep perception of bidding system pure in the minds of public so that involvement of Small Business Administration was not required. Small Business Act, \u167 2[8] (b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': The United States (\government\) appeals from the basic injunction and challenges the remand instructions. Cross-appellant NKF focuses its challenge on the order\rquote s remand, including its authorization for the CO (1) to disregard an earlier finding of the Court that inside information was not passed, (2) to elicit new offers, and (3) to disqualify NKF without prior referral to the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': In May, 1983, five proposals were submitted, including those of NKF and Weidlinger, two small business concerns. The proposals were evaluated both technically and on the basis of cost. RFP 4175 was conducted by negotiation rather than by formal advertised bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': NKF also raises the spectre of the Small Business Act, which states, at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': , that it is the duty of the Small Business Administration (SBA) whenever it deems such action necessary and appropriate: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': To certify to Government procurement officers ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern ... to receive and perform a specific Government contract. A Government procurement officer ... may not for any reason specified in the preceding sentence, preclude any small business concern ... from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': We reject any notion that the SBA had to be alerted before NKF was disqualified. The disqualification here, on the basis of appearance of impropriety, had nothing to do with NKF\rquote s status as a small business, or its ability to perform the contract. Indeed, it did not even relate to NKF\rquote s integrity. Rather, it focused on the integrity of the bidding system, and was part of an effort to keep the perception of it pure in the minds of the public. In such circumstances, the statute does not require that the CO should have to receive input from the SBA before disqualification. Moreover, the Claims Court in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': rejected the need to defer to the SBA before suspending because Electro\rquote s status as a small business was not involved: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': stated that the purpose of the 1977 amendments to the Small Business Act was to end \u8216the discrimination against small business that existed because contracting officers had barred those businesses solely because of their smallness and disabilities allegedly resulting from that fact.\u8217 Plaintiff\rquote s status as a small business enterprise is not the cause of its suspension. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 59 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': In affirming on that point, though reversing on another, this Court stated that \[t]he Claims Court correctly held that the Air Force\rquote s suspension of Electro had nothing to do with Electro\rquote s status as a small business enterprise, but everything to do with its possible involvement in criminal activities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Third and fourth low bidders on navy contract for procurement of six marine thruster units brought suit alleging that contract was unlawfully awarded to first low bidder, and that second low bidder was also ineligible for the award. The District Court, Pettine, Senior District Judge, held that: (1) evidence was insufficient to overcome determination of contracting officer that no affiliation or collusion of fact existed between first and second low bidder; (2) failure of the Navy and Small Business Administration to review first low bidder\rquote s compliance with \standard commercial product\ clause of invitation for bids required that certificate of competency issued to it by SBA be set aside; and (3) certificate would be set aside also because first low bidder was not in compliance with regulation implementing the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': requiring contracting agency to accept certification of responsibility of a bidder by the Small Business Administration, and section of the Act prohibiting courts from issuing injunctions against the SBA administrator, did not preclude declaratory and injunctive relief requested by disappointed bidders on navy contract, notwithstanding claim that any injunction which would issue againstcontracting agency was in actuality against the SBA which certified successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Certificate of competency issued by Small Business Administration to successful low bidder on navy contract for procurement of six marine thruster units would be set aside for failure to review compliance with \standard commercial product\ clause in invitation for bids; Navy made no assessment of compliance despite fact that clause was part of product specification; SBA made only an after-the-fact, off-handed assessment of whether bidder met the specifications, accepting without question as evidence of \current offering for sale\ a one-page flyer which described bidder\rquote s ability to produce all manner of thrust or propulsion systems. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': , and thus the Small Business Administration acted contrary to law in issuing certificate of competency as to bidder\rquote s compliance with the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Plaintiffs Ulstein Maritime, Ltd. and Schottel of America, Inc., commenced this action on May 27, 1986, for declaratory judgment and injunctive relief against defendants, the United States Navy (\Navy\), the United States Small Business Administration (\SBA\) and the officials in charge of those agencies. Plaintiffs were the third and fourth low bidders on an Invitation for Bids for procurement of six marine thruster units by the Navy. They allege that defendants unlawfully awarded the contract to the first low bidder, Thrustmaster Marine, Inc. (\TMI\), and that the second low bidder, Thrustmaster of Texas (\Texas\) is also ineligible for an award under this procurement. They claim that the two low bids are \nonresponsive\ because of TMI\rquote s and Texas\rquote failure to reveal their status as \affiliated bidders\ and their failure to conform to the \Standard Commercial Product\ clause in the bid; that the SBA unlawfully disregarded controlling Department of Labor Walsh-Healey regulations in issuing a \certificate of competency\ (\COC\) to TMI; and that the attempt of Texas to change its bid after bid opening precludes the Navy from further consideration of that bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': to make determinations binding upon the Navy \with respect to all elements of responsibility\ of prospective small business government contractors and to issue a \Certificate of Competency\ (\COC\) where such determinations are favorable to the prospective contractor. Defendant Charles Heatherly is SBA Acting Administrator and is responsible in his official capacity for the acts complained of in this suit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': TMI had certified in its bid that it was a \small business\ within the meaning of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': In the case of a small business, however, a nonresponsibility determination is referred to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': directs the procuring agency to accept such certification as conclusive and directs that the contract be awarded without requiring the small business to meet any other requirement of responsibility or eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': (h) Low bids received from concerns determined to be not responsible pursuant to Subpart 9.1 shall be rejected (but if a bidder is a small business concern, see 19.6 with respect to certificates of competency). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': by foreclosing all new or potential entrants from competing in this field and would exclude new products or small businesses as well. A sensible interpretation of the SCP-clause, therefore, must leave to the procuring agency and the SBA flexibility in deciding how broad the definition of SCP is. For example, it would seem reasonable to interpret the clause so as to qualify a firm which has produced, supplied or advertised a product with sufficient horsepower engine to generate the pounds of thrust required by the IFB. What is required is simply an informed judgment regarding product specifications and capabilities. As stated by the Comptroller General in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': section 8(b)(7) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': , the Conferees do so with the understanding that the Small Business Administration shall conscientiously administer and enforce the rules and regulations promulgated by the Department of Labor that pertain to the Walsh-Healey Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': when certifying as to whether a small business concern meets the provisions of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': (\The Small Business Administration is bound by the regulations and interpretations of the Department of Labor in making its determinations of eligibility under the [Walsh-Healey] Public Contract Act.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': the necessary arrangements and commitments. The regulations do not preclude arrangements contingent upon award, but do require that a firm be a genuine manufacturer and not a mere subcontractor. Those are the purposes and unequivocal direction of the regulations, and the SBA cannot waive the Walsh-Healey requirements for small businesses even if it can help them meet the requirements. Congress directed that SBA apply the regulations conscientiously, and not exempt small businesses from the regulations while all others are bound by them. In this instance, it is clear that the SBA acted contrary to applicable law and regulation in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': (7)(A) To certify to Government procurement officers, and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': (B) If a Government procurement officer finds that an otherwise qualified small business concern may be ineligible due to the provisions of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': , [Walsh-Healey] he shall notify the Administration in writing of such finding. The Administration shall review such finding and shall either dismiss it and certify the small business concern to be an eligible Government contractor for a specific Government contract or if it concurs in the finding, forward the matter to the Secretary of Labor for final disposition, in which case the Administration may certify the small business concern only if the Secretary of Labor finds the small business concern not to be in violation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': (C) In any case in which a small business concern or group of such concerns has been certified by the Administration pursuant to (A) or (B) to be a responsible or eligible Government contractor as to a specific Government contract, the officers of the Government having procurement or property disposal powers are directed to accept such certification as conclusive, and shall let such Government contract to such concern or group of concerns without requiring it to meet any other requirement of responsibility or eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': Notwithstanding the first sentence of this subparagraph, the Administration may not establish an exemption from referral or notification or refuse to accept a referral or notification from a Government procurement officer made pursuant to subparagraph (A) or (B) of this paragraph, but nothing in this paragraph shall require the processing of an application for certification if the small business concern to which the referral pertains declines to have the application processed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': may be traced back to \u167 205 of the Small Business Act of 1953, Ch. 282, Title II, 67 Stat. 232, 234 (1953). The legislative committees reporting on the Act apparently felt that the purpose of the section was self-evident or had been explained sufficiently in connection with prior legislation so that there was no need to comment on it in their reports. However, in explanation of a prior statute, enacted in 1948, which contained substantially identical language (the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': It is quite clear that in withholding consent to suit for injunction, garnishment and attachment against the Small Business Administrator Congress intended no special exemption for the Administrator which would be different from that accorded government agencies generally, but only that in authorizing him to sue and be sued he should have the same immunity from injunction, garnishment and attachment as government agencies generally have. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 61 - Ulstein Maritime Ltd v US.doc, Paragraph with 'The Rule of Two': when it authorized injunctive relief against government agencies and departments generally on contract claims before award, it meant to exempt the Small Business Administration therefrom. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': Claims Court did not have bid protest jurisdiction over complaint alleging that action of contracting officer in requesting that debarment proceedings be instituted effectively prohibited apparent low bidder from being awarded contract and any other contract without due process of law, as any hearing provided by Department of Defense Regulations would not stay any action of contracting officer or small business administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': Statute providing that no injunction or other similar process shall be issued against administrator of small business administration or his property did not deprive Claims Court of jurisdiction to enjoin, on preliminary basis, Department of Defense from awarding procurement contract to anyone other than apparent low bidder, even though proposed debarment of contractor resulted in SBA decision to discontinue its efforts to award bidder certificate of competency; declining to follow Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2[5](b), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the [Small Business Administration] Administrator may\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': (4) The grant of a preliminary injunction is in the public interest. We believe that Congress, in granting this court equitable jurisdiction in bid protest cases, sought to protect the integrity of small businesses, such as the plaintiffs\rquote , as well as the interest of the taxpayers in having the full benefit of the low bidder\rquote s services on a competitively bid contract. Here, plaintiffs\rquote bid was approximately $30,000 below that of the second lowest bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': Accordingly, based on the foregoing considerations, the court HEREBY ORDERS that the defendant, including but not limited to the Department of Defense (DOD) and the Small Business Administration (SBA), its officers, agents, servants, employees and representatives and all persons acting in concert and participating with it, are ENJOINED, for a period to end with a further order from this court following the defendant\rquote s transmission of a complete copy of the decision relative to plaintiff\rquote s now pending debarment proceeding before the DLA: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 65 - Sterlingwear of Boston Inc v US.doc, Paragraph with 'The Rule of Two': against defendant\rquote s \agents\ precluding \any action adverse to ... plaintiffs ... in relation to ... a Certificate of Competency ... presently pending before the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for public contract for custodial services under Small Business Administration\rquote s program for socially and economically disadvantaged small business concerns filed complaint alleging favoritism and claiming alleged Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': debarment from competition in violation of Fifth and Fourteenth Amendments. The Claims Court, Margolis, J., held that: (1) plaintiff could not complain that another unsuccessful competitor had been favored; (2) neither Competition in Contracting Act nor Small Business Act required more formalized, competitive procedures than were practiced in award of contract for custodial services; and (3) there was no basis for entertaining constitutional claims, since plaintiff did not allege taking or interfering with established existing property rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': First unsuccessful bidder on public contract was not harmed, and procurement process was not contaminated by any special treatment afforded second unsuccessful competitor under Small Business Administration\rquote s program for socially and economically disadvantaged small business concerns. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Neither Competition in Contracting Act nor Small Business Act required more formalized, competitive procedures than were practiced in award of contract for custodial services under Small Business Administration\rquote s program for socially and economically disadvantaged small business concerns. Small Business Act, \u167 2[8](a), (h)(2), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Since unsuccessful bidder for award of public contract for custodial services under Small Business Administration\rquote s program for socially and economically disadvantaged small business concerns had not alleged taking or interference with established existing property rights, there was no basis for entertaining constitutional claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': The plaintiff, Cassidy Cleaning, Inc., seeks declaratory and injunctive relief against the Small Business Administration (\SBA\) and the National Aeronautics and Space Administration (\NASA\). Specifically, the plaintiff moves for summary judgment seeking to enjoin the award of a multi-year contract for nearly 11.3 million dollars for janitorial services to be performed at NASA\rquote s Goddard Space Flight Center in Greenbelt, Maryland. Alternatively, plaintiff seeks a monetary award of lost profits, bid preparation costs and reasonable attorneys fees. The defendant moves to dismiss or, alternatively, for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Custodial services at the Goddard Space Flight Center (\GSFC\) have been provided under the Small Business Administration\rquote s 8(a) program for socially and economically disadvantaged small business concerns for approximately 10 years. When the existing contract for custodial services was scheduled to expire on February 1, 1986, GSFC decided to continue procurement through the 8(a) program. Pursuant to that decision, GSFC received a list of five eligible contractors from SBA and interviewed the contractors to determine their qualifications. The plaintiff, Cassidy Cleaning, Inc. (\Cassidy\), a minority contractor qualified to do business pursuant to section 8(a) of the Small Business Act, was among the five contractors listed and interviewed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': The plaintiff asserts that an award to Eastern would violate the Competition in Contracting Act and the competitive provisions of the Small Business Act because Eastern allegedly had received more information about the contract than did plaintiff and also had received at least one additional walk-through of the facilities. These allegations are based on an alleged conversation between William Wright of NASA and a representative of Eastern, supposedly overheard by Cassidy\rquote s general manager, Tony Periro. The plaintiff makes no such allegation of special treatment with respect to Noslot, the actual awardee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': In this suit, the plaintiff repeats its argument that the procedures used in awarding the GSFC contract violated the Small Business Act, the Competition in Contracting Act and applicable regulations. It also alleges that the selection of Eastern violated the due process clause of the Fifth Amendment to the United States Constitution and the equal protection guarantees of the Fourteenth Amendment. The plaintiff\rquote s constitutional claims are based on an alleged Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': The Act provides that \[t]he amendments made by this section do not supersede or affect the provisions of section 8(a) of the Small Business Act. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': The legislative history of CICA supports this view. The conference report states that \procurements conducted under Section 8(a) of the Small Business Act are exempt from the procurement procedures mandated\ for non\u82118(a) procurements. H.R.Conf.Rep. No. 861, 98th Cong., 2d Sess., 130 Cong.Rec. H6369, H6756 (daily ed. June 22, 1984), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Section 2304(b)(2) of the Act was subsequently replaced by Section 504(b)(1) of the Small Business and Federal Procurement Competition Enhancement Act of 1984, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Furthermore, the Small Business Act, which itself imposes some competitive procedures, also excepts awards under section 8(a) from those mandates. The Small Business Act states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': . The exception referred to excludes \a procurement conducted under ...\ the authority of \section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': Thus, neither the Competition in Contracting Act nor the Small Business Act requires a more elaborate competitive scheme than was practiced here. Moreover, plaintiff\rquote s argument that the procurement scheme was inadequate is misplaced. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': In fulfilling the statutory requirements relating to small business concerns and socially and economically disadvantaged small business concerns, the head of an agency shall use competitive procedures but may restrict a solicitation to allow only such business concerns to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 67 - Cassidy Cleaning Inc v US.doc, Paragraph with 'The Rule of Two': An executive agency may provide for the procurement of property or services covered by this section using competitive procedures, but excluding other than small business concerns in furtherance of sections 9 and 15 of the Small Business Act.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 69 - Bromley Contracting Co Inc v US.doc, Paragraph with 'The Rule of Two': The GSA formally advertised solicitations for bids in 1979 and in 1980 (the former solicitation was restricted to small businesses, while the latter was unrestricted). The GSA received no bids from either solicitation. In 1981, Knauth and Mr. Timmons modified the 1978 estimate to account for inflation and changes in the roof\rquote s specifications. The new cost estimate for replacing the roof was $225,820. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 79 - International Verbatim Reporters Inc v US.doc, Paragraph with 'The Rule of Two': Because plaintiff was a small business, the contracting officer submitted the issue of responsibility to the Small Business Administration (SBA) as required for a determination of responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 79 - International Verbatim Reporters Inc v US.doc, Paragraph with 'The Rule of Two': (1982 & Supp. II 1984) provides that: \In any case in which a small business concern ... has been certified by the Administration ... to be a responsible Government contractor ... the officers of the Government having procurement ... powers are directed to accept such certification as conclusive ....\ In other words, no appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 80 - Omega World Travel Inc v US.doc, Paragraph with 'The Rule of Two': The Society Of Travel Agents In Government, Inc. (STAG) and the Association Of Retail Travel Agents, Ltd. (ARTA) are both non-profit trade associations organized under the laws of the District of Columbia. STAG\rquote s and ARTA\rquote s membership consists of travel agents who also provide or seek to provide travel services to government agencies under competitive bidding. The majority of STAG\rquote s and ARTA\rquote s members are \small businesses\ within the meaning of the Competition In Contracting Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': Case of bidder disqualified from receiving government contract must be referred to Small Business Administration only if challenge to bidder\rquote s integrity stems from its certification as small business concern. Small Business Act, \u167\u167 2[2] et seq., 2[8](b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': Before leaving the subject of further proceedings in this action, the court addresses one final point raised by NKF. The plaintiff argues that, should the court remand the case to the contracting officer and should he again disqualify NKF, the case must then be referred to the Small Business Administration (SBA). NKF contends that the previously enunciated grounds for its disqualification implicate its business integrity, and that the decision to disqualify therefore falls within the scope of the 1977 amendments to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': . That provision prohibits a Government procurement officer from precluding a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': . After reviewing the legislative history, the court concluded that referral to the SBA was unnecessary where the contractor\rquote s disqualification was not a consequence of its small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': . That is, the challenge to the bidder\rquote s integrity must stem from its certification as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': (referral to SBA for finding on integrity unnecessary where status as small business enterprise is not the cause of suspension). In the present case, any implicit challenge to NKF\rquote s integrity would similarly be unrelated to its small business status, and the statute would therefore not apply. Hence the contracting officer need not refer this case to the SBA if, upon remand, he decides to reexamine NKF\rquote s disqualification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': 3. On March 22, 1983, NAVSEA issued Request for Proposals N00024\u821183\u8211R\u82114175(Q) (\RFP 4175\) for the services required by PR 39411. Mr. Park was listed on RFP 4175 as the contracting officer\rquote s technical representative (\COTR\). The procurement was designated as a set-aside for small business and was structured to be awarded as a cost-reimbursable, fixed-fee contract. RFP 4175 calls for 110,000 manhours of professional engineering and technical services to be performed on a \level of effort\ basis, with two sequential option periods of one year each, both for an additional 110,000 manhours of engineering services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': 17. On February 23, 1984, requests for best and final offers (\BFOs\) were issued to all offerors who had submitted proposals under RFP 4295. The CARP\rquote s report on the BFOs was completed on June 7, 1984, and a second round of requests for BFOs was issued on June 18, 1984. After a disappointed bidder\rquote s unsuccessful appeal of NKF\rquote s size status to the Small Business Administration, a contract was awarded to NKF under RFP 4295 on September 25, 1984. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 83 - NKF Engineering Inc v US.doc, Paragraph with 'The Rule of Two': GAO also held that the agency was not required to refer the decision to exclude NKF to the Small Business Administration since this did not involve a question of NKF\rquote s capability or other traditional elements of responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on public contract available only to small business bidders alleged state cause of action against lowest bidder for fraud and unjust enrichment. The United States District Court for the Northern District of Alabama, James Hughes Hancock, J., granted summary judgment in favor of lowest bidder and its affiliated company, and unsuccessful bidder appealed. The Court of Appeals held that uncontradicted affidavits and exhibits established that at every level of bid protest proceedings, Small Business Act was not violated by lowest bidder; therefore, state claims based on misrepresentation, fraud or unjust enrichment could not be maintained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': Uncontradicted affidavits and exhibits established that at every level of bid protest proceedings, Small Business Act [Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': because of its affiliation with Mercury Consolidated, Inc., a large company, is alleged to have fraudulently certified itself as a small business. The district court granted summary judgment for BAMSI and Mercury. We affirm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': This Court recently held that although Congress did not intend to provide a civil private cause of action to the second lowest bidder of a federal contract when the lowest bidder has misrepresented itself as a small business, it had not expressly nor impliedly preempted a state remedy for fraud, unjust enrichment or interference with a business relationship based on such misrepresentations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': The key to such a case, however, would be that the first low bidder who received the contract was not qualified as a small business under the Act, and was therefore ineligible to receive the contract. In the hearing of BAMSI\rquote s and Mercury\rquote s summary judgment motion, their uncontradicted affidavits and exhibits established that at every level of the Ferguson-Williams bid protest proceedings, it was determined that the Small Business Act had not been violated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': In fact, the exhibits showed that the final administrative decision of the SBA was that BAMSI properly qualified as a small business and that Mercury\rquote s \affiliation\ with BAMSI was not in violation of the code or regulations issued under the Act. Ferguson-Williams presented the same evidence to the reviewing administrative agency and to the district court. This Court must give deference to the SBA\rquote s determination that BAMSI was a small business. This is especially true when the agency is charged with formulating the regulations under which the decision was made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 86 - Ferguson-Williams Inc v BAMSI Inc.doc, Paragraph with 'The Rule of Two': where, as a result of a protest, the Small Business Administration decided the successful low bidder was not a small business as defined by federal law. The district court correctly ruled that the SBA\rquote s determination that BAMSI qualified as a small business under its regulations eliminated the possibility of any state action based on misrepresentation, fraud or unjust enrichment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 03 - JA Croson Co v City of Richmond.doc, Paragraph with 'The Rule of Two': All public bodies shall establish programs consistent with all the provisions of this chapter to facilitate the participation of small businesses and businesses owned by women and minorities in procurement transactions ... State agencies shall submit annual progress reports on minority business procurement to the State Office of Minority Business Enterprise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 03 - JA Croson Co v City of Richmond.doc, Paragraph with 'The Rule of Two': He noted the ongoing effort by the national government through such agencies as the Small Business Administration and the Office of Minority Business Enterprise to remedy the effects of past discrimination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on food service contract let by federal government brought action against low bidder under state law theories. The District Court, Earl E. O\rquote Connor, Chief Judge, held that the federal Small Business Act and its implementing size regulations preempted state law claims by unsuccessful bidder against low bidder since allowing such action could easily frustrate goal of the Act of assuring that government contracts are performed in timely and competent manner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': does not authorize private cause of action by unsuccessful bidder against successful bidder on government contract as to which only small businesses are allowed to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': In establishing statutory and regulatory scheme under the Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Congress\rquote primary goals were to help small business and to assure that government contracts were performed in timely and competent manner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The federal Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': Because regulation of competitive bidding process on federal government contract is a uniquely federal prerogative, state law claims arising in context of competitive bidding process on such contracts are preempted by the Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': In this action, defendant Tombs & Sons, Inc., was the low bidder on a food service contract let by the federal government. Plaintiff Integrity Management International, Inc., was the second low bidder. To qualify for this contract, each bidder was required to self-certify that it met the Small Business Administration\rquote s definition of a \small business.\ Both parties did so certify, and defendant was awarded the contract. Alleging that defendant\rquote s self-certification was erroneous, plaintiff brings this action to recover both actual and punitive damages. (Defendant Leroy C. Tombs is the president of, and major shareholder in, defendant Tombs & Sons, Inc. His liability in this action would appear to depend upon a finding that Tombs & Sons was his mere alter ego. Throughout this memorandum, then, the term \defendant\ will refer only to his corporation.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The matter was tried to the court on May 30 and 31, 1985. Invoking the court\rquote s diversity jurisdiction, plaintiff offered evidence to support recovery on alternative theories of fraud, unjust enrichment, and intentional interference with prospective contractual relations. At the close of trial, we expressed some doubt as to the viability of such state law claims in the context of the federal government\rquote s competitive bidding process. The parties were invited to submit supplemental briefs on that legal issue, and plaintiff chose to do so. We now conclude that the federal Small Business Act and its implementing size regulations do preempt the state law claims upon which plaintiff relies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': The parties agree that the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': not authorize a private cause of action by an unsuccessful bidder against a successful bidder on a government contract as to which only small businesses are allowed to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': As the Eighth Circuit acknowledged, federal regulation of small business set asides in the federal procurement process is extensive. In enacting the Small Business Act, Congress Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': (1974), allow any bidder or other interested person to challenge the small-business status of any other bidder. The challenge must be in writing, and delivered to the responsible contracting officer within five days after the bid opening; the contracting officer must then forward the protest to the SBA. The SBA, in turn, must advise the protested bidder and ask for a response to the challenge. The bidder whose status is protested must respond within three days after it receives the protest. If it does not, the SBA will rule that it is not a small business. 13 C.F.R. \u167 121.3\u82115 (1974). Any determination of size may be appealed to the Size Appeal Board, which must, if the case is concerned with a pending procurement, act within five days. The Board receives evidence and then issues a written decision, which, absent reconsideration, is the final administrative decision. 13 C.F.R. \u167 121.3\u82116(g)(5) (1974). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': We agree with the Eighth Circuit that Congress had two primary goals in mind when it established this statutory and regulatory scheme. It wished both \to help small business\ and \to assure that government contracts were performed in a timely and competent manner.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': [t]his Congressional purpose of aiding small business only insofar as the expeditious administration of government contracts is not jeopardized could be thwarted by permitting the private remedy requested here. In the present case, the federal contracting officer determined that the public interest would be better served by permitting Crooks Brothers to proceed with the emergency construction project. Had Crooks Brothers known that, depending on the post-award outcome of the size appeal, it would be subject to suit for its profits, it might well have declined to accept the award. Or, having accepted, it might have refused to continue work on the contract following the Size Appeals Board determination that it was originally ineligible to bid. Finally, although Crooks Brothers might have continued to execute the contract, serious problems of quality and speed of work could have arisen given the possible deprivation of profits at the conclusion of the project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': courts were speaking in a slightly different legal context. The issue in those cases was whether the Small Business Act impliedly created a private cause of action. Here the issue is whether that Act and its implementing regulations effectively preempts certain state law causes of action. Yet even the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 13 - Integrity Management Intern Inc v Tombs And Sons Inc.doc, Paragraph with 'The Rule of Two': a \small business,\ or that plaintiff failed to prove all of the elements of its state law claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder brought suit over two Department of Defense contracts Department had set aside for \small businesses\ pursuant to the Small Business Act and the Armed Services Procurement Act, alleging that Department\rquote s contracting officer had violated law governing letting of such contracts by awarding contracts to a firm that was not a small business. The United States District Court for the Southern District of Alabama, William Brevard Hand, Chief Judge, after granting unsuccessful bidder\rquote s application for a temporary restraining order, heard case on merits and dismissed complaint. Unsuccessful bidder appealed. The Court of Appeals, Tjoflat, Circuit Judge, held that: (1) unsuccessful bidder had standing to pursue actions; (2) contracting officer committed a clear and prejudicial violation of the Small Business Act and the Armed Services Procurement Act in awarding contracts to bidder whose affiliate had been previously found by Small Business Administration to be a large business; contracting officer\rquote s duty under these circumstances was to reject successful bidder\rquote s required representation that it was small, and thus its bid, as nonresponsive; and (3) contracts would be awarded to unsuccessful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Section of Administrative Procedures Act requiring that any mandatory or injunctive relief shall specify the federal officer or officers, and their successors in office, personally responsible for compliance could not provide a jurisdictional basis for suit by unsuccessful bidder over two Department of Defense contracts Department had set aside for \small businesses\ pursuant to the Small Business Act and the Armed Services Procurement Act, since such section was not intended by Congress to serve as an independent source of district court jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder had standing to challenge the letting of two Department of Defense contracts the Department had set aside for \small businesses\ under the Small Business Act and the Armed Services Procurement Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Department of Defense contracting officer committed a clear and prejudicial violation of the Small Business Act and the Armed Services Procurement Act in awarding contracts set aside for \small businesses\ to bidder whose affiliate had been previously found by Small Business Administration to be a large business; contracting officer\rquote s duty under these circumstances was to reject successful bidder\rquote s required representation that it was small, and thus its bid, as nonresponsive. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Where Department of Defense contracting officer clearly violated applicable procurement regulations in awarding contracts Department had set aside for \small businesses\ pursuant to the Small Business Act and the Armed Services Procurement Act, unsuccessful bidder would have received contracts but for such violation, successful bidder had not commenced performance of contracts in question, substitution of contractors would cause insignificant disruption of Government\rquote s procurements, and interests of public and those who bid for agency\rquote s work in agency\rquote s compliance with law outweighed higher price Government would have to pay for procurements, contracting officer would be required to award contracts to unsuccessful bidder. Small Business Act, \u167 2 [2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': This is a suit by an unsuccessful bidder, Choctaw Manufacturing Co., Inc. (Choctaw), over two Department of Defense contracts the Department had set aside for \small businesses\ pursuant to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': that was not a small business. It sought a declaration to that effect and an injunctive order requiring the contracting officer to award the contracts to it, as the second lowest bidder. The district court, after granting Choctaw\rquote s application for a temporary restraining order, heard the case on the merits and dismissed Choctaw\rquote s complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': To understand the nature of the dispute before us, it is necessary first to set forth in some detail the statutory and regulatory scheme under which contracts set aside for small businesses are bid and ultimately awarded. The Small Business Act and the Armed Services Procurement Act both state that it is the policy of the United States government to set aside a fair proportion of all government contracts for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Congress has delegated the responsibility for implementing this policy primarily to the Small Business Administration (SBA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 1953 U.S.Code Cong. & Ad.News 2020, 2021; government agencies must look to the SBA for guidance in determining which contracts should be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 1978 U.S.Code Cong. & Ad.News 3835, 3851\u821153. The SBA has the sole responsibility, however, to determine what constitutes a \small business\ eligible to bid on a government contract set aside for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': It has also promulgated regulations setting forth the procedure by which it determines whether a firm is a small business. 13 C.F.R. \u167 121.3\u82114; 13 C.F.R. \u167 121.3\u82115; 13 C.F.R. \u167 121.3\u82116. These latter regulations are critical to the dispute here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The SBA places great reliance on the marketplace to ensure that only small businesses are awarded contracts set aside for small businesses. A firm need not obtain an SBA determination that it is small before bidding on such contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 121.3\u82114. Any firm, large or small, can bid on a set aside contract by self-certifying that it is small. The SBA relies on the bidders who are legitimate small businesses and/or the contracting officer responsible for the procurement to expose those firms that are large and thus unqualified to bid on the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 13 C.F.R. \u167 121.3\u82115. If neither questions the firm\rquote s size, an unqualified \large\ firm could be awarded a contract set aside exclusively for small businesses. This is unlikely, though, because those competing in the set aside contract market have a strong interest in seeing that only small companies receive the contracts and are quick to lodge protests against bidders they believe are large. This threat of protest probably minimizes the number of large businesses that bid on set aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': On February 2, 1984, the Department of Defense opened bidding on a small business set aside contract for 143,808 pairs of men\rquote s white trousers. (Solicitation No. 315.) Rutter Rex was the low bidder on this contract; Choctaw was next. To comply with the solicitation requirements, both Rutter Rex and Choctaw certified in their bids that they were small businesses. On February 6, Choctaw wrote a letter to the contracting officer, Melvyn Suplee, contending that he should award the contract to Choctaw, even though it was the second lowest bidder, because Rutter Rex had improperly certified itself as a small business. Choctaw informed Suplee that the SBA, in a previous size determination proceeding, had declared Rutter Rex to be not small, thus disqualifying Rutter Rex from self-certifying. 13 C.F.R. \u167 121.3\u82114; 32 C.F.R. \u167 1\u8211703(b). Choctaw advised the contracting officer that he \need not refer Rutter-Rex\rquote s size status to the SBA because Rutter-Rex has the burden of obtaining certification of its small size status Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': it can self-certify as a small business.\ (Emphasis in original.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': On February 8, 1984, the Department of Defense opened bidding on a contract for 186,510 pairs of men\rquote s white dress trousers. (Solicitation No. 314.) This contract had also been set aside by the Department of Defense for small businesses. Both Rutter Rex and Choctaw had submitted bids, certifying that they were small business concerns. Again Rutter Rex was the low bidder, and Choctaw was second. When Choctaw learned that Rutter Rex had submitted the low bid, it wrote Suplee, complaining once more that Rutter Rex was barred from certifying itself as a small business because of the SBA\rquote s prior size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Choctaw emphasized that it was not protesting \the size-status of Rutter-Rex which require[d] referral to the SBA\; rather, it was urging Suplee not to accept Rutter Rex\rquote s representation that it was a small business and to reject its bid. Choctaw reminded Suplee that he had a duty, imposed by Department of Defense regulation, 32 C.F.R. \u167 1\u8211703(b), to reject any bid made by a firm previously held by the SBA to be not small. After conferring with counsel, Suplee decided to treat both of Choctaw\rquote s letters as size protests under 13 C.F.R. \u167 121.3\u82115, and he forwarded them to the SBA\rquote s regional director. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': On February 17, 1984, the regional director replied. He stated that the Appeals Board had previously found that Dauphine Corporation, an affiliate of Rutter Rex, was not a small business because of its affiliation with Rutter Rex, \a known large company.\ The intent of the applicable regulations, the director stated, was to prevent future self-certification by a firm determined to be not small (i.e., Dauphine) or its affiliate (i.e., Rutter Rex). Consequently, neither Dauphine nor Rutter Rex was eligible to self-certify as a small business. The director concluded his letter with the following paragraph: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': and disavowed jurisdiction of the matter. Suplee\rquote s first reaction was to award the two contracts to Choctaw, but, after conferring with counsel, he decided to delay his decision. Counsel advised such action because he thought the SBA was reconsidering the effect an SBA size determination might have on a firm\rquote s affiliates; at that moment, the regional director had before him a \protest\ Gulf Corporation (Gulf) had made to Suplee, questioning Rutter Rex\rquote s bid on another contract set aside for small businesses, Solicitation No. 265. The basis for Gulf\rquote s protest was identical to that of Choctaw\rquote s. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Choctaw\rquote s dispute \arises under\ The Armed Services Procurement Act, the Small Business Act, and the regulations promulgated thereunder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . We find this analysis persuasive and apply it here. Choctaw is within the zone of interest sought to be protected by the Small Business Act and the SBA\rquote s regulatory scheme involved in this case; this is apparent from even a cursory reading of the legislative history of that Act. We therefore conclude that Choctaw had standing to bring this action and now address the merits of its claim, that the contracting officer, Suplee, acted unlawfully in awarding Solicitation Nos. 314 and 315 to Rutter Rex. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': There, we stated that a disappointed bidder, challenging the setting aside and letting of contracts for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 19 - Choctaw Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Finally, this case involves a situation where the public, and, in particular, small businesses bidding on contracts set aside for small businesses, have a strong interest \ \u8216in having agencies follow the regulations which control government contracting.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': In a preaward bid protest concerning negotiated procurement of air seals for jet engines used on military aircraft the plaintiff sought injunctive and declaratory relief concerning refusal to award it the contract and qualify it as an alternate source. The Claims Court, Reginald W. Gibson, J., held that: (1) contracting officer\rquote s decision to reject plaintiff as an alternate source had a rational basis and did not violate statutes or regulations, and (2) such rejection was not a determination of responsibility that should have been referred to the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': When a contracting officer determines that an offeror is technically unacceptable, the question of responsibility is not involved and, hence, requirement of Small Business Administration Act for an agency decision on contractor responsibility does not apply. Small Business Act, \u167 2(8)(b)(7), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': EMI filed a protest with the GAO on July 19, 1984, against an award of the subject contract to any firm other than itself, and also objected to the Air Force\rquote s refusal to approve EMI as an alternate source. In that protest, EMI averred that the Air Force\rquote s determination was improper because it was without a rational basis as it related to the minimum needs of the government. Additionally, EMI argued that because it was a small business, the contracting officer may not, under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': the court agrees with the defendant that its decision dealt with EMI\rquote s technical responsiveness and thus the question of responsibility was never reached by the Air Force. The Small Business Act, as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': , requires a contracting officer\rquote s finding that a small business is not responsible in order to be referred to the SBA, which will conclusively resolve the matter by issuing or refusing to issue a certificate of competency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 21 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': (7)(A) To certify to Government procurement officers, ... with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer ... may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Where bidder contended that cancellation of solicitation of proposal from small businesses to supply the four aircraft, on lease basis, for use by United States Air Force, to which bidder and others had submitted bids, deprived bidder, and perhaps others, of fair and full consideration of their bids, Claims Court had equitable jurisdiction to review propriety of cancellation, despite fact that claim was filed with court after solicitation was cancelled. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s failure to bring technical protest of another bidder to technical evaluation team\rquote s attention was proper, where evaluation team had completed its review of all proposed aircraft and found aircraft in question acceptable under request for proposals from small businesses to supply the four aircraft, on lease basis, for use by United States Air Force. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming regulation that requires that Small Business Administration personnel be notified if small business set-aside is withdrawn was violated when solicitation itself is cancelled, dissatisfied bidder was neither entitled to injunctive relief nor bid preparation costs based upon that violation, where failure of Air Force to give notice to Small Business Administration did not deny dissatisfied bidder impartial consideration of its bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': On April 3, 1984, defendant issued a Request for Proposals (RFP F04735\u821184\u8211R\u82110004). This RFP was a 100 percent set-aside for small business concerns. The RFP sought proposals from small businesses to supply four aircraft, on a lease basis, for use by the United States Air Force (USAF) at Nellis Air Force Base. Plaintiff had the existing contract to supply four leased aircraft to Nellis Air Force Base, but said contract was due to expire on November 9, 1984. Plaintiff, along with five other companies, timely submitted responses and offers to the RFP. After technical evaluations, those offerors whose proposals were found to be technically acceptable were requested to and, with the exception of one technically acceptable offeror, did submit best and final offers. The contracting officer apparently determined that Ratliff Aero Sales, Inc. (Ratliff Aero) was the lowest responsive, responsible bidder and anticipated awarding the contract to said company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff became aware of this anticipated award and protested Ratliff Aero\rquote s small business characterization Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The merits of this case present two primary issues. First, the court must determine whether the cancellation of the solicitation in this case was proper. Second, it is necessary for the court to determine if the USAF was required by the circumstances of this case and pertinent regulations to resolicit from small businesses for the provision of the four aircraft to be used for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': After the specifications were developed, the RFP was issued as a unilateral small business set-aside, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': In May of 1984, the Technical Evaluation Team, which consisted of four officers from TAC stationed at Nellis Air Force Base, evaluated the technical capabilities of six different aircraft proposed by six different small business concerns in fourteen separate proposals. This evaluation process consisted of two phases. The Technical Evaluation Team also reviewed the maintenance programs under the various proposals. During its evaluations, the Technical Evaluation Team allotted points for each element in the specifications. These points were merely an aid for the evaluation team and did not determine the acceptability of the various proposals. The record indicates that during Phase I of the evaluations none of the proposals were found acceptable. However, the Technical Evaluation Team informed the offerors of their respective short-comings and each was given an opportunity to address these problems with submitted comments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': When the best and final offers were opened by the contracting officer he determined that Ratliff Aero\rquote s proposal, which included the Learjet 25G, was the lowest responsive bid. After Ratliff Aero was investigated further, the contracting officer determined that Ratliff Aero was also a responsible bidder. Therefore, the contracting officer anticipated awarding the contract to Ratliff Aero. Though the record is unclear as to how Flynn acquired the information, somehow plaintiff\rquote s president became aware that Ratliff Aero was to be awarded the contract. By letter dated June 25, 1984, plaintiff formally protested the small business size of Ratliff Aero claiming that its close ties with Gates Learjet precluded it from being considered a small business. The Small Business Administration denied this protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The other regulatory provisions which were surfaced by plaintiff focus on the small business set-aside aspect of this solicitation. It is uncontradicted that the contracting officer made this solicitation a unilateral small business set-aside pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': In this case, there is a question as to whether the cancellation of a solicitation and the failure to resolicit constitutes a withdrawal of the small business set-aside. Plaintiff views this situation to be such a withdrawal but technically it probably is not. Plaintiff takes this position because Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': occurs when a small business set-aside is withdrawn and the solicitation is opened up to all, large and small, business concerns. In this case the Air Force cancelled the solicitation and subsequently utilized aircraft under an existing lease contract. The facts in this case are thus distinguishable from what the court perceives to be the intendment of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': that a withdrawal of a small business set-aside occurred in this case, the court concludes that the presumed failure of defendant to give the notice required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': It initially acquired the C\u821112s on a competitive bidding basis. In this case, all that the Air Force did was relocate planes it had already acquired in a means consistent with a competitive procurement process although this competition was not tailored solely for the benefit of small business concerns. Second, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also asserts that defendant violated certain regulations dealing with small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': g) Once a product or service has been acquired successfully by a contracting office on the basis of a small business set-aside, all future requirements of that office for that particular product or service * * * shall, if required by agency regulations, be acquired on the basis of a repetitive set-aside. * * * Withdrawal of a repetitive set-aside will be in accordance with 19.506. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': It is uncontradicted that plaintiff\rquote s MU\u8211II contract with the Air Force was a small business set-aside. It is also clear that plaintiff provided a satisfactory product and adequate service. Therefore, it is at least arguable that the initial solicitation and any resolicitation should have been repetitive small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': In this case, it is thus not as clear cut whether defendant must utilize a repetitive set-aside. Plaintiff has cited no authority to support its position regarding a repetitive set-aside and the court finds that plaintiff has failed to satisfy its burden of proving that under the circumstances of this case this should have been such a set-aside by way of resolicitation restricted to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': was intended to apply in situations when a small business set-aside procurement is changed so that non-small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': (a) If, before award of a contract involving a set-aside for small business, the contracting officer considers that award to a small business concern would be detrimental to the public interest ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': In this case there had been no actual award of the contract when the solicitation was cancelled. The contracting officer in this case probably did not consciously determine that the award of the contract to a small business concern in particular would be detrimental to the public interest. Instead, the procuring officials in this case probably determined that a resolicitation and subsequent award of the contract to an outside commercial source of any size would be contrary to the public interest when compared with utilizing the C\u821112 aircraft under the existing lease. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s challenge to Ratliff Aero\rquote s small business characterization was denied by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The fact that plaintiff argues, in part, that the cancellation of the solicitation was improper due to regulatory violations does not affect the court\rquote s jurisdiction over this matter. Some of the regulations, cited by plaintiff, relating to small business set-asides and the associated cancellation provisions, constitute items of the implied contract of fair dealing between defendant and plaintiff which forms the basis of the court\rquote s jurisdiction under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Aviation Enterprises, Inc. (AEI), is a small business owned entirely by its president, James P. Flynn (Flynn), and his wife. Flynn started AEI around 1980 while he was still serving as president for another business, Federal Airways, which dealt with aircraft. At some point Flynn left Federal Airways to devote all of his time to AEI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The court also notes that Gamble initially did not anticipate setting the solicitation at issue aside for small businesses, but after a protest by plaintiff, he did unilaterally set the procurement aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Stempson wrote as a participant in concert with one or more small businesses which were proposing to lease Gates Learjet aircraft to the USAF using activity at Nellis Air Force Base. He noted that none of the Gates Learjet products had such an external door and he felt such a technical requirement would severely penalize his company. He also asserted that only one aircraft on the market had such an external door and thus competition would be overly restricted. Plaintiff\rquote s president, James P. Flynn, contested this assertion that only one aircraft has such an external door. The court notes that the aircraft being proposed by plaintiff had such a door, and that the record indicates that there were other aircraft which could have been but were not proposed which had an external door. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': of the manufacturers or small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The C\u821112 and C\u821121 lease programs were part of a project approved by Congress authorizing the Air Force to seek competitive bids from aircraft manufacturers and suppliers to lease aircraft to the USAF. Said leased aircraft were to be used for airlift services then being performed by aged CT\u821139 aircraft. The USAF solicited bids for such leased aircraft and awarded two contracts. One to Gates Learjet Corporation to lease, 80 C\u821121 jet aircraft, and a second to Beechcraft Corporation to lease 40 C\u821112 turbo-prop planes, neither of which was a small business concern. Both lease contracts contained options to acquire small numbers of additional aircraft. The C\u821112 lease contract initially provided for 10 beddown bases where the C\u821112s could be located with the option to establish other beddown locations in the future. It was from this existing pool of aircraft that the USAF considered acquiring the planes it needed at Nellis Air Force Base, and it ultimately did so supply this need by utilizing C\u821112s. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that defendant\rquote s actions constituted a withdrawal of the small business set-aside, the record indicates that there was no agency small and disadvantaged business utilization specialist to whom to give notice. It is also unclear from the record whether a Small Business Administration (SBA) procurement center representative had been assigned to the case. If not, there was no one to notify regarding the withdrawal. Even if there were SBA officials to contact, there is no evidence in the record indicating what they could do to alter the decision of the Air Force to utilize C\u821112 aircraft. Accordingly, if there was error in this regard, it constituted harmless error. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer initially did not consider the RFP, which was cancelled, a repetitive small business set-aside because the product being solicited was a jet aircraft as opposed to a turbo-prop plane, which the jet aircraft was to replace. The court is of the view that what the offerors were being asked to supply was more a product with incidental service than a service alone, and since the product being procured was different, it was probably proper not to consider the initial solicitation a repetitive set-aside. However, it is arguable that when the Air Force decided that turbo-prop aircraft would meet its needs, at that point a repetitive small business set-aside may have been appropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 24 - Hayes Intern Corp v US.doc, Paragraph with 'The Rule of Two': A pre-award survey of Whitehall\rquote s facilities on December 12\u821113, 1984, disclosed that Whitehall was nonresponsible in that it lacked the capability to satisfactorily perform the contract at the Greenville site. In particular, Whitehall was found to lack technical capability, production capability, quality assurance capability, government property control and plant safety. Because Whitehall is a small business, the Navy referred the question of Whitehall\rquote s responsibility to the Small Business Administration (\SBA\) on January 21, 1985. Whitehall thereafter applied to the SBA for a certificate of competency (\COC\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 31 - Udis v US.doc, Paragraph with 'The Rule of Two': Contractor brought suit alleging Government improperly terminated contract for default. Government counterclaimed for reprocurement costs. On Government\rquote s motion for summary judgment, the Claims Court, Reginald W. Gibson, J., held that: (1) Government\rquote s failure to timely return samples was not breach of contract; (2) cure notice is not obligatory if termination is predicated upon contractor\rquote s failure to make timely deliveries; (3) there was genuine issue of material fact as to whether contracting officer obtained proper reviews, precluding summary judgment; (4) Government\rquote s failure to provide Small Business Administration with cure or show cause notice did not constitute breach of contract; (5) there was genuine issue of material fact concerning practicality of issuing letter notifying contractor of possibility of termination and requesting explanation of contractor\rquote s failure to perform contract, precluding summary judgment; (6) there was genuine issue of material fact as to whether procurement contracting officer\rquote s decision not to revise delivery schedule was arbitrary or capricious or in best interest of Government, precluding summary judgment; and (7) there were genuine issues of material fact as to reasonableness of reprocurement, precluding summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 31 - Udis v US.doc, Paragraph with 'The Rule of Two': Government\rquote s failure to provide Small Business Administration with cure or show cause notice did not constitute breach of contract with government contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 31 - Udis v US.doc, Paragraph with 'The Rule of Two': If the contractor is a small business firm, the PCO ... shall Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 31 - Udis v US.doc, Paragraph with 'The Rule of Two': provide the nearest Small Business Administration Regional Office where the contractor is located, a copy of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 33 - Caddell Const Co v US.doc, Paragraph with 'The Rule of Two': 1. This case involves IFBs issued by the Officer in Charge of Construction TRIDENT (OICC TRIDENT), St. Marys, Georgia, a unit of the Naval Facilities Engineering Command (NAVFAC), for the construction of a combined Submarine Base Administrative Building and Communications Building (Admin Building). NAVFAC TRIDENT determined that only small business concerns would be eligible for award of the contract to construct the Admin Building. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 33 - Caddell Const Co v US.doc, Paragraph with 'The Rule of Two': 4. The past procurement experience of OICC TRIDENT established that the advertisement of small business set aside contracts similar to that for the construction of the Admin Building generally resulted in the receipt of from 5 to 15 bids, many being in amounts well below the Government estimate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 34 - Drexel Heritage Furnishings Inc v US.doc, Paragraph with 'The Rule of Two': SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS SUBCONTRACTING PLAN (NEGOTIATED) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': In an unsuccessful bidder action, Government moved for summary judgment, on the ground of limitations and estoppel. The Claims Court, Nettesheim, J., held that the contractor\rquote s claim against the Government for rejection of its low bid on the ground that the contractor had satisfactory record in integrity accrued when the Small Business Administration\rquote s appeal on the contractor\rquote s behalf had been rejected by the air force procurement and production designee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': As to certain of plaintiff\rquote s claims against the United States, damages were not initially ascertainable only when Air Force cancelled solicitations, but, rather, cancellation merely represented continuation of any damages initially suffered, and plaintiff\rquote s claims for rejection of low bids on grounds of unsatisfactory record for integrity accrued when Small Business Administration\rquote s appeal on behalf of plaintiff was rejected by air force procurement and production designee and thus plaintiff\rquote s action filed in Claims Court on February 2, 1984, on such claims was time barred. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2 [2\u821118], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2 [2\u821118], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2\u821118], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer again reviewed plaintiff\rquote s bids on 0284 and 0300 and on December 3, 1976, determined for a second time that plaintiff lacked the requisite responsibility to perform these contracts. Pursuant to regulation, the contracting officer\rquote s decision was forwarded to the Small Business Administration (the \SBA\) for review. On December 14, 1976, the SBA adjudged that plaintiff possessed the necessary responsibility to perform 0284 and 0300 and, pursuant to 32 C.F.R. \u167 1\u8211705.4(c)(vi), appealed, on plaintiff\rquote s behalf, the contracting officer\rquote s nonresponsibility determination. On January 11, 1977, Air Force Procurement and Production Designee, General Kelly, denied the SBA\rquote s appeal, finding that the contracting officer\rquote s determination was supported by substantial evidence and was reasonably based. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': In a June 2, 1978 letter directed to John Lackey, (\Lackey\) Chief, Small Business and Contractor Relations Office, Sacramento Air Logistics Center, the SBA noted plaintiff\rquote s receipt of COC\rquote s corresponding to 0284 and 0300 and 0814. The first two were issued prior to the decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 43 - Shermco Industries Inc v US.doc, Paragraph with 'The Rule of Two': Within ten working days of the SBA\rquote s written notification to the contracting officer [of its intent to appeal the contracting officer\rquote s determination], the SBA shall present to the head of the procuring activity or his designee the appeal in writing. Such appeal shall contain the basis for the SBA position, and include statements from the small business concern as to tenacity, integrity and perseverance and how deficiencies noted in the contracting officer\rquote s determination have been or will be eliminated. After consideration of the appeal, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': adds that \[i]t is also the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns.\ In this connection, Rubber Millers avers, through the declaration of its Vice-President, that it is a small business within the definition set forth in the Small Business Administration\rquote s regulations, 13 C.F.R. part 121, and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': Rubber Millers also develops its point with citations to the legislative history surrounding the procurement statutes; essentially, these statements indicate that Congress was concerned about maintaining a competitive environment and soliciting the participation of small businesses in the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': The essence of Rubber Millers\rquote argument is that it has standing because it is a small business competitor in a market that has been restricted by improper agency action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff claims that the resulting injury to its ability to compete as a small business is an injury to an interest that the procurement statutes were designed to protect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': The statutory provisions cited by the plaintiff are directed exclusively at \contractors\ and bidders. Although Congress may have been concerned about the role that small business competitors would play in the procurement process, it apparently restricted its concern to small businesses that were in a position to enter into a direct bidding or contractual relationship with the government. Because the interests of a disappointed potential Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': The new Federal Acquisition Regulation System (FAR) discussed by the plaintiff does not change this result. The FAR clearly expresses a concern that small business subcontractors be provided with an opportunity to participate in government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': at 842. But it is not enough for Rubber Millers to assert that it is a small business and that any procurement action which Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': affects a single small business subcontractor is an injury to the interests protected by the regulations. Instead, there must be a nexus between the effect of the solicitation decision and the interests protected by the regulation. In this case, if the Navy had promulgated its specification in a way that excluded only small businesses from the procurement process, it might have been injuring interests protected by the FAR. But because the Navy promulgated a specification that would have affected Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': business (large or small) that did not conform, it cannot be said to have taken an action that affects small business interests as such. It seems reasonable to conclude that the FAR does not confer on small business subcontractors a right to sue where other businesses cannot where the challenged action does not implicate a concern peculiar to small businesses. Moreover, contrary to plaintiff\rquote s implication, there is no reason to read the FAR as an inference of a congressional intent to include the interests of small subcontractors within the zone of interests protected by the Armed Services Procurement Act. Thus, the mere fact that Rubber Millers is a small business is not enough to give it standing to challenge the Navy\rquote s solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': (a) It is the policy of the Government to place a fair proportion of its acquisitions with small business concerns and small disadvantaged business concerns. Such concerns shall also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by any executive agency, consistent with efficient contract performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': (b) Heads of contracting activities are responsible for effectively implementing the Small Business and Small Disadvantaged Business Utilization Programs within their activities .... They are to ... take all reasonable action to increase small business participation in their activities\rquote contracting processes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': 19.202\u82111 Encouraging small business participation in acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': Small business concerns shall be afforded an equitable opportunity to compete for all contracts that they can perform to the extent consistent with the Government\rquote s interest. When applicable, the contracting officer shall take the following actions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 48 - Rubber Millers Inc v US.doc, Paragraph with 'The Rule of Two': (d) Encourage prime contractors to subcontract with small business concerns .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 49 - Kinetic Structures Corp v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder was not entitled to its bid preparation costs, where successful bidder followed applicable Government regulations and self-certified that it was a small business concern and a regular dealer in supplies offered, preaward survey was performed in which no exception to the self-certification by successful bidder was taken, successful bidder was found to be a responsible bidder, and Defense Contract Administration Services Management Area recommended award of contract to successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 49 - Kinetic Structures Corp v US.doc, Paragraph with 'The Rule of Two': On February 5, 1981, the Defense Logistics Agency (DLA) solicited bids for contract No. DLA 710\u821181\u8211D\u82110006 (\rquote 0006), a small business set-aside, for the reconditioning and \electro-velvet coating\ of certain Government-owned banker type building partitions. Plaintiff, along with three other bidders, submitted a bid in compliance with the requirements of the solicitation. On February 26, 1981, the bids were opened and the lowest bidder was J & B Painting Company, Inc. (J & B), which submitted a bid of $70,240.40. The plaintiff\rquote s bid was the next lowest bid submitted at $74,140.19. In early March 1981, J & B self-certified that it was a small business concern and that it was a regular dealer in the supplies offered, as required under the Walsh-Healey Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 49 - Kinetic Structures Corp v US.doc, Paragraph with 'The Rule of Two': On July 29, 1981, DLA issued another invitation for bids for the reconditioning of Government-owned banker type partitions with electrostatic coating. Solicitation DLA 710\u821181\u8211B\u82110048 (\rquote 0048) was a small business set-aside acquisition, and the plaintiff responded by submitting the sole bid in the amount of $197,853.44. The Government\rquote s original cost estimate, based on a prototype procurement, was $136,797.75, and an engineering cost estimate, prepared by Government engineers, was $148,000.00. Due to the disparity between the plaintiff\rquote s offer and the two Government estimates, the Government contracting officer, Ms. Donna Huff, asked the plaintiff to submit a cost breakdown, which the plaintiff subsequently provided. Based on these facts and figures, Ms. Huff found Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 49 - Kinetic Structures Corp v US.doc, Paragraph with 'The Rule of Two': This Court cannot find any support for the plaintiff\rquote s first contention that there was bad faith and/or negligence in the evaluation of its bid and the award of contract \lquote 0006 to J & B. J & B\rquote s bid on contract \lquote 0006 was the low bid out of the four bids submitted. Plaintiff\rquote s bid was the second lowest. J & B followed the Government\rquote s regulations and self-certified that it was a small business concern and that it was a regular dealer in the supplies offered as required under the Walsh-Healey Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': With regard to procurement contracts, responsibility factors may be considered in the course of proposal evaluation without referral to the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': That Delta Data meets the statutory definition of a small business does not alter our analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': When an agency determines that a small business is not responsible, it must, before rejecting the bid on those grounds, make a referral to the Small Business Administration for a certificate of competency\u8212which, if provided by SBA, will foreclose the responsibility issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': . We cannot believe Congress intended that, when small businesses are among the offerors, consideration of all these factors must be limited to the narrow confines of an up-or-down responsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': The statutory directive mandating referral to the SBA applies only when responsibility factors \preclude\ a small business from being awarded a contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': The verb \preclude,\ with its connotation of an absolute barrier to award, suggests that the provision was intended to apply to formal responsibility determinations under 41 C.F.R. \u167 1\u82111.1204\u82111 and not to the weighing of responsibility factors in the process of proposal evaluation. Nothing in the legislative history of the relevant provision of the Small Business Act speaks to the question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': 58 Comp.Gen. 416 (1979). We agree with that assessment, and find no basis for excluding from its generality financial factors where they are reasonably relevant to the proposal in hand. Courts are not without power to restrain patent abuse of this authority. If further protections for small businesses are desired, it is for Congress, and not for us, to provide them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 52 - Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': In common parlance, Delta Data is not a small business. Obviously, considerable resources are required to compete effectively for a $50 million computer contract. The Small Business Act, however, defines a small business as one which is independently owned and operated and is not dominant in its field. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 53 - DLM And A Inc v US.doc, Paragraph with 'The Rule of Two': Defendant moved to dismiss the complaint for lack of subject matter jurisdiction to review a related determination of the Small Business Administration (the \SBA\) on DLM & A\rquote s size protest and for summary judgment on the merits of the amended complaint. ROH opposed the granting of a preliminary injunction, and DLM & A filed an opposition to the motion to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 53 - DLM And A Inc v US.doc, Paragraph with 'The Rule of Two': Northrop\rquote s position as subcontractor evolved from the determination that the procurement to implement the CV-SLEP program should proceed as a total small-business set-aside. The RFP stipulated that a qualifying bidder must not have average annual receipts in excess of $13.5 million. DLM & A charges that, for purposes of this procurement, ROH and Northrop are affiliated as a joint venture, within the meaning of 13 C.F.R. \u167 121.3(a)(vii)(C) (1984) (\an ostensible subcontractor which is to perform primary or vital requirements of a contract may have a controlling role such to be considered a joint venturer affiliated on the contract with a prime contractor....\), and that the \joint venture\ comprised of ROH and Northrop exceeds the size standard established for this procurement. In addition, DLM & A alleges that ROH is an \affiliate\ of Northrop under 13 C.F.R. \u167 121.3\u82112(a)(1) (\one concern controls or has the power to control the other ....\), and also fails to qualify as a small business concern on that ground. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 59 - Mil-Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Based on the pre-award survey, the contracting officer notified Mil-Tech on August 10, 1983, that it was considered ineligible under the Walsh-Healey Act. On August 16 the contracting officer found Mil-Tech nonresponsible based on the \negative Pre-Award Survey\ and \all other relevant data.\ The matter was referred on August 16 to the Small Business Administration (the \SBA\) for a certificate of competence (\COC\) and a determination of eligibility under the Walsh-Healey Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 59 - Mil-Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Defendant contends that substitution of a non-bidding party frustrates the procurement policy of requiring responsible parties to stand behind their bids. A bidder without means for performing a contract, short of transferring the bid to another entity, has the option of avoiding the consequences of its bid with impunity simply by being declared nonresponsible. According to defendant, a bidder who is in a position to avoid a contract by allowing the procuring agency to disqualify the bid for nonresponsibility (when the bidder well knew it was nonresponsible when it bid) could cause unnecessary costs and delays attendant on reprocurement if the other bids have expired. This policy, however estimable in the abstract, is not compelling in this case, because the bidder, who at bid opening lacks the ability to perform and who fails in an attempt to qualify himself, also can walk away from the award. Every indication is present that Mil-Tech, under Oliver Brown\rquote s stewardship, intended to stand behind its bid and to demonstrate the requisite ability to perform. Furthermore, the GAO does not penalize small businesses which enter into post-bid-opening agreements, including sales of substantial assets, to obtain performance resources. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Bidder on navy contract \set aside\ for small business filed motion for preliminary injunction, alleging that Small Business Administration determination that it was not \small business\ qualified to bid on contract was arbitrary and capricious, and the United States moved to dismiss. The Claims Court, Harkins, J., held that: (1) Claims Court had jurisdiction to review SBA determination as to whether bidder was qualified; but (2) as bidder had previously filed action in district court challenging SBA determination, such action was pending when complaint was filed in Claims Court, and same relief was sought in each case, Claims Court had no jurisdiction to proceed in matter. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': In case involving government contract \set aside\ for small business, Claims Court has jurisdiction to review determination of Small Business Administration that bidder does not qualify as small business, and such jurisdiction includes, in appropriate case, power to enjoin contract if basis for such award is product of substantial violations of applicable regulations that directly impact procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Where bidder on government contract which had been \set aside\ for small business had previously filed action in district court challenging Small Business Administration determination that it was not qualified bidder, such action was pending when bidder filed complaint in Claims Court, and same injunctive and declaratory relief was sought in each case, Claims Court had no jurisdiction to proceed in matter. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Lynn J. Bush, Washington, D.C., with whom was Acting Asst. Atty. Gen. Richard K. Willard, Washington, D.C., for defendant. George J. Affe, Dept. of the Navy, and Pamela G. Steele, Small Business Admin., Washington, D.C., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': with respect to a solicitation from the Department of the Navy, Navy Facilities Engineering Command, Chesapeake Division, for a contract for alterations and improvements to the boat basin at the U.S. Naval Station, Annapolis, Maryland. (Solicitation No. N62477\u821181\u8211B\u82110489). The procurement was a \set aside\ for small business, with a designated size standard of $12 million average annual receipts for the preceding three fiscal years (aar). Plaintiff was the lowest bidder; the second lowest bid was submitted by Interstate-Feezer, a joint venture (I\u8211F). After I\u8211F challenged plaintiff\rquote s small business status, the SBA regional office determined plaintiff was a small business concern for procurements having a size standard of $12 million. I\u8211F appealed, and the SBA Office of Hearings and Appeals reversed, on findings that the appeal was timely filed and that plaintiff\rquote s affiliation with William F. Wilke, Inc. resulted in an identity of interests and a size in excess of the $12 million standard. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Defendant\rquote s assertions (1) that plaintiff\rquote s claim was beyond the scope of the implied-in-fact contract that is the basis of this court\rquote s pre-award contract jurisdiction, and (2) that this court has no jurisdiction to review SBA size determinations by virtue of the provisions of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 62 - AC Seeman Inc v US.doc, Paragraph with 'The Rule of Two': Defendant would exclude, as beyond this court\rquote s jurisdiction, compliance with statutory and regulatory criteria that govern SBA size determinations in a procurement designated as a small business set aside. These regulations directly impact on the procurement, and inherently are parts of the procurement. An essential element of every compensable contract claim is a requirement that the contract accord with applicable law. The purpose of the Navy and SBA regulations relative to size determinations for small business set asides is to provide a vehicle for this type of procurement. Their provisions have the force and effect of law and are implied terms in the implied contract to consider plaintiff\rquote s bid fairly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 65 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration. The Claims Court, 4 Cl.Ct. 374 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 65 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Claims Court had jurisdiction over bidder\rquote s suit requesting cutoff date on Navy\rquote s responsibility review of bidder and, if necessary, referral to Small Business Administration, where bidder had no idea when it first filed its complaint that Navy\rquote s office in charge of construction had recommended that bidder be suspended, and despite fact that subsequent to bidder\rquote s filing of complaint, but before trial, Navy informed bidder that it was suspending bidder from further contracting with any government agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 65 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': ATL is a Hawaiian construction contractor and a small business concern whose work is done almost entirely with the Federal Government. In the first part of 1983 ATL submitted what turned out to be low bids in response to four separate Navy invitations for bids for construction work to be performed in the Honolulu area. The Navy office issuing the bid invitations was the Office in Charge of Construction for the Mid-Pacific Region of the United States Navy (OICC MIDPAC or OICC), the chief of which was Navy Capt. Michael Dallam. The bid opening dates for the contracts were in March and April 1983. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 65 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Captain Dallam did not forward the ATL suspension recommendation to Washington until July 1. In the interim he weighed whether suspension was the appropriate route, or whether he should instead reject ATL\rquote s four bids for nonresponsibility due to lack of integrity. The latter procedure would allow ATL to appeal the rejection to the Small Business Administration (SBA). Captain Dallam met with SBA representatives and confirmed that if he rejected ATL\rquote s bids and ATL appealed to the SBA, the SBA would disclose to ATL the reasons and evidentiary record for the rejection so that ATL could respond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 65 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': We also bear in mind the nature of ATL\rquote s protected interest here\u8212a liberty, not life or property interest. ATL is still theoretically free, in the face of the 12-or 18-month suspension, to pursue non-government contract work. A small business choosing to put nearly all its eggs in one Government contracts basket must be expected to bear some responsibility for the risk that that basket could, as a result of the contractor\rquote s misconduct, temporarily or even permanently be snatched away\u8212with the required procedural safeguards here at issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': In essence, a \section 8(a) contract\ is one in which the Small Business Administration contracts with a federal agency having procurement powers for the performance by the SBA of the work required under a so-called prime contract; in turn, the SBA subcontracts the actual performance of the work to a section 8(a) contractor which the SBA determines to be a socially and economically disadvantaged small business concern. Small Business Act, \u167 2[8] (a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Where actions of both the Small Business Administration and the Air Force with respect to selection of contractor to perform final year of contract for janitorial services at Air Force base were preliminary and nonbinding, as the Air Force had not issued the required request for performance of the contract and the SBA had not submitted its contractor\rquote s proposal, there was no implied-in-fact contract between the Air Force and the company which had been performing the contract and court thus had no jurisdiction to grant injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Air Force did not abuse its discretion with respect to participation in the section 8(a) program with the Small Business Administration by indicating that it would not accept, for the final option year of a contract, the contractor which had been performing the work. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Evidence showed that there was rational basis for Air Force to request that Small Business Administration provide new contractor for performance of janitorial services at Air Force base under section 8(a) contract and that Air Force did not act in bad faith in making the request in view of complaints which had arisen over the performance of the contractor. Small Business Act, \u167 2[8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': In its requests and in its verified complaint, plaintiff seeks to enjoin the United States Department of the Air Force (Air Force) from taking any action relative to the procurement and/or performance of janitorial and custodial services at Kelly Air Force Base, Texas, beginning May 1, 1984. Plaintiff is presently performing said janitorial and custodial services at Kelly Air Force Base under the first option year provision of an April 30, 1982, subcontract (No. SB6338(a)\u821182C\u82117040) with the Small Business Administration (SBA) in conjunction with a prime contract (No. FA1800\u821182\u8211R0036) between the SBA and the Air Force relative to said janitorial and custodial services. The subcontract contained a provision which gave the Air Force the unilateral right to exercise the option to extend the subcontract for two successive one-year periods. While the Air Force exercised the option and extended the contract for the first option period (May 1, 1983\u8212April 30, 1984), it has notified plaintiff, the subcontractor, and the SBA, the prime contractor, that it would not exercise Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': In essence, a section 8(a) contract is one in which the SBA contracts with a federal agency having procurement powers for the performance by the SBA of the work required under a so-called prime contract. In turn, the SBA subcontracts the actual performance of the work to a section 8(a) contractor who the SBA determines to be a socially and economically disadvantaged small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a Texas corporation with its principal place of business in San Antonio. In 1973, plaintiff was determined to be a socially and economically disadvantaged minority-owned small business concern by the SBA. In this regard, plaintiff had submitted to the SBA a business plan which set forth its financial, managerial and performance capabilities and the types of contracts it could perform. Plaintiff first became a section 8(a) contractor at Kelly Air Force Base in March 1973. Plaintiff, under various corporate names, performed as a section 8(a) contractor at Kelly Air Force Base from March 1973 through April 1982 performing janitorial and custodial services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': On February 1, 1984, the SBA replied to the Air Force\rquote s January 27th letter. In this letter, the SBA advised the Air Force that \the Small Business Administration considers Harris Systems International, Inc. an acceptable contractor for the Kelly AFB custodial contract.\ The letter went on to recite the fact that the Air Force failed to substantiate adequately its claim of deficient performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': This rather unusual contractual relationship between the Air Force, the SBA and plaintiff was governed and controlled by the Small Business Act, particularly Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 67 - Harris Systems Intern Inc v US.doc, Paragraph with 'The Rule of Two': 32 C.F.R. \u167 124.1\u82111(f) (1982). As a result, under existing law, a small business can be in the section 8(a) contract program no longer than 7 years. Indeed, plaintiff, as part of the SBA\rquote s Fixed Program Participation Term (FPPT), is scheduled to complete (graduate if you will) participation in the section 8(a) contract program in December 1984. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Action was brought for order enjoining the United States from soliciting black and red silicone rubber tape as a small business set-aside procurement. On cross motions for summary judgment, the District Court, Latchum, Senior District Judge, held that there was a rational basis for contracting officer\rquote s decisions to make procurements of red and black electrical insulation tape a total small business set-aside, and these decisions were in accordance with statutory requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Question on review of contracting officer\rquote s decision to establish a total small business set-aside was not whether the decision was right or wrong but whether it was result of a considered process, rather than an arbitrary and capricious choice based on factors lacking in the intrinsic rational basis or relationship to the questions at issue, and there was a heavy burden on party challenging the decision to show that contracting officer\rquote s decision, on matters committed primarily to his own discretion, had no rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Decision to change a procurement to a total small business set-aside comes within the discretion of the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2](a), 2[15](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': There was rational basis for contracting officer\rquote s decisions to make procurements of red and black electrical insulation tape a total small business set-aside, and those decisions were in accordance with requirements of statute, despite contention that one small business concern\rquote s bid just prior to the decision was nonresponsive because it took exception to packaging specifications and that the only other small business concern which bid just prior to the decision submitted defective bids and was permitted to deviate from contract requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2] et seq., 2[2](a), 2[15](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': , the plaintiff, Keene Corporation (\Keene\) seeks an order permanently enjoining the United States from soliciting black and red silicone rubber tape as a small business set-aside procurement in violation of the Armed Services Procurement Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': , the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': rubber tape as a total small business set-aside was arbitrary, capricious, without a rational basis, an abuse of discretion and otherwise not in accordance with the law. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The Chase Foster Division of Keene had been a major supplier to the DGSC of red and black extruded self-adhering silicone rubber tape until DGSC designated the procurement of the black tape as a total small business set-aside in late 1979 by a solicitation for bids issued on November 28, 1979. (D.I. 4 at 2.) DGSC designated the red tape as a total small business set-aside in late 1980. (D.I. 1 at 2; D.I. 4 at 2.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': small business set-aside Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': and thus the solicitation was restricted to small business concerns. (D.I. 19 at 12A, 13A.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The last solicitation issued by the DGSC for black electrical tape (DLA 400\u821179\u8211B\u82112610) which was not a total small business set-aside occurred on July 3, 1979. (D.I. 19 at 2A, 8A.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': and one small business manufacturer submitted bids within the competitive range. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) The invitation for bids No. DLA 400\u821179\u8211B\u82112610 was opened on August 2, 1979, and a total of six bids were received. (D.I. 19 at 8A\u821110A.) Two of the bids received were from small business manufacturers, Markel Corporation (\Markel\) and Moxness Products, Inc. (\Moxness\). ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': One small business manufacturer, Markel, took exception to the government\rquote s packaging requirements for Leeds & Northrup, a Navy depot in Oakland, California. (D.I. 7 at 9.) Therefore, the bid was initially determined to be non-responsive to the solicitation. (D.I. 7 at 9; D.I. 8 at 39, 40.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The next solicitation for black insulation electrical tape for DLA 400\u821180\u8211B\u82110065 was issued on November 28, 1979. (D.I. 19 at 3A, 12A.) Based upon his review of the two small business bids received on August 2, 1979, and the exception taken by Markel, Peck, on October 24, 1979, had recommended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) As a result of this discussion with Markel, Harvie recommended that the solicitation be changed to a total small business and labor surplus area set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': two from small business manufacturers Moxness and Markel, and one from a small business dealer. (D.I. 19 at 14A\u821115A.) The contract, DLA 400\u821180\u8211C\u82110844, was awarded to Moxness at $3.80 per roll for items 1 and 2 and $3.30 per roll for items 3 through 5. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 16A.) The solicitation was designated by Peck as a total small business set-aside. (D.I. 8 at 63.) The bids were opened on July 15, 1981 and three bids from small business concerns were received: Markel, Moxness and Insulectro. (D.I. 19 at 16A.) Insulectro, a small business dealer, was low bidder on items 1 and 2 ($4.25 per roll). Moxness was low bidder on items 3 through 5 ($3.69 per roll). ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': On September 28, 1981, Keene submitted an unsolicited bid proposal to supply the material requested in the solicitation issued on June 15, 1981, DLA 400\u821181\u8211B\u82114496. (D.I. 19 at 18A.) The proposal urged the contracting officer to withdraw the 100% small business set-aside and accept Keene\rquote s bid of $4.17 per roll for item 1, $4.14 per roll for item 2 and $3.50 per roll for items 3 through 5. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': On October 2, 1981, Peck responded in writing to the Marketing Director of Keene that the unsolicited bid was late and non-responsive in that it did not meet the terms and conditions of the small business solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': On November 18, 1981, a subsequent solicitation for black electrical insulation tape was issued as DLA 400\u821182\u8211B\u82110977. (D.I. 19 at 21A.) This solicitation was also designated by Peck as a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 4A.) The bidding was opened on December 18, 1981, and two small business concerns, Markel and Moxness, submitted bids. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': With respect to red electrical insulation tape, the last solicitation which was not a total small business set-aside, was issued on May 5, 1980 as DLA 400\u821180\u8211B\u82112581. (D.I. 19 at 23A.) Prior to the issuance of that solicitation, Peck determined that the solicitation would be designated as a 50% small business set-aside. (D.I. 19 at 5A.) On June 4, 1980, five bids were received at the bid opening: two small business manufacturers, Markel and Moxness, one small business dealer and two large business manufacturers, Keene and Bishop Electric. (D.I. 19 at 23A.) Keene was awarded the non-set-aside portion of the procurement in contract number DLA 400\u821180\u8211C\u82112374 at $3.70 per roll for item 1 and $3.40 per roll for items 2 through 4. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 24A.) On August 18, 1980, Moxness was awarded the small business set-aside portion of the contract DLA 400\u821180\u8211C\u82112877. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': As a result of the Markel and Moxness bids on the June 1980 solicitation, Harvie recommended that the next solicitation for red electrical insulation tape be designated a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 27A.) The bid opening occurred on December 10, 1980, wherein three small business concern bids on DLA 400\u821181\u8211B\u82110762 were received. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 6A.) On January 19, 1981, Peck designated the solicitation as a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) Two small business concerns, Markel and Moxness, responded to the invitation. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': As a result of the total small business set-asides for black and red electrical insulation tape, Keene has been precluded from bidding on the solicitations. Thereafter, Keene filed this suit on December 23, 1981, questioning the validity of the set-aside determinations and requesting this Court to enjoin permanently the United States from soliciting black and red silicone rubber tape on a total small business set-aside basis. (D.I. 1.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': in dispute. Keene is not asserting that Markel and Moxness are not responsible small business firms. (D.I. 20 at 9.) Secondly, Keene is not questioning the validity of the applicable regulations in this case. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': With respect to the issues in dispute, Keene is challenging whether or not Markel and Moxness submitted past responsive bids and whether Peck\rquote s decision to change to a total small business set-aside had a rational basis. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 10.) Thirdly, Keene argues that reliance upon previous non-responsive bids in violation of the regulation undermines competition and therefore, it cannot provide a rational basis for a decision to change to a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) Finally, Keene is requesting that the total small business set-aside designation be overruled and that it be allowed to participate in future procurements of electrical insulation tape. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': whether the contracting officer\rquote s decision to change to a total small business set-aside was right or wrong. Instead, this Court must determine whether or not the contracting officer\rquote s decision was \the result of a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Total Small Business Set-Aside Guidelines Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The controversy here arises out of a total small business set-aside designation made by Peck for the procurement of black and red electrical insulation tape. Peck, as the contracting officer for DGSC, made this determination pursuant to the Armed Services Procurement Act and the Armed Services Procurement Regulations, the statutory authority which establishes the policy under which the DGSC purchases supplies and equipment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': (1983) and 32 C.F.R. \u167 1\u8211706.5(a)(1) (1983). The Act provides in pertinent part that: \It is also the policy of Congress that a fair proportion of the purchases and contracts ... be placed with small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': 32 C.F.R. \u167 1\u8211700 to 32 C.F.R. \u167 1\u8211708 (1983). The particular regulation regarding the requirement for a total set-aside of a procurement for small business concerns reads in part, as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': [T]he entire amount of an individual acquisition or class of acquisitions, ... shall be set aside for exclusive small business participation (1\u8211701.1) if the contracting officer determines that there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': that (i) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns and (ii) awards will be made at reasonable prices (1\u8211706.3(a)). Total set-asides shall not be made unless such a reasonable expectation exists .... Although past acquisition history of the item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Keene contends that: (1) the contracting officer lacked the requisite \reasonable expectation\ that at least two responsible small business concerns would submit future adequate bids; and (2) the total set-aside precludes competition where one of the two small business firms involved had submitted a non-responsive bid in the past and the other small business concern repeatedly had been granted post-award deviations from the specifications set forth in the DGSC\rquote s original invitation for bids. (D.I. 15 at 7, 13 and D.I. 20 at 3.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Keene argues that the DGSC\rquote s alteration of its procurement policy with respect to electrical insulation tape from a 50% small business set-aside to a 100% small business set-aside thus was arbitrary, capricious, an abuse of discretion, without a rational basis and otherwise not in accordance with the law. (D.I. 1 at 6.) Keene bases its contention on two arguments: (1) that Markel\rquote s bid just prior to the decision to establish a total small business set-aside was non-responsive because it took exception to the packaging specifications; and (2) the only other small business concern (Moxness) which bid on August 2, 1979, DLA 400\u821179\u8211B\u82112610, just prior to the decision to establish a total small business set-aside, submitted defective bids inasmuch as Moxness was improperly permitted to deviate from the contract requirements after Moxness was selected as low bidder. (D.I. 15 at 7\u82118.) Therefore, Keene contends that the DGSC had no factual basis to reasonably expect that at least two responsible small businesses would submit adequate bids in the future. (D.I. 20 at 5.) The Court finds this argument to be without merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The last solicitation for black electrical insulation tape which was not a total small business set-aside occurred on July 13, 1979. (D.I. 19 at 11A.) On August 2, 1979, six bids were received. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': small business firms, Markel and Moxness, submitted bids. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) When Harvie was reviewing the August 2, 1979 procurements for small business and labor surplus set-aside potential, he noticed the exception taken by Markel. (D.I. 7 at 9.) Upon seeing this, Harvie contacted Markel to determine whether or not Markel was aware that the exception it took on DLA 400\u821179\u8211B\u82112610 made its bid non-responsive on items 1 and 2. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': ) Even though Peck had recommended that the next procurement be a 50% labor surplus set-aside, Harvie recommended, based upon his discussion with Markel, that procurement be a combined 50% labor surplus/100% small business set-aside. (D.I. 19 at 12A\u821113A.) This change was agreed to by Peck. (D.I. 8 at 41.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The record presented demonstrates that at the time Peck made the determination to change the November, 1979 procurement of black electrical insulation tape a total small business set-aside, he considered all the relevant factors relating to the total small business set-aside and made a rational decision to change the procurement. As the facts have shown, Peck made his decision of reasonable expectation after a careful review of the prior solicitation, the price indices established by the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Even assuming for the sake of argument that Peck was aware of a post-award deviation request by Moxness, Peck\rquote s decision to change to a total small business set-aside would stand as long as Peck considered all of the relevant factors before him and drew a rational conclusion. First of all, the post-award request is subject to the approval of the DGSC. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': (D.I. 19 at 8A\u821110A.) This was the solicitation that Peck reviewed prior to his October 1979 decision to make the next procurement a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 10A.) The November 18, 1979 solicitation for DLA 400\u821180\u8211B\u82110065 resulted in three small business concerns. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': With respect to the red electrical insulation tape, the relevant and material facts establish that Peck made a rational decision after a careful review of the situation before him at the time. The May 5, 1980 solicitation for red electrical insulation tape resulted in the submission of bids by three small business concerns. (Id. at 23A.) Harvie reviewed this solicitation in October of 1980 and he recommended to Peck that the next procurement be a total small business set-aside. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Harvie\rquote s recommendation was based on the fact that on the invitation for bid DLA 400\u821180\u8211B\u82112581 of June 4, 1980, three small business concerns submitted responsive bids. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 6A.) The procurement was a total small business set-aside and Moxness was awarded the contract for items 1 and 2 at $4.10 per roll while Markel was awarded the contract for items 3 through 5 at $3.50 per roll. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': at 25A, 26A.) Subsequent solicitations for red electrical insulation tape as a total small business set-aside have been issued. In response to a January 19, 1981 solicitation, two small business concerns, Markel and Moxness, submitted responsive bids. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': In the present case, there are no facts to indicate that the contracting officer did not make a rational decision to change the procurement of red and black electrical insulation tape to a total small business set-aside. The facts do indicate that the contracting officer carefully reviewed the prior solicitations, the bids submitted and the recommendations of the Small and Disadvantaged Utilization Specialist for the DGSC. Based upon these factors and the contracting officer\rquote s use of discretion for predicting future expectations, this Court finds that there is a rational basis for the contracting officer\rquote s decisions to make the procurements of red and black electrical insulation tape a total small business set-aside and that these decisions are in accordance with the requirements of the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': In considering the United States\rquote cross motion in a light most favorable to Keene, there are no material facts in dispute that tend to show that the United States, through its agents, acted arbitrarily, capriciously, without a rational basis, abused its discretion or violated any statutory or regulatory provision. Based on the pleadings, depositions, exhibits and affidavits, this Court concludes that the decision of the United States through its agents, to classify the procurement of electrical insulation tape as a small business set-aside was reasonable and in accordance with the regulations promulgated by the Department of Defense. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The Armed Services Procurement Regulations provide that a manufacturer is considered a \small business\ concern if the number of employees of the concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': does not exceed 500 persons. 32 C.F.R. \u167 1\u8211701.1(b)(8) (1983). Although the Chase Foster Division of Keene in Bear, Delaware, only employs approximately 150 people, Keene Corporation, the bidder, employs more than 500 people and thus does not qualify as a small business concern. (D.I. 15 at 2.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The SBA representative reviews each file and each procurement before it is solicited to make sure that a \fair proportion\ of contracts are placed with small business concerns. (D.I. 8 at 10.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Three competitive bids were received, from two small business manufacturers and a dealer offering the product of a small business. Awards were made following the Contracting Officer\rquote s determination of fair and reasonable prices. The prices contained in your wire represent reductions of 2% below the award price of Items 0001 and 0002 and approximately 4% below prices of Items 0003\u82110005, and were received after timely bid prices were revealed. They do not indicate adequate savings to justify removal of the Small Business Set-Aside designation on the basis of unreasonable prices. It is considered that adequate small business competition exists from responsible manufacturers at reasonable prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': This policy was enhanced by the enactment of the Small Business Act where it is stated in part that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The essence of the American economic system of private enterprise is free competition. Only through full and free competition can free markets, free entry into business, and opportunities for the expression and growth of personal initiative and individual judgment be assured. The preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation. Such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed. It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for maintenance, repair, and construction) be placed with small-business enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the over-all economy of the Nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': In 1958, the Small Business Act was amended to provide some guidance to the procurement agencies of the government in the enforcement of these Congressional mandates by indicating that small business concerns shall receive any award or contract when it is determined: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': (3) to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government are placed with small business concerns, or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': (4) to be in the interest of assuring that a fair proportion of the total sales of Government property be made to small business concerns .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The extent of this discretion is evidenced by a review of our decisions in the area. There is no requirement that the contracting activity perform an in-depth survey prior to initiating a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': In this regard, we have upheld a set-aside determination where the basis was the fact that competitive bids were received from two small businesses on the previous procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': We have approved a contracting officer\rquote s decision to set-aside a procurement where the contracting officer relied solely upon a commodity source list to determine that there were a sufficient number of responsible small businesses which could be expected to bid so that award could be made at a reasonable price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': We have even upheld a contracting officer\rquote s determination in this regard where only one bid from a small business concern was received in response to the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': Since the circumstances of each procurement are unique, there can be no simple formula for making such business judgments. In any event, if after receipt of bids a contracting officer determines that there is not sufficient small business participation or that awards cannot be made at reasonable prices, a contracting officer may properly withdraw the set-aside in accord with DAR \u167 1\u8211706.3(a). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': B\u8211195747, May 2, 1980, 80\u82111 CPD \u8211\u8211\u8211, where we indicated that doubt as to the number of responsible small businesses expected to compete could be resolved by opening bids to determine the propriety of the set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The Record of Set-Aside Action for 81\u8211B\u82110762 dated October 16, 1980, shows that the contracting officer initially recommended a 50% small business set-aside but later changed his recommendation to 100%. Harvie \non-concurred\ in the original decision stating: \Recommend 100% SB SA. Markel & Moxness both SB bid competitively on IFB 80\u8211B\u82112581.\ (D.I. 19 at 27A.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 68 - Keene Corp v US.doc, Paragraph with 'The Rule of Two': The set-asides with regard to the black and red electrical tape have continued in accordance with the regulations set forth in 32 C.F.R. \u167 1\u8211706.1(f). In essence, that regulation states that once a product has been successfully contracted as a small business set-aside, all future requirements of that office for that particular product shall be acquired on that basis, unless it is determined by the contracting officer that there is no reasonable expectation that offers will be obtained from at least two reasonable small business concerns and that the awards will not be made at reasonable prices. Since the prices set forth in the bid abstracts reflect competitive bidding by at least two small business concerns at reasonable prices, the decision to continue the uses of small business set-asides has been appropriate. (D.I. 19.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 70 - Eastern Marine Inc v US.doc, Paragraph with 'The Rule of Two': During April 1983 the Coast Guard reviewed the responses to the March 1983 notice and determined that enough small shipyards were in competition to designate the procurement as a small business set aside, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 70 - Eastern Marine Inc v US.doc, Paragraph with 'The Rule of Two': The Coast Guard issued the formal RFP on May 9, 1983. That same day, Captain Dean A. Frankenhauser, who was both the WPB Acquisition Team Chairman and the Source Evaluation Board (SEB) Chairman, called Campbell. The substance of this conversation and a number of other conversations between the two men was disputed. Basically, Frankenhauser claimed he called Campbell merely because he thought the Equitable response \looked like a very viable candidate.\ He testified that he had only three telephone conversations with Campbell, during which he never represented that a two engine WPB based on a three engine Parent Craft was acceptable. He also claimed to have continually referred Campbell to Lcdr. James Q. Neas, who was listed in the RFP as the person to contact for information concerning the procurement. Campbell, on the other hand, testified to having ten telephone conversations with Frankenhauser. Campbell also testified that Frankenhauser solicited him to find a small business to submit a proposal based on the SAR\u821133, and that Frankenhauser gave him a list of seventeen qualified shipyards to contact. Campbell further testified that on a number of occasions, Frankenhauser represented that the deletion of an engine, shaft, strut and propeller would be acceptable provided the offeror submitted data to verify performance claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 70 - Eastern Marine Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that because of the representations of Captain Dean A. Frankenhauser, the defendant should be estopped from asserting that the deletion of the engine, shaft, strut and propeller violates the COR. The Court finds this aspect of the case most disturbing. It was Captain Frankenhauser who solicited Mr. Campbell to find a small business shipyard that could submit a proposal based on the SAR\u821133. It was Captain Frankenhauser who represented to Campbell that the deletion of the engine and its attendant equipment would not result in its elimination from the competition. Indeed, it is apparent to this Court that, but for the unauthorized solicitation and representations of Captain Frankenhauser, plaintiff never would have submitted a proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 76 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s suspension of contractor had nothing to do with contractor\rquote s status as a small business enterprise, and thus, did not violate the Small Business Act. Small Business Act, \u167 2[8](b)(7)(A, C), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 76 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': We face first dual issues of jurisdiction: (1) whether this court may assert jurisdiction over the Government\rquote s appeal, and, if so, (2) whether the Claims Court properly entertained jurisdiction over Electro\rquote s suit. The third and major issue we face is whether the Claims Court erred in holding that the suspension notice violated Electro\rquote s constitutional right to due process. Finally, we decide whether the Claims Court was correct in declining to refer Electro\rquote s proposed suspension to the Small Business Administration (SBA). We hold affirmatively on the two jurisdictional issues, reverse and remand with instructions to vacate on the constitutional issue, and affirm on the SBA issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 76 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': Electro urges upon appeal, as it did before the court below, that its suspension was invalid because the suspension official violated the requirements of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 76 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': by unilaterally determining, without referral to the SBA, that Electro lacked business honesty and integrity such that its responsibility as a Government contractor was affected. The Claims Court correctly held that the Air Force\rquote s suspension of Electro had nothing to do with Electro\rquote s status as a small business enterprise, but everything to do with its possible involvement in criminal activities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 78 - Golden Eagle Refining Co Inc v US.doc, Paragraph with 'The Rule of Two': In January 1984, DFSC issued a reprocurement solicitation to cover the remaining third contract year volumes formerly covered by contract D\u82110456. This solicitation covered 71,265,667 gallons of JP\u82114 jet fuel, 49,885,967 of which were set aside for small business. One contract, which was not a small business set aside, was awarded on February 10, 1984, covering 21,379,700 gallons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 78 - Golden Eagle Refining Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff submitted a bid in response to the January reprocurement solicitation. Details of the solicitation, the bids, etc., were not made available to the court. As to the 49,885,967 gallons of JP\u82114 jet fuel set aside for small business, plaintiff was not eligible to receive a contract relative thereto since it was not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 82 - Acme of Precision Surgical Co Inc v Weinberger.doc, Paragraph with 'The Rule of Two': 2. The Plaintiffs are manufacturers of surgical instruments of various types, including the surgical instruments which were being procured by the various solicitations described hereinafter. The Plaintiffs are both small businesses as defined in the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Action of Small Business Administration in not appealing terminations of small business negotiations for public contract had a rational or reasonable basis in that the action was taken only after careful analysis of negotiating documents as compared to contractor\rquote s representations concerning concrete pipe price and after hearing views on matter in extensive conference. Small Business Act, \u167 2 [8](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': As originally contemplated in 1981 the Outlet Conduit contract was the initial project, to be followed by the contract for the dam. Because the Corps of Engineers then concluded that the size and complexity of the Outlet Conduit project and the specialized work involved precluded a set-aside of the procurement for a small business, in the spring of 1981 specifications were prepared for an unrestricted advertised contract. Bid opening for the conduit contract was originally scheduled for September 15, 1981. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': Alderete, at all times relevant to this litigation, has been a so-called \8(a) contractor,\ a corporation designated by the Small Business Administration (SBA) as a \socially and economically disadvantaged small business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': of the Small Business Act); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': , a federal agency contracts with SBA for the performance of required work. SBA locates a qualified small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': The court also enjoined the previously scheduled bid opening and ordered that the Corps of Engineers offer the project to SBA under the 8(a) program. The judgment further provided that \the Army Corps of Engineers, its officers, agents, servants, and/or employees be, and they are hereby, ORDERED to determine the acceptability of any 8(a) contractor(s) that the Small Business Administration may propose to the Corps as qualified to perform the work required on the Keystone Dam Outlet Conduit project.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': On April 26, 1982 the Albuquerque district Corps of Engineers requested by letter that the Dallas region, Small Business Administration, advise \if you can nominate a potential 8(a) contractor for this project [Keystone Dam Outlet Conduit].\ In June of 1982 F. Alderete General Contractors, Inc., after a selection evaluation, was so nominated by SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': In accordance with DAR 1\u8211705.5 and the Memorandum of Understanding between the Small Business Administration and the U.S. Army Corps of Engineers, dated 2 February 1979, face-to-face negotiations between the proposed Subcontractor and the Corps of Engineers took place from 22 November 1982 through 24 November 1982, 9 December 1982 through 10 December 1982 and again on 16 December 1982. Additional negotiations took place via a one-hour conference call on 30 November 1982 and via conference calls on 14 December 1982. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Defense contractor brought action alleging that Air Force illegally suspended it, resulting in denial of contracts, and that the suspension denied it its rights under due process clause and applicable regulations. The District Court, Fish, J., held that: (1) Congress, in amending Small Business Administration Act\rquote s \certificate of competency\ provision, did not eliminate procuring agency\rquote s power to suspend a contractor who is under a criminal indictment relating to past performance on government contracts; (2) contractor\rquote s due process rights to notice and hearing were not violated by its suspension; (3) assuming that contractor had a protected liberty interest and a corresponding right to monetary damages for invasion of that interest, it could not prevail on the issues because it failed to establish, by preponderance of the evidence, that it was stigmatized by the actions of procurement officials; (4) contractor established no violation of its right to privacy, because preponderance of evidence failed to show that report of official of Defense Supply Agency was ever disclosed to anyone outside the Air Force or the Small Business Administration; and (5) although contractor was de facto suspended without having an opportunity for rebuttal required by due process, and nonresponsibility determination did not comply with procurement regulations, contracts which were awarded to other contractors would not be cancelled and awarded to plaintiff contractor, since Air Force had adequate evidence for its suspension of contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Although contracting officer did not refer all documents regarding determinations of nonresponsibility to Small Business Administration to which it was entitled under regulations, Administration did have essential document it needed to review determinations in form of FBI report, and thus error in incomplete referral was not sufficiently material to overturn decision of contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s treatment of referral of his nonresponsibility decision to Small Business Administration did not justify overturning its determination, even though referral was incomplete in certain respects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Assuming that a contracting officer is required to make specific findings of fact in any nonresponsibility determination, contracting officer adequately informed Small Business Administration of reasons for his determinations on two \requests for proposals\ by giving agency a copy of FBI report on which he based determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s failure to make additional copies of FBI report regarding contractor and to place them in \contract files\ was not contrary to regulation requiring that a contracting officer have in his possession or obtain evidence on which he bases a nonresponsibility determination before making it, since purpose of regulation is to enable Small Business Administration to review contract officer\rquote s decision, and since copy was placed in SBA file, the regulation\rquote s purpose was satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Contractor established no violation of its right to privacy with regard to investigation of its private business affairs by officer of Defense Supply Agency, because preponderance of evidence failed to show that officer\rquote s report was ever disclosed to anyone outside the Air Force or the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': There was no need to enter an order requiring expungement or prohibiting any distribution of information on file regarding investigation of contractor, inasmuch as information contained in FBI report provided adequate evidence for nonresponsibility determinations and was part of adequate evidence for suspension of contractor, and there was no evidence that Air Force ever distributed, or intends in the future to distribute information, except to United States Attorney and the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': This dispute arises from the efforts of a small business to obtain government contracts for the repair of certain Air Force equipment. Despite its long and complex history, the case falls into four general parts, into which this memorandum is divided. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Part One involves the claims of Shermco Industries, Inc. and Peter Sherman (\Shermco\) that (1) the Air Force illegally suspended Shermco, resulting in a denial of contracts, even though the Small Business Administration (\SBA\) had previously certified Shermco\rquote s responsibility and (2) this suspension denied Shermco its rights under the due process clause and applicable regulations. Part Two overlaps Part One somewhat, but has its primary focus on Shermco\rquote s claim that from February 27, 1976 to March 10, 1978, it was de facto suspended from contracts without procedural protections. Part Three addresses whether the Air Force followed its own regulations in deciding not to award Shermco the three contracts in question because it had been determined a \non-responsible\ contractor. Part Four concerns what relief, if any, is to be afforded Shermco. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': The court\rquote s prior order dated November 22, 1976 described the dispute on its arrival here. That description need not be repeated. It is sufficient to state that in the November 22, 1976 order the court held that the Air Force had failed to abide by its own regulations in its June 16, 1976 determination of Shermco\rquote s non-responsibility under the Small Business Administration Act (\the Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': PART ONE: EFFECT OF THE AMENDED SMALL BUSINESS ACT ON THE AIR FORCE\rquote S SUSPENSION REGULATIONS Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': (false, fictitious, or fraudulent claims) arising out of the same facts that had given the Air Force concern about Shermco\rquote s responsibility. The SBA remained convinced of Shermco\rquote s integrity and issued its final COC on January 20, 1978. On February 7, 1978, as a result of the indictment, the Air Force suspended Shermco from doing business with the Air Force specifically and the Department of Defense in general. The merit of Shermco\rquote s claim that it was wrongfully denied a contract under RFP 0814 thus turns on resolution of the Air Force\rquote s asserted authority to suspend a contractor from all contracts and the SBA\rquote s authority under the amended Act to decide conclusively the competence of a small business bidding for a specific government contract. If the Air Force\rquote s suspension regulation governs over the amended Act, then Shermco\rquote s claim as to RFP 0814 cannot stand. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': (C) In any case in which a small business concern or group of such concerns has been certified by the Administration pursuant to (A) ... to be a responsible ... Government contractor as to a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Section 8(b)(7) of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': authorizes the Small Business Administration to issue a \Certificate of Competency\ (COC). This document \certifies to a Federal procuring activity that a small business concern is competent as to capacity and credit to perform Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Whenever any question arises as to the capacity and credit of such small business concern, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': refers the matter to the Small Business Administration, and its subsequent decision on the matter is conclusive. However, once the COC is issued, the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': There is, at present, no statutory requirement mandating that once a COC is issued the contract must be let to the small business, nor does the statute include other elements aside from a small business\rquote s capacity or credit. This has resulted in severe problems for the small business community. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small business can and has been denied Government contracts because the procuring activity has determined that the small business lacked the requisite \tenacity, perseverance or integrity\ to perform Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': , the SBA had exclusive authority to make all determinations concerning the responsibility of small business bidders. The court rejected the contractor\rquote s argument holding that, although the language of the amended Act was broad enough to encompass the Forest Service\rquote s application of the rebidding regulation, the legislative history indicated that Congress did not intend the Act to apply to the situation there presented. After reviewing the legislative history, the court concluded: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Although the 1977 amendments were intended to give the administrator broader authority to determine whether small businesses seeking to participate in government contracts are responsible, we conclude that the provision does not apply to the Forest Service\rquote s refusal to permit the plaintiff to bid on the second timber contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': The purpose of this provision, as reflected in the legislative history of its predecessors, was to end the discrimination against small business that existed because contracting officers had barred those businesses solely because of their smallness and disabilities allegedly resulting from that fact. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': There is no indication, however, that Congress also intended to cover the situation of the reletting of the contract after a small business firm had defaulted in performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': does not discriminate against small businesses but generally bars all defaulting contractors from bidding upon the reletting of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': The Forest Supervisor refused to allow the plaintiff to participate in rebidding, not because of alleged deficiencies stemming from its size, but because of its failure to cut any timber under the prior contract. The result would have been the same if the plaintiff had not been a small business. In the special circumstances of this case\u8212where the plaintiff had not cut a single foot of timber under the contract for 3 years\u8212section 637(b)(7)(A) of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': did not use the words \integrity\ or \responsibility,\ that regulation did represent a judgment that a contractor who, on the basis of past performance, could not be relied on to perform a contract, should not be allowed a second chance to bid on that contract. If the Court of Claims had been so disposed, it could have found this to be a \responsibility\ determination about \perseverance\ or \tenacity.\ Instead, the court found the rebidding regulation to be an even-handed measure that served an important function in the procurement process. In the court\rquote s analysis, those judgments that fall within the category of \responsibility\ determinations, which are the exclusive province of the SBA, should be confined to a narrow area to permit procuring agencies to retain considerable discretion over their contracts with small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': the present controversy involves the application of a regulation that does not reflect any intent to discriminate against small business. Rather, the suspension regulation is an even-handed measure whose purpose is to ensure that procurement is conducted in the public interest. If Shermco could not be suspended in the face of a criminal indictment, it would be receiving more than equal treatment because of its small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': requires the Air Force to award contracts to small business concerns after a certificate of competency has been issued by the Small Business Association, without further review of eligibility by the Air Force; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': , that the Court set aside the contracts in dispute which have been awarded to other contractors and enter an order in the nature of a writ of mandamus and mandatory injunction directing the Air Force to honor the certificate of competency issued on January 16, 1978 by the Small Business Administration in favor of Shermco Industries, Inc. by awarding it all the contracts in dispute; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': In the present case, by contrast, the suspension against Shermco was lifted on March 10, 1978, only 31 days after it was imposed. Shermco has not, according to the evidence before the court, been returned to a \blacklist\ posture in the more than five years since its suspension and has been free to pursue government contracts on the same footing as any other small business entity. The main aspect of Shermco\rquote s prayer for relief is its request that the contracts in question, which have either been awarded to other contractors or have been abandoned, be cancelled and then awarded to Shermco. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 86 - Shermco Industries Inc v Secretary of the Air Force.doc, Paragraph with 'The Rule of Two': In its post-trial brief, Shermco quotes at length from the opening statement of James C. Corman, Chairman of the House Subcommittee on Government Procurement and International Trade of the Committee on Small Business, during hearings held on June 5, 1975. This statement, and the hearings conducted by Rep. Corman\rquote s committee, were primarily concerned with improper application of the Walsh-Healy Act by procurement officers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 88 - Eagle Const Corp v US.doc, Paragraph with 'The Rule of Two': plaintiff asserted the government impliedly promised it the right to bid on the procurement and then reneged by setting it aside for small businesses which prevented plaintiff from bidding. Both cases held that the implied contracts asserted were within the contemplation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Bidder, whose proposal was found by Navy Department to have been the \most advantageous\ proposal submitted in response to Department\rquote s request for proposals from small businesses, but who was refused contract award because of determination of Small Business Administration regional administrator that such bidder was not a \small business,\ brought action for declaratory and injunctive relief, seeking an order to direct Navy Department to consider its proposal on its merits without regard to Small Business Administration\rquote s size determination. The Claims Court, White, Senior Judge, held that: (1) Navy Department was not authorized to make independent study of Small Business Administration regional administrator\rquote s size determination; (2) Navy Department\rquote s action in making award on the request for proposals instead of delaying the award to await decision of Small Business Administration Size Appeals Board with respect to size determination of plaintiff bidder could not be characterized as a failure to accord plaintiff bidder\rquote s proposal the fair and honest consideration required by law; and (3) plaintiff bidder was not entitled to declaratory or injunctive relief with respect to separate request for proposals for which no determination by Navy Department had been made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Navy Department, in connection with bid award on its request for proposals from small businesses, was not authorized to make independent study of question and decide whether Small Business Administration regional administrator\rquote s size determination of bidder was correct. Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Navy Department\rquote s action in making an award on its request for proposals from small businesses instead of delaying award to await decision of Small Business Administration Size Appeals Board on possibility that the Board might overrule prior decision of Small Business Administration regional administrator that bidder whose proposal was determined by Navy Department to have been the \most advantageous\ bid proposal was not a \small business\ could not properly be characterized as failure to accord such bidder\rquote s proposal fair and honest consideration required by law, absent anything in the record to indicate that regional administrator\rquote s decision was influenced by prejudice against such bidder. Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Bidder which submitted proposal to Navy Department in response to Department\rquote s request for proposals from small businesses, for which there had been no determination or award made by the Department, was not entitled to declaratory or injunctive relief with respect to prospective award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Robert A. Reutershan, Washington, D.C., with whom were Acting Asst. Atty. Gen. Richard K. Willard, David M. Cohen, and M. Susan Burnett, Washington, D.C., for defendant. Stephen G. Berman, Valerie J. Harp, and David Nadler, Naval Sea Systems Command, Department of the Navy, and Pamela G. Steele, Small Business Admin., Washington, D.C., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': This case principally involves a Request for Proposals (\the RFP\) which the Naval Sea Systems Command issued to Southwest and some other companies that were known to the Navy as small business concerns engaged in the performance of repair, alteration, and maintenance work on naval vessels. The RFP was numbered N000\u821124\u821183\u8211R\u82118544 and it covered a requirement for repair, alteration, and maintenance work on the guided missile frigate USS BROOKE (FFG\u82111), with an option for work on the USS SCHOFIELD (FFG\u82113). The RFP requested competitive proposals for the work, and stated that it was set aside for participation by small business concerns. The RFP further stated that the USS BROOKE would commence a Selected Restricted Availability (\SRA\) for the work in the successful offeror\rquote s facility on February 20, 1984, and that the work was to be completed not later than April 13, 1984. The RFP, as originally issued, announced a scheduled award date of November 22, 1983. The Navy, however, later issued a request for \best and final offers,\ which extended the scheduled award date to December 23, 1983. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Department, as a small business concern eligible for contracts set aside for small business. In this connection, it has been the corporate policy of Southwest to maintain its manpower at such levels that it will retain its status as a small business and thus be eligible to bid on government procurements that are set aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': In order to maintain its status as a small business, Southwest has relied on the regulations of the Small Business Administration for guidance, particularly 13 C.F.R. \u167 121.3\u82118, \Definition of small business for Government procurement.\ This section begins with the following statement: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': A small business concern for the purpose of Government procurement is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is bidding on Government contracts and can further qualify under the criteria set forth in this section * * *. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': It should be explained that, in addition to 13 C.F.R. \u167 121.3\u82118, defining small business for government procurement, the regulations of the Small Business Administration include in 13 C.F.R. \u167 121.3\u82112 some general definitions of terms. Since 1976, paragraph (t) of this section has defined \number of employees\ to mean \the average employment of any concern, including the employees of its domestic and foreign affiliates, based on the number of persons employed on a full-time, part-time, temporary, or other basis during each of the pay periods of the preceding 12 months. * * * \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': In the early part of 1982, Southwest\rquote s status as a small business was protested by a competitor in connection with a Navy procurement that was set aside for small business. The protest was denied by the Regional Administrator of Region IX, Small Business Administration, in a determination dated March 31, 1982. The determination stated in part as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': SWM, together with its affiliates, does not exceed 1,000, Southwest Marine, Inc. may self-certify as a small business concern for the purpose of federal procurements which utilize 1,000 employees as the applicable size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Following the March 31, 1982, determination by the Regional Administrator, Southwest continued to utilize the quarterly method of determining its number of employees, continued to bid on Navy procurements that were set aside for small business, and, in submitting such bids, self-certified itself as a small business concern, pursuant to the authorization from the Regional Administrator of Region IX, Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': In 1983, with respect to still another Navy procurement for ship repair work that was set aside for small business, and on which Southwest submitted the bid that was most advantageous to the Government, Southwest\rquote s status as a small business was again protested by a competitor. The protest was allowed in a decision dated December 6, 1983, by the Regional Administrator of Region IX, Small Business Administration, and Southwest was held to be ineligible to receive the contract involved in that proceeding. The Regional Administrator referred to the previous decision of March 31, 1982, and said that it \constituted an erroneous interpretation of the agency\rquote s own regulations.\ The Regional Administrator\rquote s determination further stated in part as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Accordingly, the Regional Administrator finds Southwest Marine, Inc. to be other than a small business for purposes of the contract in question or any other government contract subject to an average employment size standard of 1,000 or less. Southwest Marine, Inc. shall not self-certify itself as a small business on any government contract subject to an average employment size standard of 1,000 employees or less until it is first recertified by this office or the SBA Size Appeals Board. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': On December 12, 1983, Southwest took an appeal to the Office of Hearings and Appeals of the Small Business Administration in Washington, D.C., from the size determination of December 6, 1983, by the Regional Administrator of Region IX. The appeal is still pending before the Size Appeals Board of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': This was followed on December 16, 1983, by the filing of Southwest\rquote s complaint with the court, seeking an order which would direct the Navy Department to consider Southwest\rquote s proposal on its merits, without regard to the size determination of December 6, 1983, by the Regional Administrator of Region IX, Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': evaluation and had submitted the proposal which was most advantageous to the Government, from the standpoint of price and other pertinent factors. However, as the December 6, 1983, decision by the Regional Administrator of Region IX, Small Business Administration, that Southwest was other than a small business was still outstanding, it was concluded that the Navy Department could not properly award the contract to Southwest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Government. The Navy Department was prepared to award the contract on the USS BROOKE (with option for work on the USS SCHOFIELD) to Southwest, but for the December 6, 1983, determination by the Regional Administrator of Region IX, Small Business Administration, which declared that Southwest was other than a small business, not only with respect to the procurement involved in that proceeding but also with respect to \any other government contract subject to an average employment size standard of 1,000 or less.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': that the Small Business Administration is empowered \to determine within any industry the * * * business enterprises which are to be designated \u8216small-business concerns\rquote ,\ and that procurement agencies of the Government \shall accept as conclusive the Administration\rquote s determination as to which enterprises are to be designated \u8216small-business concerns\rquote . * * * \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Southwest contends, however, that the Navy Department acted unfairly and arbitrarily on December 21, 1983, in proceeding to make an award on the RFP, without awaiting a determination by the Size Appeals Board of the Small Business Administration on Southwest\rquote s appeal from the December 6, 1983, adverse determination by the Regional Administrator of Region IX. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': It is concluded, therefore, that the Navy Department\rquote s action on December 21, 1983, in making an award on the RFP, instead of delaying the award to await the decision of the Size Appeals Board, Small Business Administration, on the possibility that the Board might overrule the December 6, 1983, decision of the Regional Administrator of Region IX, cannot properly be characterized as a failure to accord the plaintiff\rquote s proposal the fair and honest consideration required by law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, there is nothing in the record to indicate that the Regional Administrator of Region IX, Small Business Administration, was influenced by prejudice against Southwest, or other improper motive, when the administrative regulations on smallness were interpreted differently in the decision of December 6, 1983, as compared with the interpretation announced in the decision of March 31, 1982. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 90 - Southwest Marine Inc v US.doc, Paragraph with 'The Rule of Two': It is presumed that if, at the time when the Navy Department is ready to make an award on Request for Proposals N00024\u821183\u8211R\u82118547, the Size Appeals Board of the Small Business Administration shall have rendered a decision favorable to Southwest on the latter\rquote s appeal, the Navy Department will consider Southwest\rquote s proposal for the guided missile destroyers on its merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 92 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': As a result, on August 9, 1983, the court enjoined the Navy Department from awarding to anyone, other than plaintiff, the four contracts on which plaintiff was low bidder, and, in the event any had already been awarded, from directing or permitting performance of any work under such contract, for a period ending 5 business days after issuance of the Navy\rquote s decision on the suspension hearing, or 5 days after the decision of the Small Business Administration on review of the rejection of plaintiff\rquote s bids, if later. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 92 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': With respect to the first factor, the evidence here shows that the private interest that is affected by the official action is very substantial. It is a small business, wholly dependent on government work. The suspension imposed upon it by the government deprived it of a right to receive four Navy contracts on which it was low bidder in the principal sum of over $5.5 million, representing more than a year\rquote s average receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 92 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': While it is also contended that the temporary nature of the suspension is a factor mitigating the risk of an erroneous decision, such temporary suspension is in effect a debarment which may last for several years, since it allows up to 18 months for completion of the investigation and initiation of legal proceedings, plus whatever additional time is required for completion of the proceedings; and if it is found that the suspension was unwarranted, there is no provision for regaining the lost contracts or compensating the contractor for their loss. Thus a small business contractor dealing exclusively with the government, as here, may be driven out of business by the \temporary\ suspension, regardless of guilt or innocence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 05 - Great Western Steel Inc v US.doc, Paragraph with 'The Rule of Two': (1) When comparing foreign offers with the low domestic offer under the Buy American Act, an evaluating differential of six percent will be added to the price of each foreign end item delivered at destination but excluding the price of any additional work to be performed at the site such as installation or testing; provided, that the differential will be doubled to twelve percent in the event that the low domestic Offeror qualifies as a small business or labor surplus area concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 05 - Great Western Steel Inc v US.doc, Paragraph with 'The Rule of Two': Arguably, a twelve percent differential might have been added if Great Western, with the low domestic bid, were found to be a small business or LSAC for purposes of the Act and this procurement were treated as one for supplies rather than construction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': (WIESE, J.)); and compliance with statutory and regulatory criteria of a determination of a bidder\rquote s small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': (GIBSON, J.)); a failure to comply with due process standards and procurement regulations relative to debarment and suspension by referral to the Small Business Administration of the contracting officer\rquote s determination of nonresponsibility ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': The Suspension Official\rquote s August 2, 1983, letter stated that the Board\rquote s findings and report indicate a lack of business integrity and business honesty that directly affects EMI\rquote s present responsibility as a Government contractor or subcontractor. Plaintiff argues that a finding that EMI lacks present responsibility may only be made by the Small Business Administrator, and that the Suspension Official\rquote s finding is void ab initio. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff relies upon the 1977 amendments to the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': ) that authorizes the SBA to certify all elements of responsibility, including integrity, to receive and perform \a specific Government contract\ and prohibits any \Government procurement officer\ from precluding a small business concern \from being awarded such contract\ without referring the matter to the SBA. Plaintiff also relies upon the requirement of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': that the SBA certification is \conclusive\ on all procurement officers, and \such Government contract\ shall be let to the small business concern without further showing of responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': and its conclusions with respect to this issue are binding on this court. The Court of Claims ruled that a procurement officer\rquote s authority to bar a defaulting small business contractor is not restricted by the requirement of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': when the bar is not a consequence of the contractor\rquote s small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 06 - Electro-Methods Inc v US.doc, Paragraph with 'The Rule of Two': stated that the purpose of the 1977 amendments to the Small Business Act was to end \the discrimination against small business that existed because contracting officers had barred those businesses solely because of their smallness and disabilities allegedly resulting from that fact.\ Plaintiff\rquote s status as a small business enterprise is not the cause of its suspension. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 09 - Shuey Aircraft Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer testified before the Board that plaintiff was a small business and that he thought the price difference reflected the differences in the respective company\rquote s overhead costs. On other occasions such bid disparities had been observed, and he concluded that they posed no cause for concern in this case. Plaintiff\rquote s price per unit on its first contract was $2.77, and on this contract was $4.50. This 60 percent increase could be acceptable to a contracting officer as reasonable in the light of plaintiff\rquote s prior production difficulties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 11 - F Alderete General Contractors Inc v US.doc, Paragraph with 'The Rule of Two': On January 21, 1983, Alderete filed a \Motion for Contempt, Application for Enforcement of Judgment, and for Further Relief\ in the United States District Court for the Western District of Texas (District Court) on December 15, 1981. Prior to the filing of the motion, that court had issued a permanent injunction which required that the U.S. Army Corps of Engineers (Corps) offer the Keystone Project in El Paso, Texas, to the Small Business Administration (SBA) under the program established pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 12 - Essex Electro Engineers Inc v US.doc, Paragraph with 'The Rule of Two': Over one year ago, the FAA issued Invitation for Bids No. DTFA\u821102\u821182\u8211B\u821100663 (the \IFB\) for the production of 17 engine generator sets to be used at new automated flight service stations in different locations within the United States. On September 9, 1982, eight bids were opened displaying a range of approximately $600,000. The low bidder was Forster Enterprises (\Forster\) at $777,746; Essex\rquote s bid of $845,560 was the second low bid; and Introl Corporation (\Introl\) was the third low bid at $969,325. Forster provisionally was found to be the lowest responsive and responsible bidder by the FAA and the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 12 - Essex Electro Engineers Inc v US.doc, Paragraph with 'The Rule of Two': 3. The Federal Aviation Administration (and the Small Business Administration, if necessary) shall make a determination of Essex\rquote s responsibility within 14 days and advise the court of the determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 13 - American Hoist And Derrick Inc Lucker Div v US.doc, Paragraph with 'The Rule of Two': for hydraulic cable pullers. Pursuant to Defense Acquisition Regulations 1\u8211706.1 and 1\u8211706.5, the contracting officer had determined that this procurement was suitable for a small business set aside. Lucker is not a small business, and thus was precluded from bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 13 - American Hoist And Derrick Inc Lucker Div v US.doc, Paragraph with 'The Rule of Two': (2) This solicitation limits bidding to small businesses, contrary to statements made by Navy personnel to Lucker since 1972, on which Lucker relied in agreeing to release the proprietary data. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 13 - American Hoist And Derrick Inc Lucker Div v US.doc, Paragraph with 'The Rule of Two': The Navy, by letter of June 13, denied plaintiff\rquote s protest because its investigation failed to turn up any evidence of the proprietary data which plaintiff had alluded to, and, also, because the Navy\rquote s design was arrived at through \reverse engineering processes\ and the inclusion of design modifications where necessary to meet Navy requirements. Regarding the small business set aside, the Navy informed plaintiff that Defense Acquisition Regulation 1\u8211706.5 provided for such action if\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 13 - American Hoist And Derrick Inc Lucker Div v US.doc, Paragraph with 'The Rule of Two': (i) offers will be obtained from at least two responsible small business concerns offering the products * * * ; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Contractor which was suspended from receiving government contracts brought suit to enjoin Navy Department from thereby denying its right as low bidder on four construction contracts. The Claims Court, Philip R. Miller, J., held that: (1) as contractor\rquote s suspension directly affected its obtaining of contracts upon which it was low bidder, and Government did not allege emergency situation, due process demanded that contractor be provided fair hearing before impartial officer and not be precluded from receiving four awards in event that it was exculpated of charges underlying suspension; (2) fact that contractor might be provided some information which United States attorney sought to protect in connection with criminal investigation was insufficient to restrict contractor\rquote s otherwise appropriate due process right to hearing; and (3) in event contractor was rejected for lack of integrity, it was entitled to Small Business Administration\rquote s redetermination of such decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Where contractor\rquote s interest in obtaining government contracts upon which it was low bidder was substantial, it being small business wholly dependent on government work, risk of erroneous deprivation was great in light of contractor\rquote s exculpatory allegations, and it was not unduly burdensome to present contractor with charges against him relating to his suspension from receiving government contracts, fact that contractor might be provided some information which United States attorney sought to protect in connection with criminal investigation of contractor was insufficient to restrict contractor\rquote s otherwise appropriate due process right to hearing on charges against it giving rise to suspension. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Where suspension from receiving government contracts was used impermissibly as device to preclude disclosing to contractor and to Small Business Administration factual basis for Navy\rquote s determination that contractor lacked integrity, contractor was entitled to prerejection hearing, and, by same count, contractor remained entitled to SBA review of decision not to award contracts to contractor upon \lack of integrity\ finding. Small Business Act, \u167 2[8] (b)(7)(A), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': On July 6, 1983, plaintiff filed its complaint alleging that after an unusually long period of time the Navy had failed to act on plaintiff\rquote s bids but had requested plaintiff to extend the 60 day lives of its bids for successive periods of time, which at that time was up to July 31, 1983, for the first three invitations and August 20, 1983, for the fourth. Plaintiff complained that the Navy had violated its own Defense Acquisition Regulations DAR 1\u8211905.2 (32 C.F.R. \u167 1\u8211905.2 (1982)), by failing to obtain promptly information as to plaintiff\rquote s responsibility (including a pre-award survey) and by failing to make a prompt responsibility determination. It asserted that the Navy delayed requesting all of the information it deemed necessary on all four contracts until July 1, 1983, 4 months after the bid openings on two of the contracts, 3 \u189 months after the bid opening on the third and more than 2 months on the fourth. It contended that such delays were unreasonable and that the Navy\rquote s failure either promptly to award it the contracts or else to reject its bids upon a determination of nonresponsibility so that it could obtain review of such determination by the Small Business Administration (SBA), pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': , was arbitrary and capricious conduct which threatened to cause it irreparable harm, in that, as a small business: (1) its bonding capacity and ability to bid on other government contracts had been severely limited by the Navy\rquote s nonaction on plaintiff\rquote s low bids, which were already bonded; (2) its cash flow was being severely impacted; and (3) it was being denied the profits to which it was entitled as low bidder on the four contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a construction contractor operating almost entirely on the island of Oahu in Hawaii. It is a small business concern, as defined in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': This command has considered not awarding the contracts listed on Enclosure (1) to the subject contractor based on a nonresponsibility determination based on integrity and forwarding that package to the regional Small Business Administration (SBA) Office. However, after discussions with the SBA District Counsel and others within the SBA chain, it became apparent that some, if not all of the information contained in the enclosures (2) through (6) would be released to the subject contractor. Local NIS, FBI, U.S. Attorney\rquote s Office representatives have advised that to do so would severely compromise these ongoing criminal investigations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': In the case at bar, the interest of ATL is substantial. It is a small business, wholly dependent on government work. The suspension imposed upon it by the government immediately deprived it of a right to receive four Navy contracts with a value of over $5.5 million, more than a year\rquote s average receipts. According to the testimony of its president, if the denial of these contracts and the suspension from other government business is sustained, ATL will have to lay-off permanent employees, sell its construction equipment and close its business office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': provides that a government procurement officer may not preclude a small business concern from being awarded a government contract for reasons of responsibility including integrity, without referring the matter for a final disposition to the SBA. On the other hand, 32 C.F.R. \u167 1\u8211705.4(4)(6) (1982), provides that \[a] referral need not be made to the SBA if a small business concern has been suspended or debarred pursuant to * * * DAR 1\u8211600.\ Plaintiff contends that if as a result of the suspension hearing its bids remain rejected for lack of integrity it is entitled to SBA redetermination of that decision. Defendant maintains that pursuant to 32 C.F.R. \u167 1\u8211705(4)(6) (1982), no referral need be made to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 15 - ATL Inc v US.doc, Paragraph with 'The Rule of Two': As a result of the Navy\rquote s action in awarding to other bidders three of four contracts on which plaintiff has been low bidder and its threat to award the fourth to another prior to the time when plaintiff has been given an opportunity for a fair hearing on disqualifying charges of lack of integrity plaintiff may sustain irreparable injury. In the event that after a fair hearing plaintiff is exculpated from such charges, damages will be an inadequate remedy. It is in the public interest that bidders on Navy contracts be assured that the Department will not disqualify them on charges of fraud or lack of integrity without due process of law and without complying with pertinent statutes intended for protection of small business contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': Contractor which had submitted bid to government and which had not been permitted to amend its bid to correct an error which indicated that it would not meet certain small business limitations had standing to bring suit for relief against award of contract to a higher bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': Action of bidder in checking the wrong box to indicate that it would meet certain small business limitations was not an \apparent clerical mistake\ subject to correction by the contracting officer prior to award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': In view of fact that Government had early detected error of contractor in failing to check correct box to indicate that it would adhere to certain small business limitations and that bidder had promptly attempted to remedy its error before the award, further hearing was necessary to determine whether evidence of the mistake was so clear and convincing that contracting officer acted arbitrarily and capriciously in not allowing the correction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': K. 1. SMALL BUSINESS (See par. 14 on SF 33\u8211A.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': He (X) is, ( ) is not, a small business concern. If offeror is a small business concern and is not the manufacturer of the supplies offered, he also represents that all supplies to be furnished hereunder ( ) will, (X) will not, be manufactured or produced by a small business concern in the United States, its possessions, or Puerto Rico. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': SMALL BUSINESS CONCERN. A small business concern for the purpose of Government procurement is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is submitting offers on Government contracts, and can further qualify under the criteria concerning number of employees, average annual receipts, or other criteria, as prescribed by the Small Business Administration. (See Code of Federal Regulations, Title 13, Part 121, as amended, which contains detailed industry definitions and related procedures). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': The cover sheet to the Solicitation notified bidders that this procurement contract contained a provision for a 100% set-aside for small businesses. Section L. 67, Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': at p. L\u82116, incorporated by reference the definition of this set-aside as contained in Defense Acquisition Regulation (DAR) 7\u82112003.2, 32 C.F.R. \u167 7:469 (1982). This regulation explained that a manufacturer or regular dealer [small business concern] submitting offers in his own name must agree to furnish in the performance of the contract end items manufactured or produced by small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': Authority for restricting invitations for solicitations to small businesses is provided by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': According to an affidavit by Eugene F. Murphy, BK\rquote s executive vice-president and general manager, he was advised by a Mr. Daniels on behalf of the Army on or about March 18, 1983, that in BK\rquote s bid the \will not\ box concerning subcontractors had been checked. The affidavit avers that Murphy orally advised Daniels that BK intended and agreed to furnish and purchase only end items produced or manufactured by small business concerns. On March 18, Murphy confirmed this in a letter to the Defense Contract Administration in Garden City, N.Y., with a copy sent to Daniels at Fort Monmouth, N.J. The letter concludes, \I trust that this satisfies the immediate question concerning our offer.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': the court held that a frustrated bidder, as a small business concern challenging the award of a government contract to a large business, asserted interests protected by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': that \a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns\: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': that an unsuccessful bidder under this Act who alleges that it is a small business concern and that an agency representative has acted illegally in failing to follow regulations designed to implement the congressional policy of awarding a fair proportion of contracts under the Act to small business concerns has standing to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': As indicated, BK\rquote s position is that the checking of the \will not\ box in the representation whether subcontractors would be small business concerns was an obvious clerical error which it should have been allowed to correct, since the check would have made its bid a futility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': set-aside for Small Businesses,\ and the body of the Solicitation repeated this. These provisions incorporated by reference Defense Acquisition Regulation (DAR) 7\u82112003.2, 32 C.F.R. \u167 7:469 (1982), which provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': Offers under this procurement are solicited from small business concerns only and this procurement is to be awarded only to one or more small business concerns.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': \ is a concern, including its affiliates, which is independently owned and operated, is not dominant in the field of operation in which it is offering on Government contracts, and can further qualify under the criteria set forth in regulations of the Small Business Administration.... In addition to meeting these criteria, a manufacturer or a regular dealer submitting offers in his own name must agree to furnish in the performance of the contract end items manufactured or produced by small business concerns: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': It is undeniable that by erroneously certifying that it would not purchase supplies from small business concerns, BK rendered its bid non-responsive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': where the bid of a small business concern mischaracterized the bidder itself, it comes sufficiently near it that further inquiry into the facts by the district court was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 16 - BK Instrument Inc v US.doc, Paragraph with 'The Rule of Two': Am Kal\rquote s \interest\ in BK\rquote s action encompasses more than its anticipated profits from the contract. Small businesses such as Am Kal benefit from the experience gained by working with the Government under a procurement contract. Contracting experience is an important factor in a firm\rquote s ability to garner future procurement awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 18 - Downtown Copy Center v US.doc, Paragraph with 'The Rule of Two': The plaintiff is a small business and the incumbent contractor of an FCC contract for duplication services it has performed since March 1975. Pending award of the contract, plaintiff is performing the work under an extension to its present contract that expires on July 29, 1983. Plaintiff claims that all of its business is attributable to its present contract. On May 20, 1983 the FCC issued an Invitation for Bids (IFB) No. 83\u821108 for a contract for one year and two one year options for duplication and support services required for the sale and distribution of FCC documents available to the public under the Freedom of Information Act and related FCC regulations. The government evaluated only the base year, not the options. Bids on IFB 83\u821108 were opened on June 10, 1983. Ten bids were submitted, and the plaintiff\rquote s bid of $535,199.80 for the one base year was the third highest bid. ITS\rquote s bid of $331,435.98 was the lowest bid submitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 20 - AABCO Inc v US.doc, Paragraph with 'The Rule of Two': where the contracting officer was precluded by statute from accepting plaintiff\rquote s bid when it was determined to be other than a small business by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 20 - AABCO Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a small business with four employees that has established an exemplary record of service. It is noted that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 20 - AABCO Inc v US.doc, Paragraph with 'The Rule of Two': declares the policy of Congress that a fair proportion of the purchases and contracts made under the Armed Services Procurement Act be placed with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 21 - Cecile Industries Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Cecile Industries, Inc. (\Cecile\) is a small business corporation engaged in the manufacture of clothing and equipage items for various Government procurement agencies. On April 8, 1983 Cecile had submitted the lowest responsive offer to a solicitation that had been issued by the Defense Personnel Support Center (\DPSC\\u8212a field arm of the Defense Logistics Agency) calling for the manufacture of approximately 300,000 pair of military \wet weather\ trousers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 21 - Cecile Industries Inc v US.doc, Paragraph with 'The Rule of Two': As required by regulation, this tentative determination and the findings in support of it, were referred to the Small Business Administration (\SBA\) for a final determination as to whether or not a so-called \Certificate of Competency\ should be issued in favor of Cecile notwithstanding the contracting officer\rquote s adverse findings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 21 - Cecile Industries Inc v US.doc, Paragraph with 'The Rule of Two': is seen by Cecile as encompassing a double-fault: first, a usurpation of SBA\rquote s exclusive authority to render all competency determinations with respect to small businesses; second, a constitutionally impermissible deprivation of the bidder\rquote s \liberty interest\ by allowing a finding of lack of integrity to have operative effect in advance of the bidder\rquote s opportunity to be heard on the issue. The Government has answered these arguments on the merits and, in addition, has moved to dismiss the suit for lack of jurisdiction. As noted at the outset, jurisdiction is the dispositive issue in the controversy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 21 - Cecile Industries Inc v US.doc, Paragraph with 'The Rule of Two': Part 7 of the General Provisions of the Defense Acquisition Regulations (\DAR\) specify in 1\u8211705.4(a) (32 C.F.R. \u167 1\u8211705.4 (1982)) that \SBA has statutory authority to certify the competency of any small business concern as to all elements of responsibility * * *.\ Paragraph (c) of the same section directs that \[i]f a bid or proposal of a small business concern is to be rejected because the contracting officer has determined the concern to be nonresponsible, the matter shall be referred to the appropriate SBA field office * * *.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Manufacturer of military clothing, ineligible for Department of Defense program relating to set-aside of certain military procurement contracts for small business concerns because of its size, brought action asking court to declare program invalid and enjoin its further implementation by the Department of Defense. The United States District Court for the Eastern District of Louisiana, Fred Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': , granted summary judgment in favor of the Department of Defense, and manufacturer appealed. The Court of Appeals, Tuttle, Senior Circuit Judge, sitting by designation, held that: (1) Department of Defense procurement regulation providing that a procurement may be set aside for small business if the contracting officer anticipates receiving bids from at least two responsible small business concerns did not violate federal procurement statutes\rquote preference for competition; (2) fact that Department of Defense procurement regulations did not establish a ceiling on the percentage of awards that could be set aside for small business on an industry-by-industry basis did not put the regulations in violation of federal procurement statutes\rquote \fair proportion\ requirement; (3) Department of Defense procurement regulation providing that no set aside for a small business shall be disapproved merely because small business concerns are considered to be receiving a fair proportion of total contracts for supplies or services was not an unreasonable construction of the fair proportion mandate in the federal procurement statutes; (4) manufacturer did not have a Fifth Amendment property entitlement to access to the bidding process for awarding government contracts; and (5) federal procurement statutes and regulations promulgated thereunder providing for set asides for small business were rationally related to the sound legislative purpose of promoting small business in order to contribute to the security and economic health of the nation, and, therefore, such statutes and regulations did not violate the due process clause of the Fifth Amendment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Court of Appeals\rquote review of Department of Defense procurement regulations providing set asides for small business was limited to determining whether the disputed regulations were related to the purposes of the enabling legislation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Congress intended federal procurement statutes as a means to protect small business from the ravages of unchecked competition so as to insure a vibrant, diversified economy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Department of Defense procurement regulation providing that a procurement may be set aside for small business if the contracting officer anticipates receiving bids from at least two responsible small business concerns did not violate federal procurement statutes\rquote preference for competition. Small Business Act, \u167 2[2](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Fact that Department of Defense procurement regulations did not establish a ceiling on the percentage of awards that could be set aside for small business on an industry-by-industry basis did not put the regulations in violation of the federal procurement statutes\rquote \fair proportion\ requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2], 2[10] (d), 2[15](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Department of Defense procurement regulation providing that no set aside for a small business shall be disapproved merely because small business concerns are considered to be receiving a fair proportion of total contracts for supplies or services was not an unreasonable construction of the fair proportion mandate in the federal procurement statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2], 2[10](d), 2[15](a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Federal procurement statutes and regulations promulgated thereunder, providing set asides for small business, were rationally related to the sound legislative purpose of promoting small businesses in order to contribute to the security and economic health of the nation, and, therefore, such statutes and regulations did not violate the due process clause of the Fifth Amendment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2], as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . The plaintiff-appellant, J.H. Rutter Rex Manufacturing Company, Inc., (\Rutter Rex\) contends (1) that United States Department of Defense (\DOD\) regulations authorizing the \set aside\ of certain government contracts for exclusive participation by small business concerns exceed statutory authority, and (2) that it has been unlawfully deprived of a constitutional property right of access to the government contract bidding process. Because we find that the disputed regulations are a proper exercise of the broad authority granted by Congress to government procurement agencies and that no constitutional protections of the type urged by Rutter Rex exist for access to the government bidding process, we reject the appellant\rquote s claims and affirm the holdings of the court below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Rutter Rex is an apparel manufacturer in New Orleans, Louisiana. Since it employs approximately 1500 persons in its combined operations, the appellant is ineligible to bid on certain government contracts which have been set aside for small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Over the last 20 years, Rutter Rex has operated its New Orleans plant almost exclusively for the production of garments procured by the U.S. Government. However, since 1976, the appellant has experienced gradually decreasing government business culminating with its failure to secure a single government contract in 1981. Rutter Rex contends that its loss of this lucrative source of business is the result of DOD regulations issued and enforced in violation of the powers granted to government procurement agencies by the Small Business Act and the Armed Services Procurement Act (hereafter referred to as the \procurement statutes\). It brings this action seeking to have these regulations declared invalid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In 1947, Congress passed the Armed Services Procurement Act which provides, \It is the policy of Congress that a fair proportion of the purchases and contracts under this Chapter be placed with small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ) and the Small Business Acts of 1953 and 1958 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . The 1958 Act provided slightly more specific guidelines for procuring agencies attempting to comply with Congressional intent when it declared that government procurement contracts should be awarded to small business concerns when such awards are determined: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': that certain government acquisitions would be \set aside for the exclusive participation of small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . The regulations further provided that such set asides would occur \if the contracting officer determines that there is a reasonable expectation that (i) offers will be obtained from a significant number of responsible small business concerns and (ii) awards will be made at reasonable prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . In 1979, subpart (i) of the above regulation was amended to provide that bids need only be reasonably expected from \at least two responsible small business concerns.\ 32 C.F.R. 1\u8211706.5. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': This procedure for the determination of set asides was slightly altered in 1979 when the DOD issued new regulations providing that once a contracting officer successfully acquired a product under a small business set aside, all future requirements of that agency (or agency subdivision) for that product may continue to be so acquired until such time as the contracting officer determines that either of the two necessary conditions no longer exists. 32 C.F.R. \u167 1\u8211706.1(f). These recently-promulgated regulations also provide that no set aside will be disapproved merely because \a large percentage of previous acquisitions of the item has been placed with small business concerns [or because] small business concerns are considered to be receiving a fair proportion of total contracts for supplies or services.\ 32 C.F.R. \u167 1\u8211706.1(j)(i, vi). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': to require the head of each federal agency to establish goals for the participation of small business concerns in the procurement of contracts of more than $10,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': that these goals should \realistically reflect the potential of small business concerns to perform such contracts ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Though the head of each federal agency is required to justify a failure to meet such goals in an annual report to the Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Rutter Rex makes two principal attacks on the DOD regulations. First, Rutter Rex notes that the procurement regulations promulgated by DOD provide both in theory and in practice for a 100 percent small business set aside of certain products. In the appellant\rquote s industry, the manufacture and marketing of apparel, over 90 percent of DOD procurements have been allocated to small business. Rutter Rex argues that such high levels of set asides clearly constitute more than a \fair proportion\ of procurements in the apparel industry and that the regulations are thus in excess of statutory authority. Rutter Rex also asserts that the goal practices, as implemented by the DOD and other procurement agencies, contribute substantially to awards in excess of a fair proportion by placing additional pressure on procurement officers to make set asides, particularly in industries such as the appellant\rquote s where the great majority of participants are small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Second, Rutter Rex contends that the significant percentage of set asides in particular industries violates the express direction of Congress for \full and free competition\ in the procurement process. The appellant particularly focuses on the 1979 DOD regulation which allows a set aside whenever reasonable bids are anticipated from two or more responsible small business concerns. Rutter Rex contends that two bids can hardly constitute the open competition envisioned by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . In construing the statutes relevant to the present action, this Court has noted the extraordinarily broad discretion bestowed on agencies by the Congress: \[the procurement statutes] simply require that a \u8216fair proportion\u8217 of government purchases and contracts be placed with small businesses. Congress left it to the agencies to implement this policy through regulations and practices of their own construction.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': the Congress has explicitly stated that \[s]uch security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . This statement of purposes, together with the protections provided for small businesses in the procurement statutes, makes it clear that Congress intended these statutes as a means to protect small businesses from the ravages of unchecked competition so as to ensure a vibrant, diversified economy; this Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The purpose of the [Small Business] Act is to assist small business concerns. The Act is based on the premise that such firms are unable to compete effectively in the marketplace and therefore cannot secure government procurement contracts awarded through competitive bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': More specifically, we conclude that amended 32 C.F.R. \u167 1\u8211706.3(a) does not violate the statutory preference for competition simply because it provides that a procurement may be set aside if the contracting officer anticipates receiving bids from at least two responsible small business concerns. Rutter Rex simply ignores that portion of the regulation which requires that set aside awards be made only at reasonable prices. 32 C.F.R. \u167 1\u8211706.3(a)(ii). Read as a whole, the regulations can only be said to enhance the twin (yet sometimes divergent) goals of the procurement acts: the promotion of small business interests and the efficient and economical acquisition of goods and services by the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': the appellant\rquote s argument rests on the assumption that Congress intended the fair proportion mandate to be applied on an industry-by-industry (or even product-by-product) basis rather than to the collective pool of DOD procurements. In support of this contention, the appellant notes that the Small Business Act requires that a \fair proportion of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': purchases and contracts\ (emphasis added) of each agency be placed with small businesses whereas the Armed Services Procurement Act omits the word \total\ and only requires that small businesses receive a \fair proportion of the purchases and contracts\ of the DOD. The appellant contends that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Unfortunately for the appellant, its imaginative argument goes no further. The appellant does not direct this Court to any portion of the legislative history of either statute which would support its interpretation nor does it advance a single ground on which defense procurements might reasonably be distinguished for these purposes from procurements of other federal agencies. In fact, the voluminous legislative histories of these government procurement acts, while not casting any direct light on this dilemma, evidence a consistent and uninterrupted eagerness on the part of Congress to place a greater number of procurement contracts, defense and otherwise, in the hands of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': these many volumes of committee reports, hearing transcripts, and floor debates pertinent to the Small Business Act and the Armed Services Procurement Act, the appellant fails to direct our attention to any evidence of Congressional concern that large businesses are being victimized by the operation of these statutes and regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In this regard, we take special note of a 1974 Report issued by the U.S. Senate Select Committee on Small Business after a series of hearings on the government procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': including that the Congress, \Establish new standards for annually measuring the performance of procuring agencies and their prime contractors in using small businesses. Standards for measuring performance, including the sound use of set aside techniques, should assess progress made in assisting small businesses to obtain a fair proportion of awards\u8212not just statistical percentages.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Extension of the present system to provide an optimum measure would involve analysis of many thousands of individual procurement actions, proposed to be made and already made, and analysis of the potential (or actual) share for small businesses. We simply do not have the capability of making projections in that detail, nor of analyzing the circumstances surrounding individual procurements at a level above the purchasing activity. Nor do I think we could gear up to cope with it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 32 C.F.R. \u167 1\u8211706.1(j)(vi) which provides that no set aside shall be disapproved merely because \small business concerns are considered to be receiving a fair proportion of total contracts for supplies or services.\ Rutter Rex contends that this provision allows set asides without any reference to the fair proportion statutory language and may result in small businesses actually receiving far in excess of a fair proportion of government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': As noted by the government in its brief, this dispute boils down to a question of whether the fair proportion mandate constitutes a floor or a ceiling on the allocation of government contracts to small businesses. We are unable to conclude that the DOD\rquote s apparent decision that the mandate is a floor constitutes an unreasonable construction of the statutory language. The fair proportion standard is not an end in itself, but a means of enforcing the purposes of the Small Business Act and the Armed Services Procurement Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': the protection of our country in time of national emergency and the promotion of its economic well-being. Given the exceptional deference due decisions of administrative agencies charged with implementing congressional desires and the absence of any evidence of a contrary congressional purpose, we may not overturn the agency determination that Congress intended small businesses to receive Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . We concur with the district court that \[t]he goals do not determine which contracts will be set aside; the goals set are sometimes not attained. Their function is rather to gauge the effectiveness of the small business program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In that case, several small business concerns which had previously performed contracts to collect refuse from the Homestead (Florida) Air Force Base brought suit when the Small Business Administration denied their demands for an opportunity to continue to compete for the contract. The SBA in turn negotiated the contract with a black-owned competitor of the plaintiffs pursuant to a newly-promulgated program to benefit businesses owned by \disadvantaged persons.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Our previous discussion adequately demonstrates that the procurement statutes and the regulations promulgated thereunder are rationally related to the sound legislative purpose of promoting small businesses in order to contribute to the security and economic health of this Nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': A small business concern in the apparel industry is defined by Small Business Administration regulations as one which employs fewer than 500 persons. 13 C.F.R. \u167 121.3\u82118 and \u167 121-Schedule A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Though the Armed Services Procurement Act governs the procedures for DOD procurement, the DOD (like all federal agencies) is also bound by the strictures of the Small Business Act and has promulgated its regulations in conformance therewith. In fact, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': evidences that Congress was particularly concerned that the DOD comply with the policies favoring small businesses. That Code section requires the DOD (but no other agency) to make a monthly report to Congress \showing the amount of funds appropriated to the Department of Defense which have been expended, obligated or contracted to be spent with small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The head of each Federal agency shall, after consultation with the Administration, establish goals for the participation by small business concerns, and by small business concerns owned and controlled by socially and economically disadvantaged individuals, in procurement contracts of such agency having values of $10,000 or more. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Goals established under this subsection shall be jointly established by the Administration and the head of each Federal agency and shall realistically reflect the potential of small business concerns and small business concerns owned and controlled by socially and economically disadvantaged individuals to perform such contracts and to perform subcontracts under such contracts. Whenever the Administration and the head of any Federal agency fail to agree on established goals, the disagreement shall be submitted to the Administrator of the Office of Federal Procurement Policy for final determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': : \In the performance of, and with respect to, the functions, powers and duties vested in him by this chapter the [Small Business] Administrator may ... make such rules and regulations as he deems necessary to carry out the authority vested in him by or pursuant to this chapter.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': : \Congress ... has given the Small Business Administration the statutory authority and necessary discretion in awarding subcontracts to accomplish [the goal of development of small businesses]. The discretion as to which firm shall receive subcontracts and the decision as to which regulations shall govern procurement is left to the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': S.Rep. No. 760, 93d Cong., 2d Sess., App. A, \Legislative History of the Phrase \u8216Fair Proportion\u8217 in Small Business Act\ (1974). The six statutes which have utilized the term \fair proportion\ in relation to procurement from small businesses are: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 5. The Small Business Act of 1953; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 6. The Small Business Act of 1958, Section 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': \[T]he Small Business Act and regulations favoring small businesses modify these more general requirements that [agencies] procure goods at \u8216competitive market prices Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': \We recognize that the policies of the Small Business Act are to some extent inconsistent with what might be perceived as the primary function of the [DOD procurement regulations], to supply the procurement needs of the armed forces at minimum cost.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Section 1\u8211706.3(a) is also consistent with the long-standing congressional desire that a greater portion of government procurement contracts be placed with small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Procurement Expansion and Simplification Act: Hearings Before the Subcomm. on Government Procurement of the Senate Select Comm. on Small Business, 95th Cong., 2d Sess. (1978); DOD Procurement Policies and Practices: Hearings Before the Subcomm. on Minority Enterprise and General Oversight of the House Comm. on Small Business, 95th Cong., 2d Sess. (1978); Oversight Hearings on Small Business Administration Programs and Activities: Hearings Before the Subcomm. on SBA Oversight and Minority Enterprise of the House Comm. on Small Business, 94th Cong., 2d Sess. (1976); Procurement Assistance Programs of the Small Business Administration: Hearing Before the Senate Select Comm. on Small Business, 94th Cong., 1st Sess. (1975); The Position of Small Business in Procurements for Federally Supported Programs: Hearing Before the Subcomm. on Government Procurement and International Trade of the House Permanent Select Comm. on Small Business, 93d Cong., 1st Sess. (1973); Commission on Government Procurement Recommendations and Labor Surplus Area Procurement: Hearings Before the Subcomm. on Government Procurement of the Senate Select. Comm. on Small Business, 93d Cong., 1st Sess. (1973); The Position and Problems of Small Business in Government Procurements: Hearing Before the Subcomm. on Small Business, 92d Cong., 1st Sess. (1971); Small Business and Labor Surplus Set-Asides and 8(a) Contracts: Hearing Before the Subcomm. on Government Procurement of the Senate Select Comm. on Small Business, 91st Cong., 2d Sess. (1970); Small Business in Government Procurement\u8212Before and After Defense Cutbacks, Hearings Before the Subcomm. on Government Procurement of the House Select Comm. on Small Business, 91st Cong., 2d Sess. (1970); The Position of Small Business in Government Procurement: Hearings Before Subcomm. No. 2 on Government Procurement and Economic Concentration of the House Select Comm. on Small Business, 90th Cong., 1st & 2nd Sess. (1967\u82111968); Government Procurement\u82121966: Hearing Before the Subcomm. of the Senate Select Comm. on Small Business, 89th Cong., 2d Sess. (1966); Small Business Subcontracting and Set-Aside Programs: Hearings Before Subcomm. No. 2 on Government Procurement of the House Select Comm. on Small Business, 89th Cong., 1st Sess. (1965); The Role of Small Business in Government Procurement: Hearings Before the Subcomm. of the Senate Select Comm. on Small Business, 88th Cong., 2d Sess. (1964); Government Small Business Procurement Practices and Programs: Hearings Before Subcomm. No. 2 on Government Procurement of the House Select Comm. on Small Business, 88th Cong., 1st Sess. (1963); The Role of Small Business in Government Procurements\u82121962\u82111963; Hearing Before the Senate Select Comm. on Small Business, 87th Cong., 2d Sess. (1962); The Role of Small Business in Government Procurement\u82121961, Hearings Before the Subcomm. of the Senate Select Comm. on Small Business, 87th Cong., 1st Sess. (1961); Government Procurement\u82121960: Hearings Before the Subcomm. of the Senate Select Comm. on Small Business, 86th Cong., 2d Sess. (1960). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': House Select Comm. on Small Business Government Procurement Within Military and Civilian Agencies, H.R.Rep. No. 1749, 94th Cong., 2d Sess. (1976); Senate Select Comm. on Small Business: Twenty-Sixth Annual Report, S.Rep. No. 636, 94th Cong., 1st Sess. (1976); Senate Select Comm. on Small Business, Twenty-Fifth Annual Report of the Select Comm. on Small Business, S.Rep. No. 13, 94th Cong., 1st Sess. (1975); Senate Select Comm. on Small Business, Small Business Aspects of Selected Recommendations of the Commission on Government Procurement, S.Rep. No. 760, 93rd Cong., 2d Sess. (1974); Senate Select Comm. on Small Business: Twenty-Third Annual Report, S.Rep. No. 760, 93rd Cong., 2d Sess. (1974); House Select Comm. on Small Business, Small Business Procurement Policies of Federally Supported Programs, H.R.Rep. No. 449, 93rd Cong., 1st Sess. (1973); House Select Comm. on Small Business, The Position and Problems of Small Business in Government Procurement, H.R.Rep. No. 1609, 92d Cong., 2d Sess. (1972); House Select Comm. on Small Business in Government\u8212Before and After Defense Cutbacks, H.R.Rep. No. 1608, 91st Cong., 2d Sess. (1970); House Select Comm. on Small Business, The Position of Small Business in Government Procurement, H.R.Rep. No. 1975, 90th Cong., 2d Sess. (1968); House Select Comm. on Small Business, Small Business Subcontracting and Set-Aside Programs, H.R.Rep. No. 2341, 89th Cong., 2d Sess. (1966); House Select Comm. on Small Business, Government Small Business Procurement Policies and Programs, H.R.Rep. No. 1937, 88th Cong., 2d Sess. (1964); House Select Comm. on Small Business, Small Business and Government Procurement, H.R.Rep. No. 2562, 87th Cong., 2d Sess. (1962). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Amendments to Small Business Act: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 23 - JH Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': , the Comptroller General ruled that the placement of 90 percent of government contracts for wooden household furniture with small business concerns did not violate the fair proportion standard where over 99 percent of that industry\rquote s participants were small businesses. Likewise, in the present case, according to figures provided for the year 1977 by Andrew Canellas, the Director of the Industry Analysis Division of the Small Business Administration, 95.8 percent of firms in the textile mill products industry were small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with 'The Rule of Two': FN* Hamilton\rquote s president explained that the section 8 contracts were entered into between the military agency and the Small Business Administration, which in turn negotiated a subcontract with a private contractor for the performance of the work.] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 28 - Heli-Jet Corp v US.doc, Paragraph with 'The Rule of Two': A solicitation for bids was issued by the Department of Agriculture on approximately April 8, 1983, calling for the opening of bids on May 10, 1983. The solicitation contained three items; item 1 related to a negotiated procurement, items 2 and 3 related to competitive bids. Item 2 was set aside for small business, and it is the only item at issue in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Turner v. U.S. Small Business Admin. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Small business contractor brought action seeking a declaratory judgment that it was the properly qualified low bidder for a contract for sleeping bags and an injunction restraining various officials and government personnel from awarding the contract to any other bidder and requiring its award to contractor. Following denial of a motion to dismiss, the Claims Court, Philip R. Miller, J., held that small business contractor, whose president and sole owner was a consultant to a former contractor which had been rejected on previous solicitations for lack of integrity, tenacity and perseverance and poor performance record, was deprived of due process in being barred from bidding on certain government contract and all future contracts where bidder was not notified of the detailed specific allegations of fact upon which the decision was made despite regulations on debarment and suspension requiring giving of notice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Statute giving final disposition of competency certification of a small business concern to Small Business Administration did not preclude small business contractor from obtaining judicial review of propriety of rejection of its low bid on ground of nonresponsibility. Small Business Act, \u167 2[8](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Injunction sought against Small Business Administrator by small business contractor whose low bid was rejected as nonresponsible and who sought to restrain various officials of procuring agency, the contracting officer and their subordinates from awarding the contract to any other bidder and requiring its award to contract, was not in violation of statutory section providing that no attachment, injunction, garnishment or other similar process be issued against Administrator or his property. Small Business Act, \u167 2[5](b)(1), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Small business contractor, whose president and sole owner was a consultant to a former contractor which had been rejected on previous solicitations for lack of integrity, tenacity and perseverance and poor performance record, was deprived of due process in being barred from bidding on certain government contract and all future contracts where bidder was not notified of the detailed specific allegations of fact upon which the decision was made despite regulations on debarment and suspension requiring giving of notice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': The motion to dismiss alleges that the proposed contract is set aside for small business, and under such circumstances by statute and regulation the Small Business Administration (SBA) is required to make a responsibility determination; that under the applicable statute the SBA\rquote s determination is conclusive; and, further, that under such statute neither the SBA nor the Department of Defense acting pursuant to the SBA determination, may be enjoined. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': A. The Contention that the Small Business Administration Determination is Final Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Procurement and property disposal powers; determination of small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': It shall also be the duty of the [Small Business] Administration and it is empowered, whenever it determines such action is necessary\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer * * * may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': (C) In any case in which a small business concern or group of such concerns has been certified by the Administration pursuant to (A) or (B) to be a responsible or eligible Government contractor as to a specific Government contract, the officers of the Government having procurement * * * powers are directed to accept such certification as conclusive, and shall let such Government contract to such concern or group of concerns without requiring it to meet any other requirement of responsibility or eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': 1. The final disposition to which the statute refers is only final with respect to a decision certifying a contractor to the procurement officer as responsible. The procurement officer is required to refer the matter to the SBA only after he has decided to preclude a small business concern from being awarded a contract for lack of responsibility. Thus, if the SBA\rquote s decision reverses the procurement officer and certifies the small business concern as responsible, such disposition is made final as to the procurement officer so as to protect the concern from such officer\rquote s refusal to follow the SBA decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': The procurement officer is \directed to accept such certification as conclusive, and shall let such Government contract to such concern.\ There is no rational basis for construing this protective provision to deny to the small business concern access to a court which is otherwise available to all other business concerns, for relief from adverse actions by the procurement officer or the SBA, or both, which are in violation of the concern\rquote s rights under the Constitution, are contrary to statutes or regulations, or are otherwise arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': , and therefore unnecessary to set out here, shows quite clearly that the section was designed to protect small businesses against discrimination by procurement officers, and there is no indication therein that it was designed to protect either the SBA or procurement officers from judicial review of arbitrary actions Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': the court ruled that a procurement officer\rquote s authority to bar a defaulting small business contractor from bidding on a new contract is not restricted by the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': , because the purpose of that provision was merely \to end the discrimination against small business that existed because contracting officers had barred those businesses solely because of their smallness and disabilities allegedly resulting from that fact,\ and because \[t]he result would have been the same if the plaintiff had not been a small business.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': 96 Stat. 25, 39, entitling contract bidders generally to court review of procurement officer\rquote s decisions failing to award contracts to low bidders, would be deemed to supersede it. Surely, it would not be logical to impute to Congress the intent to give judicial review of arbitrary treatment only to large companies and not at all to small business firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': B. The Contention that Plaintiff Seeks an Illegal Injunction Against the Small Business Administrator Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the [Small Business] Administrator may\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Congress waived the immunity of the Small Business Administrator against suit but withheld any waiver of immunity against an injunction, and, accordingly, neither the SBA nor its Administrator may be enjoined. Since in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': which added the provision consenting to injunctive relief in the Claims Court on a contract claim brought before the contract is awarded, gives the slightest support to the notion that Congress intended to carve out from this new remedy immunity for actions of the Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': or for the actions of any other government agency withholding contracts from small business concerns, merely because the SBA has not disapproved. If Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': may be traced back to \u167 205 of the Small Business Act of 1953, ch. 282, Title II, 67 Stat. 232, 234 (1953). The legislative committees reporting on the Act apparently felt that the purpose of the section was self-evident or had been explained sufficiently in connection with prior legislation so that there was no need to comment on it in their reports. However, in explanation of a prior statute, enacted in 1948, which contained substantially identical language (the Commodity Credit Corporation Charter Act, ch. 704, \u167 4, 62 Stat. 1070 (1948), currently at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': It is quite clear that in withholding consent to suit for injunction, garnishment and attachment against the Small Business Administrator Congress intended no special exemption for the Administrator which would be different from that accorded government agencies generally, but only that in authorizing him to sue and be sued he should have the same immunity from injunction, garnishment and attachment as government agencies generally have. Thus there is no basis for any inference that because in 1982 Congress made no specific reference to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': when it authorized injunctive relief against government agencies and departments generally on contract claims before award, it meant to exempt the Small Business Administration therefrom. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': Claxton v. Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': The procuring agency has made this denial of award because there appears to be sufficient reason to question your company\rquote s capability to perform in a satisfactory manner. This adverse action has been referred to the Small Business Administration for resolution. SBA will perform an independent survey of your firm reviewing both financial and technical capabilities, to determine whether it considers your company to have the requisite competence to meet contractual requirements in a timely manner. If a decision favorable to your company is reached, SBA will issue a Certificate of Competency (COC). This then becomes binding upon the procuring agency and a contract is issued. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 29 - Related Industries Inc v US.doc, Paragraph with 'The Rule of Two': 3. The regulations on debarment do not differentiate between the procedures applicable to bidders on contracts set aside for small businesses and other bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': Contractor brought suit to restrain and enjoin contracting officer from determining it nonresponsible by ascribing to it alleged wrongs of its plant manager. On motions of plaintiff for a temporary restraining order and preliminary injunction, the Claims Court, Mayer, J., held that it lacked authority to enjoin a determination of the Small Business Administration of nonresponsibility manifested by refusal to issue a certificate of competency and, therefore, it could not order contracting officer to withhold award from another bidder when the SBA had finally declared that plaintiff was not responsible; ordering the contracting officer to withhold the award from another bidder would be equivalent to enjoining the effectiveness of a decision statutorily reserved to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': Claims Court lacked authority to enjoin a determination of the Small Business Administration of nonresponsibility manifested by refusal to issue a certificate of competency and, therefore, the Court could not order contracting officer to withhold award from another bidder when the SBA had finally declared that plaintiff contractor was not responsible; ordering the contracting officer to withhold the award from another bidder would be equivalent to enjoining the effectiveness of a decision statutorily reserved to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[5](b), 2[8] (b)(7)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a small corporation of which J.R. Outlaw is the plant manager. It was low bidder on a Defense Department solicitation which was part of a small business set aside. A pre-award survey, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': The contracting officer sent his determination of nonresponsibility to the Small Business Administration (SBA) for review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': \In the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter the Administrator [of the Small Business Administration] may\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 31 - Speco Corp v US.doc, Paragraph with 'The Rule of Two': A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': 1. The material facts are not in dispute. On July 22, 1982 the Department of the Air Force issued a solicitation for bids, restricted to small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA), and SAI, on September 13, 1982, filed a protest with the General Accounting Office that it had not been allotted sufficient time between the bid opening and the award date to obtain the requisite clearance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': \u182 5. The incumbent, Washington Patrol Services, Inc., protested that plaintiff Inter-Con was not a \small business,\ prompting the contracting officer to refer Inter-Con\rquote s small business status to the SBA for a determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': 5. SBA declined to certify SAI\rquote s responsibility on September 27, 1982, and SAI thereafter acquiesced in the Air Force\rquote s previous determination of its nonresponsibility after failing to obtain the security clearance. Eichhorn Affidavit, \u182\u182 4, 7. The Air Force learned on October 12, 1983, that the SBA had found Inter-Con to be a small business as of October 8, 1982. Edwards Affidavit, \u182 8. Delta Associates was granted a security clearance by the Defense Investigative Service on October 8, 1982 and, as the lowest remaining responsive bidder, was awarded the contract on December 3, 1982, with performance to begin on January 1, 1983. Inter-Con protested the award to the GAO on December 11, 1982 contending that the joint venture was not properly licensed by the State of California to perform security services. Affidavit of David Ciummo, \u182 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': \small business\ eligible for an award of the contract were not resolved by the SBA until October, 1982. If plaintiff\rquote s argument that all requirements under the solicitation had to be met by September 30, 1982 were accepted, then plaintiff itself would have been precluded from receiving the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with 'The Rule of Two': Three of the seven bids were eliminated because they were \nonresponsive\ to the solicitation. The bids of Washington Patrol Services, the incumbent security patrol contractor, and Modern Services, Inc. were found nonresponsive because they did not qualify as small businesses. APO II Protection, Inc.\rquote s bid was nonresponsive because it failed to acknowledge two of four amendments to the solicitation. Affidavit of Earl Eichhorn, \u182 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 40 - DeMat Air Inc v US.doc, Paragraph with 'The Rule of Two': Failure of contracting officer in a negotiated procurement, when he learned of absence of authorized signature on plaintiff\rquote s timely proposal, to at least inquire as to the apparent oversight was patently unreasonable and abuse of discretion, and full and fair consideration of the proposal would be required, in light of circumstances indicating probable intent to be bound by the proposal, letter received from military supervisor of airport to be served indicating plaintiff\rquote s superior performance over potential competitors, fact that there would otherwise be little competition for the contract, and plaintiff\rquote s certification of itself as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 40 - DeMat Air Inc v US.doc, Paragraph with 'The Rule of Two': to consider it. Plaintiff claims to qualify for special consideration in the procurement process, pursuant to the terms of the instant solicitation, as a \small business\ entity (which is conceded by defendant). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 40 - DeMat Air Inc v US.doc, Paragraph with 'The Rule of Two': Lastly, the court would note that plaintiff certified itself on its proposal as a small business concern within the meaning of the RFP in issue and the Government has an established policy to provide the \maximum practicable opportunity\ for small businesses to participate in the performance of contracts. The contracting officer did nothing to further that interest here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 42 - Milmark Services Inc v US.doc, Paragraph with 'The Rule of Two': 6. (a) The first contractor to handle the I\u821194 program was the Rehab Group, Inc. (\Rehab\), which was awarded a contract under section 8(a) of the Small Business Act as a set-aside for small businesses. Rehab held the contract for data entry work related to the I\u821194 program from 1976 or 1977 until early 1980, shortly before the contract involved in this case was awarded to Milmark. Rehab was allowed an error rate of 5 percent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': On November 8, 1982, the Communications-Electronics Command, Department of the Army (Command) issued Invitation For Bids No. DAAB07-83-BE004 (IFB-E004) for 1,074 AN/VVS-2 night vision driver viewers. This item is used on military tanks and other armored military vehicles, and enables drivers of such vehicles to view at night with closed hatches in order to avoid exposure to enemy fire. The IFB was designated as a small business set-aside and Standard Industrial Classification (SIC) No. 3662 was assigned thereto. SIC No. 3662 meant that in order to qualify for award under IFB-E004, a bidder must not have over 750 employees. On November 15, 1982, plaintiff, who employed more than 750 persons, filed an appeal, as permitted under applicable regulations, with the Size Appeals Board (SAB), Small Business Administration requesting the SAB to rule that the assignment of SIC No. 3662 was erroneous. Plaintiff then requested the Command\rquote s contracting officer to delay bid opening until after a decision by the SAB. However, the contracting officer refused to do so, and the bids accordingly were opened on December 8, 1982. The bid opening revealed that plaintiff was the lowest bidder. However, aware of the contracting officer\rquote s intention to disqualify it for contract award because it was not deemed a small business since it employed over 750 persons, plaintiff instituted its pre-award suit in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Plaintiff asks this court to assign SIC No. 3795 to IFB-E004. Under SIC No. 3795 a bidder must not have over 1000 employees, a condition plaintiff met. If IFB-E004 was so designated, plaintiff, as low bidder, deems itself entitled to contract award and plaintiff asks the court to render a declaratory judgment to this effect. Alternatively, plaintiff asks this court to enjoin the Command to withdraw or cancel IFB-E004 and to reissue it in conformance with applicable regulations, which, under plaintiff\rquote s view, would mean that IFB-E004 could not be issued as a small business set-aside. In support of its relief requests, plaintiff contends first, that the Command erroneously assigned SIC No. 3662 to IFB-E004 and that SIC No. 3795 was the proper classification to assign to IFB-E004; and second, even assuming SIC No. 3662 was properly assigned, the Command violated Defense Acquisition Regulation (DAR) 32 C.F.R. \u167 1-706.1(j)(ii) in authorizing IFB-E004 as a total small business set-aside. After careful consideration of the submissions of the parties and oral argument relative thereto, it is concluded that plaintiff is not entitled to the relief sought. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': B. The Small Business Set-Aside Issue Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Plaintiff argues, alternatively if the SIC issue is decided against it, that the Command\rquote s set-aside of IFB-E004 for small business purposes was improper and this cancellation of the solicitation and readvertisement of the procurement for bidding by both large and small businesses is required. It asks the court to issue an injunction to this effect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Further, plaintiff never obtained a ruling or decision from those agencies with expertise and authority to rule on the validity of small business set-aside, the General Accounting Office and the SBA, even though the situation should have been known, if it was not so known, to plaintiff at least by September 1982. Plaintiff did protest to GAO and appealed to SBA on the SIC code issue. It could have and should have presented the present issue to these agencies at that time. Determinations by those agencies would have been extremely helpful in this difficult area. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the Command violated Defense Acquisition Regulation (DAR) 32 C.F.R. \u167 1-706.1(j)(ii) (1981), which prohibits a total small business set-aside \when one or more large business Planned Emergency Producers of the item desires to participate in the acquisition.\ Plaintiff maintains that because it qualifies as a Planned Emergency Producer (PEP) under DAR 32 C.F.R. \u167 1-2201(d), defendant under existing circumstances improperly issued IFBE004 as a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': There is not only logic but practicality to such a holding. It should not be left to a PEP supplier to determine, on its own, which item the government wants as an emergency item. Moreover, adoption of plaintiff\rquote s approach would enable it to preclude the military from setting aside for small business purposes the procurement of any AN/VVS-2 items. Such a situation would be contrary to certain regulations implementing the concern of Congress for small business firms. See note 7, infra. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument that the set-aside was total rests exclusively on the fact that on DD Form 1707, dated December 8, 1982, and entitled \Information to Offerors,\ a box is checked indicating \Set-Aside (This is a 100% set-aside for (X) Small Business * * *)\ Upon review of the sketchy history and background of the procurement of this specific night driver viewer, it seems apparent that plaintiff\rquote s bald characterization of the set-aside as \total\ is too narrow and restrictive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': A total procurement of some 2,879 AN/VVS-2 units was planned by the Command for 1982 of the specific night vision devices at issue in this case. Originally, the total 1982 procurement of the devices in issue was to be implemented through the use of two solicitations, one open to competition for both large and small businesses for 1,522 units (IFB-E-034) (plaintiff was awarded this contract), and the second as a partial set-aside limited to small business for 1,357 units (IFB-E033). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': As a result of bid protests and disputes this second solicitation was cancelled and subsequently reissued, but bifurcated into two solicitations. To satisfy the military\rquote s most urgent needs an emergency non set-aside solicitation for 955 units was issued. The other solicitation remained a small business set-aside, this one for 1074 units. Plaintiff was the successful bidder on the emergency (IFB-E003) solicitation; the second solicitation, the small business set aside, is the subject of this litigation. It is to be noted that the IFB-E004 set aside, the solicitation in issue, was the direct descendent of the original partial set aside, IFB-E033. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': This is a factor worthy of note since it indicates that SIC No. 3662 was not assigned just for this procurement. Assignment of this SIC number to contracts involving AN/VVS-2 items was thus one of long standing practice. Plaintiff notes that it was the primary producer and supplier for the government of the item in question since 1975 and was well aware that its production contracts, if they carried a SIC number, carried SIC No. 3662. Plaintiff seeks to diffuse this factual awareness by noting that it was unconcerned with this assignment since it did not affect its ability to receive the contracts, presumably because the item was not previously the subject of a small business set-aside or because plaintiff during that period had less than 750 employees. The point is, however, that assignment of SIC No. 3662 was not a precipitated act, or an act designed for achievement of a questionable purpose. It manifested instead the implementation of a regular, established, and unbiased practice relative to the procurement of the AN/VVS-2 items. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': Noteworthy is the Congressional intent that the government furthers the interest of small businesses whenever possible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 49 - Baird Corp v U S.doc, Paragraph with 'The Rule of Two': . In this case, the contracting officer in her affidavit states that \[b]ifurcated solicitations were issued in order to further the goals directed by Defense Acquisition Regulation (DAR) \u167 1-702 to develop small business participation in military procurement.\ Accordingly, the applicable regulations should be read in the light most favorable to the interests of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 50 - Alaska Chapter Associated General Contractors of America Inc v Pierce.doc, Paragraph with 'The Rule of Two': Income generated through Federal, tribal, or other kinds of activity on the reservation does not stay on the reservation, pursuant to the classic economic theory of the \multiplier effect,\ because of this lack of an economic community. With the absence of Indian-owned small businesses on the reservation, this income immediately flows off the reservation enriching the off-reservation, non-Indian communities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Manufacturer of military clothing, ineligible for Department of Defense program relating to set-aside of certain military procurement contracts for small business concerns because of its size, brought action asking court to declare program invalid and enjoin its further implementation by the Department of Defense. The District Court, Cassibry, J., held that: (1) regulations governing set-aside of certain military procurement contracts did not divert more than fair proportion of government contracts to small businesses in clothing industry in violation of the Fifth Amendment, the Administrative Procedure Act, the \fair proportion\ language of the Armed Forces Procurement Act, or the Small Business Act, and (2) internal DOD practice of setting goals for Department\rquote s set-asides and for total small business awards was not final agency action reviewable under Administrative Procedure Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In light of fact that manufacturer of military clothing, ineligible for Department of Defense program because of its size, had suffered interruption of long-standing relationship with Government as successful bidder on government contracts and manufacturer\rquote s argument that DOD actions and regulations undermined arguably clear policy of Small Business Act and Armed Forces Procurement Act to enhance competition, manufacturer had standing to contest regulations governing set-aside of certain military procurement contracts for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2] et seq., 2[15], 2[15](a) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Department of Defense regulations governing set-aside of certain military procurement contracts for small business concerns did not divert more than fair proportion of government contracts to small businesses in clothing industry in violation of the Fifth Amendment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Department of Defense regulation governing set-aside of certain military procurement contracts for small business concerns did not violate the Administrative Procedure Act, the \fair proportion\ language of the Armed Forces Procurement Act, or the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[2] et seq., 2[15], 2[15](a) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Internal Department of Defense practice of setting goals for the Department\rquote s set-asides of certain military procurement contracts for small business concerns and for total small business awards was internal management tool which did not constitute \final agency action\ reviewable under the Administrative Procedure Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': At issue is the legality of the Department of Defense (\DOD\) regulations governing the set-aside of certain military procurement contracts for small business concerns, codified at 32 C.F.R. Part 7. Plaintiff, a manufacturer of military clothing, ineligible for the program because of its size, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': asks the court to declare the program invalid and enjoin its further implementation by the Department of Defense. Plaintiff claims that the program results in the award of more than a \fair proportion\ of government contracts to small businesses in the clothing industry, in violation of the due process clause of the Fifth Amendment to the U. S. Constitution, the Administrative Procedures Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': , and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Defendants, the Secretary of Defense, the Director of the Defense Logistics Agency (\DLA\), the Commander of the Defense Personnel Support Center (\DPSC\) and the Director of the Clothing and Textiles Directorate of the DPSC, are responsible for clothing procurement for the military services and for uniformed civilian personnel of the Department of Defense (\DOD\). Defendant-intervenor is a qualified small business clothing manufacturer with a direct interest in the continuation of the set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In 1947, Congress passed the Armed Forces Procurement Act, declaring that: \It is the policy of Congress that a fair proportion of the purchases and contracts under this chapter be placed with small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': and the Small Business Acts of 1953 and 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . The Small Business Act requires that government agencies award procurement contracts to small business concerns when the award is determined Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The Department of Defense adopted small business regulations in 1957 to implement the Armed Forces Procurement Act. Part 7 of the Armed Forces Procurement Regulations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': 1-702(a) It is the policy of the Department of Defense to place a fair proportion of its total purchases and contracts for supplies, research and development, and services ... with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': To implement this long-standing policy, the regulations provide that the entire amount of a contract shall be set aside for exclusive small business participation if the contracting officer finds certain conditions present. This \set-aside\ program operates to aid small business whenever there is a reasonable expectation that at least two responsible small businesses will make offers, and that awards of contracts will be made at reasonable prices. Once a contract has been awarded in the set-aside program, all future requirements by the purchasing office for that particular product or service are subject to a \repetitive set-aside\, as long as the same reasonable expectations are present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The fact that a large percentage of previous acquisitions of the item has been placed with small businesses, or that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': small businesses are considered to be already receiving a fair proportion of total contracts, is irrelevant to the decision to set aside a particular contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff urges that the program outlined by the above regulations, by requiring repetitive set-asides and by providing that bids from only two small businesses will validate the set-aside of a contract, does not satisfy the statutory mandate for \free and full\ competition embodied in the Armed Forces Procurement Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': and the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Plaintiff alleges that the percentage of DPSC contracts set aside for small business has effectively precluded it from participating in bidding for the type of government procurement contracts for which it successfully bid over the past twenty years or more. Plaintiff claims injury from plant closings and employee lay-offs which allegedly result directly from the implementation of DOD small business regulations and goal practices. Causation of plaintiff\rquote s injuries, while not clear-cut, is not \merely speculative\. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . I have no serious doubt that plaintiff\rquote s loss of government business was caused at least by the government\rquote s small business program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Plaintiff satisfies this court that the competitive harm alleged would be remedied by the requested relief. If this court were to issue declaratory or injunctive relief against the operation of the small business set-aside program where it operated to effectively exclude plaintiff from bidding on any contract, plaintiff\rquote s share of DOD contract awards would most likely rise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': While small business bidders clearly fall within the zone of protected interests of the Small Business Act and the Armed Forces Procurement Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': interest of the Small Business Act in promoting competition in the American economic system. Plaintiff\rquote s interest in its own economic well-being might be said to be arguably within the zone sought to be protected by the Small Business Act if the Act is read broadly to promote small business not only for the benefit of small business, but also for the well-being of the nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': to weed out frivolous lawsuits, I read the language of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Plaintiff alleges that DOD actions and regulations undermine the arguably clear policy of the Small Business Act and the Armed Forces Procurement Act to enhance competition, and so gains standing to contest their validity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Because of plaintiff\rquote s long-standing relationship with the government as a supplier of military garments, plaintiff claims that the small business program, by greatly reducing the number of contracts on which it is able to bid, operates to deprive it of a property interest without due process of law in violation of the due process clause of the Fifth Amendment. However, it has long been recognized that the government, like private individuals and businesses, has the power \to determine those with whom it will deal, and to fix the terms and conditions upon which it will make needed purchases.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In exercising this power, of course, the government remains subject to the constitutional requirement of due process. I cannot accept the plaintiff\rquote s argument that the Department of Defense Small Business Program is unconstitutional because the plaintiff is disadvantaged competitively. \There is no constitutional duty to offer government procurement contracts for competitive bidding.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': (denying preliminary injunction requiring government to contract with firms not meeting standard for affirmative action plan). The DOD has chosen to encourage small business participation in procurement contracts through the award of a \fair proportion\ of contracts, drawing up industry classifications as it sees fit. No breach of its own procedures has been alleged. \In the area of socio-economic legislation, the government\rquote s action must be upheld if it is rationally related to a proper government purpose.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Certainly the small business program passes constitutional muster. Plaintiff\rquote s claims of due process violation are without merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': , on the grounds that the DOD small business set-aside regulations contained in Part 7 of 32 C.F.R. are arbitrary and capricious and in excess of statutory authority. Although the challenge to the validity of the regulations may be decided solely by reference to the regulations and their statutory authority, the wellspring of plaintiff\rquote s dissatisfaction with the small business program is best appreciated by examining the undisputed facts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The clothing manufacturing industry involves considerable participation by small business concerns, while many other industries from which the government must procure its equipment and supplies do not. As a result of the differences among industries, varying proportions of contracts are set aside for small business in each industry. DOD small business set-asides in 1980 were 7.2% of total awards, but in the contract categories for which plaintiff would have liked to have bid, over 90% of the contracts were set aside for plaintiff\rquote s smaller competitors. Plaintiff claims to have been effectively excluded from the bidding process. The regulations exceed statutory authority, plaintiff claims, because they fail to place a ceiling on set-asides at some point below 100%, reserving to large business the opportunity to compete for contracts in every industry, as mandated by the \full and free competition\ provisions of the relevant statutes, the Small Business Act and the Armed Forces Procurement Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The Fifth Circuit rejected a similar challenge to a program to award federal subcontracts to socially or economically disadvantaged small businesses in Ray Baillie. The court\rquote s reluctance to encroach upon agency discretion is instructive: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': So it is with the case at bar. Congress has declared that the actual and potential capacity of small business concerns must be developed and that a fair proportion of total purchases and contracts of the federal government must be placed with such firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': More recently, in Kinnett Dairies, the court addressed the DOD small business set-aside program: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The government\rquote s interpretation of the procurement regulation is fully consistent with the statutory requirements of the Small Business Act and the Armed Forces Procurement Act. These controlling statutes simply require that a \fair proportion\ of government purchases and contracts be placed with small businesses. Congress left it to the agencies to implement the policy through regulations and practices of their own construction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': . Since the enactment of the \fair proportion\ language in the Small Business Act and the Armed Forces Procurement Act, Congress has frequently reviewed defendants\rquote implementation of the small business set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The court\rquote s task in searching for \compelling indications\ that DOD interpretation of \fair proportion\ is wrong is eased by the existence of a decision by the General Accounting Office on a protest by this plaintiff to a DLA small business set-aside. The Fifth Circuit explained in Kinnett Dairies : Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': What Congress intended by the phrase \fair proportion,\ however, is not evident from either the statutory language itself or any legislative history.... What is clear is that the broadly worded statutory language refers to the totality of Government procurement, i.e., small business is to receive a fair proportion of the Government\rquote s total procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In other words, the fact that small business concerns may receive a significant portion of Government contracts in a particular industry does not necessarily mean that they are receiving more than a fair proportion of the Government\rquote s total contracts. (cites omitted) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': This court further finds no basis for complying with plaintiff\rquote s request that agency small business set-asides be suspended pending definition of \fair proportion\. Courts have repeatedly held that broad, undefined statutory terms grant complete discretion to the agency. See, e.g., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff challenges not only the regulations discussed above, but also the internal DOD practice of setting goals for the department\rquote s set-asides and for total small business awards. Congress amended the Small Business Act in 1978 to encourage even greater efforts to increase small business participation: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': (g) The head of each Federal agency shall, after consultation with the (Small Business) Administration, establish goals for the participation by small business concerns ... in procurement contracts of such agency having values of $10,000 or more. Goals established under this subsection Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': shall be jointly established by the Administration and the head of each Federal agency and shall realistically reflect the potential of small business concerns ... to perform such contracts .... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The goal for small business participation required by the Small Business Act applies to all awards to small business from set-asides, unrestricted bidding, or any other award procedure. The Department of Defense also sets a goal for small business set-asides alone. To implement the goals, the DOD sets a goal for the Defense Logistics Agency (\DLA\), and DLA, in turn, sets goals for each of the six supply centers under its jurisdiction, including the DSPC. Until fiscal year 1981, DLA also assigned goals to each of DPSC\rquote s three directorates, \Clothing and Textiles\, \Subsistence\, and \Medical and Material\, but now simply sets goals for the entire Center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In past years, higher goals were set for the Clothing and Textile directorate of DPSC than for other directorates because the clothing manufacturing industry is one which involves considerable participation by small business concerns. Even within the Clothing and Textile directorate, few manufacturers for products in \textile\ categories qualify for the set-aside program. As a result, to meet even a modest goal for set-asides in the Clothing and Textile directorate, or in DPSC, a high percentage of set-asides are made in the clothing industry, and specifically in the three contract categories in which plaintiff is prepared to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s challenge to the goals practices of DOD and DLA which govern small business set-asides must fail. The goals do not determine which contracts will be set aside; the goals set are sometimes not attained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Their function is rather to gauge the effectiveness of the small business program. As internal management tools, they do not constitute final agency action reviewable under the Administrative Procedure Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Although plaintiff has standing to invoke judicial review of the DOD interpretation of the Small Business Act and the Armed Forces Procurement Act, I find as a matter of law that the challenged regulations are consistent with DOD\rquote s statutory mandate. I further find that the challenged goal practices carried out by defendants are not final agency action amenable to review by this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': In its plants in New Orleans and Franklinton, Louisiana, and Columbia, Mississippi, plaintiff employed roughly 1500 people during periods of full production. A small business concern as here pertinent is defined by Small Business Administration regulations as one which employs fewer than 500 persons. 13 C.F.R. s 121.3-8 and s 121-Schedule A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': (a) The entire amount of a contract shall be set aside for exclusive small business participation ... if the contracting officer determines that there is a reasonable expectation that (i) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns and (ii) awards will be made at reasonable prices.... Total set asides shall not be made unless such a reasonable expectation exists. Although past acquisition history of the item or similar items is always important, it is not the only factor which should be considered in determining whether a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Once a product or service has been acquired successfully by a contracting office on the basis of a small business set-aside, all future requirements of that office for that particular product or service not subject to simplified small purchase procedures shall be acquired on the basis of a repetitive set-aside. This procedure will be followed unless the contracting officer determines that there is not a reasonable expectation that (i) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns and (ii) awards will be made at reasonable prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': (i) a large percentage of previous acquisitions of the item has been placed with small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': (vi) small business concerns are considered to be receiving a fair proportion of total contracts for supplies or services; ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': The essence of the American economic system of private enterprise is free competition. Only through full and free competition can free markets, free entry into business, and opportunities for the expression and growth of personal initiative and individual judgment be assured. The preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation. Such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed. It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government ... be placed with small-business enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the over-all economy of the Nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': \The purposes of the Act would not be achieved, however, if the aid to small business consisted of a structure which undermined the vitality of other businesses within the industry. Inherent in such action are the seeds of destruction of the same free system the Act is intended to protect.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 67 - J H Rutter Rex Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Procurement Expansion and Simplification Act: Hearings Before the Subcomm. on Government Procurement of the Senate Select Comm. on Small Business, 95th Cong., 2d Sess. (1978); DOD Procurement Policies and Practices: Hearing Before the Subcomm. on Minority Enterprise and General Oversight of the House Comm. on Small Business, 95th Cong., 2d Sess. (1978); Oversight Hearings on Small Business Administration Programs and Activities: Hearings Before the Subcomm. on SBA Oversight and Minority Enterprise of the House Comm. on Small Business, 94th Cong., 2d Sess. (1976). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 71 - Racal-Milgo Government Systems Inc v Small Business Admin.doc, Paragraph with 'The Rule of Two': Racal-Milgo Government Systems, Inc. v. Small Business Admin., 559 F.Supp. 4 (1981) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 71 - Racal-Milgo Government Systems Inc v Small Business Admin.doc, Paragraph with 'The Rule of Two': SMALL BUSINESS ADMINISTRATION, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 72 - American Science and Engineering Inc v U S.doc, Paragraph with 'The Rule of Two': . The publication of notice was not required by any applicable regulation. Seven of AS&E\rquote s competitors responded to the notice; each of their submissions was considered by the National Institutes of Health Inventions and Patents Board. As regards six of the submissions, the Inventions and Patents Board concluded that the development and practical application of the inventions was speculative and indefinite. The application of Ohio Nuclear, Inc. was considered at length but ultimately rejected by the Board because of its dominant position in the CT Scanner market and evidence that its \new generation\ scanner utilized technology derived from AS&E. AS&E had previously provided the Board with a detailed plan for the development of the two subject inventions, and had made a strong showing that the exclusive license was necessary for AS&E, a small business concern, to continue to compete and invest corporate resources in the CT Scanner market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': Minority business enterprise and women\rquote s business enterprise programs of the Secretary of Transportation are valid efforts to promote minority businesses based on congressional findings that minority businesses are in need of remedial assistance. Small Business Act, \u167 2 as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': ; Small Business Act of 1958, Pub.L. No. 85-536, s 2(8), 72 Stat. 389 (1958), codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': A more direct line of authority for the Secretary\rquote s regulations comes through the Small Business Act and the President\rquote s Executive Orders issued pursuant thereto. Congressionally declared policy of the Small Business Act satisfies the concerns of the Powell wing of the Fullilove Court in that the effects of past discrimination were found to affect minorities adversely in their ability to participate in our free enterprise system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': The chain of authority is not pristine. The declaration of policy in the Small Business Act refers simply to procurement by the Government of \articles, equipment, supplies, services, materials, and construction Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': Minority business enterprise is defined as \a small business concern, as defined pursunt (sic) to section 3 of the Small Business Act in implementing regulations, which is owned and controlled by one or more minorities or women.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 73 - M C West Inc v Lewis.doc, Paragraph with 'The Rule of Two': (E) that such conditions can be improved by providing the maximum practicable opportunity for the development of small business concerns owned by members of socially and economically disadvantaged groups; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 74 - Peoples Gas Light and Coke Co v US Postal Service.doc, Paragraph with 'The Rule of Two': Perkins recognized an exception to the traditional rule of judicial non-interference where Congress has by \constitutional legislation\ recognized the legal right of a bidder for government contracts to benefit from a policy of granting a fair share of such contracts to small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 76 - American Ship Bldg Co v U S.doc, Paragraph with 'The Rule of Two': inapposite to plaintiff\rquote s situation. There the board found that there was a performance specification; the unit called for had never been manufactured previously; the brief 90 days delivery schedule in the contract indicated the contract could be performed by a small business with no ability to carry on an extended research and development program; and there was no evidence of contractor incompetence. On those facts the board held the contract was impossible to perform. The government\rquote s failure to warn small businesses that extensive research and development efforts would be required compounded to its advertising the procurement on a fixed-price, small business set-aside amounted to a failure to disclose vital information. The board held that the government\rquote s action was a termination for convenience with costs recoverable. We think the decision can best be explained on the assumption that an award on a small business set-aside carries with it certain implied obligations to protect the contractor against taking on a task too great for it to perform. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 76 - American Ship Bldg Co v U S.doc, Paragraph with 'The Rule of Two': In the instant case the specifications were not performance but design. Several ships otherwise different but utilizing the CERC system had been constructed. Unlike Johnson Electronics, supra, where the short time limit and small business set-aside misrepresented the nature of the required development and research, there was no misrepresentation here. All plaintiff need do was to evaluate the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 77 - Robert E Derecktor of Rhode Island Inc v Goldschmidt.doc, Paragraph with 'The Rule of Two': SGA Financial Corp. v. United States Small Business Administration, 509 F.Supp. 392, 398 (D.N.J.1981) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': 1977 amendments to Small Business Act were intended to give administrator broader authority to determine whether small businesses seeking to participate in government contracts are responsible but such provision does not apply to forest service\rquote s refusal to permit bid by contractor which had defaulted in prior bid for removal of timber. Small Business Act, \u167 2(8), as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act relating to determination of whether small businesses seeking government contracts are responsible did not require that forest supervisor refer matter to administrator before he could bar bidding by contractor who had defaulted on prior contract to cut timber. Small Business Act, \u167 2(8) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': In seeking recovery of its purchaser credit and deposit, the plaintiff contends that in barring it from rebidding, the Forest Supervisor violated both the regulations of the Forest Service and the Small Business Act, and that the government therefore improperly retained those amounts to use as an offset against the loss it suffered on the relet contract (see infra, p. 1044). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': B. The provision of the Small Business Act, upon which the plaintiff relies, states as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': (b) It shall also be the duty of the (Small Business) Administration and it is empowered whenever it determines such action is necessary Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence, preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administrator. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': the Small Business Administrator had exclusive authority to make all determinations concerning the \responsibility\ of bidders who are small business men. The plaintiff had filed an affidavit, which the government had not controverted, that it is a small business concern under the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': had its genesis in the Defense Production Act Amendments of 1951, Pub.L.No.96 s 714(e)(6) (s 110(a)), 65 Stat. 131 (1951). Those amendments created the Small Defense Plants Administration and authorized it to certify the capacity and credit of small businesses. The House Report accompanying the 1951 amendments explained the reasons for this action: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': (a) Small business has been unable to obtain a fair share of defense contracts. This is a problem of business life or death to thousands of small manufacturing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': concerns which have been unable to obtain materials to continue in civilian production. Of course, the path of least resistance is that of loading defense contracts on to large corporations and allowing small business to fall by the wayside. This is the path which was followed in the early years of World War II, when 100 large corporations received 67 percent of prime contracts. During this same period, one-sixth of the small businesses in the Nation closed their doors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': This mistake must not be repeated. Our mobilization program must extend down into the small plants, since they are a major source of our productive strength. The proposed amendment (subsequently enacted) would accomplish this by creating a Small Defense Plants Corporation with authority to certify qualified small businesses for prime contracts. Procurement officers would be directed to accept this authorization as conclusive. This provision would give small businesses definite assurance of a fair share of prime contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': The Small Business Act of 1958, Pub.L.No.85-536 s 8(b)(7), 72 Stat. 384 (1958), expanded this provision to cover all government procurement and sales, not just defense contracts. The provision took the form of the present Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': The Small Business Act was amended in 1977 to broaden to its present form the concept of \responsibility\ for which the administrator was to certify small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': Small business can and has been denied Government contracts because the procuring activity has determined that the small business lacked the requisite \tenacity, perseverance or integrity\ to perform a specific Government contract. Such a finding results in the small firm being branded \nonresponsible.\ Resort to the (\Certificate of Competency\) procedure in such cases is not available since capacity and credit are, purportedly, not involved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': Although the 1977 amendments were intended to give the administrator broader authority to determine whether small businesses seeking to participate in government contracts are responsible, we conclude that the provision does not apply to the Forest Service\rquote s refusal to permit the plaintiff to bid on the second timber contract. The purpose of this provision, as reflected in the legislative history of its predecessors, was to end the discrimination against small business that existed because contracting officers had barred those businesses solely because of their smallness and disabilities allegedly resulting from that fact. There is no indication, however, that Congress also intended to cover the situation of the reletting of the contract after a small business firm had defaulted in performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 78 - Siller Bros Inc v U S.doc, Paragraph with 'The Rule of Two': The Forest Service regulation does not discriminate against small businesses but generally bars all defaulting contractors from bidding upon the reletting of the contract. The Forest Supervisor refused to allow the plaintiff to participate in rebidding, not because of alleged deficiencies stemming from its size, but because of its failure to cut any timber under the prior contract. The result would have been the same if the plaintiff had not been a small business. In the special circumstances of this case where the plaintiff had not cut a single foot of timber under the contract for 3 years section 637(b) (7)(A) of the Small Business Act did not require the Forest Supervisor to refer the matter to the administrator before he could bar the plaintiff from participating in the rebidding of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 84 - Transco Sec Inc of Ohio v Freeman.doc, Paragraph with 'The Rule of Two': Transco-Ohio is engaged in the business of supplying guard services to various government agencies. Fred Gaviglia, its president and principal owner, was also the president of another corporation, Transco Security, Inc. of Delaware (Transco-Delaware). On September 2, 1976, Transco-Delaware was awarded a GSA contract under the small business set-aside provisions of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 84 - Transco Sec Inc of Ohio v Freeman.doc, Paragraph with 'The Rule of Two': , to provide security services at GSA buildings in the Cincinnati area. Several weeks later the Small Business Administration (SBA) determined that Transco-Delaware did not qualify as a small business because of the relationship of one of its owners with a Chicago-based janitorial services company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 84 - Transco Sec Inc of Ohio v Freeman.doc, Paragraph with 'The Rule of Two': On February 2, 1977, Mr. Gaviglia and his wife purchased all the outstanding interest in Transco-Delaware. Mr. Gaviglia then arranged for the firm to be financially managed by Management Consultants, a firm associated with the Chicago-based company. Subsequently, the SBA\rquote s Size Appeals Board determined that Transco-Delaware did qualify as a small business, and on August 1, and 15, 1978, respectively, GSA awarded Transco-Delaware guard services contracts for Cleveland and Cincinnati. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 84 - Transco Sec Inc of Ohio v Freeman.doc, Paragraph with 'The Rule of Two': The fraudulent representations involve the status of Transco Security, Inc., a Delaware Corporation, as a small business and overcharges to the Government based on work which Transco Security, Inc., a Delaware Corporation, represented was performed for the Government, but which was, in fact, not performed. In addition, Transco Security of Ohio has misrepresented the caliber of performance of its employees resulting in over-billings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 87 - Allis-Chalmers Corp Hydro-Turbine Division v Friedkin.doc, Paragraph with 'The Rule of Two': Passed at the height of the depression, the Buy American Act requires the use of American made articles, materials, and supplies in government construction contracts, unless such use is inconsistent with the public interest or the government purchasing agent determines the cost of domestic supplies to be unreasonable. The federal procurement regulations declare the price of a domestic bid to be \unreasonable\ if it is either six percent greater than the lowest foreign bid or, if the lowest American bidder is a small business concern or operates in an area of substantial unemployment, its bid is unreasonable if it is twelve percent above the lowest foreign bid. 41 C.F.R. s 1-6.104-4 (1980). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 87 - Allis-Chalmers Corp Hydro-Turbine Division v Friedkin.doc, Paragraph with 'The Rule of Two': (B)ids and proposals shall be evaluated as provided in this section so as to give preference to domestic bids. Each foreign bid shall be adjusted for purposes of evaluation by adding to the foreign bid (inclusive of duty) a factor of 6 percent of that bid, except that a 12 percent factor shall be used instead of the 6 percent factor if the firm submitting the low acceptable bid is a small business concern or a labor surplus area concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 93 - Old Dominion Dairy Products Inc v Secretary of Defense.doc, Paragraph with 'The Rule of Two': Old Dominion Dairy Products, Inc. is a small business owned primarily by its President, Joel M. Turner, and his family (Tr. 134). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 001 - Ultimate Concrete LLC v United States.doc, Paragraph with 'The Rule of Two': In August of 2015, the Corps issued a small business solicitation for sealed bids whereby the winning bidder would provide approximately 2.5 miles of fencing, various service roads and culverts, and associated work along the United States\u8211Mexico border near Anapra, New Mexico. Administrative Record (\AR\) 105, 276. The bid schedule contained a total of eleven contract line item numbers (\CLINs\). CLIN 0001 was identified as the base item and called for the removal and replacement of approximately 3,850 linear feet of fence and the construction of an associated patrol road, a retaining wall, culverts, and vehicle/drainage gates. AR 219. The time period to complete CLIN 0001 was originally set at 180 calendar days but was amended to extend the performance period to 210 days. AR 712\u8211713. CLIN 0004 was identified as \Option 1 Fence Replacement\ and called for the removal and replacement of additional 3,100 linear feet of fence as well as the construction of a patrol road, culverts, and gates. AR 220. Performance time for this option was listed as 120 days. CLIN 0007 was listed as \Option 2 Eastern Access Road\ and called for the construction of an access road approximately 890 feet in length. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'The Rule of Two': over disputes about whether the RSA or the Small Business Administration Act should apply to a contract. But these cases under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'The Rule of Two': . In that case, the Army had solicited a DFA services contract as a set aside for Small Business Administration Historically Underutilized Business Zones. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'The Rule of Two': at 2. As the contract neared its expiration, the Army posted a solicitation for services that was exclusively a small business set-aside and provided no RSA priority to blind persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'The Rule of Two': (holding that a federal district court has jurisdiction to consider a state licensing agency\rquote s request for a preliminary injunction pending an RSA arbitration panel\rquote s determination of a dispute whether the RSA applies to a contract or, instead, could be set aside under the Small Business Administration Act). But, just as intervenors argue that the JWOD falls within the Tucker Act, so do disputes involving procurements under the Small Business Administration Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'The Rule of Two': . And intervenors cite no authority for their argument that, because this case purportedly is a Tucker Act dispute involving the JWOD instead of another act like the Small Business Administration Act, the availability of RSA arbitration evaporates. Intervenors\rquote own arguments contradict their position. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Veteran-owned small business brought bid protest claim seeking declaratory and injunctive relief against Department of Veterans Affairs (VA), alleging Department\rquote s failure to comply with statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , granted summary judgment to government. Small business appealed. The United States Court of Appeals for the Federal Circuit, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Department is not excused from complying with Rule of Two, even if Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if an order is placed through Federal Supply Schedule (FSS). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Exception to mootness doctrine, for controversies that are capable of repetition yet evading review, applied to Supreme Court\rquote s certiorari review in bid protest case in which disappointed bidder alleged that Department of Veterans Affairs (VA) had failed to comply with statutory Rule of Two generally requiring Department to set aside procurement contracts for veteran-owned small businesses; while winning bidder\rquote s provision of services had already been fully performed less than two years after contract award, two years was too short to complete the judicial review of lawfulness of procurement, it was reasonable to expect that Department would refuse to apply Rule of Two in future procurements for the kind of services provided by disappointed bidder, and it was reasonably likely that disappointed bidder, which had been awarded many previous contracts, would be awarded a future contract if its interpretation of statutory Rule of Two prevailed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) is not excused from compliance with statutory Rule of Two for set asides, which states that Department generally \shall award\ a contract to a veteran-owned small business when there is a reasonable expectation that two or more such businesses will bid for the contract at a fair and reasonable price that offers the best value to the United States, even if the Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if the order is placed through the Federal Supply Schedule (FSS). Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Prefatory clause in statutory Rule of Two for Department of Veterans Affairs (VA) set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, does not change the plain meaning of the operative clause, which requires the Department to award a contract to a veteran-owned small business regardless of whether the Department has already met its annual goals for awarding contracts to veteran-owned small businesses. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The Department of Veterans Affairs\rquote (VA) placement of an order through the Federal Supply Schedule (FSS) is a \contract,\ within meaning of statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that the interpretation by Department of Veterans Affairs (VA) of prefatory clause in statutory Rule of Two for Department\rquote s set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, could be owed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': deference, the Rule of Two was unambiguous regarding Department\rquote s obligation to award a contract to a veteran-owned small business regardless of whether the Department had already met its annual goals for awarding contracts to veteran-owned small businesses, and thus, the Supreme Court would not defer to the Department\rquote s interpretation. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The Veterans Benefits, Health Care, and Information Technology Act of 2006 requires the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . To help reach those goals, a separate set-aside provision known as the \Rule of Two\ provides that a contracting officer \shall award contracts\ by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that \the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Petitioner Kingdomware Technologies, Inc., a service-disabled veteran-owned small business, filed a bid protest with the Government Accountability Office (GAO), alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department\rquote s actions were unlawful, but when the Department declined to follow the GAO\rquote s nonbinding recommendation, Kingdomware filed suit, seeking declaratory and injunctive relief. The Court of Federal Claims granted summary judgment to the Government, and the Federal Circuit affirmed, holding that the Department was only required to apply the Rule of Two when necessary to satisfy its annual goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Petitioner Kingdomware Technologies, Inc., a veteran-owned small business, unsuccessfully vied for a federal contract from the Department of Veterans Affairs to provide emergency-notification services. Kingdomware sued, arguing that the Department violated a federal law providing that it \shall award\ contracts to veteran-owned small businesses when there is a \reasonable expectation\ that two or more such businesses will bid for the contract at \a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In this case, we consider whether the Department must use the Rule of Two every time it awards contracts or whether it must use the Rule of Two only to the extent necessary to meet annual minimum goals for contracting with veteran-owned small businesses. We conclude that the Department must use the Rule of Two when awarding contracts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In an effort to encourage small businesses, Congress has mandated that federal agencies restrict competition for some federal contracts. The Small Business Act thus requires many federal agencies, including the Department of Veterans Affairs, to set aside contracts to be awarded to small businesses. The Act requires each agency to set \an annual goal that presents, for that agency, the maximum practicable opportunity\ for contracting with small businesses, including those \small business concerns owned and controlled by service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . And federal regulations set forth procedures for most agencies to \set aside\ contracts for small businesses. See, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In 1999, Congress expanded small-business opportunities for veterans by passing the Veterans Entrepreneurship and Small Business Development Act, 113 Stat. 233. That Act established a 3% governmentwide contracting goal for contracting with service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': ). That Act requires the Secretary of Veterans Affairs to set more specific annual goals that encourage contracting with veteran-owned and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Act\rquote s \Rule of Two,\ at issue here, provides that the Department \shall award\ contracts by restricting competition for the contract to service-disabled or other veteran-owned small businesses. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers and that \the award can be made at a fair and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , a contracting officer \may use procedures other than competitive procedures\ to award contracts to veteran-owned small businesses when the goods or services that are the subject of such contracts are worth less than the simplified acquisition threshold. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , a contracting officer \may award a contract to a [veteran-owned small business] using procedures other than competitive procedures\ if the contract is worth more than the simplified acquisition threshold but less than $5 million, the contracting officer determines that the business is \a responsible source with respect to performance of such contract opportunity,\ and the award Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Kingdomware Technologies, Inc., is a service-disabled veteran-owned small business. Around January 2012, the Department decided to procure an Emergency Notification Service for four medical centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Kingdomware contended that the Department could not award the contracts at issue here without first checking to see whether at least two veteran-owned small businesses could perform the work at a fair and reasonable price. The GAO issued a nonbinding determination that the Department\rquote s failure to employ the Rule of Two was unlawful and recommended that the Department conduct market research to determine whether there were two veteran-owned businesses that could fulfill the procurement. The Department disagreed with the recommendation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': award contracts\ to veteran-owned small businesses using restricted competition whenever the Rule of Two is satisfied, \[e]xcept as provided in subsections (b) and (c).\ (Emphasis added.) Subsections (b) and (c) provide, in turn, that the Department \may\ use noncompetitive procedures and sole-source contracts for lower value acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': ) prefer veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': case proves the point: the contract at issue here concerned complex information technology services over a multiyear period. Moreover, the Department may continue to purchase items that cost less than the simplified acquisition threshold (currently $150,000) through the FSS, if the Department procures them from a veteran-owned small business. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': We need not decide today precisely what sort of search for veteran-owned small businesses the Department must conduct to comply with the Rule of Two. We do not decide, for example, whether the Department may satisfy its obligations by searching for eligible veteran-owned small businesses within the FSS, or whether it must conduct a broader search for such businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 008 - Worldwide Language Resources LLC v United States.doc, Paragraph with 'The Rule of Two': The Agency received nine proposals for the FP mission area. AR 1924. Offerors will be evaluated under the following four factors: Technical, Small Business Participation, Past Performance, and Price. AR 1853. The Technical factor is the most important factor, the Small Business and Past Performance factors are equally weighted, and the Price factor is the least important factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Desa Group, Inc. v. U.S. Small Business Administration, 190 F.Supp.3d 61 (2016) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': U.S. SMALL BUSINESS ADMINISTRATION, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Small business brought action against the Small Business Administration (SBA), alleging that SBA acted arbitrarily and capriciously in terminating it from preferential contracting program for socially and economically disadvantaged small businesses. Both parties moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': , J., held that SBA acted arbitrarily and capriciously in terminating small business from preferential contracting program for socially and economically disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Small business\rquote s motion granted; SBA\rquote s motion denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) failed to establish that small business and non-disadvantaged business were so interconnected that small business could not exercise independent business judgment without great economic risk, and thus the SBA acted arbitrarily and capriciously in terminating small business from preferential contracting program for socially and economically disadvantaged small businesses on such grounds; SBA\rquote s conclusions, that small business maintained an office in non-disadvantaged business\rquote s headquarters because of shared management and that the small business improperly relied on the non-disadvantaged business were not supported by substantial evidence. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Upon finding that Small Business Administration (SBA) acted arbitrarily and capriciously in determining small business ineligible for preferential contracting program for socially and economically disadvantaged small businesses, court would decline to order small business\rquote s reinstatement in the program and instead remand the matter to the SBA for further investigation, where SBA had reason to be suspicious that small business was dependent on non-disadvantaged business given the numerous connections between the two businesses and a hotline complaint that small business\rquote s owner worked for both businesses rather than full time at small business. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': alleging that Defendant the United States Small Business Administration (\the SBA\) acted arbitrarily and capriciously in terminating TDG from a preferential contracting program for socially and economically disadvantaged small businesses, called the Section 8(a) Business Development Program (\the Section 8(a) program\). To be eligible for the Section 8(a) program, a business must be \unconditionally owned and controlled by one or more socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act authorizes the SBA to enter into procurement contracts with the federal government, and then subcontract the SBA\rquote s performance of those contracts to a \socially and economically disadvantaged small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': In order to be eligible for the Section 8(a) program, a business must be \a small business which is unconditionally owned and controlled by one or more Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': A.R. 140; Compl. \u182 13. TDG was deemed eligible for the program based on the status of the company\rquote s President and CEO, Dionne Fleshman, as a \disadvantaged individual\ as defined in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': the Small Business Act and its implementing regulations because the SBA terminated TDG without the necessary good cause and because the SBA violated its own regulations when it failed to respond for over a year to TDG\rquote s response to the agency\rquote s letter of intent to terminate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 010 - Desa Group Inc v US Small Business Administration.doc, Paragraph with 'The Rule of Two': (applying the substantial evidence standard in a case reviewing a Small Business Association decision where the plaintiff \seeks to overturn several of the SBA\rquote s factual findings\). \When the arbitrary or capricious standard is performing that function of assuring factual support, there is no substantive difference between what it requires and what would be required by the substantial evidence test, since it is impossible to conceive of a \u8216nonarbitrary\u8217 factual judgment supported only by evidence that is not substantial in the APA sense.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 014 - Res Rei Development Inc v United States.doc, Paragraph with 'The Rule of Two': The Group C contract was set aside for service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 015 - MSC Industrial Direct Co Inc v United States.doc, Paragraph with 'The Rule of Two': The evaluation was based on price and non-price factors. The non-price factors, in order of importance, were: Specific Technical Expertise\u8211Supply Chain System Capability, Past Performance, and Local and Small Business Utilization Plan. AR 297\u821198. These factors, when combined, were significantly more important than price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest challenging Department of Housing and Urban Development\rquote s (HUD) award of five small business set-aside contracts to provide field service management (FSM) services. Following intervention by awardee, bidder moved for judgment upon administrative record, government moved to dismiss or, alternatively, for judgment upon administrative record, and defendant-intervenor moved for judgment upon administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder for Department of Housing and Urban Development\rquote s (HUD) award of five small business set-aside contracts to provide field service management (FSM) services was not \interested party,\ within meaning of Tucker Act, and thus lacked standing to pursue bid protest, since bidder did not have direct economic interest that had been affected by award of contracts, as bidder had higher contract prices and received lower performance ratings than other bidders so would not have been next in line for award if awardee were disqualified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) evaluation of past and present performance factor was reasonable, in awarding five small business set-aside contracts to provide field service management (FSM) services; HUD appropriately determined that disappointed bidder\rquote s past corporate contracts were not relevant, as bidder failed to provide volume of properties managed under those contracts and their scope of work was not similar to FSM contracts, and HUD\rquote s decision not to consider bidder\rquote s key personnel to satisfy past and present performance factor complied with express terms of request for proposals (RFP) stating that only three recent contracts would be evaluated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Awardee of five small business set-aside contracts to provide field service management (FSM) services for Department of Housing and Urban Development (HUD) did not have significant organizational conflict of interest, since HUD conducted reasonable investigation into alleged conflict and determined that awardee did not perform any pre-conveyance work in locations covered by contract awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) award of five contracts to provide field service management (FSM) services comported with requirement in request for proposals (RFP) that contract awards would be small business set-asides, since awardee committed its proposals to ensure that at least 50% of cost of contract performance incurred for personnel would be expended on its own employees, rather than relying too heavily upon large business subcontractors to perform FSM contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': at 915\u82111389, 1481\u82114371. The RFP also contemplated that all of the awards at issue here would be small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with 'The Rule of Two': Wallace\rquote s final challenge to HUD\rquote s award decisions\u8212that HUD failed to comply with the RFP\rquote s requirement that the contract awards in this matter would be small business set-asides\u8212is also not supported by the record evidence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging award of small business set-aside contract by Department of Housing and Urban Development (HUD), to provide marketing and sales services for HUD-owned properties, and seeking preliminary injunction preventing HUD from awarding contract and directing HUD to reopen discussions. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder lacked substantial chance of receiving award of small business set-aside contract by Department of Housing and Urban Development (HUD), to provide marketing and sales services for HUD-owned properties, but for alleged error in procurement, and thus, bidder did not qualify as \interested party\ with standing to pursue post-award bid protest, under Tucker Act, where bidder\rquote s confidence rating due to exclusive use of subcontractors as past performance references was lower than awardee\rquote s rating and equal to two other bidders, and bidder\rquote s proposed price was 20% more than any technically acceptable bidder and $8 million higher than awardee\rquote s price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': On July 25, 2014, HUD issued Solicitation No. DU204SA\u821113\u8211R005 seeking marketing and sales services for HUD-owned properties in twelve different geographic regions. AR 65, 79. Of those twelve regions, nine were set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': HUD intended to award one indefinite delivery/indefinite quantity contract for each area, with bidders able to bid on more than one area in their proposals. AR 79. The area at issue in the instant case, designated \1P,\ covered the state of Michigan, and was one of the areas set aside for small businesses. AR 68. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': AR 2901. HUD awarded the contract for area 1P to IEI\u8211Cityside, JV (\IEI\). AR 2903. HUD determined that the two potential candidates for award were IEI and Sage, and given that each offeror had the same confidence rating, \no additional trade-off was considered\ and the award was made to the offeror with the lowest total price. AR 2902. Subsequently, REO filed a size protest with the Small Business Administration (\SBA\) and concurrently protested the award to the Government Accountability Office (\GAO\), asserting that HUD conducted unreasonable discussions, unreasonably evaluated REO\rquote s past performance, and failed to adequately apprise offerors as to how it intended to evaluate offerors\rquote past performance. AR 2975, 2927. On November 10, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': REO\rquote s proposal is structured such that REO, a small business concern, would complete 51% of the work while utilizing its subcontractor for the remaining 49% of the work. Sage, on the other hand, is a mentor/prote\u769ge\u769 joint venture between a small business (Raine & Company) and a large business (PEMCO). As such, Raine is only required to be able to complete at least 40% of the contract work while being able to utilize its mentor for up to 60% of the work. It would be rational for the agency to view the two situations as different, and place greater value on Sage\rquote s reliance on a mentor who could perform up to 60% of the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 021 - Reo Solution LLC v United States.doc, Paragraph with 'The Rule of Two': by awarding a contract to a concern which has been found to be other than small. At the time plaintiff filed its response and amended its complaint, plaintiff had a size protest outstanding with SBA, challenging Sage as other than small. AR 3734. Additionally, on March 8, 2016, in response to a size protest made against Sage by another offeror for a different area under the instant solicitation, SBA determined Sage to be other than small. AR 3794. However, on March 28, 2016, SBA rescinded that size determination and found that Sage was an eligible small business concern. AR 3807. Subsequently, on March 30, 2016, SBA dismissed REO\rquote s size protest against Sage. AR 3810. Although REO is free to challenge this dismissal, at this time the court must conclude that Sage is a small business concern eligible for award, and that HUD did not violate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': VA did not abuse its discretion by deciding not to waive \non-manufacturer\ rule and set aside procurement for small businesses or partial or total service disabled veteran-owned small businesses (SDVOSB); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': solicitation did not contain improper bundling, so as to disadvantage small businesses in procurement process in violation of Small Business Act (SBA); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA) did not abuse its discretion by deciding not to waive \non-manufacturer\ rule of Small Business Act (SBA), which required small business to manufacturer goods or distribute goods manufactured by another small business, and set aside procurement for contract for supply of custom sterile procedure packs for small businesses or partial or total service disabled veteran-owned small businesses (SDVOSB); contracting officer for VA did extensive market research and reasonably concluded that VA was not likely to receive at least two offers from qualified small business manufacturers, officer then considered seeking a waiver under SBA, but decided instead to allow for open competition under an evaluation scheme which provided more favorable ratings to socioeconomic small businesses, including SDVOSBs. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': In order to constitute \unjustified bundling,\ so as to preclude small business participation in procurement as prime contractor in violation of Small Business Act (SBA), a solicitation must: (1) consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract; and (2) must likely be unsuitable for award to a small business. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) did not contain improper bundling, so as to disadvantage small businesses in procurement process in violation of Small Business Act (SBA); contracting officer for VA conducted market research and identified a number of small businesses that asserted they could meet the solicitation\rquote s requirements. Small Business Act \u167\u167 2[2], 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': The General Accounting Office (GAO) will not consider allegations of improper \bundling\ of procurement contracts, in violation of Small Business Act (SBA), where small business protestors represent they are capable of performing the allegedly bundled requirements. Small Business Act \u167\u167 2[2], 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) was not unduly restrictive, as VA had rational basis for structure of its solicitation; contracting officer for VA did extensive market research and reasonably concluded that VA was not likely to receive at least two offers from qualified small business manufacturers, officer then considered seeking a waiver, but decided instead to allow for open competition under an evaluation scheme which provided more favorable ratings to socioeconomic small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Department of Veterans Affairs; Small\u8211Business Set\u8211Aside; Improper Bundling; Unduly Restrictive Solicitation; Small Business Participation; Exclusion from Competitive Award Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': The parties in these two related pre-award bid protests, consolidated for the purposes of this opinion, have filed cross-motions for judgment on the administrative record challenging the terms of Solicitation No. VA240C\u821115\u8211R\u82110022 (the \solicitation\) for the supply of custom sterile procedure packs to the United States Department of Veterans Affairs (the \VA\). The plaintiffs, Geo\u8211Med, LLC (\Geo\u8211Med\) and Manus Medical, LLC (\Manus\) argue that the solicitation was improper because first, the contract should have been a partial or total service disabled veteran-owned small business (\SDVOSB\) set-aside; second, the solicitation contained unduly restrictive requirements and improper bundling; third, there was an unaddressed organizational conflict of interest (\OCI\) that gave an unfair advantage to another bidder, [xxxxxxxxxxxxxxxxxx] (\xxxxxxxx\) as a result of [xxxxxxxxxx]\rquote s existing position as a Medical Surgical Prime Vendor (\MSPV\) for the VA; and fourth, that plaintiffs were wrongly excluded from the competitive range. Plaintiff Manus had previously brought a claim based on substantially the same arguments before the United States Government Accountability Office (\GAO\), which found in favor of the agency on all grounds. Plaintiff Geo\u8211Med filed a protest of the solicitation\rquote s terms with the agency on the same basis, and the agency rejected Geo\u8211Med\rquote s arguments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Before issuing the solicitation, the Contracting Officer (\CO\) assigned to the procurement, Kimberly Hurt, conducted market research to determine, among other things, whether this procurement should be set aside for small businesses pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': AR 575\u82111066. The CO first searched government databases and websites for capable SDVOSBs who had provided similar products in the past. AR 578. Her search uncovered sixty-three small businesses, including thirty-nine SDVOSBs and veteran-owned small businesses (\VOSBs\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Only five of the sixty-three small businesses were manufacturers; however, after analyzing their capabilities, the CO concluded that all five \lacked the capabilities for supporting the planned requirements of the acquisition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': On January 14, 2014, the CO issued a Request for Information (\RFI\) inviting potential suppliers to participate in Industry Days, which were designed to \provid[e] for an opportunity for small businesses to discuss their capabilities.\ AR 579. Eight small businesses, including Manus and Geo\u8211Med, participated in Industry Days and indicated that they were interested in and capable of performing the contract anticipated by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': the RFI. AR 579\u821180. However, seven out of the eight small businesses, including Manus and Geo\u8211Med, were distributors that would obtain packs of tools manufactured and assembled by large companies, and only one was a manufacturer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Based on this research, the CO concluded that there was not a reasonable expectation that the agency would receive two or more bids from responsible small business manufacturers, or distributors of products manufactured by small businesses, and therefore the agency was not obligated to set the procurement aside for small businesses or SDVOSBs under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': . AR 591\u821192. The CO has the discretion to seek a waiver of the non-manufacturer rule from the Small Business Association (\SBA\) pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': . However, rather than seeking a waiver, the CO determined that an unrestricted competition was the best option, and noted that \[i]n an effort to promote VA\rquote s socioeconomic goals, it would be more appropriate to use an evaluation factor which ... provides a more favorable rating to those Offerors who proposed use of sub-contracting which meets or exceeds the agency\rquote s socioeconomic small business goals.\ AR 592. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': On August 3, 2015, the VA issued the solicitation as an unrestricted firm fixed price, indefinite delivery contract. AR 1224\u82111567. Though the solicitation was not set aside as a small business or SDVOSB procurement, the solicitation did include veteran ownership as one of five factors to be considered. AR 1254, 1288. The amended due date for proposals was October 14, 2015. AR 2324. Six companies bid on the contract, of which three were large concerns (Avid Medical, [xxxxxxxxxx], and [xxxxxxxxxx] (\[xxxxxxxxxx]\)) and three were small businesses (Manus, Geo\u8211Med, and [xxxxxxxxxx] (\[xxxxxxxxxx]\)). AR 12412, 12429\u821130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': The GAO found that because Manus, along with two other small businesses, had submitted a proposal and affirmed that it could perform the contract, the solicitation did not contain bundling in a manner that precluded small-business participation. AR 10223. The GAO also found that Manus\rquote s claims that the solicitation was overly restrictive failed because Manus had not \identified any particular solicitation provision it believes to be unduly restrictive.\ AR 10224. Finally, the GAO found that Manus\rquote s OCI claims were not ripe because, at the time that Manus filed its protest, no offers had been submitted and the award had not yet been made. AR 10225\u821126. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': At the heart of this protest is plaintiffs\rquote contention that the agency erred by not setting aside the procurement for SDVOSBs. A CO is required to set aside a procurement for small businesses, with SDVOSBs receiving first priority if the CO has a \reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': In order to qualify for a set-aside, a small business must either manufacture the goods it will provide or distribute good manufactured by another qualifying small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': (a non-manufacturer may receive the benefit of a set-aside procurement if it \represent[s] that it will supply the product of a domestic small business manufacturer or processor, unless a waiver of such requirement is granted\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': to receive a benefit under\ a set-aside procurement). A CO \may request a waiver\ from the SBA of the \non-manufacturer rule ... if no known domestic small business manufacturers or processors can reasonably be expected to offer a product meeting the requirements of the solicitation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': The clear purpose of the non-manufacturer rule is \to prevent brokerage-type arrangements whereby small \u8216front\u8217 organizations are set up to bid [on] government contracts but furnish the supplies of a large concern.\ The rules serves, in other words, \to prevent dealers from acting as mere conduits for the products of large manufacturers on small business set-aside procurements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': . The court need not decide whether a CO has unfettered discretion to decide not to seek a waiver, but finds that under the circumstances presented in this case, the CO clearly did not abuse her discretion. The CO did extensive market research and reasonably concluded that the agency was not likely to receive at least two offers from qualified small business manufacturers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': AR 578\u821192. The record demonstrates that the CO then considered seeking a waiver, but decided instead to allow for open competition under an evaluation scheme which provided more favorable ratings to socioeconomic small businesses, including SDVOSBs. AR 592. The court therefore finds that the CO\rquote s decision in this case was not in conflict with the agency\rquote s obligation to consider its socioeconomic goals in conducting procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': C. The Plaintiffs Cannot Demonstrate that the Solicitation Contained Improper Bundling or was Unduly Restrictive because the Contract was Not Unsuitable for Small Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': performed under separate procurements for the VISNs that make up the SAO\u8211Central region will now be performed under a single contract, and thus the contract is an improper \bundling\ of requirements and disadvantages small businesses in favor of large concerns. The plaintiffs note that while not all bundling is improper, the CO failed to seek review from the OSDBU and thus did not comply with the FAR. Further, the plaintiffs argue that the solicitation\rquote s requirements are unduly restrictive and unfairly benefit large companies, particularly MSPVs. The government counters, as the GAO found, that Manus and Geo\u8211Med are precluded from making this argument on the grounds that Manus and Geo\u8211Med\rquote s participation in the procurement process, and each plaintiffs\rquote statement that it can fulfill all of the contract\rquote s requirements as written, demonstrates that the solicitation did not preclude small-business participation and thus is not bundled or unduly restrictive as defined under the FAR. Further, the government argues that this is a new \procurement requirement,\ and therefore does not consolidate previous procurement requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Under the applicable statute, \to the maximum extent practicable\ agencies shall \avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': . The applicable SBA regulation further explain that a \bundled\ procurement may be \unsuitable for award to a small business concern\ due to: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': Cases from this court and the Federal Circuit have held that in order to constitute bundling, a solicitation must meet two criteria: first, it must \consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract,\ and second, the solicitation must \likely be unsuitable for award to a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': ). Both elements are required; thus if a contract is suitable for award to a small business, \it cannot be considered an example of bundling.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': In this case, the CO conducted market research and identified a number of small business that asserted that they could meet the solicitation\rquote s requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': AR 578\u821182. Given that seven out of the eight small businesses who participated in Industry Days, including the three who ultimately bid on the contract, intended only to distribute packs manufactured and assembled by large companies, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': AR 12397, 12399, it was reasonable to conclude that a small business would be capable of fulfilling the requirements. Further, as the GAO noted, the plaintiffs both asserted\u8212and still maintain\u8212that they are able to perform under the solicitation. In response to the question, \Do you currently have the necessary recourse to provide the estimated number of Sterile Custom Packs? If not, would you be able to obtain the necessary [resources] within 30 days of the contract award?\, AR 475, Manus responded that its \manufacturer has the capacity Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': to provide the estimated number of packs for SAO\u8211C and we have the inventory management and distribution capability to meet this demand,\ AR 528. In response to the same question, Geo\u8211Med responded simply \Yes.\ AR 499\u8211500. Indeed, the GAO will not even consider bundling allegations where, as in this case, small business protestors represent that they are capable of performing the allegedly bundled requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': separate from the plaintiffs\rquote challenges to the solicitation itself. Neither plaintiff, for example, argues that the agency wrongly applied the solicitation\rquote s criteria in evaluating its technical abilities. Instead, the plaintiffs argue that the solicitation was flawed because it precluded small business participation. Because the court has found that this claim is without merit, the court has no independent basis to conclude that Manus and Geo\u8211Med\rquote s exclusion from the competitive range was not proper under the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': As discussed in greater detail below, the FAR requires a CO to set aside a contract if there is a reasonable expectation of receiving two offers from qualified small businesses that will manufacture the product to be provided, or that distribute a product manufactured by another small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': . The contract will then be set aside for that class of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'The Rule of Two': At oral argument, plaintiffs were unable to say with any precision which of the solicitation\rquote s terms were overly restrictive, arguing instead that the fact that the solicitation was so large made it impossible for a small business to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging award decisions by Department of Housing and Urban Development (HUD) for small business set-aside contracts in several geographic areas to market and sell single-family homes acquired by HUD after owners defaulted on mortgages supported by Federal Housing Administration (FHA). After intervention as defendant-intervenor by awardee of contracts for three areas, parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) evaluation of bidder\rquote s past performance information and assignment of \fair/some confidence\ rating based on that information had rational basis, in awarding small business set-aside contracts to market and sell single-family homes; solicitation allowed HUD to adjust overall confidence assessment upward or downward depending on percent of past work performed by incumbent prime contractors versus subcontractors, so after bidder\u8217 revised offer stated it participated as subcontractor in processing 100% of volume of incumbent prime contracts, HUD reasonably adjusted bidder\rquote s rating downward as small business set-aside contracts limited subcontractors to only performing 49% of work and due to concerns about impartiality of its past performance references. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) evaluation of awardee\rquote s past performance information and assignment of \excellent/high confidence\ rating based on that information had rational basis and conformed to solicitation and regulations, in awarding small business set-aside contracts to market and sell single-family homes; terms of solicitation and regulations led to unusual and not particularly fair result that greatly benefited awardee simply due to its mentor-protege joint venture (JV) for which awardee submitted past performance references for its other-than-small JV partner that could perform up to 60% of work as mentor, while protestor\rquote s other-than-small subcontractor could only perform up to 49% of work, but protestor failed to submit references for that subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) discussions with bidder failed to disclose that bidder\rquote s past performance submission showed significant weaknesses or constituted adverse past performance information, in contravention of procurement regulation and solicitation for small business set-aside contracts to market and sell single-family homes; HUD incorrectly informed bidder there were no weaknesses or deficiencies in its proposal, HUD failed to inform bidder that it received rating of \not relevant\ in 9 of 10 geographic areas due to 80% reduction to bidder\rquote s reported property volume as bidder performed only 20% of direct labor under prior subcontracts, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Department of Housing and Urban Development\rquote s (HUD) violation of procurement regulation and solicitation, by failing to disclose to bidder that its past performance submission showed significant weaknesses or constituted adverse past performance information, was prejudicial to bidder, as result of HUD\rquote s decision to lower bidder\rquote s overall past performance rating that materially and adversely affected bidder\rquote s chance to receive award of small business set-aside contracts to market and sell single-family homes, since bidder had lowest-price in two of three areas, so bidder had substantial chance of receiving award if it had received higher past performance rating, and bidder could have taken number of steps to mitigate weaknesses in final proposal if HUD had disclosed concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder for award of small business set-aside contracts to market and sell single-family homes acquired by Department of Housing and Urban Development (HUD) would suffer irreparable harm by loss of profits, opportunity to work, and opportunity to compete on level playing field, in absence of limited permanent injunction prohibiting awardee\rquote s performance of contracts beyond exercise of first one-year option. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Public interest supported grant of limited permanent injunction prohibiting awardee\rquote s performance, beyond exercise of first one-year option, of small business set-aside contracts to market and sell single-family homes acquired by Department of Housing and Urban Development (HUD), since HUD violated procurement regulation and solicitation, and maintenance of integrity of procurement process would serve public interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships favored limited permanent injunction prohibiting awardee\rquote s performance, beyond exercise of first one-year option, of small business set-aside contracts to market and sell single-family homes acquired by Department of Housing and Urban Development (HUD), since preliminary base period had already expired prior to exercise of first one-year option, HUD and awardee would suffer considerable harm by immediate injunctive relief, and award of only bid preparation and proposal costs would not adequately address harm to disappointed bidder from HUD\rquote s procurement error. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': This post-award bid protest arises from a solicitation by the United States Department of Housing and Urban Development (\HUD\ or \government\) for contracts in twelve geographic areas to market and sell single-family homes acquired by HUD after the owners defaulted on mortgages supported by the Federal Housing Administration. Most, but not all, of those contracts were reserved for small businesses. On September 30, 2015, the government awarded contracts for each of these twelve areas to various offerors, and Sage Acquisitions, LLC (\Sage\) received a number of those contracts. Another offeror, Q Integrated Companies, LLC (\Q Integrated\), protested three of the awards to Sage at the Government Accountability Office (\GAO\). GAO dismissed Q Integrated\rquote s protest because a case was filed in this court arising out of the same solicitation but involving a different area award, a different protesting offeror, and a different awardee. Q Integrated then filed its complaint in this court, and Sage was granted leave to intervene to defend its awards. At issue are HUD\rquote s awards of contracts to Sage for Areas 7A, 1D, and 5P. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Arkansas, Louisiana, Missouri, and Southern Texas), 1P (Michigan), 3P (Maine, Vermont, New York, New Hampshire, Rhode Island, New Jersey, Massachusetts, and Connecticut), 4P (Ohio), and 5P (Pennsylvania, West Virginia, Virginia, Delaware, Maryland, and the District of Columbia). AR 1\u82113. Based on the results of the government\rquote s market research conducted in mid\u82112013, Areas 3A, 6A, 7A, 8A, 1D, 1P, 3P, 4P, and 5P were to be 100 percent small business set-aside contracts, Areas 4A and 5A were to be woman-owned small business set-aside contracts, and Area 2D was to be an unrestricted competition. AR 1\u82113, \u821128 to \u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': ANSWER: Subcontractors in [small business] set-aside areas are limited to performing less than 50% of the total effort. As such, it is important to accurately state what functions are being performed by the subcontractors and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': AR 5\u82111540 to \u821141. For Areas 1D, 2D, and 2P, Q Integrated had been a subcontractor to Matt Martin since October 2013. AR 5\u82111539. Q Integrated\rquote s proposal under the new solicitation was to reverse these roles so that Q Integrated would serve as the prime contractor and Matt Martin would serve as the subcontractor, in part because Matt Martin no longer met the requirements for the small business set-aside contracts. AR 5\u82111543; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': On March 8, 2016, approximately one week prior to the hearing on the parties\rquote cross-motions for judgment on the administrative record, a field officer of the SBA issued another size determination decision finding that Sage \did not meet the small business size standard\ for purposes of the HUD solicitation. Def.\rquote s Notice (Mar. 11, 2016), ECF No. 40. The decision pertained to a protest by another unsuccessful offeror, ARNC/Bridge Consulting, of the award of Area 3P to Sage following IEI\u8211Cityside\rquote s disqualification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': 2015, that Sage was a small business for the purposes of the HUD solicitation, and because this decision was not appealed within the designated time, the prior decision constituted \the final decision of the agency\ pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Although HUD indicated there would be \[n]o set weighting or number of submissions ... assigned to subcontractor versus prime performance,\ it also stated that \the [g]overnment may adjust the overall confidence assessment upward or downward depending on ... the percentage of relevant work performed by the prime versus subcontractors.\ AR 2\u8211698. This is what happened in the case of Q Integrated\rquote s past performance references. In its final proposal revision, Q Integrated stated that it \participate[d] in processing 100% of the volume\ associated with the incumbent contracts under which Matt Martin was the prime contractor and Q Integrated was the subcontractor. AR 10\u82114283 to \u821189. However, the evaluation team reasonably determined that this was not an accurate reflection of Q Integrated\rquote s \overall corresponding percentage of work,\ because the incumbent contracts were small business set-aside contracts in which subcontractors were limited to no more than 49 percent of the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': the solicitation stated that offerors could submit three past performance references \inclusive of ... submissions on behalf of subcontractors.\ AR 2\u8211673. Accordingly, Q Integrated could have submitted past performance references for its other-than-small subcontractor, Matt Martin, just as Sage submitted past performance references for its other-than-small joint venture partner, PEMCO. Q Integrated did not do so; if it had, the government may or may not have considered the fact that, under a small business set-aside contract, Matt Martin was permitted to perform up to 49 percent of the work, just as it considered that PEMCO was permitted to perform up to 60 percent of the work as an approved mentor to Raine. While it is true that the evaluation team noted that joint venture partners are permitted to perform a greater percentage of the work than subcontractors, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': The eligible businesses were defined under the North American Industry Classification System code 531210, Offices of Real Estate Agents and Brokers, with a small business size standard of $7 million in average annual revenue. AR 2\u821147. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': In an amendment to the RFP issued on September 5, 2014, HUD lowered these threshold numbers in response to concerns raised by offerors that a \small business\ with less than $7 million in annual revenue could not have reasonably met the minimum number of past monthly sales to receive a Very Relevant or Relevant rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 023 - Q Integrated Companies LLC v United States.doc, Paragraph with 'The Rule of Two': Q Integrated initially challenged the awards to Sage in Areas 8A and 4P as well, but later withdrew these challenges. AR 36\u82115913. Q Integrated also challenged the awards to IEI\u8211Cityside in Areas 3A, 6A, 1P, and 3P. AR 36\u82115913. However, after the SBA\rquote s size determination decision on November 10, 2015, finding that IEI\u8211Cityside did not meet the small business requirements of the solicitation, the government terminated the award to IEI\u8211Cityside. AR Tab 33; AR 36\u82115913. This mooted Q Integrated\rquote s protest for these areas, and GAO dismissed this portion of the protest on December 2, 2015. AR 36\u82115913. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': EPA properly referred successful bidder\rquote s proposal to Small Business Administration (SBA); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': The Court of Federal Claims reviews the Small Business Administration\rquote s (SBA) competency determinations under the Administrative Procedure Act\rquote s (APA) arbitrary and capricious standard of review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Where traditional responsibility factors are employed as technical evaluation criteria and the evaluation renders a small business offeror\rquote s proposal flatly ineligible for a federal contract award, the agency has effectively made a determination that the offeror is not a responsible contractor capable of performing the solicitation requirements; in those circumstances, the agency must refer the matter of the firm\rquote s responsibility to the Small Business Administration (SBA) for a Certificate of Competency (COC) determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Environmental Protection Agency (EPA) properly referred bid proposal for environmental remediation services contract to Small Business Administration (SBA) for a Certificate of Competency (COC) determination after finding that the bidder had failed to meet the bid solicitation\rquote s key personnel technical requirement; the personnel requirement encompassed a traditional responsibility factor, the ability to meet staffing and management requirements, and thus, because the bidder\rquote s failure on that factor would have excluded its otherwise acceptable bid from competition, both the Small Business Act and Federal Acquisition Regulations (FAR) required EPA to refer the proposal to SBA. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Environmental Protection Agency (EPA) did not improperly enter discussions with successful bidder for environmental remediation services contract by accepting affidavit submitted by bidder while EPA was in the process of referring bidder\rquote s proposal to Small Business Administration (SBA) after its original award was terminated following unsuccessful bidder\rquote s agency-level protest; submission of additional evidence in context of a responsibility determination such as the SBA\rquote s Certificate of Competency (COC) determination did not constitute discussions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Environmental Protection Agency (EPA) properly provided Small Business Administration (SBA), which was conducting a Certificate of Competency (COC) determination with regard to successful bidder for environmental remediation services contract, with an affidavit submitted by the bidder after its original award was terminated, even though EPA never considered the information itself; SBA was not required to limit its evaluation of the bidder\rquote s responsibility to that information considered by EPA in conducting its technical evaluation, as SBA was authorized to independently evaluate a COC applicant for all elements of responsibility, and the affidavit was crucial evidence for SBA to consider in assessing whether bidder\rquote s proposal was accurate and viable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': In referring successful bidder for environmental remediation services contract to Small Business Administration (SBA) for Certificate of Competency (COC) determination, Environmental Protection Agency (EPA) properly withheld information supplied by unsuccessful bidder that purported to show that successful bidder did not meet solicitation\rquote s residency requirement because it employed an undocumented worker; there was no probative evidence supporting unsuccessful bidder\rquote s allegation regarding the undocumented worker, and EPA did not question successful bidder\rquote s responsibility based upon issues with the residency requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': It was reasonable for Small Business Administration (SBA) to conclude that successful bidder for environmental remediation services contract with Environmental Protection Agency (EPA) met the 35% residency requirement to qualify for Historically Underutilized Business Zone (HUBZone) status; there was no indication that SBA erroneously considered successful bidder\rquote s proposed site superintendent to be in its employ, and there was nothing to corroborate unsuccessful bidder\rquote s speculation that an undocumented worker may have been included as a HUBzone resident, as SBA conducted a thorough review of documentation on the residency status of successful bidder\rquote s employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': In reviewing a Certificate of Competency (COC) determination by the Small Business Administration (SBA), the Court of Federal Claims accords SBA certain deference based on the unique expertise that SBA unquestionably possesses in the area of business responsibility determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': The Court of Federal Claims will overturn an Small Business Administration (SBA) competency determination only if it appears by a preponderance of the evidence that SBA\rquote s decision had no rational basis or violated an applicable procurement statute or regulation that was prejudicial to the protester. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) decision to grant a Certificate of Competency (COC) to successful bidder for environmental remediation services contract with Environmental Protection Agency (EPA) was reasonable; SBA determined that bidder had the requisite technical ability, that plant facilities and equipment were favorable, that material availability and subcontractor support were acceptable, and that the bidder\rquote s proposed site superintendent had confirmed that he would serve as bidder\rquote s superintendent if it received the contract award, contrary to his prior declaration and affidavit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': , U.S. Environmental Protection Agency, 11201 Renner Blvd., Lenexa, KS 66219, Of Counsel. Christopher J. McClintock, U.S. Small Business Administration, 409 3rd Street NW, Washington, D.C. 20416, Of Counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Post-award Bid Protest; 28 U.S.C. \u167 1491(b)(1); Small Business Concern; Key Personnel; Pass/Fail Technical Requirement; Responsiveness; Responsibility Determination; Referral to Small Business Administration for Certificate of Competency; HUBZone Residency Requirement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': This post-award bid protest comes before the Court on the parties\rquote cross-motions for judgment on the Administrative Record (\AR\). Plaintiff, Lawson Environmental Services, LLC (\Lawson\), challenges the Environmental Protection Agency\rquote s (\EPA\) award of a contract to Coastal\u8211Enviroworks Joint Venture (\Coastal\u8211Enviroworks\) for environmental remediation services in lead-contaminated residential properties in Washington County, Missouri, pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act (\CERCLA\). Plaintiff claims that EPA unlawfully referred Coastal\u8211Enviroworks to the Small Business Administration (\SBA\) for a Certificate of Competency (\COC\) determination instead of rejecting Coastal\u8211Enviroworks\rquote technical proposal as nonresponsive. In the alternative, Plaintiff argues that, in referring Coastal\u8211Enviroworks\rquote proposal to SBA for a COC responsibility determination, EPA both improperly provided SBA with information the agency failed to consider and withheld relevant information from SBA. Finally, Plaintiff contends that SBA erred in issuing Coastal\u8211Enviroworks a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': The Court denies the protest. Because EPA determined that Coastal\u8211Enviroworks, a small business concern, failed a technical pass/fail requirement that was also a responsibility factor\u8212the staffing capability to perform the contract\u8212EPA was required to refer the matter to SBA for a Certificate of Competency determination. Plaintiff\rquote s remaining challenges to the award fail, as EPA submitted proper evidence to SBA and SBA reasonably exercised its discretion in granting Coastal\u8211Enviroworks a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': crushed rock, vegetation, root balls, and deteriorated landscaping\u8212and the restoration of the properties. AR 82. Award was to be made to a small business employing people in a Historically Underutilized Business Zone (\HUBZone\). AR 40\u821142. In a presolicitation notice published on FedBizOpps.gov on March 26, 2014, EPA indicated that the estimated value for this procurement was between $30 and $35 million. AR 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': The Solicitation contained FAR Clause 52.219\u82113, \Notice of HUBZone set-aside or sole source award.\ AR 40\u821142. Paragraph (c) of that clause required that a prospective awardee be a HUBZone small business concern at the time of offer. AR 41. Paragraph (g) of that clause required that a prospective HUBZone awardee be a HUBZone small business concern at the time of award. AR 42. As a HUBZone set-aside, the Solicitation required that at least 35% of the small business concern\rquote s employees reside in a HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': On April 14, 2015, Procurement Contracting Officer Tyrone Lewis issued an Addendum to his Source Selection Decision, recommending that the Source Selection Authority award the contract to Coastal\u8211Enviroworks. AR 1175\u821186. In the addendum, CO Lewis noted that Coastal\u8211Enviroworks had proposed the lowest price, and that while the joint venture itself was not certified as a HUBZone small business concern, each firm comprising the joint venture was HUBZone certified. AR 1182\u821183. CO Lewis determined Coastal\u8211Enviroworks to be a responsible offeror \whose offer conforms to the solicitation, represents the lowest price that is technically acceptable, and therefore represents the best value to the Government.\ On April 21, 2015, the Source Selection Authority, Jeanne Poovey, Manager of the Office of Acquisition Management for EPA, approved CO Lewis\rquote recommendation. AR 1188. Coastal\u8211Enviroworks was awarded the contract on May 27, 2015. AR 1197. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': On June 2, 2015, Lawson timely submitted a protest to CO Lewis, alleging that Enviroworks, one of Coastal\u8211Enviroworks\rquote joint venture partners, did not meet the employee residency requirement to qualify as a HUBZone. AR 1361\u821162. The HUBZone Act and the implementing regulations require that at least 35% of a HUBZone small business concern\rquote s employees reside in a HUBZone\u8212any HUBZone, not necessarily the HUBZone where the small business concern has its principal office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Lawson\rquote s assertion that it was improper to refer the matter to the SBA for consideration under SBA\rquote s COC procedures is unavailing. Where an agency finds that a small business is nonresponsible, the agency is required to refer the matter to the SBA for consideration under the COC procedures. Federal Acquisition Regulation Subpart 19.6. In a negotiated procurement, SBA referral is mandatory where the solicitation includes for evaluation on a pass/fail basis a criterion\u8212such as key personnel qualifications\u8212that is traditionally a responsibility-type factor, and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': contracting agency determines that a small business\rquote s proposal should be rejected for failing that criterion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': SBA dismissed Lawson\rquote s appeal, finding that Lawson provided no evidence to contradict SBA\rquote s previous determinations that Coastal\u8211Enviroworks met the 35% employee residency requirement to qualify as a HUBZone small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': As the Court of Federal Claims recognized, \where traditional responsibility factors are employed as technical evaluation criteria and the evaluation renders an offeror\rquote s proposal flatly ineligible for award, the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (finding that, where \responsibility-type concerns\ result in an offeror\rquote s exclusion from the competition, \a de facto non-responsibility determination has been made and, in the case of a small business, referral to the SBA is required\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Because Coastal\u8211Enviroworks\rquote failure on a \responsibility-type\ technical factor would have excluded Coastal\u8211Enviroworks from the competition, both statute and regulation required EPA to refer Coastal\u8211Enviroworks\rquote proposal to SBA for a Certificate of Competency determination. The Small Business Act, in relevant part, provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (7)(A) To certify to Government procurement officers, and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Government procurement officer or an officer engaged in the sale and disposal of Federal property Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). The FAR reaffirms the mandatory obligation of the agency to refer the matter of the prospective small business concern\rquote s staffing capability to SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (a) Upon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility (including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, tenacity, and limitations on subcontracting ...), the contracting officer shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': (\Under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': and implementing regulations, when a CO finds that an apparently successful small business offeror lacks certain elements of responsibility, including the capacity, competency, or tenacity necessary to perform the contract, the contacting officer must refer the offeror to the SBA.\) (internal citation and quotation marks omitted). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': considered this information itself. Pl.\rquote s Mot. for J. on the AR 34. Plaintiff appears to argue that SBA is required to limit its evaluation of a small business concern\rquote s responsibility to that information considered by EPA in conducting its technical evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 026 - Lawson Environmental Services LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that Coastal\u8211Enviroworks was improperly certified as a HUBZone small business because SBA unlawfully counted both an undocumented worker and [* * *] among Coastal\u8211Enviroworks\rquote employees for the 35% employee HUBZone residency requirement, improperly boosting Enviroworks\rquote total number of HUBZone resident employees. The record, however, contains no evidence that SBA considered [* * *] to be an employee of Coastal\u8211Enviroworks. On the contrary, as SBA\rquote s HUBZone director explained in the October 21, 2015 denial of Lawson\rquote s second HUBZone protest: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims, under the Administrative Procedure Act (APA), may not set aside a decision by the Small Business Administration\rquote s (SBA) Office of Hearing and Appeals (OHA) unless the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Naval Facilities Engineering Command Southwest (NAVFAC) did not update size standard in solicitation for phase two of small-business set-aside procurement for design and construction of facilities at Marine Corps base, after Small Business Administration (SBA) identified new size standard for small businesses, under regulation providing that contracting officer \may\ amend solicitation and use new size standard if SBA increased standard and it became effective before date initial bids were due; although NAVFAC required bidders to certify their size at time of submitting bid for phase two, NAVFAC did not expressly or implicitly revise solicitation\rquote s size standard, and certification was required to ensure that bidders selected for phase two met size standard identified in solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': After Small Business Administration (SBA) identified new size standard for small businesses, Naval Facilities Engineering Command Southwest\rquote s (NAVFAC) failure to update size standard in solicitation for phase two of small-business set-aside procurement for design and construction of facilities at Marine Corps base had rational basis, under regulation providing that contracting officer \may\ amend solicitation and use new size standard if SBA increased standard and it became effective before date initial bids were due, since NAVFAC had discretion but no legal obligation to amend solicitation to update size standard, and bidder could have requested clarification or requested update of size standard during solicitation process, but bidder failed to do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) correctly determined that contractor exceeded small-business size standard specified in Naval Facilities Engineering Command Southwest\rquote s (NAVFAC) solicitation for design and construction of facilities at Marine Corps base, thus rendering contractor ineligible for award of small-business set-aside contract, where SBA calculated combined average annual receipts of contractor and its affiliates, and contractor merely speculated that SBA impermissibly double-counted interaffiliate transactions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) proceedings in which contractor was determined to have exceeded small-business size standard, as specified in Naval Facilities Engineering Command Southwest\rquote s (NAVFAC) small-business set-aside solicitation for design and construction of facilities at Marine Corps base, did not violate contractor\rquote s due process right to fair hearing, by SBA allegedly impermissibly relying on ex parte communication with contracting manager, since contractor did not have constitutionally protected property interest in contract not yet awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': , Office of Counsel, United States Naval Facilities Engineering Command Southwest, San Diego, CA, and Christopher J. McClintock, Office of Litigation, United States Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Small Business Size Determination; Motion for Judgment on the Administrative Record; Review of SBA Decision Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': and institutional building construction\ companies under North American Industry Classification System (\NAICS\) code 236220. The agency identified Orion as the apparent successful offeror. However, in the course of a protest by a disappointed offeror, the Small Business Administration (\SBA\) determined that Orion exceeded the small business size standard specified in the solicitation. Thereafter, the agency determined that Orion was no longer eligible for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Admin. R. (\AR\) 122, 126, 128, 132. As noted, the agency set aside the solicitation for small businesses that were designated \commercial and institutional building construction\ companies under North American Industry Classification System (\NAICS\) code 236220. AR 122, 126, 131, 147, 156. Pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Standards: Inflation Adjustment to Monetary Based Size Standards, 79 Fed.Reg. 33,647, 33,657 (June 12, 2014) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Phase two of the procurement began on November 19, 2014 when NAVFAC issued Amendment 6 to the solicitation. AR 200. In Amendment 6, the agency expressly identified updates to several parts of the solicitation, including updates to the time offerors needed to provide for agency acceptance and provisions on liquidated damages and the Buy American Act. AR 201, 207. Amendment 6 did not mention the SBA size standard increase for NAICS code 236220. The agency, however, asked each offeror to provide, as part of a cover letter accompanying the proposal, \[a] size status certification that is signed and dated by an authorized representative from your company and that indicates your firm is a small business at time of Phase Two proposal submittal.\ AR 202. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Orion, one of the phase one selectees, submitted a phase two proposal on January 27, 2015. AR 687. In its phase two proposal, Orion included, as requested, a size status certification \that at the time of the Phase Two Proposal Submittal on January 27, 2015, Orion Construction Corporation is a Small Business under the annual size standard for NAICS Code 236220, Commercial and Institutional Building Construction.\ AR 693. In its January 27, 2015 submission, Orion included a copy of the first page of the solicitation, as originally issued, which noted that the size standard was $33.5 million. AR Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': . The protestor argued that Orion was affiliated with other entities that needed to be considered in determining Orion\rquote s status as a small business. AR 765\u821166. Those entities were [xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx]. AR 765\u821166. The protestor requested that the agency stay award of the contract until the SBA, consistent with applicable regulations, reviewed the matter and issued a size determination. AR 768. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': On October 20, 2015, Orion appealed the SBA area office\rquote s decision to the SBA\rquote s Office of Hearing and Appeals (\OHA\). AR 2280\u82112316. In its appeal to the OHA, Orion argued that the area office applied the incorrect size standard. AR 2295, 2299\u82112304. Specifically, Orion argued that because NAVFAC required each offeror in phase two to certify that the offeror was a small business \at the time of Phase Two proposal submittal,\ NAVFAC had in effect incorporated the new size standard for NAICS code 236220 into the solicitation. AR 2300. Orion also argued that the area office had improperly included in its calculation interaffiliate transactions among Orion, [xxxxxxxxxxxxx] or separately counted joint venture receipts. AR 2295\u821196, 2304\u821108 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': The court agrees with the government that the agency did not expressly amend the solicitation to use the new size standard by beginning phase two of the procurement after the new size standard became effective. Amendment 6 required each offeror to certify that it was \a small business at time of Phase Two proposal submittal.\ AR 202. However, Amendment 6 does not mention any change to the size standard in its purpose statement, AR 200, the description of changes being made to the solicitation, AR 201\u821102, or anywhere else in the amendment. In contrast, the agency expressly identified updates to other parts of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': ). Orion also cites public policy considerations, such as the importance of maximizing small business participation in federal contracting. Pl.\rquote s MJAR 17; Pl.\rquote s Reply 7\u821110. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': amending the solicitation. Orion\rquote s policy arguments do not explain how the agency abused its discretion by limiting the competition to entities that met the original solicitation\rquote s small business size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': , agencies apply small business size standards by \(1) [c]lassifying the product or service being acquired in the industry whose [NAICS code] best describes the principal nature of the product or service being acquired; (2) [i]dentifying the size standard SBA established for that industry; and (3) [s]pecifying the size standard in the solicitation, so that offerors can appropriately represent themselves as small or large.\ The size standard the SBA has identified for each industry, by NAICS code, are listed in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, 69 Fed.Reg. 29,192, 29,205 (May 21, 2004) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 028 - Orion Construction Corporation v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations; Rules of Procedure Governing Cases Before the Office of Hearings and Appeals, 67 Fed.Reg. 70,339, 70,343 (November 22, 2002) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 029 - Remington Arms Co LLC v United States.doc, Paragraph with 'The Rule of Two': AR 35\u821136. The solicitation also provided that the proposals most advantageous to the Army would be selected utilizing the \Best Value Trade\u8211Off\ procedures. AR 593. The Solicitation set forth four evaluation factors: Production Capability, Past Performance, Small Business Participation, and Price. AR 700. Under the terms of the Solicitation, the factors were listed \in descending order of importance,\ with Production Capability identified as the most important factor, followed by Past Performance, Price, and Small Business Participation as the least important factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 030 - Eco Tour Adventures Inc v Jewell.doc, Paragraph with 'The Rule of Two': The plaintiff, Eco Tour Adventures, Inc. (\Eco Tour\), is a Wyoming-based small business that challenges, for the second time, the award by the National Park Service (\NPS\) of two concession contracts to provide cross-country ski touring services in Grand Teton National Park (\the disputed contracts\). In its original challenge, which resulted in a judgment on the merits by the U.S. Court of Federal Claims (\CFC\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': Subcontractor brought action against, inter alia, United States Department of Energy (DOE), asserting prime contractor that DOE awarded contract for environmental remediation services improperly awarded to competitor a small business set-aside subcontract for data validation services. Defendants moved to dismiss or, alternatively, for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': Subcontractor\rquote s claims against United States Department of Energy (DOE), asserting prime contractor that DOE awarded contract for environmental remediation services improperly awarded to competitor a small business set-aside subcontract for data validation services, were covered by the Administrative Dispute Resolution Act (ADRA), and therefore, district court lacked jurisdiction to hear the case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': In 2011, Defendant Department of Energy (\DOE\) awarded a contract for environmental remediation services to URS | CH2M Oak Ridge, LLC (\UCOR\). In 2012, Plaintiff Validata Chemical Services (\Validata\) bid on, but did not win, a small business set-aside subcontract for data validation services to support UCOR\rquote s remediation work. Validata then sought to contest the award of the subcontract to its competitor, Portage, Inc., arguing that Portage did not meet the applicable size standard for the small business set-aside subcontract. Validata objected on numerous grounds. It argued that DOE had improperly approved the subcontract award, despite its knowledge that Portage did not meet the applicable requirements, and had improperly made its own size determination, rather than leaving that question to the Small Business Administration (\SBA\). Validata also complained that the subcontract solicitation did not contain a North American Industry Classification System (\NAICS\) code; that the code that UCOR actually used was incorrect; and that had UCOR used the correct code, Portage would not have qualified. After unsuccessfully raising these issues in whole or in part with UCOR and the SBA\rquote s Office of Hearings and Appeals (\SBA-OHA\), Validata brought this suit against DOE and the SBA, asserting claims under the Administrative Procedure Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': On April 28, 2011, DOE awarded UCOR a contract to provide environmental remediation services at the East Tennessee Technology Park in Oak Ridge, Tennessee, until July 2020. Dkt. 6 at 8 (Amend. Compl. \u182 14); Dkt. 22-1 at 4 (Cloar Decl. \u182 4). In 2012, UCOR conducted a solicitation for a subcontractor to provide analytical data validation services in support of this prime contract. Dkt. 6 at 2 (Amend. Compl. \u182\u182 1\u82112); Dkt. 12-2 at 94. Although there is no dispute that the subcontract was set aside for a prequalified small business, Dkt. 12-2 at 1, the parties do not address whether the set-aside was made pursuant to provisions of the prime contract, federal law, or both. The prime contract does not appear in the present record, but Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': requires that \all contracts let by any Federal agency,\ with certain exceptions not relevant here, include a clause stating that \[i]t is the policy of the United States that small business concerns ... have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including ... subcontracts,\ and that \[t]he contractor hereby agrees to carry out this policy in the awarding of subcontracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': at 9 (Amend. Compl. \u182 18). Validata then attempted to challenge the award to Portage. First, Validata expressed concern to UCOR Subcontract Administrator Cindy Hart that Portage was not a small business. Dkt. 12-2 at 101\u8211105. Hart replied that UCOR no longer accepted or allowed size protests, but that she would check whether anything could be done. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': at 105. On October 2, Hart informed Validata that, based on offeror-submitted information \gathered through the [Central Contractor Registration (System for Award Management)] CCR(SAM)\ and after consulting with UCOR Small Business Program Manager Karen Reeve, UCOR believed that Portage was a small business with fewer than 500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': at 101, 107, but their titles\u8212UCOR Subcontract Administrator and UCOR Small Business Program Manager\u8212suggest that they worked for UCOR, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': at 11. One letter to Validata appears to refer to Reeve as the \DOE-ORO Small Business Program Manager.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': , http://tinyurl.com/SBANAICS (last visited Mar. 9, 2016). SBA promulgates \small business size standards on an industry-by-industry basis\ and publishes the \size standards matched to industry NAICS codes.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': On December 3, 2012, UCOR sent Validata a letter stating that it had \re-examined the issues,\ including conferring with the \DOE-ORO Contracting Officer\ and the \DOE-ORO Small Business Program Manager,\ and that it reaffirmed its conclusions that NAICS code 562910 was correctly applied, that Portage met the 500-employee size standard for that code, and that \the subcontract was awarded under fair and adequate competition and [UCOR] considers this issue closed.\ Dkt. 12-2 at 118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': . Second, the SBA Act, which lies at the core of this dispute, provides that \all contracts let by any Federal agency,\ with exceptions not relevant here, must include a requirement that the prime contractor \carry out\ the \policy\ of ensuring that small businesses \have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency, including ... subcontracts for ... related services for major systems.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': . Accordingly, the subcontract solicited by UCOR included a small business subcontracting preference as a condition of the prime contract\u8212that is, as a condition of the federal procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': and DOE, the subcontract for which Validata was a disappointed bidder, and the various regulatory requirements that Validata attempts to assert, were \in connection with\ that procurement. Indeed, it is safe to assume that, had the dispute arisen in the context of a purely private, commercial transaction, Validata would have had no arguable basis to invoke a small business set-aside requirement or to challenge the failure of DOE and the SBA to follow the relevant rules and regulations. But because the small business preference at the core of Validata\rquote s complaint existed as a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': (SBA empowered to make small business determination); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': A prequalification phase preceded the RFP, and a form in the prequalification packet stated that a potential offeror must document its ability to meet \the Prequalification Criteria set forth below\ and that only small businesses were eligible. Dkt. 12-2 at 126, 128. The set-aside section of the form listed \NAICS Code: 562910, Environmental Remediation Services, Size Standard: 500 employees.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'The Rule of Two': Then, five days before the proposal deadline, UCOR posted \Questions and Answers\ on its website. Dkt. 6 at 8 (Amend. Compl. \u182 16); Dkt. 12-2 at 36\u821137. One \Q & A\ explained that the project\rquote s \NAICS code is 562910. Size standard is 500 employees.\ Dkt. 12-2 at 37. Two days later, on August 17, 2012, Validata submitted its proposal, as well as a certification that it qualified as a small business under NAICS code 562910 and the size standard of 500 employees. Dkt. 6 at 9 (Amend. Compl. \u182 17); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 036 - Corcel Corporation Inc v Ferguson Enterprises Inc.doc, Paragraph with 'The Rule of Two': The County has adopted ordinances to give preferences for certain contracts to certified small businesses. Under the Small Business Enterprise Program (\Program\), if a small business meets a series of requirements, the County\rquote s Office of Small Business Assistance (\OSBA\) may certify it as a Small Business Enterprise (\SBE\). The SBE certification, in turn, entitles certain bidding preferences over non-SBE entities in the County. Under the Program, the County may be required to award a contract to an SBE that is not the lowest bidder instead of awarding the contract to a non-SBE that is the lowest bidder. Between certified SBEs, the Program does not provide for a bidding preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 036 - Corcel Corporation Inc v Ferguson Enterprises Inc.doc, Paragraph with 'The Rule of Two': By September 10, 2007, Corona had identified a possible conspiracy theory involving Defendants in this case. In a Corcel memorandum on that date, Corona stated that Ferguson, AKA, and Line-Tec \are engaged in an ongoing conspiracy to frustrate the County\rquote s Small Business Enterprise Program with the purpose of illegally limiting competition and improperly maintain control by the Big 2 of the multi-million dollar sale of underground utility materials.\ [ECF No. 360-11 at 2]. Corona further claimed that the \conspirators frustrate the objectives of the SBE program by orchestrating an ongoing scheme where...SBE firms are used as pass-through conduits that do not perform a Commercially Useful Function.\ [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 036 - Corcel Corporation Inc v Ferguson Enterprises Inc.doc, Paragraph with 'The Rule of Two': On February 15, 2007, Corcel filed a mandamus action with the Circuit Court of the 15th Judicial Circuit in and for Palm Beach County, Florida. In its Amended Petition for Writ of Mandamus, filed October 7, 2007, Corcel requested that the court require the County and the SOBA \to investigate whether Line-Tec is purchasing its materials from Ferguson Industries or other distributors rather than manufacturers, or otherwise not performing a commercially useful business function or otherwise does not meet the eligibility requirements for certification as a small business\ and that the court require the County \to decertify Line-Tec, Inc. as a distributor ...as it is purchasing its materials from Ferguson Industries or other distributors rather than manufacturers, or is otherwise not performing a commercially useful function, or does not otherwise meet the eligibility standards for certification as a small business.\ [ECF No. 357-25 at 14\u821115]. In its Third Amended Petition for Writ of Mandamus, filed March 27, 2008, Corcel requested that the court provide essentially the same relief. [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': To constitute unjustified \bundling,\ precluding small business participation in procurement as prime contractor, under SBA, a solicitation must: (1) consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract, and (2) likely be unsuitable for award to a small business. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Defense Logistics Agency\rquote s (DLA) consolidation of procurement of hardware and software maintenance services into one contract using federal supply schedule (FSS) did not constitute unjustified \bundling\ precluding small business participation in procurement as prime contractor, in violation of SBA, and was not prohibited by Competition in Contracting Act (CICA) or federal acquisition regulations, since DLA had broad discretion to consolidate contract requirements and to decide method of contracting, including FSS, and consolidated contract was not unsuitable for award to small business, as contract was ultimately awarded to small business and other two bidders were also small businesses. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff claims to be \a small business and preeminent provider of computer hardware engineering services to the federal government, various state governments and private industry.\ Pl.\rquote s Mot. 7. It contends that it is the \only third party provider with an agreement from the Original Equipment Manufacturer (\u8216OEM\u8217), Oracle,\ to provide \replacement microcode, microcode updates, firmware, firmware updates, and engineering changes on select Oracle (SUN/STK) equipment assets,\ and that it holds a GSA FSS \agreement for Oracle (STK) hardware maintenance services, as well as other products.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': and (10) bundling the contract requirements was a violation of the Small Business Act, which requires agencies to \avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': at 12\u821113. Finally, defendant contends that the DLA did not violate the Small Business Act because Affigent, as well as the other two offerors, are small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': at 13. Thus, defendant asserts, plaintiff \cannot claim that any \u8216bundling\u8217 of contract requirements precluded small business participation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': at 18. Alternatively, defendant argues that even if plaintiff had exhausted such remedies, the DLA appropriately exercised its discretion in selecting the posting code for the award, as supported by the fact that a representative of the Small Business Administration \reviewed and signed off on DLA\rquote s choice\ of NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': As a preliminary matter, the court finds that the DLA\rquote s consolidation of its of hardware and software services contracts did not constitute bundling. Case law that interprets the pertinent statutes and regulations makes it clear that \to constitute bundling, a solicitation must: (1) consolidate two or more requirements that were previously procured under separate smaller contracts into a single contract, and (2) likely be unsuitable for award to a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Second, plaintiff does not demonstrate that the consolidated contract would \likely be unsuitable to a small business.\ To the contrary, a small business concern was not only deemed technically acceptable, but was ultimately awarded the contract, as it was found to be \responsible\ and its price was determined to be \fair and reasonable.\ AR 110, 241\u821142, 311. In addition, the other two offerors were small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Further, the Small Business Administration reviewed and approved the NAICS code that the DLA used to post the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': with the declarations of Dewey Garett, plaintiff\rquote s Government Maintenance Sales Executive, and David York, plaintiff\rquote s president and Chief Operating Officer, which are both attached to plaintiff\rquote s motion for judgment on the administrative record. In his declaration, Mr. Garett asserts that he repeatedly contacted Mr. Fleck, stating that plaintiff was interested in participating in the procurement and asking when the solicitation would be posted. Moreover, Mr. Garett claims to have monitored publicly available Internet resources for the solicitation. Similarly, in his declaration, Mr. York also claims to have spoken with Mr. Fleck, who confirmed that the DLA\rquote s hardware and software support contracts would be consolidated, and invited plaintiff to participate in the procurement. Mr. York further avers that he informed Mr. Fleck that plaintiff is a small business, and that it does not charge reinstatement fees. In addition, Mr. York asserts that he offered to extend plaintiff\rquote s contract with the DLA while the DLA focused its efforts on procuring the consolidated contract, but that the DLA did not respond to his offer. Furthermore, Mr. York states, plaintiff was never provided a copy of the solicitation for the consolidated procurement. Finally, Mr. York asserts his belief that the software and hardware contracts did not need to be consolidated. Plaintiff argues that the contents of the six electronic-mail messages and the two declarations demonstrate that plaintiff expressed its interest in participating in the procurement, and that the DLA was aware of its interest. Further, plaintiff contends, the declarations indicate that there was no need to consolidate the contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 039 - Che Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff conceded at oral argument that all three offerors were small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': at 28\u8211118, and was set aside for a service-disabled, veteran-owned small business (\SDVOSB\) concern, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': 5. During the source selection process for [Base Operating Services] at Homestead ARB [ ... ] filed a protest with the Government Accountability Office [ (\GAO\) ] over its elimination for further consideration based on a failure to meet the established minimum qualification as established in the Request for Proposal ... for that acquisition. The GAO contacted the Small Business Administration [ (\SBA\) ] and based on the response from the SBA stating that a Certificate of Competency [ (\COC\) ] should have been requested for [ ... ] since the minimum qualification review was essentially a past performance evaluation [sic]. As a result of this decision from the SBA it has been decided that the Minimum Qualifications Requirement that had historically been incorporated into the [Base Operating Services] source selection across the command [was] no longer an effective evaluation tool and would not be incorporated into future [Base Operating Services] source selection in [Air Force Reserve Command]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': 6. During the four most recent [Base Operating Services] acquisitions at March ARB, Homestead ARB, Dobbins ARB, and Niagara Falls [Air Reserve Station (\ARS\) ] the source selection team conducted a thorough and detailed evaluation of all offerors in the competitive range. The results of those evaluation[s] revealed none of the small businesses in the competitive range had any past performance information that would have had a negative impact upon their consideration for award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'The Rule of Two': Minimum qualifications were included in the Homestead [Base Operating Services] solicitation. When a small business was excluded for not having minimum qualifications, they protested and [SBA][sic]. The ruling was that the offeror should have been referred to SBA for a[COC]. Since SBA can and will issue COCs to anyone that doesn\rquote t meet the minimum qualifications, minimum qualification have [been] removed from our solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 045 - Tri-County Contractors Inc v Perez.doc, Paragraph with 'The Rule of Two': by a minority-owned small business to challenge its debarment from participation in federal contracting programs. From 2006 to 2007, plaintiff Tri-County Contractors, Inc., was a contractor for the Federal Emergency Management Agency (\FEMA\) on the Gulf Coast, where it repaired and inspected trailers used for temporary housing. During this period, the Department of Labor conducted two investigations into whether Tri-County was complying with the McNamara-O\rquote Hara Service Contract Act (\SCA\) and the Contract Work Hours and Safety Standards Act (\CWHSSA\), which collectively set wage standards for federal contractors in their role as employers. The Department found statutory violations during both investigations, and after the second investigation, it filed a formal complaint. In February 2009, an Administrative Law Judge (\ALJ\) formally recommended that Tri-County be debarred for a three-year period, and the Department\rquote s Administrative Review Board affirmed the ALJ\rquote s order in July 2012. Tri-County was debarred from July 2012 to July 2015. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with 'The Rule of Two': Pursuant to the RFP, the government would award the contract to the company offering the \best value.\ PI\u8211101 (RFP \u167 M.1.1). Value would be determined using a tradeoff process between three factors: Primary Technical; Total Evaluated Cost/Price (\TEC/P\ or \price\); and Small Business Participation. PI\u8211101 (RFP \u167 M.1.1). These three factors were not equally weighted. Instead, Primary Technical was the most important factor; price was second most important; and Small Business Participation was least important. PI\u8211101. Primary Technical referred to the ability of the offeror to meet the government\rquote s performance requirements for the vehicle. PI\u8211104 (RFP \u167 M.4.1). Thus, for example, the requirement that a vehicle demonstrate 3800 MMBHMF was a Primary Technical requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with 'The Rule of Two': In addition, the Primary Technical and Small Business Participation factors combined were \significantly more important\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with 'The Rule of Two': Regarding Primary Technical, the SSA noted that Lockheed received a \moderate\ overall risk score, while Oshkosh received a \low\ risk score. PI\u82111014. Although the individual ratings appeared to be similar, the SSA wrote that \the proposals were not as close as this might imply as [Oshkosh] is assessed as Low Risk or Very Low Risk for all 25 requirements whereas ... [Lockheed has] a number of Moderate Risk ratings[.]\ PI\u82111014. \The [Oshkosh] proposal met or exceeded requirements, and was supported by the most credible substantiating data supporting a low risk Primary Technical rating.\ PI\u82111014. Although Lockheed had the best small business participation, the SSA noted that this is \the least important factor\ under the RFP, and that it \is significantly offset by the [Oshkosh] proposal\rquote s superiority in the two most important factors of Primary Technical and TEC/P.\ PI\u82111014. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with 'The Rule of Two': Here, the Army selected Oshkosh after weighing which offeror would provide the \best value\ to the government. The Primary Technical factor weighed more than price, which weighed more than Small Business Participation. Against this Primary Technical standard, the SSA found that Oshkosh had better risk scores, as detailed above. The SSA also found that Oshkosh was cheaper by nearly $400 million. PI\u82111009. As for small business participation, Lockheed was rated \outstanding\ while Oshkosh was rated \good.\ PI\u82111009. Accordingly, the SSA selected Oshkosh because it had the best Primary Technical rating and the lowest price. PI\u82111014. Although Lockheed had better small business participation, this was the weakest factor and did not outweigh the other two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with 'The Rule of Two': As for small business participation, Lockheed was rated \outstanding\ and Oshkosh was rated \good.\ PI\u82111009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 050 - Macaulay-Brown Inc v United States.doc, Paragraph with 'The Rule of Two': SOCOM is responsible for organizing, training, and equipping all United States special operations forces. AR 591. The procurement at issue in this case is part of a broader SOCOM Wide Mission Support (\SWMS\) acquisition that will provide worldwide professional support services. AR 548\u821152, 591. The agency decided to conduct the SWMS acquisition in three groups, identified as \Group A,\ \Group B,\ and \Group C,\ based in part on the level of risk of actual or potential OCI. AR 30\u821131, 60. Specifically, in the SWMS acquisition plan, SOCOM stated that \OCI is of great concern to USSOCOM and was a consideration in developing this acquisition plan.\ AR 27. The acquisition plan goes on to explain that the agency \looked at groupings [to acquire services] based on competition goals, OCI concerns, small business goals, services taxonomies, organizational structure, and mission sets.\ AR 30. After considering various alternatives, the agency decided to establish the three groups, A, B, and C. AR 30. The plan states that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 050 - Macaulay-Brown Inc v United States.doc, Paragraph with 'The Rule of Two': \assignment of new task orders to the appropriate SWMS group will be determined by first examining the potential for OCI concerns (assigned to Group C).\ AR 30. Task orders that carry a \significant\ or \high\ risk of OCI would be awarded under Group C, which would be a single IDIQ award set aside for a service-disabled veteran-owned small business. AR 30\u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 053 - Caddell Construction Company v United States.doc, Paragraph with 'The Rule of Two': the Federal Circuit affirmed the Court of Federal Claims\rquote decision that the Agency\rquote s corrective action of reopening discussions with only a single offeror was error because it excluded a qualified small business from the competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest, challenging Bureau of Prisons\rquote (BOP) determination that bidder was nonresponsible due to lack of capacity to perform small business set-aside contract for horticulture instructor at federal prison camp, and challenging Small Business Administration\rquote s (SBA) denial of bidder\rquote s application for certificate of competency (COC). Bidder moved to supplement administrative record, and both parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': In post-award bid protest of Bureau of Prisons\rquote (BOP) award of small business set-aside contract for horticulture instructor at federal prison camp, disappointed bidder\rquote s request to supplement administrative record was not justified, with respect to declaration of BOP contracting officer (CO) and memorandum regarding Office of Federal Procurement\rquote s policy as to protests, claims, and alternative dispute resolution (ADR) as factors in past performance and source selection decisions, where documents were not necessary for effective judicial review, as declaration only reiterated CO\rquote s statements in his determination that bidder was nonresponsible, and memorandum did not provide any information about BOP\rquote s actions in awarding contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': In post-award bid protest of Bureau of Prisons\rquote (BOP) award of small business set-aside contract for horticulture instructor at federal prison camp, judicial notice would be taken of memorandum regarding Office of Federal Procurement\rquote s policy as to protests, claims, and alternative dispute resolution (ADR) as factors in past performance and source selection decisions, where memorandum was public document. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) is entitled to special deference when the Court of Federal Claims is reviewing the merits of an SBA competency determination for a bidder for a small business set-aside contract, because of the SBA\rquote s special expertise in that area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) reasonably considered bidder\rquote s ability to meet schedule contained in Bureau of Prisons\rquote (BOP) solicitation that was consistent with procurement regulations, by requiring performance to begin on effective date of award of small business set-aside contract for horticulture instructor at federal prison camp, and thus, CO appropriately referred bidder to Small Business Administration (SBA) for certificate of competency (COC) determination after CO found that bidder was nonresponsible due to inability to timely begin performance, especially given that horticulture education program was ongoing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) reasonably considered previous awards that Bureau of Prisons (BOP) offered to bidder but which bidder did not perform, in determining that bidder was nonresponsible due to lack of capacity to perform small business set-aside contract for horticulture instructor at federal prison camp, under procurement rules requiring CO to base nonresponsibility determination on wide variety of sources bearing on bidder\rquote s ability to perform and to obtain organizational and technical skills necessary to perform contract, since CO had wide discretion to make nonresponsibility determination, and bidder\rquote s history of untimely performance, refusal to perform, and inability to obtain qualified personnel on other contracts was relevant due to program delays caused by bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Contracting officer (CO) reasonably considered failure of bidder\rquote s affiliate to begin performance on another Bureau of Prisons (BOP) contract, but not affiliate\rquote s history of successfully performing contracts, in determining that bidder was nonresponsible due to lack of capacity to perform small business set-aside contract for horticulture instructor at federal prison camp, under procurement rules, providing that two entities were affiliates if either one controlled or had power to control other and requiring CO to consider past performance of bidder\rquote s affiliate if adversely affecting bidder\rquote s responsibility, where bidder owned and operated both entities, and CO was concerned about bidder\rquote s history of nonperformance after being awarded other BOP contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s (CO) mistaken determination that bidder was previously denied certificate of competency (COC) for another contract was harmless error, that did not require setting aside Bureau of Prisons\rquote (BOP) decision that bidder was nonresponsible due to lack of capacity to perform small business set-aside contract for horticulture instructor at federal prison camp, where CO relied on multiple factors in making nonresponsibility determination that was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) reasonably considered that bidder did not have horticulture instructor committed to perform Bureau of Prisons\rquote (BOP) small business set-aside contract for horticulture instructor at federal prison camp, in denying bidder\rquote s application for certificate of competency (COC), even if procurement regulations required bidder to give right of first refusal to incumbent instructor, since bidder was not prohibited from making tentative offer to other instructors in event that incumbent instructor declined offer to continue in program, bidder had extensive history of inability to perform contracts due to lack of committed instructors, and bidder failed to pursue SBA\rquote s advice to obtain letters of intent from other instructors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) reasonably considered bidder\rquote s history of nonperformance after being awarded government contracts, in denying bidder\rquote s application for certificate of competency (COC), which precluded bidder from eligibility for Bureau of Prison\rquote s (BOP) award of small business set-aside contract for horticulture instructor at federal prison camp, since SBA reasonably concluded that bidder engaged in pattern of bidding and receiving contract awards despite knowing it might not have capacity to begin or complete those contracts, which resulted in program delays. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) reasonably considered bidder\rquote s references, in denying bidder\rquote s application for certificate of competency (COC), which precluded bidder from eligibility for Bureau of Prison\rquote s (BOP) award of small business set-aside contract for horticulture instructor at federal prison camp, even though references worked with bidder on contracts other than horticulture instruction, since SBA was required to conduct comprehensive investigation as to whether bidder was responsible, and investigation properly included contacting references with knowledge of bidder\rquote s performance on other instructional contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) reasonably decided not to credit experience of bidder\rquote s affiliate, in denying bidder\rquote s application for certificate of competency (COC), which precluded bidder from eligibility for Bureau of Prison\rquote s (BOP) award of small business set-aside contract for horticulture instructor at federal prison camp, where affiliate\rquote s horticulture instruction contracts were in different geographic area and involved different instructors who were not available to perform contract for which bidder was denied COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': , Director, and Steven J. Gillingham, Assistant Director Commercial Litigation Branch, for defendant. Pawandeep K. Chatha, Assistant General Counsel, Federal Bureau of Prisons, Washington, DC and Sabrina C. Daly, U.S. Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': issue is a Bureau of Prisons (\BOP\) small business set-aside contract for a horticulture instructor at the Federal Prison Camp (\FPC\) in Alderson, West Virginia. JRS was denied the contract after the contracting officer (\CO\) determined JRS was \nonresponsible\ because JRS lacked capacity to perform under the terms of the contract. Pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': , the CO referred the matter to the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': On September 18, 2014, the BOP issued RFQP01011400015 (\the solicitation\) for a single indefinite-delivery requirements contract for the provision of horticulture instructor services at FPC Alderson in West Virginia. BOP Administrative Record (\BOP AR\) 48\u821185. The solicitation was issued as a total small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': JRS\rquote s reliance on the SBA website is also misguided. The website states that \a prospective contractor\rquote s response to an RFQ is not an offer that can be accepted to form a binding contract\ and the SBA \cautions small businesses to carefully and completely read solicitations, to use a pricing strategy Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 057 - Sims v United States.doc, Paragraph with 'The Rule of Two': and implementing regulations, when a CO finds that an \apparent[ly] successful small business offeror lacks certain elements of responsibility,\ including the capacity, competency, or tenacity necessary to perform the contract, the contacting officer must refer the offeror to the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 058 - Federal Acquisition Services Team LLC v United States.doc, Paragraph with 'The Rule of Two': Stevens Decl. \u182 1.b (\On Tuesday, September 16, 2014, Small Business Director, Christopher Harrington, advised me that he had received a proposal from [Offeror O] .... \); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 071 - FFL Pro LLC v United States.doc, Paragraph with 'The Rule of Two': 17. Regarding Question 20 ( [from the first set of] Questions and Answers). The response appears to expect both Prime and Subcontractors to provide 3 past performance responses each. If that is true [then] it appears the Government required that both the prime contractor and the subcontractor meet the Past Performance requirement [\]two of the three projects described must be prior federal government with overseas deployment training experience on cyber training.[\] For many small business[es] and hubzones this is difficult to meet to have 2 past performances each having federal Government with overseas deployment experience on cyber training. There are believed to be only a handful of small businesses and hubzones that can meet this requirement and team together. Will the Government clarify [whether] this requirement is for three past performances for the prime, sub or both with a total of 3 required? Or does the Government require 3 from each team member (which would require 9 fully compliant past performances for the team)? The latter would only be met by a few, severely limiting competition to so few [that] the competition would appear to be unfair to competitors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': Defense Intelligence Agency (DIA) was not obligated to waive as a minor irregularity the disappointed bidder\rquote s failure to include ceiling rates for all proposed option years in its pricing spreadsheet for a contract to provide information technology services, where price was one of only three stated factors that DIA was to consider in making its best-value determination for small business proposals, and DIA\rquote s inability to determine bidder\rquote s labor rates for missing cells had a non-negligible impact on price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': The two above captioned cases are post-award bid protests arising from the same solicitation issued by the Defense Intelligence Agency (DIA). Protestor Constellation West, Inc. (Constellation West), in case number 15\u8211876C, is a Nebraska corporation headquartered in Bellevue, Nebraska, that provides Information Technology (IT) support and solutions. Protestor Sev1Tech, Inc. (Sev1Tech), in case number 15\u8211923C, is a Virginia corporation headquartered in Woodbridge, Virginia, that also provides IT support and solutions. DIA received seventy-five proposals for the solicitation, twenty-six for the full and open track and forty-nine for the small business track, including proposals from Constellation West and Sev1Tech. On July 15, 2015, the Source Selection Authority (SSA) stated in his Source Selection Decision Document that DIA had determined twenty-five offerors to the small business track represented the \best overall value\ to the government based on the analysis and recommendations of the Source Selection Advisory Council (SSAC), which were attached to the Source Selection Decision Document, and that contract awards should, therefore, be made to those offerors. The twenty-five offerors did not include Constellation West or Sev1Tech. On July 17, 2015, DIA issued award notices to the twenty-five successful offerors. All twenty-five of the awardees subsequently signed contracts with DIA. Of the twenty-four disappointed offerors to the small business track, six filed protests in this court, all assigned to the undersigned. After a hearing and after the administrative record was filed, four of these protests, in case numbers 15\u8211832C, 15\u8211877C, 15\u8211916C, and 15\u8211922C, were voluntarily dismissed by the protestors, leaving only the two above captioned protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': support the DIA, the Combatant Commands (CCMDs), the Military Services intelligence needs, and partner agency worldwide missions across the Intelligence Community (IC).\ The E\u8211SITE contract is intended to do so by creating a \contract vehicle that provides participating organizations with comprehensive Information Technology (IT) technical support services leveraging a mix of large and small business primes and subcontractors to satisfy the participating organizations\rquote mission requirements.\ Specifically, the solicitation created an Indefinite Delivery/Indefinite Quantity (ID/IQ) contract vehicle that will allow E\u8211SITE awardee contractors to propose solutions for task orders issued by the participating agencies. Task orders will be competed among E\u8211SITE contractors, although some task orders may be set-aside for small businesses. The E\u8211SITE contract is intended to replace DIA\rquote s current Solutions for the Information Enterprise (SITE) contract. The ID/IQ contract\rquote s ordering period consists of one base year and four one year options. The maximum amount that may be awarded to any E\u8211SITE contractor is $6,000,000,000.00, and the minimum guaranteed amount is $500.00. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': The original E\u8211SITE solicitation was issued on March 18, 2014 and the final amended version of the solicitation on May 6, 2014. Awards under the solicitation were to be made to those offerors whose proposals were determined by DIA to represent the best value to the federal government. The solicitation created two separate \Evaluation Tracks\ for awards: full and open awards and awards reserved for small business in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': (2015). Both protestors were evaluated under the small business track. Offerors who submitted proposals under the small business track were evaluated based on price and three non-price factors: Past Performance; Management/Technical; and Security/Supply Chain Risk Management. Offerors who submitted proposals under the full and open track were evaluated under these same factors, as well as an additional Small Business Participation Factor. The non-price factors included sub-factors that represented specific characteristics of the solicitation\rquote s objectives. The ratings on which proposals would ultimately be evaluated, however, were to be assigned at the factor level only. Price was to be evaluated for completeness and reasonableness in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': ). While, as Sev1Tech points out, the solicitation stated that price was not the most important factor in selecting awardees, the fact remains that it was one of only three stated factors that DIA was to consider in making its best-value determination for small business proposals. Indeed, it is difficult to understand how a best-value determination could be made without at least some consideration of price. Proposals were to be evaluated, and compared, on the basis of their total price, which was to be determined by multiplying each of the labor rates provided by the offerors by a corresponding quantity of hours determined by the government for each labor category. Thus, DIA\rquote s inability to determine Sev1Tech\rquote s labor rates for the [redacted] missing cells from the face of its proposal had a non-negligible impact because it meant that a total price could not be determined for Sev1Tech\rquote s proposal and, therefore, the proposal could not be evaluated in the manner described in the solicitation. Further, as defendant points out, DIA\rquote s purpose for requiring offerors to commit to labor rate ceilings in the pricing spreadsheet was to ensure \competitive pricing over the course of the contract.\ This goal would have been frustrated by allowing Sev1Tech to omit labor rates for even a small number of the required labor categories. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'The Rule of Two': (finding that a solicitation\rquote s purpose of \providing a basis for robust competition within a pool of small businesses that are ready and willing to provide\ certain services would be frustrated if its requirement that offerors commit to ceiling rates in all labor categories for all years were to be considered immaterial). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[15](g)(1)(A)(ii), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'The Rule of Two': The prosecution alleges that from about late 2005 to about November 2010, Gorski fraudulently represented to federal government agencies that Legion was a Service\u8211Disabled Veteran Owned Small Business Entity (SDVOSB) in order to qualify for and obtain government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'The Rule of Two': On March 8, 2010, one of Legion\rquote s competitors filed a bid protest with the U.S. Small Business Administration (SBA) challenging Legion\rquote s SDVOSB status. The protest related to a bid submitted by Legion on January 11, 2010. On April 5, 2010, Legion, with the assistance of Mintz Levin, filed a response to the SBA. The response included new corporate documents prepared by Mintz Levin purporting to show that Legion restructured on February 1, 2010. The record supports the district court\rquote s finding that the new corporate documents were crafted so as to make it appear that they were signed before the date of the SBA regulatory amendments, when they were not, and that an affidavit that flatly swore under penalty of perjury that Veteran B purchased the stock on February 1, 2010, was false. Further, it is plain that Gorski likely knew that his lawyers\rquote handiwork could lead SBA to believe that which was false. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 077 - Braseth Trucking LLC v United States.doc, Paragraph with 'The Rule of Two': at 32 \u167 1\u82119. The solicitation was also \set aside 100% for small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': response of successful bidder to VA\rquote s request for clarification regarding percentage of personnel costs for service-disabled veteran-owned small businesses (SDVOSB) far exceeded the scope of the VA\rquote s clarification request and materially changed bidder\rquote s original proposal; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': Response of successful bidder to Department of Veterans Affairs\rquote (VA) request for clarification regarding percentage of personnel costs for service-disabled veteran-owned small businesses (SDVOSB) far exceeded the scope of the VA\rquote s clarification request and materially changed bidder\rquote s original proposal to conform to requirement that at least 50% of personnel costs be performed by a SDVOSB in solicitation for ambulance services, and thus VA\rquote s acceptance of bidder\rquote s revised proposal was arbitrary and capricious, where successful bidder\rquote s original offer stated that it was a SDVOSB, but would be subcontracting all ambulance services, and that it would be subcontracting with a non-SDVOSB, with a SDVOSB as a back-up, whereas successful bidder\rquote s response to request for clarification stated that it would be responsible for 25% of the cost of personnel performance, and added a new subcontractor that was SDVOSB, which would be responsible for 35% of cost of personnel performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': AR 13, 119. The solicitation provided that a firm fixed-price contract would be 100% set aside for a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': Second, Excelsior argues that the VA\rquote s decision to award the contract to LMC was arbitrary and capricious, without a rational basis, or contrary to law because it exceeded the scope of the corrective action that it defined. Excelsior relies on VAAR 852.219\u821110(a), which defines an SDVOSB as a small business whose management and daily business operations are controlled by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': Definition. For the Department of Veterans Affairs, \Service-disabled veteran-owned small business concern\: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': (1) Means a small business concern: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': describes requirements regarding \contracts that have been set aside or reserved for small business concerns.\ It provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': A service-disabled veteran-owned small business concern agrees that in the performance of the contract, in the case of a contract for: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': (1) Services (except construction), at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible service-disabled veteran-owned small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'The Rule of Two': Upon review of the record, a determination has been made to take corrective action on the reference solicitation. The corrective action requires that each offeror clarifies [its] ability to comply with the contracting limitations as outlined in [VAAR] 852.219\u821110(c)(1).... The clarification must clearly address how the offeror intends to insure [sic] that \at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible veteran-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': government\rquote s decision amounted to a de facto responsibility determination, which should have been referred to the Small Business Administration (SBA) for determination of responsibility; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': A government agency makes a de facto responsibility determination in a bid procurement, requiring referral to the Small Business Administration (SBA) to determine whether a small business offeror is responsible, when responsibility-type concerns preclude a comparative or tradeoff analysis. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': By rejecting bidder\rquote s proposal on four firm-fixed-price indefinite-delivery-indefinite-quantity (IDIQ) multiple award construction contracts for the United States Air Force (USAF) outright, based on responsibility concerns, government\rquote s decision amounted to a de facto responsibility determination, which should have been referred to the Small Business Administration (SBA) for determination of whether the small business offeror was responsible; agency eliminated bidder based on a price realism evaluation rating, not based on a comparison of bidder\rquote s technical proposal or price with other proposals found to be eligible. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Briefing was completed on October 19, 2015 and oral argument was held on October 29, 2015. For the reasons that follow, the court finds that the agency\rquote s price realism analysis was not consistent with the solicitation\rquote s requirements and is not supported by the record. The court also finds that the agency\rquote s rejection of KWR on the grounds that KWR presented a risk to the government and to itself amounts to a de facto \responsibility determination,\ and therefore the agency was required to refer the matter to the Small Business Administration (\SBA\). Accordingly, KWR\rquote s motion for judgment on the administrative record is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': KWR argued that in rejecting KWR\rquote s price as \too low\ the agency had made a de facto responsibility determination contrary to the Small Business Act and the Federal Acquisition Regulations (\FAR\). AR 5748\u821158, 5786\u821188. The Small Business Act and the FAR require a contracting officer, in certain circumstances, to refer to the SBA a determination that a small business offeror is not \responsible.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': . As part of the agency\rquote s argument that it did not circumvent the requirements of the Small Business Act, the agency stated that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': . Specifically, KWR argues that under the terms of the RFP the agency could not reject its price proposal on the basis that KWR presented a risk at the price proposed. The agency could only reject KWR\rquote s proposal on the grounds that KWR did not understand the work. Issues associated with risk of performance at the price offered go to responsibility, according to KWR, and under the Small Business Act and the FAR had to be resolved by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': at 18 (quoting AR 186). In addition, the government argues that the agency did not make a \de facto\ responsibility determination and, even if it did, SBA review of KWR\rquote s responsibility would not have been appropriate because a contracting officer is only required to refer a potentially non-responsible small business offeror to the SBA if the offeror is \apparent[ly] successful.\ Def.\rquote s Reply 2\u82117 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': This case deals with the intersection between the agency\rquote s discretion to consider risk and responsibility factors as part of the proposal evaluation process and the SBA\rquote s authority to determine whether a small business offeror is \responsible.\ Generally, if a contracting officer determines that \an apparent successful small business offeror lacks certain elements of responsibility,\ the contracting officer must refer the matter to the SBA, which will decide whether to issue a \certificate of competency.\ FAR 19.6021(a); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': KWR argues that the agency could not avoid the requirements of the Small Business Act and the FAR by eliminating KWR based on an evaluation of responsibility factors. KWR claims that the agency\rquote s criticisms of KWR\rquote s price proposal reflect concerns about responsibility that should be referred to the SBA because the solicitation was set aside for section 8(a) small businesses and KWR is a small business. KWR relies on several cases from this court and the GAO in support of its contention. For example, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': The RFP provided for an award of three to five contracts and was set aside as a section 8(a) procurement for small businesses in Arizona. AR 118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Additionally, the RFP was set aside for section 8(a) small businesses in Arizona and the government does not dispute that KWR meets this requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 081 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': (\[W]here traditional \u8216responsibility\u8217 factors are employed as technical evaluation criteria and the evaluation renders an offeror\rquote s proposal flatly ineligible for award, \u8216the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements.\u8217 \ (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 082 - Tetzlaff v United States.doc, Paragraph with 'The Rule of Two': Plaintiff; Fair Labor Standards Act; Contract Disputes Act of 1978; Small Business Act; Tort; Administrative Procedure Act; RCFC 12(b)(1); RCFC 12(b)(6); Temporary Restraining Order; Preliminary Injunction; Breach of Contract; Duty of Good Faith and Fair Dealing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 082 - Tetzlaff v United States.doc, Paragraph with 'The Rule of Two': , the Small Business Act (\SBA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 082 - Tetzlaff v United States.doc, Paragraph with 'The Rule of Two': Plaintiff alleges that the CDH Program \harms market competition and small business[es] owned and operated by women.\ Compl. 52. She further asserts that \[t]his restriction on small business competition is taking place across state lines and international borders.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 082 - Tetzlaff v United States.doc, Paragraph with 'The Rule of Two': , sets forth Congress\rquote s small business policy and \outlines a framework for small businesses to compete for government contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 082 - Tetzlaff v United States.doc, Paragraph with 'The Rule of Two': , No. 15\u82115018, slip op. at 3 (\The Claims Court was clearly correct in concluding that it lacked jurisdiction based on [the plaintiff\rquote s] references to the Small Business Act. The statute cannot fairly be read to be money mandating for purposes of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 084 - Raymond Express International LLC v United States.doc, Paragraph with 'The Rule of Two': As REI argued in its pre-award protest before this court, supplying quality fresh fruits and vegetables to commissaries in the Pacific Area at a reasonable price poses some special challenges. DeCA, too, recognized that special efforts would be required to find contractors qualified to perform the FFV contracts. AR at 471. Further, because much of the contract performance would occur outside the United States, DeCA removed the small business set-aside requirement that is applicable to such contracts domestically. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': Phase II establishes a competitive range after evaluation of the proposals advancing beyond Phase I. The Phase II evaluation is based on consideration of three factors: (1) Mission Support, which is divided into subfactors of Management, Technology, and Small Business Participation; (2) Past Performance; and (3) Price. AR 127. Phase II, the subject of this bid protest, is evaluated using a \Best Value Tradeoff\ process. AR 138. This type of evaluation allows the Agency to award the contract to an offeror other than the lowest price offeror or highest technically rated offeror. AR 450. When considering the relative weight of the factors, mission support is more important than past performance, and past performance is more important than price. AR 175. As part of the evaluation, the Army identified strengths, deficiencies, weaknesses, significant weaknesses, and uncertainties for each proposal. AR 128\u821129. Any offeror receiving a \deficiency\ in any factor is ineligible for a contract award. AR 138. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': user configurations. AR 132. The small business participation subfactor requires offerors to identify the extent to which various small businesses would participate in the contract as well as the offerors\rquote past small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': Between the three subfactors, management is more important than technology, and technology is more important than small business participation. AR 2006. As a whole, mission support would be rated by the following standards: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': [ ], relating to [ ]. AR 683. [ ] were identified. AR 683\u821184. For the technology subfactor, FCN was given an [ ] rating. AR 681. [ ] were identified. AR 685. Lastly, FCN was given a rating of [ ] for the small business participation subfactor. AR 681. [ ], were identified in connection with this subfactor. However, these [ ] were outweighed by FCN\rquote s [ ]. AR 687. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': Its management rating remained [ ], however, as did its ratings for the technology and small business participation subfactors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': The re-evaluation noted that FCN [ ] for the small business participation subfactor. AR 2010\u821111. FCN\rquote s overall mission support rating of [ ] remained [ ]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': During Dell\rquote s re-evaluation, the TET credited it with [ ] under the management subfactor. AR 1971\u821174. The re-evaluation noted that Dell [ ] the requirements for this subfactor. AR 2006\u821107. However, its original management rating of [ ]. AR 1971\u821174. Its technology and small business ratings of [ ] also remained [ ]. AR 2006. Overall, Dell\rquote s mission support rating was [ ] in the management subfactor. AR 1971\u821174. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 089 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': HP was credited with [ ] for the management subfactor, which prompted the Army to [ ] its subfactor rating from [ ] to [ ]. AR 2008. HP\rquote s technology subfactor remained [ ], as did its small business subfactor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 099 - Crowley Technical Management Inc v United States.doc, Paragraph with 'The Rule of Two': (discounting the agency\rquote s assertion of national security on the ground that the agency\rquote s decision to proceed with the contract was driven by a desire to satisfy its Small Business Act procurement goals rather than genuine national security concerns). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 100 - Tenica And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': On October 9, 2014, DHRA issued, as a small business set-aside, Request for Proposals No. H98210\u821115\u8211R\u82110001 (RFP) to provide support staff services for operations at FEPP. The FEPP is comprised of three \critical programs [designed to] address under/unemployment faced by the men and women in the [Navy] Guard and [Army] Reserves.\ Liedel Decl. \u182 18, App. to Def.\rquote s Resp. A1\u8211A6, Aug. 5, 2015, ECF No. 27\u82111. The contract awarded under the RFP is intended to provide service support in all 50 states and the District of Columbia to the Employer Support of the Guard and Reserve (ESGR), Yellow Ribbon Reintegration Program (YRRP), and the Employment Initiative Program (EIP). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 100 - Tenica And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Nearly two weeks earlier, GAO denied a protest challenging the contract award to IGH on a small business issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 100 - Tenica And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': During the status conference, the parties informed the court that a protest\u8212pertaining to the extent of IGH\rquote s prime contractor involvement\u8212remains pending before the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 04 - Shermco Industries Inc v Secretary of Air Force.doc, Paragraph with 'The Rule of Two': General Accounting Office\rquote s denial of unsuccessful bidder\rquote s protest did not render moot central issue of appeal, namely whether Air Force\rquote s decision to award contract to lowest bidder was final, by giving the Air Force right to make final award of contract where unsuccessful bidder could request reconsideration, and where Air Force had not yet awarded contract to lowest bidder but was doing work internally. Small Business Act, \u167 2[8](b)(7) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 04 - Shermco Industries Inc v Secretary of Air Force.doc, Paragraph with 'The Rule of Two': Where there was possibility that if government bid protest were to succeed either before the General Accounting Office, the Small Business Administration or some other forum, bidding could be reopened, notice to unsuccessful bidder that another company was lowest acceptable bidder and that its bid had been rejected was not a final decision, and thus lowest bidder\rquote s pricing information was exempt from disclosure under the Freedom of Information Act as trade secrets and commercial or financial information obtained from a person that is privileged or confidential. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 04 - Shermco Industries Inc v Secretary of Air Force.doc, Paragraph with 'The Rule of Two': At oral argument, this Court learned that in December, 1978, the GAO denied Shermco\rquote s protest. At first glance it seems that this would give the Air Force the right to make a final award of the contract to Tayko and moot the central issue of this appeal, whether or not the Air Force\rquote s decision is final. However, Shermco can request reconsideration of the decision by the GAO. 4 CFR s 20.9 (1979). Moreover, Congress has amended the Small Business Administration Act to give the SBA the power to determine the competency of a small business to perform a government procurement contract. This Certificate of Competency, once awarded, is deemed conclusive proof of the small business\rquote abilities, and the contract must be awarded to it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': Four days after filing a bid protest with the General Accounting Office, corporation filed suit against the Department of the Navy, claiming that the Navy\rquote s determination to make a sole source award of an aircraft repair contract to a competing company was improper. On cross motions for summary judgment, the District Court, Oberdorfer, J., held that: (1) the Navy\rquote s decision to award the first contract to replace or restore parts of 20 military aircraft to plaintiff\rquote s competitor was supported by substantial evidence and was not unreasonable; (2) the Navy breached its statutory duty to facilitate review by the court and the General Accounting Office of its decision to make a sole source award; and (3) referral of the question of plaintiff\rquote s capability to perform the contract to the Small Business Administration for determination was inappropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': This case involves the claim of plaintiff, Aero Corporation (\Aero\), that the determination of defendant, Department of the Navy (\Navy\), to make a sole-source award of a contract to perform the Service Life Extension Program (\SLEP\) on twenty C-130 aircraft to Lockheed-Georgia Company (\Lockheed\) was improper. Aero also seeks mandamus to compel the Navy to refer the question of Aero\rquote s capability to perform the contract for determination by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': On January 30, 1980, Aero filed a Pretrial Brief. On February 1, 1980, the Navy filed a motion for summary judgment. The Court has elected to treat the parties\rquote submissions as cross-motions for summary judgment, supported by exhibits, affidavits and testimony which eliminate any material factual dispute. Having reviewed these submissions, and on the basis of the hearings and entire record of this case, the Court finds that the Navy is entitled to partial summary judgment; its determination that competitive procurement of SLEP for the first 20 C-130\rquote s was reasonable and supported by substantial evidence. Aero is entitled to partial summary judgment on its claim that under the circumstances of this case, the Navy prevented Aero from obtaining timely and meaningful review of the Navy\rquote s procurement decision before this Court and the GAO. The Navy is also entitled to summary judgment on Aero\rquote s assertion that its capability to perform SLEP must be referred to the Small Business Administration for determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': This required a procurement plan to be prepared to present an analysis of the program and to document the technical, small business, policy, operational, and other procurement considerations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': The Court has further considered the parties\rquote cross-motions for summary judgment on Aero\rquote s claim that the issue of Aero\rquote s capability to perform SLEP be submitted to the Small Business Administration for determination. For the reasons set forth in the GAO opinion, the Court finds that SBA referral is inappropriate, and that the Navy is entitled to summary judgment on this claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': ORDERED: That the Navy\rquote s motion for summary judgment on Aero\rquote s claim for mandamus to compel the issue of its capability to perform SLEP to be submitted to the Small Business Administration for determination is GRANTED; and Aero\rquote s motion for summary judgment on the same claim is DENIED; and it is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': 3. Referral to Small Business Administration for Certificate of Competency (COC) is inappropriate where small business was excluded because agency was not in position to provide specification believed necessary for performance and is required to make sole-source award to original manufacturer in the absence of such specifications. COC procedure does not affect agency\rquote s determination of its technical needs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 05 - Aero Corp v Department of the Navy.doc, Paragraph with 'The Rule of Two': Aero maintains that it is a small business and that Navy should not procure its requirement without referral to the Small Business Administration (SBA) for a Certificate of Competency (COC). Aero\rquote s argument is twofold. It suggests that the rejection of its unsolicited proposal was founded in the Navy\rquote s belief that Aero is incapable of performing SLEP and further, that the Navy\rquote s decision to \direct\ an award to Lockheed was based on its conclusion that only Lockheed is \capable\ of performing the work in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 06 - Sun Ship Inc v Hidalgo.doc, Paragraph with 'The Rule of Two': In addition to the tie breakers listed, the Navy also determined that both NASSCO and Sun Ship were located in labor surplus areas and that neither was a small business. Jt.Ex. V. p. 45. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 09 - Allis-Chalmers Corp v Friedkin.doc, Paragraph with 'The Rule of Two': (b) Except as provided in paragraph (d) of this section, bids and proposals shall be evaluated as provided in this section so as to give preference to domestic bids. Each foreign bid shall be adjusted for purposes of evaluation by adding to the foreign bid (inclusive of duty) a factor of 6 percent of that bid, except that a 12 percent factor shall be used instead of the 6 percent factor if the firm submitting the low acceptable domestic bid is a small business concern or a labor surplus area concern (as defined in ss 1-1.701 and 1-1.801, respectively), or both. However, if an award for more than $100,000 would be made to a domestic concern if the 12 percent factor is applied, but would not be made if the 6 percent factor is applied, the case shall be submitted to the head of the agency for decision as to whether the award to the small business concern or labor surplus area concern would involve unreasonable cost or inconsistency with the public interest (see s 1-6.103-3). If the foregoing procedure results in a tie between a foreign bid as evaluated and a domestic bid, award shall be made on the domestic bid. When more than one line item is offered in response to an invitation for bids or request for proposals, the appropriate factor shall be applied on an item-by-item basis, except that the factor may be applied to any group of items as to which the invitation for bids or request for proposals specifically provides that award is to be made on a particular group of items. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 11 - Sun Ship Inc v Woolsey.doc, Paragraph with 'The Rule of Two': In addition to the tie breakers listed, the Navy also determined that both NASSCO and Sun Ship were located in labor surplus areas and that neither was a small business. Jt.Ex.V, p. 45. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Corporation, which was not a small business, filed motion for temporary restraining order enjoining Department of Army from awarding electrical generator contract on small business set-aside basis. The District Court, Devitt, Chief Judge, held that: (1) corporation had standing; (2) district court had jurisdiction; (3) fact that corporation had claimed small businesses that bid for electrical generator were not \responsible\ did not mean that those small businesses had to be joined or action dismissed; and (4) temporary restraining order would not be issued where plaintiff had not established that statutes and regulations concerning small business set-asides were violated, granting of temporary restraining order might have significant disruptive effect on Army\rquote s procurement of electrical generators and conceivably on national defense, because generators were vital to national defense, and there was alternative remedy whereby allegedly aggrieved bidders could appeal to General Accounting Office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff, which was not a small business, had standing to file motion for temporary restraining order enjoining Department of Army from awarding electrical generator contract on small business set-aside basis, because fact that plaintiff had been precluded from bidding for valuable public contract meant that it had suffered injury in fact, and under circumstances, plaintiff satisfied the \zone of interest\ test. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': In proceeding concerning motion for temporary restraining order enjoining Department of Army from awarding electrical generator contract on small business set-aside basis, federal district court did not lack jurisdiction, because applicable statute, which grants district courts jurisdiction of all civil actions arising under laws of United States, and provides further that the $10,000 amount in controversy requirement does not apply to actions against United States or any agency thereof, conferred jurisdiction on federal courts to review agency action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': In proceeding concerning motion for temporary restraining order enjoining Department of Army from awarding generator contract on small business set-aside basis, fact that plaintiff had claimed small businesses that bid for electrical generator were not \responsible\ did not mean that those small businesses had to be joined or action dismissed, because issue as to propriety of set-aside decision could be determined without such small businesses, where fact that procurement contract had not yet been awarded meant that none of small businesses had contract rights that would be affected, and government did not face a significant risk of double liability and inconsistent judicial rulings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Temporary restraining order would not be issued to enjoin Department of Army from awarding electrical generator contract on small business set-aside basis, where plaintiff had not established that statutes and regulations concerning small business set-asides were violated, granting of temporary restraining order might have significant disruptive effect on Army\rquote s procurement of electrical generators and conceivably on national defense, because such generators were vital to national defense, and there was alternative remedy whereby allegedly aggrieved bidders could appeal to General Accounting Office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': In proceeding concerning motion filed by corporation, which was not a small business, for temporary restraining order enjoining Department of Army from awarding electrical generator contract on small business set-aside basis, district court granted plaintiff\rquote s motion for limited discovery to prepare for possible preliminary injunction motion, because depositions of contracting officer and Department representative would be appropriate if limited to whether particular contract at issue was properly set aside solely for small business bidding; also, some limited document production on such issue should be permitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff by this action attacks the policies and practices of the Department of Defense in limiting certain types of contract bids solely to small businesses, referred to as small business set aside procurements. Plaintiff is particularly concerned with a proposed procurement by the Department of Army of 136 electrical generators, which has been set aside exclusively for small business bidding. This motion by plaintiff is for a temporary restraining order enjoining the Department of Army from awarding the generator contract on a small business set aside basis. The requested TRO would be for approximately a three week period, at which time a preliminary injunction motion would be made. Plaintiff also moves for expedited discovery prior to the preliminary injunction hearing, so it can better present its factual case to the court. The motion for a temporary restraining order is denied, but plaintiff is granted limited expedited discovery. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Before requesting bids the procurement officer responsible for acquiring the generators, Clifford L. Nelson, determined that this procurement was a proper one for the small business total set aside program, and he limited bids accordingly. As a consequence, Onan, which in not a small business, has been precluded from bidding for this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Authorization for small business set asides is found in the Armed Services Procurement Act and regulations promulgated thereunder. The Act provides generally that \It is the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': (T)he entire amount of an individual procurement or a class of procurements . . . shall be set aside for exclusive small business participation if the contracting officer determines that there is reasonable expectation that offers will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices. Total set-asides shall not be made unless such a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff does not contest the legality either of the Act or the regulation. Rather, Onan alleges that the Department of Army does not follow the required procedures when it makes the small business set aside determination. In particular Onan argues that no determination normally is made as to whether the expected small business bidders are \responsible,\ but rather a small business set aside is made whenever two or more small businesses indicate a desire to bid, regardless of whether they are \responsible\ small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': The evidence submitted by plaintiff is primarily based on \information and belief.\ However, Onan does point to past instances where set asides to small businesses have resulted in apparently less than adequate performances by the small businesses that obtained the contracts. Plaintiff also claims the particular small businesses that are bidding on the 136 generators do not have the resources to complete the contract adequately and therefore are not responsible bidders. Finally, Onan alleges it was told by a representative of the Department of Army, Dr. Thomas Keenan, that because at least two small business concerns could be expected to bid for the generator contract the Army was required to request bids on a small business set aside basis. (Affidavit of R. E. O\rquote Leary, at p. 3). Onan recognizes its factual position is somewhat speculative but argues it is sufficient for a temporary restraining order, and that with expedited discovery a more concrete factual picture can be presented at the preliminary injunction hearing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Defendant has submitted affidavit and documentary evidence to rebut Onan\rquote s allegations. For example, the contracting officer, Clifford Nelson, testifies by affidavit that he considered closely the likelihood bids would \be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices.\ He determined that at least two responsible small businesses with successful track records, Libby Welding Co. and John R. Hollingsworth Co., could be expected to bid. Those companies in fact did submit what Nelson believes are competitive bids, and two other small businesses submitted bids. Mr. Nelson\rquote s affidavit also has attached documents which tend to substantiate defendant\rquote s position that the relevant regulations were complied with. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Other affidavits submitted by the government verify Mr. Nelson\rquote s testimony. Those affidavits also provide additional information relevant to this motion. The affidavit of Dr. Keenan refutes plaintiff\rquote s allegation that he told plaintiff the Army awards procurements on a set aside basis whenever small businesses are likely to bid, regardless of whether those businesses are \responsible.\ Dale Watson\rquote s affidavit indicates that if Onan\rquote s TRO request is granted, the Army\rquote s appropriation for the generator sets will be lost and a new appropriation would have to be requested. Also, Mr. Watson informs the court that if the present bidding process is cancelled a six month delay would result and the delay would cause a ten to twelve percent price increase. Finally, the affidavit of Harold Strickfaden states the generators are urgently required Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': The standing argument is that plaintiff is without standing to attack the procurement process at issue. In brief, defendant argues that the small business set aside program is for the benefit of small businesses and therefore plaintiff, not being a small business, has no standing. This argument appears to be without merit. To have standing plaintiff must suffer an injury in fact and the interest sought to be protected must be within the \ zone of interests\ protected or regulated by the statute in question. See, e. g., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': . Defendant argues that, because plaintiff has claimed the small businesses that bid for the electrical generator are not \responsible,\ those small businesses must be joined or this action dismissed. Again, the logic of defendant\rquote s position is not easy to perceive. Those businesses do have a stake in the outcome of this proceeding, but their presence here is not necessary for a just and complete adjudication of the issues raised by plaintiff. The procurement contract has not yet been awarded, so none of the small businesses has a contract right that would be affected, nor does the government face a significant risk of double liability and inconsistent judicial rulings. The issue here the propriety of the set aside decision can be determined with the parties presently before the court and therefore the joinder principles of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': In light of the above principles it is clear that a temporary restraining order should not issue. Plaintiff has not established or even created a reasonable inference that the statutes and regulations concerning small business set asides were violated. The most that can be inferred is that there is a legitimate difference of opinion between Onan and Army procurement personnel on whether the contract for electrical generators can be performed by a small business. Absent violation of agency procedures or arbitrary decision-making, and there appears to be none in this case, this is just the type of dispute the court should avoid becoming enmeshed in. Therefore, from the evidence now before the court, it is apparent that plaintiff\rquote s legal position is weak. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'The Rule of Two': Finally, the court grants plaintiff\rquote s motion for limited discovery to prepare for a possible preliminary injunction motion. The extent of discovery that is being requested is not entirely clear from plaintiff\rquote s moving papers. Depositions of the contracting officer, Clifford Nelson, and Dr. Keenan, would be appropriate if limited to whether the particular contract at issue was properly set aside solely for small business bidding. Also, some limited document production on this issue should be permitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 16 - Charles N White Const Co Inc v Department of Labor.doc, Paragraph with 'The Rule of Two': White alleged that on or about June 1, 1979, DOL issued an invitation for bids on the project and that it, White, prepared and filed with DOL a bid to perform all work required for the project for a total contract price of $2,934,900.00, with no qualifications; that on July 17 White\rquote s bid and the bids of other contractors were received and opened by DOL. Plaintiff alleged that at the bid opening the apparent low bidder was JESCO, the second low bidder was White and the third low bidder was T. H. Taylor, Jr., Inc. (Taylor); that the bid of JESCO was determined to be inappropriate and hence rejected by DOL because it did not qualify as a small business contractor; that on August 1 DOL rejected White\rquote s bid as being nonresponsive on the ground that White had failed to acknowledge on the bid form that it had received various addenda which had been issued after the invitation for bids was submitted; that DOL, on the same date it received White\rquote s bid, awarded the project to Taylor; that thereafter White filed a bid protest with GAO that DOL awarded the contract to Taylor without giving White an opportunity to have its protest determined by GAO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 16 - Charles N White Const Co Inc v Department of Labor.doc, Paragraph with 'The Rule of Two': Subsequent to the bid opening, Taylor lodged a formal protest with GAO, contending that JESCO was not a responsible bidder because it was not a small business contractor as required and defined by the procurement specifications. Taylor also protested the bid of the second low bidder, White, as not responsive because plaintiff\rquote s bid failed to acknowledge receipt of any of the five addenda. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 22 - American Federation of Labor and Congress of Indus Organizations v Kahn.doc, Paragraph with 'The Rule of Two': For example, the FPASA itself included a directive that a fair portion of Government purchases and contracts be placed with small businesses. Act of June 30, 1949, ch. 288, Title II, s 302, 63 Stat. 393, currently codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 28 - U S Brewers Ass'n Inc v Environmental Protection Agency.doc, Paragraph with 'The Rule of Two': Petitioners have not alleged, nor can we find, any infirmity in the Beverage Container Guidelines that would render them invalid in any respect under the 1970 Act. The Guidelines appear to fall squarely within the mandate of Congress to \publish . . . guidelines for solid waste recovery, collection, separation and disposal systems.\ Not only did EPA so conclude, but the Comptroller General of the United States, in response to an inquiry by Representative John D. Dingell, Chairman of the Subcommittee on Energy and Environment of the Committee on Small Business, also concluded that promulgation of the Guidelines was within the authority of section 209 of the 1970 Act. We find the reasoning of both EPA and the Comptroller General to be persuasive on this question. Accordingly, we conclude that the Beverage Container Guidelines were lawfully promulgated pursuant to section 209(a) of the 1970 Act and were in full legal force and effect at the time of the passage of the 1976 Amendments to the Solid Waste Disposal Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 34 - Glover Const Co v Andrus.doc, Paragraph with 'The Rule of Two': (holding competition \impractical\ where at cross-purposes with the Small Business Act). At the very least, this case should be remanded with instructions allowing the Secretary to determine whether that exception applies. I believe the exception might well apply as a matter of law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on boiler room construction project at Veterans Administration hospital sought to enjoin Veterans Administration from awarding contract to the successful bidder. The District Court, Elfvin, J., held that: (1) purported award of contract did not render action moot; (2) unsuccessful bidder sufficiently exhausted available administrative remedies and thereby had standing to bring action; (3) unsuccessful bidder\rquote s action was not barred by laches, and (4) unsuccessful bidder sustained its burden of showing clear and prejudicial violation of procurement procedure, and thus, even though contract had been awarded in an attempt to circumvent district court\rquote s previous temporary restraining order, purported contract award would be set aside and total small business set-aside designation would be dissolved without prejudice to its proper reinstitution within discretion of Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Where unsuccessful bidder for government contract did not challenge Small Business Administration determination that it was other than a small business concern, it had no duty to exhaust appeals before SBA Size Appeals Board before commencing federal court action challenging legality of purported award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on contract for boiler room construction at Veterans Administration hospital failed to sustain its burden of showing that Veterans Administration failed to observe procedures set forth in applicable regulations in designating project as a total small business set-aside. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Veterans Administration\rquote s designation of boiler room construction project at Veterans Administration hospital as a total small business set-aside was neither arbitrary nor capricious. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Veterans Administration failed to comply with requirements of its regulations where invitation to bid contained no notice of total small business set-aside, where notice failed to include applicable size standard limiting bidders to those with annual average receipts for previous three fiscal years not exceeding 12 million dollars, and where Veterans Administration awarded contract despite unsuccessful bidder\rquote s protest, without giving written notice of denial of protest or written notice of its intention to proceed with awarding of contract prior to decision on protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Where unsuccessful bidder on boiler room construction project at Veterans Administration hospital met its burden of showing clear and prejudicial violation of procurement procedure required by regulations and where Veterans Administration employees and contractor collaborated clandestinely so as to award contract to successful bidder in order to circumvent district court\rquote s temporary restraining order, purported contract award would be set aside and total small business set-aside designation would be dissolved, despite delay and expense which would be incurred in ordering that contract award be set aside. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Plaintiff John W. Danforth Company (\Danforth\) seeks to enjoin the Veterans Administration (\VA\) and individual defendants from awarding a contract for certain boiler room construction at the VA Hospital in Buffalo, N. Y. to defendant Hamberger & Co., Inc. (\Hamberger\). Plaintiff also seeks declaratory relief, in particular an order (1) declaring that the VA\rquote s designation of the construction project as a total small business set-aside be automatically dissolved and (2) directing that the contract be awarded to plaintiff. Defendants move to dismiss the action for failure to state a claim pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 2. While the VA asserts that past VA Hospital construction projects had been designated as total small business set-aside projects pursuant to the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Et seq., no such designation appeared in the project manual and invitation for bids. Some time prior to September 14, 1978, the chief of supply services at the VA Hospital, Earl N. Hill, and the contracting officer, Stanley C. Buwaj, learned that notice of a total small business set-aside had been omitted from the project manual and bid invitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 3. Hill and Buwaj had earlier concluded that the construction project should be designated as a total small business set-aside. Such determination was based upon the availability of a sufficient number of small business contractors (five or six) which they believed could handle the boiler replacement contract of about $3 million and produce a fair price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 4. Because of technical amendments to the bid and the omission of the total small business set-aside from the bid, a pre-bid conference was held September 14th. Some fifteen potential prime contractors, including Danforth and Hamberger, and subcontractors sent representatives to the conference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 5. At the conference the VA\rquote s retained architects-engineers explained the various technical amendments and Buwaj indicated for the first time that the project had been designated a total small business set-aside. Hill also explained the ramifications of \labor surplus area\ requirements. One of the potential contractors (other than Danforth or Hamberger) inquired as to the definition of a small business. In response, Buwaj discussed the total small business set-aside and read 41 C.F.R. s 1-701-1 regarding the size standard of a small business in the construction industry. In addition, he noted that an amendment to the bid (Amendment No. 2) would be issued the following day and read the notice of the set-aside contained therein. As a result of the technical amendments and set-aside, Buwaj announced that the opening of the bids would be delayed until September 27, 1978. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 6. On September 15, 1978, the VA issued Amendment No. 2, said amendment being received by Danforth September 19, 1978. The amendment contained the following notice of a total small business set-aside: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \NOTICE OF TOTAL SMALL BUSINESS-LABOR SURPLUS AREA SET-ASIDE Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \(a) GENERAL: BIDS OR PROPOSALS UNDER THIS PROCUREMENT ARE SOLICITED FROM (1) SMALL BUSINESS CONCERNS AND (2) ELIGIBLE ORGANIZATIONS FOR THE HANDICAPPED AND HANDICAPPED INDIVIDUALS UNDER THE SMALL BUSINESS ACT, THAT AGREE TO PERFORM AS LABOR SURPLUS AREA CONCERNS. AWARDS WILL BE MADE ONLY TO ONE OR MORE SUCH CONCERNS, ORGANIZATIONS, OR INDIVIDUALS. BIDS OR PROPOSAL RECEIVED FROM OTHERS WILL BE CONSIDERED NONRESPONSIVE. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \(1) THE TERM \u8216SMALL BUSINESS CONCERN\u8217 MEANS A CONCERN, INCLUDING Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': ITS AFFILIATES, WHICH IS INDEPENDENTLY OWNED AND OPERATED, IS NOT DOMINANT IN THE FIELD OF OPERATION IN WHICH IT IS BIDDING ON GOVERNMENT CONTRACTS, AND CAN FURTHER QUALIFY UNDER THE CRITERIA SET FORTH IN THE REGULATIONS OF THE SMALL BUSINESS ADMINISTRATION (13 CFTR 121.3-E). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': IN ADDITION TO MEETING THESE CRITERIA, A MANUFACTURER OR A REGULAR DEALER SUBMITTING BIDS OR PROPOSALS IN HIS OWN NAME MUST AGREE TO FURNISH IN THE PERFORMANCE OF THE CONTRACT END ITEMS MANUFACTURED OR PRODUCED IN THE UNITED STATES, ITS TERRITORIES AND POSSESSIONS, COMMONWEALTH OF PUERTO RICO, TRUST TERRITORY OF THE PACIFIC ISLANDS, AND THE DISTRICT OF COLUMBIA BY SMALL BUSINESS CONCERNS: PROVIDED, THAT THIS ADDITIONAL REQUIREMENT DOES NOT APPLY IN CONNECTION WITH CONSTRUCTION OR SERVICE CONTRACTS. * * *\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 7. Subsequent to the pre-bid conference and prior to the submission of its bid, Danforth conducted at least one internal discussion concerning its status as a small business. However, Danforth did not make inquiry of its counsel or the VA regarding such status. Relying upon the bid invitation materials, the amendments thereto, and the award to it of a VA small business set-aside contract in 1977, Danforth chose to certify itself as a small business concern for purposes of the instant bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 9. On September 28, 1978, Hamberger contacted Buwaj by telephone and protested awarding the contract to Danforth on the grounds that the latter\rquote s profits for the years 1975-77 disqualified it as a small business concern. Hamberger forwarded a letter to Buwaj, confirming the telephone conversation and such size protest. (Letter of Kenneth Zeches, vice president of Hamberger to Stanley C. Buwaj, September 28, 1978 (Government exhibit # 14).) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 10. Buwaj informed Danforth of the size protest on or about September 29th and advised that Hamberger\rquote s letter of protest was being forwarded to the Small Business Administration (\SBA\) for its consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 11. At that time or shortly thereafter Danforth informed Buwaj that it questioned the validity of the total small business set-aside. Buwaj suggested that Danforth await the SBA size determination before initiating a protest of the set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 12. On October 31st, SBA forwarded a letter to Buwaj indicating that Danforth did not qualify as a small business concern. The pertinent portion of the letter provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \The above solicitation calling for \Boiler Plant Replacement\ was set-aside for small business concerns. Inasmuch as there was no size standard in the bid and it is necessary to have a size standard to perform a size determination we have determined this bid to be classified in SIC 1629 and to have a small business size standard of $12-million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \Inasmuch as John W. Danforth and its affiliates exceeds the applicable small business size standard we have determined it to be other than small business for the above procurement. This determination shall also be applicable to other government procurements that utilize a similar or lower small business size standard.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': 14. Danforth contacted Buwaj November 7, 1977 and informed him that its counsel was preparing a protest letter of the total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': The Small Business Act of 1958 was enacted to protect the interest of small business concerns by insuring that such businesses receive a fair proportion of government property and service contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': , such regulations requiring that federal agencies set aside contracts for small business concerns when such utilization is feasible. See, 41 C.F.R. s 1-1.700 Et seq., as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': In the instant action, plaintiff seeks judicial review of the VA\rquote s determination that the construction contract herein should be designated as a total small business set-aside, alleging the VA failed to adhere to applicable regulations in reaching and in providing notice of such determination. Plaintiff further alleges that the VA acted improperly in purportedly awarding the contract to Hamberger, without giving full consideration to plaintiff\rquote s pre-award protest. Defendants move to dismiss asserting that the VA awarded the contract prior to the action herein, thereby rendering the action moot, that Danforth failed to exhaust available administrative remedies and that the action is barred for laches. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': The initial question is whether the VA followed applicable regulations in designating the construction project as a total small business set-aside and, if so, whether there was a rational basis for this determination. In applying the rational basis standard of review, this court necessarily recognizes that an administrative agency\rquote s interpretation of its own regulations must be accorded great deference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the VA ignored the regulations governing the designation of a total small business set-aside. Section 8-1.706-1 of the Veterans Administration Regulations, 41 C.F.R. s 8-1.706-1, As amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': requires that \(e)ach Veterans Administration contracting officer will comply with the policy of the Federal Government that all purchase requirements be presumed suitable for award to small business unless there are supportable, compelling reasons why awards must be made to other than small business firms. * * * \ In making such determinations, the contracting officer must consider whether the project should be designated as a total or a partial set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \ * * * (T)he entire amount of an individual procurement or class of procurements shall be set aside for exclusive small business participation where there is reasonable expectation that bids or proposals will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices. Total set-asides will not be made unless such a reasonable expectation exists; however, in the absence of such expectation, a partial set-aside shall be considered * * *.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': The evidence shows that Buwaj and Hill considered the criteria set forth in 41 C.F.R. s 1-1.706-5(a). Moreover, the evidence shows that their determination that the project should be designated as a total small business set-aside was based upon the VA\rquote s records and Buwaj\rquote s belief that any one of some five or six Buffalo-area small business concerns could handle the contract and produce a fair price of about $3 million. Thus, plaintiff\rquote s argument Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': provides that each invitation for bids contain a standard form of notice describing the total small business set-aside and that, in addition, \(t)he applicable small business size standard and product or service classification shall also be set forth in the solicitation.\ Section 1-706-7, 41 C.F.R. s 1-706-7, further provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': \If the entire set-aside portion is not procured by the method set forth in s 1-1.706-5, as to total set-asides, * * * (the total set-aside) is automatically dissolved as to the unawarded portion of the set-aside, and such unawarded portion may be procured by advertising or negotiation, as appropriate, in accordance with applicable regulations. However, prior to issuing an invitation to bid or a request for proposals following the dissolution of a small business set-aside, the contracting officer shall review the required delivery schedule for the supplies or services to be resolicited to insure that the delivery schedule is realistic in the light of all relevant factors, including the capability of small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Defendants concede, as the evidence shows, that the invitation to bid contained no notice of a set-aside and that the notice set forth in Amendment No. 2 failed to include the applicable size standard, limiting bidders to those with annual average receipts for the previous three fiscal years not exceeding $12 million. Defendants also concede that Amendment No. 2 contained a truncated version of the standardized notice set forth in s 1-706-5(d). However, defendants urge that the reading of the $12 million size standard at the pre-bid conference and the reference to 13 C.F.R. s 121.3-8 (which sets forth the $12 million size standard) in Amendment No. 2 placed plaintiff on sufficient notice of the applicable small business size standard. In addition, defendants assert that awarding the contract to Hamberger rendered dissolution of the set-aside impossible inasmuch as no unawarded portion of the contract remains. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': Accordingly, I conclude that the purported contract award shall be set aside, that the total small business set-aside designation should be dissolved (without prejudice, however, to its proper re-institution within the VA\rquote s discretion), and that, if the instant boiler replacement project should be readvertised, such shall be accomplished in accordance with the applicable regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'The Rule of Two': The defendants erroneously contend that plaintiff could have protested the total small business set-aside to the SBA Size Appeals Board, 41 C.F.R. s 1-1.703-2. Said Board has jurisdiction to hear appeals from SBA size determinations. Inasmuch as plaintiff does not challenge the SBA determination that it is other than a small business concern, plaintiff had no duty to exhaust such appeals process before commencing an action in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Small business whose bid on military products procurement contract had been refused in favor of bid of larger concern had standing to invoke judicial review of procurement decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Under regulations governing set-aside of certain military procurements for bidding restricted to small business concerns, contracting officer is permitted to exercise discretion on basis of factors in addition to number of responsible small businesses expected to bid; thus, contracting officer is allowed, but not required, to consider price at initial stage of determining whether to set aside the solicitation; where it is probable that set-aside bidding will not result in any acceptable bids, contracting officer may invite bids on unrestricted basis; where, on other hand, contracting officer expects to receive sufficient number of competitive bids from small businesses so that he is reasonably certain to receive acceptable bid at reasonable price, he can set aside solicitation knowing that if acceptable bid is not received, regulations provide backstop permitting cancellation of solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Military procurement officer did not act arbitrarily, capriciously, or without rational basis when, in determining that contract for procurement of dairy products should be open for bidding by both large and small businesses, he considered several factors, including \price spread concept,\ past procurement history, realities of bid solicitations in regulated industry, and small supplier\rquote s fortuitous proximity to military installation for which procurement was being made, and concluded that procurement must be solicited on unrestricted basis because there was no reasonable expectation that reasonable price would result if bidding were restricted to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': This appeal from the grant of a preliminary injunction prohibiting performance of a government contract by a large business concern raises a series of issues relating to the regulations governing the set-aside of certain military procurements for bidding restricted to small business concerns. While the questions most directly placed before us are the proper interpretation of a procurement regulation and the permissibility of certain management techniques in procurement actions pursuant to that regulation, we are more fundamentally called upon to consider the proper scope for court involvement in the military procurement process and to determine how competing government policies may be harmonized. Our task is to effectuate, within the parameters of the regulatory command, the stated policy of insuring that a fair proportion of government purchases and contracts be placed with small business enterprises while simultaneously permitting the government to procure goods at reasonable and competitive prices, also a stated policy. This task is not a simple one; we are required to navigate through a tortuous record and a maze of interrelated regulations with neither a detailed roadmap nor a reliable compass. We begin with a review of the rather complex litigative history of the case now before us. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': by small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': During the bid process, eight firms were solicited, of which five were small businesses. The DLA received three bids on Groups I, III, and IV and five bids on Group II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Bids were opened on November 1, 1977. Kinnett Dairies, Inc. (Kinnett), a small business concern, submitted the low bids on Groups I and III, while Flav-O-Rich, Inc. (Flav-O-Rich), a large business, submitted the low bids on Groups II and IV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Kinnett initiated an action in federal district court challenging the basis of Solicitation 0048 with respect to Groups II and IV. Kinnett contended that bidding on these groups should have been limited to small business concerns and claimed that the government had acted arbitrarily, capriciously, and without legal foundation in failing to restrict the solicitation. Kinnett\rquote s complaint named the United States and various government officials as defendants and, requesting a temporary restraining order and preliminary and permanent injunctive relief, sought (1) to prohibit defendants \from awarding to and contracting with the successful low bidder, Flav-O-Rich, for the supply or delivery of any or all dairy products as required by Groups II and IV\ of Solicitation 0048, (2) to vacate the determination that bids on Groups II and IV be solicited on an unrestricted basis, and (3) to order the award of Groups II and IV to the low small business bidder (Kinnett) on Solicitation 0048. Kinnett further sought to enjoin defendants from considering certain factors Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Facing competition from large businesses for the Fort Benning procurement for the first time, Kinnett filed a protest with the General Accounting Office (GAO), pursuant to ASPR 2-407.8, 32 CFR s 2-407.8, contending that the invitation for bids should have been limited in its entirety to small businesses, as was the case with prior solicitations. While the protest was pending, the bids were opened, revealing low bids on Group I by Dempsey Brothers, a small business, on Group II by Flav-O-Rich, and on Groups III and IV by Kinnett. Although it was the low bidder in two of the categories, Kinnett filed an action in federal district court seeking to restrain and enjoin the United States from awarding the contracts. Kinnett Dairies, Inc. v. Greenberg, Civil Action No. 76-121-COL (M.D.Ga.) (hereinafter referred to as the Greenberg litigation). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We have no doubt that Kinnett has satisfied these requirements in the instant case. The \injury in fact\ is the same as that found sufficient in Hayes International. Furthermore, the interests Kinnett seeks to protect as a small business are clearly within the \zone of interests\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': protected by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Subject to the order of precedence established in 1-706.1(a), the entire amount of an individual procurement or a class of procurements, including but not limited to contracts for maintenance, repair, and construction, shall be set aside for exclusive small business participation (see 1-701.1) if the contracting officer determines that there is reasonable expectation that offers will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices. Total set-asides shall not be made unless such a reasonable expectation exists. (But see 1-706.6 as to partial set-asides.) Although past procurement history of the item or similar items is always important, it is not the only factor which should be considered in determining whether a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': This regulation is designed to implement the objective, set forth in the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': , that a fair proportion of government purchases and contracts be placed with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Kinnett\rquote s central contention focuses on a single clause of ASPR 1-706.5(a)(1), providing that a procurement shall be set aside \if the contracting officer determines that there is reasonable expectation that offers will be obtained from a sufficient number of small business concerns so that awards will be made at reasonable prices.\ Kinnett maintains that the Sole determination to be made by a contracting officer considering a set-aside \is whether there is a reasonable expectation that Offers will be obtained from a sufficient number of responsible small business concerns.\ Appellee\rquote s Brief at 5. According to Kinnett, the succeeding clause of the regulation, \. . . so that awards will be made at reasonable prices,\ is merely \a statement of the result anticipated,\ to which no independent effect is to be attributed. Id. With specific respect to Solicitation 0048, Kinnett argues that the government has Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': contended neither that the potential small business bidders were not responsible nor that there was not a sufficient number of potential small business bidders. Because the government instead gave consideration to whether a reasonable and competitive price could be expected, Kinnett maintains that the decision not to set aside Groups II, III, and IV violated the regulatory mandate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Kinnett also argues that the government contracting officer, J. C. Farrow, acted arbitrarily and capriciously in his decision to consider certain specific factors relating to price. While this argument is interwoven with Kinnett\rquote s basic position regarding the interpretation of ASPR 1-706.5(a)(1), we can extract the thread of an independent contention that even if the government\rquote s interpretation of the regulation is correct and factors other than the expected number of small business bidders may be considered, the contracting officer\rquote s reliance on certain specified factors in this case was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': that defendants\rquote set-aside determination \. . . was based on their belief that in prior bid periods no small business bidders were within Defendants\rquote acceptable \u8216price spread\u8217 as the Defendants compared \u8216price spreads\rquote not only between small businesses, but between large and small business as well\; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Finding 21, that another factor taken into consideration by defendants in their set-aside determination was the \alleged fact\ that \Kinnett enjoys a distinct, unfair competitive advantage over other small businesses because Kinnett is located closer to Fort Benning than other small business\; and Finding 24, which we reproduce in pertinent part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Defendants have acted arbitrarily, capriciously, erroneously and without legal foundation in concluding that the aforementioned price spread in successful bids and those bids of Kinnett on prior contracts which Plaintiff has served, and is now serving, establishes an absence of responsible small business bidders, and have also acted arbitrarily, capriciously, erroneously and without legal foundation in considering the physical location of the plant of Kinnett in making the determination to solicit bids on an unrestricted basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Defendants further have acted arbitrarily, capriciously, erroneously and without legal foundation in comparing price spread differential between bids submitted by successful and unsuccessful small business bidders on prior solicitations and in comparing price spread differential between bids submitted by large businesses and those bids submitted by small business concerns on Group II, Solicitation DSA 13H-76-B-8570 (Contract Period December 1, 1976 through May 31, 1977 Fort Benning, Georgia) to determine that there is no reasonable expectation that offers on the current solicitation DLA 13H-78-B-0048 could have been obtained in response to invitation to bids if said solicitation had been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': The court also found that the government defendants\rquote construction and application of ASPR 1-706.5(a)(1) was \arbitrary, capricious, and contrary to the true spirit and intent of said Regulation and the provisions of the Aid to Small Business Act.\ (Finding 28). Each of these findings adopts, with only minor modifications, allegations in the plaintiff\rquote s complaint. With minor exceptions, each is challenged, to a greater or lesser degree, by the government and by Flav-O-Rich on this appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': In appealing from the district court\rquote s interpretation of ASPR 1-706.5(a)(1) and its finding that the government contracting officer acted arbitrarily and capriciously, the government does not dispute the district court\rquote s finding that factors other than the number of responsible small business concerns expected to respond to Solicitation 0048 were considered in the set-aside determination. Indeed, the Government Brief specifies six factors alleged to have been taken into account in the contracting officer\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Instead, the government argues that while procurements may be contracted with small businesses at higher prices to the government than those otherwise attainable through unrestricted competition, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We perceive the issue before us as requiring a two-part inquiry. First, we must determine whether the government\rquote s construction of ASPR 1-706.5(a)(1) as permitting, if not necessarily requiring, the contracting officer to consider whether prices resulting from a set-aside solicitation will be reasonable and competitive, as a factor independent of the number of small business concerns expected to submit bids, is \a clear and prejudicial violation of applicable statutes or regulations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': The government\rquote s interpretation of the procurement regulation is fully consistent with the statutory requirements of the Small Business Act and the Armed Services Procurement Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': These controlling statutes simply require that a \fair proportion\ of government purchases and contracts be placed with small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We have little doubt that under current statutes an agency would be authorized to issue regulations unambiguously Requiring contracting officers to consider price in deciding whether to set aside bids for exclusive small business participation, as long as the resulting contracts gave small enterprises a \fair proportion\ of government business. In the instant case we read the key regulation as Permitting officers to exercise their discretion in such a manner. It would be anomalous for a court to bar an agency applying an ambiguous regulation from permitting certain practices when the court would readily allow the agency to Require the same practices. This is especially true where, as here, Congress has itself chosen to preserve a high degree of discretion in the agency by enacting only a very broad policy guideline and leaving its elaboration and application to the conscientious expertise of the agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Not only is the government\rquote s interpretation of ASPR 1.706-5(a)(1) within the permissible scope of the Department of Defense\rquote s discretion in drafting the regulation, it is fully consistent with the policies the regulation was designed to effectuate. The statutory command implemented by the regulation is that a \fair proportion\ of government procurements be placed with small business enterprises. While mere satisfaction of this objective would neither require nor justify an interpretation of an implementing regulation at war with the explicit terms of that regulation, we think it worth noting that the government\rquote s interpretation of the procurement regulation has resulted in quite substantial small business participation in supplying government requirements for milk and dairy products. The record reveals that between May 1977 and October 1977, the dairy, poultry, and bakery branch with which the contracting officer, Mr. Farrow, is associated awarded some seventy percent of $125 million in contract awards to small businesses. Forty-four percent of those awards, totalling more than $38 million, were the result of set-aside actions. There is no suggestion in the record that this is less than a \fair proportion\; indeed, there is testimony in the record that this \is the absolute best of any of the approximately twelve branches in the Defense Personnel Supply Center.\ Whatever else the merits of the government\rquote s interpretation of the procurement regulation and its techniques for implementing that regulation, these facts would seem to suggest the adequacy of the current approach in satisfying the statutory mandate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': and unique obsession with small business for the sake of small business, and damn the pricetag on the torpedoes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': While we recognize, of course, that the Small Business Act and related legislation and regulations favoring small business modify these more general requirements that the DLA procure goods at \competitive market prices,\ See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Examination of another regulation promulgated by the Department of Defense further supports the government\rquote s interpretation of ASPR 1-706.5(a)(1). In a provision expressly governing small business set-asides, ASPR 1-706.3(a), authority is provided for a set-aside determination to be withdrawn prior to award of a contract if \the contracting officer considers that procurement of the set-aside from a small business concern would be detrimental to the public interest (E. g., because of unreasonable price ) . . . .\ (Emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Thus solicitations set-aside for exclusive small business participation may be cancelled because of price considerations. This again strongly implies that price is a legitimate factor that may be considered by the contracting officer during his initial consideration of whether to set aside the solicitation, a conclusion further reinforced by the explicit terms of ASPR 1-706.3(a): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': If Kinnett\rquote s interpretation of ASPR 1-706.5(a)(1) were accepted, and it were clear that no reasonable bids would be received if bidding were limited to small business bidders, the officer would be required to go Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': through the charade of setting aside the solicitation, accepting small business bids, cancelling the solicitation after opening the bids, and then starting again from scratch. Each procurement period the farce would be reenacted, Ad infinitum. This repetitive and disruptive process would entail a substantial cost to the government in terms of wasted time and resources. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': It is far more sensible to defer to the government\rquote s interpretation of ASPR 1-706.5(a)(1), which is more consistent with the regulatory framework of the procurement process in general and with the small business set-aside structure in particular. Certainly the language of the regulation, which refers to \reasonable prices,\ is subject to such an interpretation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We are also required to accord appropriate deference to the views of the GAO. See Section IV, Supra. In Kinnett\rquote s protest to the GAO regarding Solicitation 8570, the Comptroller General had full opportunity to consider Kinnett\rquote s argument that ASPR 1-706.5(a)(1) \does not demand that competitive prices be tendered, but merely that competitive small businesses take part in the bidding.\ The Comptroller General concluded, following a review of the provisions of other procurement regulations and prior decisions by the GAO, that \prices must be arrived at through \u8216adequate\u8217 or \u8216sufficient\u8217 competition.\ The Comptroller General thus accepted the argument proffered by the contracting officer that \price competition does not of itself ensure that award will be made at a reasonable price, but rather that the adequacy of such competition is the key factor . . . .\ The Comptroller General\rquote s determination in Kinnett appears to be in conformity with a line of GAO decisions recognizing the \adequate competition\ concept in the context of small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We recognize that the policies of the Small Business Act are to some extent inconsistent with what might be perceived as the primary function of the DLA, to supply the procurement needs of the armed forces at minimum cost. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': procurement officers to undermine this nation\rquote s policies favoring small business. This possibility, however, does not mandate acceptance of Kinnett\rquote s position in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': First, the statute implemented by the procurement regulation itself mandates that a \fair proportion\ of government contracts be placed with small business. Here seventy percent in value of government contracts in the milk, dairy, and poultry branch are placed with small businesses under a regime incorporating consideration of adequacy of competition and likelihood of reasonable prices in set-aside determinations. The record contains no hint that this is less than a fair proportion. We have no reason to suspect that contracting officers will not continue to implement the policies of the Small Business Act in making their procurement decisions, and we have little doubt that the courts would look askance at application of a regulation inconsistent with the statutory mandate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Second, we believe the availability of review by the GAO in bid protests will exercise a check on abuse of discretion by overzealous procurement officers. Our review of GAO decisions in the small business set-aside area makes clear that the GAO accepts the established principle that the government may pay a reasonable premium price to small businesses to implement congressional policy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Finally, we note that should these checks prove ineffective, action by the Department of Defense or the Congress to further delineate the bounds of discretion in small business set-asides would not be unwelcome. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Indeed, if Congress chooses to insulate small businesses from all the rigors of competition from large enterprises in the government procurement setting, whatever the cost to the taxpayers, the path is open. But that is not the task of this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': In sum, we conclude that the government\rquote s interpretation of ASPR 1-706.5(a)(1) must be accepted. We reiterate the critical clause: a procurement \shall be set aside for exclusive small business participation . . . if the contracting officer determines that there is reasonable expectation that offers will be obtained from a sufficient number of responsible small business concerns so that awards will be made at reasonable prices.\ While we do not contend that Kinnett\rquote s interpretation is intrinsically implausible or at plain variance with the terms of the regulation, neither do we believe that Kinnett\rquote s reading is required by the regulatory language. The interpretation urged by appellants, that the contracting officer may consider Both whether he is likely to receive bids from a sufficient number of responsible bidders And whether there is a reasonable expectation that the bids received will result in a competitive and reasonable price, is also consistent with the regulatory language and is, in our view, a far more practical and realistic construction. It is also the construction adopted by the contracting officer and his agency and validated by the GAO, to whom deference is due. Accordingly, we conclude that ASPR 1-706.5(a)(1) permits the contracting officer to exercise discretion on the basis of factors in addition to the number of responsible small businesses expected to bid. We turn now to our second inquiry, whether the contracting officer\rquote s exercise of discretion in this case was arbitrary, capricious, and without rational foundation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Review of the contracting officer\rquote s decisionmaking process requires some further articulation of the facts. Unfortunately, the district court\rquote s findings of fact relevant to the contracting officer\rquote s considerations are fragmentary and may be internally inconsistent. The finding that the basis for defendant\rquote s determination to solicit Groups II, III, and IV on an unrestricted basis was that the small business bidders were not responsible (Finding 19) is, as we have already noted, see note 19 Supra, completely unsupported by the record Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': advantage over other small businesses (Finding 21) in making his set-aside determination on Solicitation 0048. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': 2) the fact that on the preceding procurement for Fort Benning none of the bids received from small businesses was in a competitive range with Kinnett; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': 4) knowledge of the fact that although another small business (Dempsey Brothers, Inc.) had successfully bid on Group I in Solicitation 8570 in November 1976, Kinnett had performed that contract pursuant to a subcontract with Dempsey Bros.; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': With this in mind, Farrow evaluated the past procurement history for dairy products at Fort Benning dating back to 1974 or earlier. All solicitations during this period had been set aside for exclusive small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': participation. With respect to troop issue and resale ice cream, Farrow found wide disparities between the offers of competing small business bidders, ranging up to 65 percent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Apparently surprised by the wide disparities between bid prices, Farrow initiated further investigation of procurement practices at Fort Benning. Focusing on the role of transportation expenses in determining bids, Farrow discovered that Kinnett, located some eleven miles from Fort Benning, enjoyed a locational advantage ranging from 73 to several hundred miles over other small business bidders. Kinnett won or performed all the contracts during this period. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Farrow recognized that the government expects to and does pay premium prices to small business as part of its support for the small business program. But he did not believe those premiums to be unlimited. He considered it his duty to investigate whether the government could receive substantially lower prices by permitting bidding on an unrestricted basis, thus avoiding the payment to small business of premiums considered unreasonable or unrealistic. Farrow felt it would be an abuse of discretion for the contracting officer to do otherwise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Farrow considered the scope of his discretion on set-aside determinations to be defined by ASPR 1-706.5(a)(1) and by the requirement of ASPR 1-300.1 that all procurements shall be made on a competitive basis to the maximum practicable extent. He stated that he understood these regulations, as interpreted in a series of decisions by the Comptroller General, to provide the contracting officer with discretion to assess the existence of a reasonable expectation of receiving adequate prices from small business concerns. He also made reference to GAO decisions cautioning that in those cases where total set-asides had not generated the anticipated competition, future set-aside determinations should be carefully considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Farrow concluded from his investigations that the only realistic and competitive bids submitted on several categories of prior procurements at Fort Benning were those offered by Kinnett and that there was no reasonable expectation of adequate competition from small businesses in the future. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Without such competition, there could be no reasonable expectation that Kinnett would submit future bids at reasonable prices. He therefore declined to set aside solicitations for Groups II-IV for exclusive small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Taking all these considerations into account, the contracting officer concluded that Groups II-IV of the instant procurement must be solicited on an unrestricted basis because there was no reasonable expectation that a reasonable price would result if the bidding were restricted to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': The evidence presented establishes that the price spread concept was used here as a starting point for further analysis, not as a mechanical rule of decision. Significantly, the record reveals instances in which contracting officer Farrow did set aside solicitations for exclusive small business participation despite price spreads in excess of six percent, both at Fort Benning and at other installations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Further, the record establishes that utilization of the price spread concept As a guideline in set-aside determinations, to be considered together with other factors relevant to past procurement history or to expectations of future bidding, is not inconsistent with the set-aside of particular contracts for small businesses or with the award of seventy percent of government contracts in this industry to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Absent factual demonstration that use of the price spread concept is arbitrary and without rational foundation in a particular case, or that use of the concept is inconsistent with the statutory objective of insuring a \fair proportion\ of government procurement for small businesses, we cannot say that its use by the contracting officer is improper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We have been called to the stage, following several rehearsals, to attempt to harmonize the soprano of concern for small businesses with the mezzo of reasonable pricing for government procurements. Kinnett Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Authority for restricting invitations for bids (or solicitations) to small businesses, or inviting bids on an unrestricted basis (I. e., permitting submission of bids by interested business concerns regardless of their size), is provided by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (1) Price spread between the bids of participating small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (2) Price spread between the bids of large business concerns and small business concerns; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (3) Geographic proximity of a small business concern to the military installation to be supplied under the terms and conditions of a solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Solicitation 8570 was initially issued on an unrestricted basis for all four groups and was later amended to set-aside Group I for exclusive small business participation. Both subsequent solicitations, Nos. 8600 and 0048, set-aside Group I and invited bids on an unrestricted basis for Groups II, III, and IV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (a) The essence of the American economic system of private enterprise is free competition. Only through full and free competition can free markets, free entry into business, and opportunities for the expression and growth of personal initiative and individual judgment be assured. The preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation. Such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed. It is the declared policy of the Congress that the Government should aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise, to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government (including but not limited to contracts or subcontracts for maintenance, repair, and construction) be placed with small-business enterprises, to insure that a fair proportion of the total sales of Government property be made to such enterprises, and to maintain and strengthen the over-all economy of the Nation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': It is the policy of Congress that a fair proportion of the purchases and contracts made under this chapter be placed with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Judging from the written findings of fact, the district court apparently proceeded in part on the basis of a fundamental misperception of the government\rquote s case. The court apparently believed that a central element in the government\rquote s argument was the contention that small business bidders whose bids could not be expected to be reasonable and competitive were not Responsible, and that the absence of a sufficient number of Responsible bidders, so-defined, was the basis for the contracting officer\rquote s decision not to set-aside the solicitation in its entirety. See Findings 19, 20. In this respect, the court may have been misdirected by the allegations in plaintiffs\rquote complaint, for we find nothing else in the record to support this interpretation of the government\rquote s position. Indeed, the record demonstrates conclusively that the government\rquote s professed basis for the set-aside decision was the absence of a reasonable expectation that the contracts could be awarded at a reasonable and competitive price. The government nowhere challenges the Responsibility of potential small business bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': In any event, the district court made a number of findings relevant on its view of the case. These include findings that the basis of defendants\rquote determination to solicit Groups II, III, and IV of Solicitation 0048 on an unrestricted basis \was that the small business bidders were not responsible\ (Finding 19); that Kinnett and other small businesses \are unable to competitively bid with large businesses in an \u8216unrestricted\u8217 bid procedure\ (Finding 5); that defendants\rquote decision to solicit invitations to bid on an unrestricted basis \had a chilling, destructive impact on the willingness of responsible small businesses to submit bids and to compete for the award of said resulting contracts,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': and that \(m)ore small businesses would have submitted bids if said solicitation had been restricted to small businesses\ (Finding 23). All of these findings are closely modelled on allegations in plaintiffs\rquote complaint, and all are challenged by appellants as wholly unsupported by, if not contradicted by, the record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Our examination of the record compels the conclusion that Finding 19 that the set-aside determination was based on an absence of Responsible small business bidders is clearly erroneous. With respect to the remaining contested findings specified above, our framing of the issues on this appeal differs from that of the district court, and our analysis is not dependent on these findings. Accordingly, for purposes of this appeal, we need not pass on the existence of an adequate evidentiary basis to support these findings of the district court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': A hypothetical illustration may clarify the issue at stake. Assume the existence of a fruit, easy and inexpensive to grow in the proper climate, but expensive to ship long distances. The fruit is grown and marketed in California by a single large enterprise; it is grown in Florida and marketed over a wide area by a multiplicity of responsible small business concerns. The small Florida concerns supply a large percentage of government procurement needs in the eastern portion of the country; indeed, many solicitations are Set aside for their exclusive participation. However, in California, the transportation costs make the fruit grown in Florida very expensive relative to the native California fruit marketed by the single large supplier. Under Kinnett\rquote s theory, as we understand it, a government contracting officer securing a procurement for military bases in California would be required to set aside the procurement for exclusive participation of the small Florida growers, who are both responsible and numerous, and to exclude from participation the large California concern. The contracting officer, under the regulation as so interpreted, would be forbidden to consider the likelihood that reasonable prices could not be anticipated from the Florida growers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Even where procurement of a particular item, E. g., a major weapons system, from a small business would be economically ludicrous, although theoretically possible, under Kinnett\rquote s theory the government might be bound to set aside procurement for exclusive small business participation if bids on the weapons system, however unreasonable in price, could be anticipated from two or more responsible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Nor, contrary to Kinnett\rquote s argument, does the government\rquote s interpretation strip the first regulatory clause of meaning. Even where the contracting officer has reason to expect that a given small business will submit a bid at a reasonable price, the regulation is not intended to insulate that bidder from all competition where there is no likelihood of competitive bids from a sufficient number of other small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': The government\rquote s reading of ASPR 1-706.5(a)(1) creates a much more sensible structure for set-aside bidding. The contracting officer is allowed, but not required, to consider price at the initial stage of determining whether to set aside the solicitation. Where it is probable that set-aside bidding will not result in any acceptable bids, the contracting officer may invite bids on an unrestricted basis under ASPR 1-706.5(a)(1). Where, on the other hand, the contracting officer expects to receive a sufficient number of competitive bids from small businesses so that he is reasonably certain to receive an acceptable bid at a reasonable price, he can set aside the solicitation knowing that if an acceptable bid is not received, ASPR 1-706.3(a) provides a backstop permitting cancellation of the solicitation. (Of course, the policy explicitly favoring award of contracts once bids are opened, See ASPR 2-404.1(a), and the disruption caused by cancellation and resolicitation, may weigh against frequent recourse to this procedure unless the contracting officer is reasonably certain an acceptable bid will be received.) Thus, the two regulations interpreted and applied in conjunction provide a flexible procurement mechanism adaptable to the requirements of diverse industries and procurement needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': It is worth noting that the draftsmen of the Armed Services Procurement Regulations were aware that the incentive structures of procurement officers might evoke greater responsiveness to price considerations than to the needs of small businesses. Consequently, the procurement regulations provide for input into set-aside decisions by small business representatives, employed by the Small Business Administration. It is a matter not without interest in this context that the small business representative concurred in contracting officer Farrow\rquote s determination to solicit bids on Groups II, III, and IV of Solicitation 0048 on an unrestricted, non-set-aside basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': The \price-spread concept,\ despite its centrality to this litigation, has not been defined with particular precision in the course of these proceedings. Apparently the technique focuses on prior solicitation periods and compares the low bid received with other bids received during the same solicitation to determine the intensity of price competition. When applied to prior set-aside solicitations, the technique compares bids among the competing small businesses. When applied to prior unrestricted solicitations, the technique compares bids among all the competitors, large and small, to determine the price spread between the low small business bidder and the low (or next low) bidder overall. In either case, a price spread within a given percentage margin (six percent in the milk industry) is taken as a rough indicator of effective competition among bidders on the given solicitation and is considered as one factor in determining the likelihood of effective competition on future solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Farrow then demonstrated a further opportunity for abuse if in the above example the first bidder was a small business and the third bidder was a small business. In the event the solicitation were 100% set aside, the first bidder would be able to inflate his bid 80-90%. In such a situation there clearly would not be any competition, and the government would be paying an unreasonable premium just so a small business could service the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Kinnett argues that Finding 20 states that the unrestricted classification was based Solely on the price spread and on no other factor. We disagree. The plain terms of the district court\rquote s finding (\The aforesaid determination of Defendants . . . was based on their belief that in prior bid periods no small business bidders were within Defendants\rquote acceptable price spread . . ..\) do not compel such a reading, which would be inconsistent with the thrust of Finding 21, a finding fully supported by the record, that defendants also considered Kinnett\rquote s proximity to Fort Benning as a factor in their set-aside determination. When the district judge desired to indicate sole causation, he was perfectly capable of doing so. Referring in Finding 4 to contracting officer Farrow\rquote s action on a prior solicitation, the court stated, \The aforesaid determination of Contracting Officer Farrow Was based solely on his conclusion . . . .\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': However, in numerous other decisions in disputes raising related issues, the GAO has recognized both that prices obtainable from large business concerns may be relevant to consideration of the reasonableness of small business bids and that a concept of \adequate competition\ measured by price differentials between large and small businesses can be properly employed in determinations regarding small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': where the GAO upheld the contracting officer\rquote s decision to withdraw the small business set-aside and resolicit on an unrestricted basis, explicitly allowing the officer to consider a \courtesy bid\ submitted by a large business. The GAO held that the Armed Service Procurement Regulations and prior GAO decisions \cannot reasonably be construed as expressing the view that the amount of the difference in such bids may not properly be considered as a factor in determining the reasonableness of small business bids.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': While noting that the provisions of the Small Business Act authorize the award of contracts to small businesses at prices higher than those obtainable by unrestricted competition, the GAO found no valid basis for concluding that the Act \was intended to require the award of contracts to small business concerns at prices considered unreasonable\ by the procurement officers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': See also No. B-149889 (November 2, 1962). The GAO held that the regulations \properly permit the withdrawal of a set-aside, based on a valid determination that bid prices received from small business concerns are unreasonable.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (recognizing that officers are permitted, though not required, to compare small business bids and large business bids from previous competitions in establishing \the competitive range of acceptability\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': (upholding the refusal to cancel a set-aside solicitation, and supporting a contracting officer\rquote s view that five percent was a reasonable premium to pay for a small business contract); and Nos. B-183593, B-184058, B-184065, B-184102, B-184102 (2), B-184117 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': that when a small business set-aside is involved, the contracting officer still has an affirmative duty to seriously consider the prices at which an award can be made. The mere fact that a small business set-aside is involved does not mean that these firms should be subsidized to a point where they are completely insulated from competition from large business firms to the extent that excessive and unreasonable prices are being paid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Judging from GAO decision in Kinnett itself, neither does the Comptroller General. These prior decisions provide important context for the GAO\rquote s decision in Kinnett and demonstrate a continued administrative recognition that price differentials evidencing the adequacy of competition may be considered in the small business set-aside context. These and other GAO decisions signal the profound conviction of the GAO that \(p) rice reasonableness is basically a business judgment requiring the exercise of broad discretion\ by the contracting officer. Park Manufacturing Company; Century Tool Company, Nos. B-185330, B-185331, B-185776 (April 16, 1976); See also Falcon Rule Company; Akron Rule Corporation, No. B-187024 (November 16, 1976). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Kinnett seems to believe that it is being unfairly penalized for its proximity to Fort Benning and argues that the proximity factor should \vanish\ from this case because Flav-O-Rich is even closer to Fort Benning than is Kinnett. These arguments misapprehend the relevance of the proximity factor. Kinnett is in no sense disqualified from participating in a particular solicitation by virtue of its location. What is significant is that compared to other small businesses in a set-aside solicitation, Kinnett, because of its locational advantage, is effectively a sole source; the other small businesses simply cannot compete in any meaningful sense. Absent such competition, there is no expectation of reasonable and competitive prices and no basis for justification of the set-aside, and large businesses, wherever located, must be permitted to participate in an unrestricted bidding process. Once the bidding is open on an unrestricted basis, locational advantages play their customary role in the marketplace, as do all other economic factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': It appears that depending on the fashion in which it is employed, the price spread concept would reveal different sorts of information of greater or lesser relevance to set-aside determinations. Applied to a prior Unrestricted solicitation, the price spread could be employed to suggest the degree of competition between large and small business competitors and the size of the premium that might result were a subsequent solicitation set aside for exclusive small business participation. Applied to a prior solicitation which was set aside for small business, the price spread would reveal little or nothing about the size of the premium paid by the government to insure award of a contract to a small business concern, but might be useful in suggesting the degree of competition among small business bidders, another factor of clear relevance to the contracting officer\rquote s determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': We note that a small price spread in this context would not necessarily indicate rigorous competition among small businesses. Where, for example, one small business had a determinative advantage over its small business competitors, that business might seek to obtain super-normal profits by bidding relatively high, knowing that it would still be likely to win the contract in view of the absence of effective competition. This would be contrary to the government\rquote s interest in having such a firm bid low, thereby sharing the advantages of its low cost structure with the government. Exclusive reliance on the price spread concept might well be counterproductive in such circumstances. Low cost small business firms, aware of such use of the price spread, might well fear that if they did bid low, reflecting their true economic costs and sharing the advantage of those costs with the government, the gap between their bid and the next lowest bid would be enlarged, thus increasing the price spread and the risk of opening future solicitations to large business competitors on an unrestricted basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 40 - Kinnett Dairies Inc v Farrow.doc, Paragraph with 'The Rule of Two': Contracting Officer Farrow\rquote s application of the price spread and other techniques at Fort McPhearson resulted in a decision to set-aside a solicitation whose predecessors had been unrestricted. Among the large businesses eliminated from participation was Flav-O-Rich. Among the small businesses allowed to participate was Kinnett. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 43 - Trilon Educational Corp v US.doc, Paragraph with 'The Rule of Two': and the extent of deficiency of each are considered, shall, in the absence of evidence to the contrary or circumstances properly beyond the control of the contractor, be presumed to be unable to meet this requirement). Past unsatisfactory performance, due to failure to apply necessary tenacity or perseverance to do an acceptable job, shall be sufficient to justify a finding of nonresponsibility. (In the case of small business concerns, see 1\u8211705.4(c)(vi) and 1\u8211905.2.); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 43 - Trilon Educational Corp v US.doc, Paragraph with 'The Rule of Two': (iv) have a satisfactory record of integrity (In the case of a small business concern, see 1\u8211705.4(c)(vi).); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 43 - Trilon Educational Corp v US.doc, Paragraph with 'The Rule of Two': XII, Parts 6 and 8 (In the case of a small business concern, see 1\u8211705.4(c)(v).). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 43 - Trilon Educational Corp v US.doc, Paragraph with 'The Rule of Two': (a) Affiliated concerns (see 2\u8211201(a)B(ii) and (b)(xvii)) shall be considered as separate entities in determining whether the one of them which is to perform the contract meets the applicable standards for a responsible prospective contractor (but see 1\u8211701.1 with respect to status as a small business concern). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Selective disregard of established procedures reflected an engineered manipulative administration of section 8(a) program impermissibly intertwined with ostensibly open bids presumably devoid of subsidy or prejudicial, discriminatory assistance. Small Business Act, \u167\u167 2[5](b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Actions taken by governmental officials to expedite subcontract award under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities, regardless of whether they were beyond authority and discretion of those officials, did not insure that any particular bids would be the lowest, and, hence, did not have an illegal impact on bidding sufficient to render award invalid. Small Business Act, \u167\u167 2[5](b)(6), 2[8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Every participant in section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities can be said to have been \assisted\ or \subsidized\ or \advantaged\ when bidding on a competitive contract regardless of whether it does so immediately after \graduation\ from program or while still participating in program. Small Business Act, \u167\u167 2[5] (b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': An award under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities is not limited to preparing disadvantaged businesses for competition in marketplace only after they \graduate\ from program and may be given to a participant in program simultaneously with its first participation in competitive bidding solicitation. Small Business Act, \u167\u167 2[5](b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Focus of concern in determining whether advanced payments and guarantees are necessary for performance of a subcontract under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities is not whether payments and guarantees are made before or after competitive bids are open and contracts are initially awarded, but whether payments and guarantees not needed on one contract are used surreptitiously to insure award or retention of a different contract. Small Business Act, \u167\u167 2[5] (b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Advanced payments and guarantees, as well as equipment, can be made available with respect to a subcontractor under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities only where necessary for performance of subcontract; payments or equipment given not to enable performance of particular contract, but merely to enable a noneligible contractor to obtain or retain a different contract, renders full, free and fair competition impossible. Small Business Act, \u167\u167 2[5](b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Neither fact that government officials strained limits of their authority in expediting subcontract under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities, nor fact that successful bidder, if it individually retained contract, would make unusual progress toward marketplace competitiveness was sufficient to warrant judicial intervention in matter. Small Business Act, \u167\u167 2[5](b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Issue whether advanced payments and equipment illegally influenced final, postsurvey retention of subcontracts under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities could not be determined in absence of facts in record as to actual use, if any, made of equipment and whether there was in fact ever a need for equipment and cash payments to enable performance of subcontracts. Small Business Act, \u167\u167 2[5] (b)(6), 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Injunction was to issue against award of subcontracts under section 8(a) program for fostering and promoting business enterprises of disadvantaged persons and entities if equipment assistance or advanced payments operated to directly influence total competition by transforming eventual successful bidder into a responsible bidder or into one able to use government equipmentwithout a corresponding bid evaluation. Small Business Act, \u167\u167 2[5](b)(6), 2 [8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Eric S. Benderson, Washington, D. C., also entered an appearance for appellee, Small Business Administration in No. 77-1505. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Eastern, a Massachusetts corporation engaged in the manufacture and sale of canvas, synthetic and webbing products (backpack frames, straps and knapsacks) was second low bidder on two formally advertised, competitive DSA procurements. Eastern was qualified as a \small business,\ as defined in the Small Business Act (Act) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': and implementing regulations 13 C.F.R. ss 121.3 Et seq., at that time and when this suit was commenced. Having grown substantially, Eastern no longer qualifies as a \small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Defendants are the Secretary of Defense, the Director of DSA, and the Administrator of the Small Business Administration (SBA), sued in their official capacities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Defendant-intervenor (Welmetco), a competitor of Eastern and qualified as a \small business\ under the Act and regulations, was low bidder on the two DSA competitive procurements in dispute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': to enter into contracts with other government agencies and \to arrange for the performance of such contracts by negotiating or otherwise letting subcontracts to small business concerns or others * * * as may be necessary to enable the Administration to perform such contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': assistance will foster its participation in the economy as a self-sustaining, profit-orientated small business.\ 13 C.F.R. s 124.8-2(a). Approval of the plan does not obligate SBA to award a subcontract. After consultation with other government agencies, SBA selects proposed procurements suitable for performance by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': program over a relevant period of time, issuance of prior public solicitation of the procurement under a small business set-aside, the probability that an eligible concern could obtain a competitive award of the contract, and the extent to which other small concerns have historically been dependent upon the contract in question for a significant percentage of their sales. 13 C.F.R. s 124.8-2(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': program is an exception to the general rule that \(a)ll procurements, whether by formal advertising or by negotiation, shall be made on a competitive basis to the maximum practicable extent.\ Armed Forces Procurement Regulation (ASPR) 1-300.1. The Department of Defense will \enter into contracts with the SBA to foster or assist in the establishment or the growth of small business concerns as designated by the SBA so that these concerns may become self-sustaining, competitive entities within a reasonable period of time,\ ASPR 1-705.5(b)(1), and when SBA \certifies to the Secretary concerned in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': On April 15 and 16, 1976, DSA issued the two Invitations for Bids (IFB\rquote s) in the competitive procurements giving rise to the present controversy. DSA 100-76-B-0998 (\u82160998) sought bids on 270,000 units, each unit consisting of pack frames and four straps. DSA 100-76-B-1008 (\u82161008) sought bids on 303,556 units, each unit consisting of two straps. Both solicitations were restricted to small business concerns and opening dates were set for May 5 and 10, 1976, respectively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': program. There is ample indication that small business concerns owned by disadvantaged persons have traditionally received a disproportionally small number of government procurement contracts. It is certainly reasonable, therefore, for the SBA to make a special effort to alleviate this imbalance. Section 8(a) of the Act provides the authority to do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Furthermore, the plaintiffs cannot complain because a specific type of small business concern is the primary beneficiary of the present program. It is well settled that an agency need not \strike at all evils at the same time,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': program is unconstitutional because the plaintiffs may be disadvantaged competitively. There is no constitutional duty to offer government procurement contracts for competitive bidding. The SBA has the statutory authority to assist small business concerns through private placement of contracts. We have already held that the SBA has not abused its discretion in adopting the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': program. The program may produce some inequalities among small business concerns as a class. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Just as the entire class entitled \small business\ can be said to be advantaged, as against larger businesses, by the set-aside program in which competitive contracts, such as those at issue here, are earmarked for \small business\ and larger businesses are denied any participation whatever. Eastern, while it was a member of the \small business\ class, was a beneficiary of that set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 47 - Eastern Canvas Products Inc v Brown.doc, Paragraph with 'The Rule of Two': Eastern, as next lowest bidder, and if otherwise qualified, would presumably receive the \u82160998 and \u82161008 contracts. Though Eastern is no longer a \small business,\ the controlling date is that of the challenged awards and Eastern was at that time a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 51 - Rhode Island Chapter Associated General Contractors of America Inc v Kreps.doc, Paragraph with 'The Rule of Two': In 1976, the House Committee on Small Business found that past discrimination, both on the part of lending institutions and surety bonding firms, had inhibited the growth of minority businesses. In addition, present business practices, racially neutral on their face, perpetuate the effects of past discrimination. Summary of Activities, 94th Cong., 2d Sess. (Comm.Print.1976) at 182. According to testimony before the Committee, surety firms practice \redlining\ against minority businesses with devastating results, since all federal contracts require surety bonding. Id. at 183. Past discrimination has a particularly long-lasting effect when its remedy calls upon financial institutions to risk very large sums on inexperienced firms. Inexperience and lack of financial backing make it difficult for minority businesses to become competitive in bidding with the larger, more established firms. 123 Cong.Rec. H. 1437 (daily ed. Feb. 24, 1977) (comments of Rep. Mitchell); see Report at 9. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 56 - Northland Equities Inc v Gateway Center Corp.doc, Paragraph with 'The Rule of Two': As shown by legislative history, any purpose of protecting bidders is secondary, and is certainly not comparable to, for instance, the announced governmental policy of protecting securities investors. Further analogy can be made to the rejection of claims of unsuccessful bidders under the Small Business Act (SBA). In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 56 - Northland Equities Inc v Gateway Center Corp.doc, Paragraph with 'The Rule of Two': The rejection of SBA claims, despite a clear congressional expression of concern for the welfare of small businesses, strongly suggests the impropriety of creating a private action for damages under the procurement laws. By deterring unsuccessful bidders from acting at an early date to overturn an award, such a policy would similarly frustrate existing enforcement mechanisms under the procurement statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Paragraph with 'The Rule of Two': grantees are primarily responsible for assuring compliance in attempting to locate and involve minority enterprises in the grant project. They require that \every Grantee should make sure that it knows the names, addresses and qualifications of all relevant MBEs\, and point out that the Office of Minority Business Enterprises (OMBE) in the Department of Commerce and the Small Business Administration (SBA) are prepared to assist grantees and prime contractors in fulfilling the MBE goals (EDA Guidelines at 4). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Paragraph with 'The Rule of Two': Likewise, the House Committee on Small Business reported on the minority business problem: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Paragraph with 'The Rule of Two': a business system which has traditionally excluded measurable minority participation. In the past more than the present, this system of conducting business transactions overtly precluded minority input. Currently, we more often encounter a business system which is racially neutral on its face, but because of past overt social and economic discrimination is presently operating, in effect, to perpetuate these past inequities. Minorities, until recently have not participated to any measurable extent, in our total business system generally, or in the construction industry, in particular. However, inroads are now being made and minority contractors are attempting to \u8216break-into\u8217 a mode of doing things, a system, with which they are empirically unfamiliar and which is historically unfamiliar with them.\ (Summary of Activities of the Committee on Small Business, House of Representatives, 94th Congress, at 182-83 (November 1976). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Paragraph with 'The Rule of Two': by the House Committee on Small Business are not enough. Indeed, the 1% Minority business participation in government contracts estimated in 1976, see text supra at 951, is not substantially different from 1972 figures on gross construction industry receipts by minority firms (1972 Census of Construction Industries, Table A.1; 1972 Survey of Minority-Owned Business Enterprises, Table 5), suggesting that the ability of minority businesses to compete in the construction industry has not significantly increased. Moreover, capital and technical assistance programs do nothing to overcome barriers existing due to lack of confidence in minority business ability or racial prejudice and misconceptions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 61 - Constructors Ass'n of Western Pennsylvania v Kreps.doc, Paragraph with 'The Rule of Two': The SBA administers a variety of assistance programs aimed primarily at economically disadvantaged and minority entrepreneurs. Such programs include the Economic Opportunity Loan Program, which in fiscal 1974 made over 6,000 loans totaling more than $100 million; and the Minority Enterprise Small Business Investment Company Program (MESBIC), through which minority firms are provided venture and long-term capital, guaranteed loans, and management and technical assistance. SBA estimates that more than 1,500 minority businesses have received assistance through the MESBIC program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 66 - Firestone Tire And Rubber Co v U S.doc, Paragraph with 'The Rule of Two': Despite the difficulties that GoCorp had first experienced as the machining subcontractor for Standard and again in the same capacity for Firestone, in mid-December 1968, it entered its own bid in response to an I.F.B. calling for approximately 195,000 shoes to be made according to the same specifications that were involved in the Standard and Firestone contracts. GoCorp was eligible for \u8216set aside\u8217 as a small business and Contract No. DAAE07\u821269\u8212C\u82122745 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 68 - Nationwide Bldg Maintenance Inc v Sampson.doc, Paragraph with 'The Rule of Two': No bid protest had been filed with respect to that contract at the time of the request for documents. Just over two weeks later, however, Nationwide did file a protest with the General Accounting Office urging that the New Executive Office Building contract should have been awarded through small business restricted advertising. J.A. at 26-31. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Large lumber companies brought action to enjoin program under which certain federally owned timber was made available for sale to small lumber companies before being made available for sale to large lumber companies. On motions for summary judgment, the District Court, Charles R. Richey, J., held that large lumber companies had standing to bring action; that Small Business Administration was not required to issue an environmental impact statement in connection with the plan; that the set-aside program did not deprive lumber companies of property without just compensation; and that the program did not violate various acts relating to full employment and to the administration of national forests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Large lumber companies which alleged that federal set-aside program which reserved certain timber being sold by the United States to small lumber companies penalized their natural growth and froze, in perpetuity, their size, location and relationships within the industry made sufficient allegation of injury in fact to have standing to challenge the federal regulations. Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Large lumber companies which argued that set-aside program under which certain federal timber was reserved for sale to small lumber companies imposed an arbitrary market structure upon the industry and which demonstrated an interest in achieving maximum economic potential within the system of private enterprise showed themselves to be arguably within the zone of interests sought to be protected by the Small Business Act and thus had standing to challenge set-aside program which was adopted by the SBA and the United States Department of Agriculture. Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Act does not contain any clear or convincing provision indicating that the SBA administrator\rquote s discretionary actions are precluded from judicial review. Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Act clearly grants the Small Business Administrator wide discretion to effectuate the purposes of the act. Small Business Act, \u167 2 [5], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': In determining whether to adopt a set-aside program under which certain government timber would be made available for sale to small lumber companies before being made available to large companies, need is not a factor which the administrator of the Small Business Administration must take into consideration; rather, the need has already been established by the Small Business Act. Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Evidence, that small lumber companies were on the decline at the expense of large lumber companies and absence of evidence that Small Business Administration\rquote s choice of set-aside program with respect to federal timber was a clear error of judgment in the light of other alternatives, sustained SBA\rquote s decision to implement set-aside program under which certain government timber would be made available to small lumber companies before being sold to larger companies. Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Large lumber companies which were given notice of proposed change in set-aside program under which certain government timber is held for sale to small lumber companies before being made available to large lumber companies and which attended several industry-wide meetings at which proposed program was discussed in depth and which met privately with agency officials and submitted an in-depth analysis of the program, as a result of which some alternatives were adopted, were neither prejudiced nor denied due process by method by which Small Business Administration and United States Department of Agriculture adopted the set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2 [2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration was not obliged to give large lumber companies either formal notice or hearing with respect to proposed set-aside plan under which small lumber companies would be given first opportunity to purchase certain federal timber. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Major lumber companies which challenged set-aside program under which certain federal timber would be made available for sale to small lumber companies and which alleged injury in the nature of damage to the environment in which they worked and upon which they depended for their livelihood demonstrated that they were arguably within the zone of interests sought to be protected by the National Environmental Policy Act and thus had standing to challenge failure of Small Business Administration to issue environmental impact statement in connection with the set-aside program. National Environmental Policy Act of 1969, \u167 2 et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small Business Administration was not required to issue environmental impact statement in connection with regulations relating to set-aside program under which certain federally owned timber would be reserved for sale to small lumber companies before being made available to larger lumber companies as the plan did not change either the manner or volume of timber harvested but merely affected the question of who did the harvesting. National Environmental Policy Act of 1969, \u167 2 et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Eric S. Benderson, for Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': These parties are before the Court on Cross-Motions for Summary Judgment. At issue in this suit is the legality of the 1971 small business timber set-aside program as established by the Memorandum Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': between the Small Business Administration (SBA) and the United States Department of Agriculture (USDA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The Defendants in this case are the Secretary of Agriculture, the Chief of the U.S. Forest Service, and the Small Business Administrator. A number of independent small forest products manufacturers and several associations have been permitted to intervene as Defendants, having demonstrated that they have a direct interest in the continuation of the 1971 set-aside program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The 1971 set-aside program and its 1958 predecessor have their roots in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Congress considered small businesses to be the backbone of the American system of private enterprise and free competition. Finding that the nation\rquote s economic security and well-being depended upon the continued existence of small business, Congress created the Small Business Administration to assist and protect small businesses in so far as possible. In particular, the SBA was directed to work with other agencies to insure that small businesses received a \u8216fair proportion\u8217 of the total sales of government property. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The program was administered, however, on an ad hoc basis. The Forest Service would reserve a timber sale solely for small business competition, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': With the decline in the number of timber purchases by small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': (including the Plaintiffs) the SBA re-examined the set-aside program. The SBA found the 1958 set-aside program to be too ineffective to insure small business a \u8216fair proportion\u8217 of national forest timber sales. The procedure for instituting a set-aside sale was cumbersome. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The SBA has taken the timber sales of 1966-70 and has computed the percentages of the total volume of timber sold to large and small business respectively in each market area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Every six months there is a review of the timber purchases in each market area for the previous six months. If the review shows that the small business purchases equal an accumulated net deficit of ten or more per cent than the base period percentage, a set-aside sale is triggered. Had small business purchased a volume of timber above this trigger point but below the base period percentage, there would be no set-aside sale in the following six months. Any surplus above the small business share is carried over from period to period to offset any deficit. Likewise, any deficiency less than 10 per cent is carried over from period to period until the accumulated deficit reaches 10 per cent at which point the set-aside program is triggered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The 1971 program retains the 1958 restrictions on small business\rquote resale of timber purchased in a set-aside sale to large business. Forest Service Manual \u167 2431.12. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The program does permit large concerns to purchase any set-aside timber which small business fails to purchase. 36 C.F.R. \u167 221.8. Furthermore, under Paragraph 4b of the 1971 agreement, any such set-aside timber large business purchases is counted toward the base share of small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small business purchases a major portion of its national forest timber in unrestricted sales. In fact, only five per cent of the total volume of national forest timber has been sold at set-aside sales. During the 2 1/2 years that the program has been in effect (January 1971-June 1973), the Forest Service has sold approximately 23 billion feet of sawtimber which falls within the setaside program. Small business has purchased 11.2 billion feet. However, only 1.3 billion of the 11.2 billion feet was purchased in set-aside sales. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': As to the second criteria, the Plaintiffs argue that the SBA has irrevocably imposed an arbitrary market structure upon the industry\u8212 a structure contrived without consideration of economic realities, the natural changes in the industry structure or who is the actual purchaser of the national timber. It would appear that the Plaintiffs\rquote interest in achieving its maximum economic potential within the American system of private enterprise is \u8216arguably\u8217 within the zone of interests sought to be protected by the Small Business Act. The Act seeks to promote a continuation of free competition. The Act attempts to realize this goal by assisting small businesses to achieve their maximum potential. The purposes of the Act would not be achieved, however, if the aid to small business consisted of a structure which undermined the vitality of other businesses within the industry. Inherent in such action are the seeds of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': In considering the last requirement, it is quite plain that the Small Business Act does not contain any clear and convincing provision indicating that the SBA Administrator\rquote s discretionary actions are precluded from judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The Small Business Act clearly grants the Administrator wide discretion to effectuate the purposes of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': As a matter of clarification, it should be stated that small business\rquote \u8216need\u8217 is not a factor which the Administrator must take into consideration. The \u8216need\u8217 has already been established by the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The Plaintiffs\rquote other points regarding the basis of the Administrator\rquote s decision consist of unsupported allegations. They offer no evidence contradicting the Administrator\rquote s factual determination that small businesses were on the decline at the expense of large business\rquote significant growth. (See a discussion of the Administrator\rquote s findings, supra, at 366-368.) The Plaintiffs, furthermore, have made no showing that the Administrator\rquote s choice of 1971 program was a clear error of judgment in light of other alternatives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The Administrator adopted the 1971 program after examining the historical position of small business within the timber industry and the problems inherent in the 1958 set-aside program and after listening to the suggestions of members of the industry and weighing the proposed alternatives. The program appears to be the reasonable, precise yet flexible, means of insuring that small businesses receive a \u8216fair proportion\u8217 of government timber sales. The ratio of timber sales which the program seeks to preserve is based upon the competitive history within the industry. Small business is guaranteed no more than an opportunity to bid on that proportion of the market which it has purchased in the past. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': This statement succinctly characterizes the program in issue. The program merely establishes the mechanics through which the SBA has implemented its interpretation of the declared policy of the Small Business Act. Therefore, due to the type of program in question, the SBA was not obligated to give the Plaintiffs either formal notice or a hearing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': , respectively. To the contrary, the timber set-aside program appears quite consistent with these national policies in that it is part of the aid to small business which Congress has declared will preserve the freedom of competition basic to the economic well-being and security of this country. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': At the expense of being repetitive, the Court finds the 1971 set-aside program pertains solely to the opportunity to submit bids on a certain percentage of national forest timber when, and only when, the timber purchases of small forest products manufacturers has declined more than ten per cent of their historic share of the timber market. The program is small business\rquote bulwark against their shut out from bidding on government timber. It does not reduce large business\rquote historical share of the timber market nor does it increase that of small concerns. It does not increase the volume of logs cut, nor does it cast past harvesting and environmental regulations to the wind. The Defendants have acted within the scope of their authority and have developed, with the Plaintiffs\rquote assistance, a reasonable program to effectuate the Defendants\rquote statutory responsibilities. Since the program is reasonable in substance and in its adoption, the Court will pay due deference to the agencies\rquote expertise in this area. Thus, for the reasons stated above, the Court will grant the Defendants\rquote Motion for Summary Judgment and deny the Plaintiffs\rquote Motion for Summary Judgment. An Order of even date will be entered in accordance with this Opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Specifically, the Plaintiffs allege the SBA-USDA action falls outside the statutory authority of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Under the 1958 program in some regions the Forest Service used a three year \u8216rolling\u8217 base average to determine small business\rquote share of the timber market when calculating set-aside needs. The \u8216rolling\u8217 concept meant a three-year average, which was revised every year to reflect a new threeyear period. Deposition of Gene F. VanArsdale, Chief Prime Contracts and Property Sales Division, Office of Procurement Assistance, Small Business Administration, taken January 25, 1974 (hereinafter, VanArsdale Deposition) at 16-17. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': A survey of six Forest Service Western Regions showed small businesses had purchased 75% Of the National Forest timber in 1958 and 44% In 1966-70. USDA, Forest Service, Environmental Analysis Report, Small Business Administration Set-Asides for National Forest Timber Sales dated January 30, 1974, filed February 5, 1974 as a supplemental answer to Plaintiffs\rquote Interrogatory No. 6e (hereinafter, Report) at 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The SBA received reports that high bids by larger timber companies precluded small business from competing in unrestricted sales because they could not process the timber at a profit. VanArsdale Deposition at 170, 182, 209. The SBA had further reports of successful higher bidding by large companies who had not previously competed in a particular forest. Id. at 179. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': To institute a set-aside, a small business had to submit a complaint. There then had to be finding of \u8216need\u8217 by the SBA timber specialist. The proof of need was then submitted to the regional Forest Service supervisor for his finding. If the two agreed a set-aside sale was instituted. Deposition of Mr. Paul E. Neff, Retired Director of Timber Management, Forest Service, USDA, taken January 18, 1974 (hereinafter, Neff Deposition) at 12-14, 20, 24; VanArsdale Deposition at 11, 12-24. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Small business must agree that it will not sell more than 30 per cent of the timber acquired in a set-aside sale. The 30 per cent restriction can be changed in those geographical areas where it is appropriate due to the nature of the industry (i.e., the 50 per cent restriction in Alaska). The restriction applies only to a resale to a large business. It does not apply to timber exchanges with large business, nor does it apply to a resale to a small business. The restriction in no way affects a small business\rquote resale of timber purchased in an unrestricted (i.e., non set-aside) sale of national forest timber. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': \u8216The above provisions do not preclude USDA and SBA from taking other factors into consideration in specific cases when computing base average share, nor from otherwise establishing or eliminating set-asides which they deem appropriate under the Small Business Act. USDA and SBA may make allowance for such factors as past long-term sales, large salvage sales, or other unusual considerations, when computing the base average share.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Report at 12. Thus, small business has purchased approximately 89 per cent of its national forest timber purchases through unrestricted sales. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': of the Small Business Act, which prohibits the issuance of an injunction against the Small Business Administrator \u8216in the performance of, and with respect to, the functions, powers, and duties vested in him by this chapter,\u8217 is not clear and convincing evidence that the Administrator\rquote s action in this instance is precluded from judicial review. Despite the wide discretion and broad powers with which the Administrator is vested, it would appear from the language of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': of the Small Business Act commands the Administrator and the disposal agency to set aside a fair proportion of government property for the exclusive benefit of small business. E.g., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': explicitly states that small business: \u8216Shall . . . be awarded any contract for the sale of Government property, as to which it is determined by (the Small Business Administrator) and the contracting procurement or disposal agency . . . to be in the interest of assuring suring that a fair proportion of the total sales of Government property be made to small-business concerns.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': It is also clear that Congress contemplated the use of set-aside sales for small business in the timber industry. See the remarks of Senators James Murray (D., Mont.) and Wayne Morse (D., Ore.) during the debate on the amendment to extend the coverage of the Small Business Act to include the sales of government property. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': Section 7(5) of the Bill directed the Secretary of Agriculture to establish policies which would assure that small businesses collectively would obtain a fair proportion of the total timber sold in each year from each national forest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The accompanying House Report stated this provision was added to increase the cooperation between the Small Business Administration and the Forest Service to assure small businesses who had suffered along with the rest of the forest industry from the general shortage of timber, could obtain that proportion of the total timber sold annually which represented their collective average percentage of timber from each national forest over the preceding 3 calendar years. H.R.Rep.No. 91-655, 91st Cong., 1st Sess. 10 (1969). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': \u8216An agreement between the Department of Agriculture and the Small Business Administration pursuant to the 1958 Small Business Act requires that a fair proportion of national forest timber sales be reserved for small business. The system apparently has worked well although the small producer, along with the rest of the industry, has suffered from the general shortage of timber as documented in the March 1969 hearings before the Banking and Currency Committee\u8217. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 86 - Duke City Lumber Co v Butz.doc, Paragraph with 'The Rule of Two': The specific impact which the Plaintiffs claim is under-utilization of our natural resources. The Plaintiffs\rquote thesis is that larger companies are more capable of using the timber to its full potential because they are better integrated and have financial resources to procure expensive, technologically advanced equipment to achieve the greater integration. The Plaintiffs see any limitation on small business\rquote resale of set-aside timber to large companies as underscoring the under-utilization syndrome. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 89 - Luce v U S.doc, Paragraph with 'The Rule of Two': Charges of disappointed government contractor seeking to recover cost of preparing his bid that removal of small business set aside by Government had been improper and that there had been a conspiracy between those in charge of bidding and awarding of contract and company to which contract was awarded to award the contract to that company did not present triable issue of fact, in view of lack of substantiation and Government\rquote s detailed showing of how the award was made. Court of Claims Rules, rule 64(d), 28 U.S.C.A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 89 - Luce v U S.doc, Paragraph with 'The Rule of Two': The plaintiff is a disappointed bidder on a Government contract to supply security guard services for the Los Angeles Air Force Station, Los Angeles, California, for a 3-year period, July 1, 1972, through June 30, 1975, and sues here to recover the cost of preparing his bid. This project was initially proposed as a 100 percent small business set aside which was limited to firms with total annual sales in the previous fiscal year of less than $5 million. Later the size standard was reduced to $1 million, but because of the reduction in competition this would cause, the small business set aside was deleted from the Request for Bids. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 89 - Luce v U S.doc, Paragraph with 'The Rule of Two': This was approved by the authorized representative of the Small Business Administration. Thereafter, bids were received from the plaintiff and nine other bidders. The bids were considered and evaluated by the Cost Panel and the Source Selection Authority without their knowing the names of the companies whose proposals were presented. The plaintiff\rquote s bid ranked number five on its technical score out of eight who were determined to be within competitive range under ASPR 3\u8212805.1(a), and number five in cost out of the eight in the competitive range. The contract was awarded to the H. L. Yoh Company whose bid was second highest in technical score and the lowest in cost in the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 89 - Luce v U S.doc, Paragraph with 'The Rule of Two': The plaintiff has alleged that the removal of the small business set aside was improper, and that there was a conspiracy between those in charge of the bidding and awarding of the contract and H. L. Yoh Company to award the contract to H. L. Yoh Company, and that by reason thereof, plaintiff should recover the costs of preparing his bid. The court has concluded that these charges do not present a triable issue of fact in view of their lack of substantiation and defendant\rquote s detailed showing of how the award was made. See Rule 64(d). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 97 - Keco Industries Inc v U S.doc, Paragraph with 'The Rule of Two': In certain procurements, the awardee must clear another hurdle or two as well; he must show that he is a \u8216small business\rquote concern, or that performance will take place in a \u8216labor surplus area,\u8217 etc. Conceivably, the Government may err in making any of the above determinations with respect to any bidder. And if it does, a frustrated bidder may feel that such irregularities (in the treatment of his bid or that of a competitor) deprived him of a fair shot at the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 97 - Keco Industries Inc v U S.doc, Paragraph with 'The Rule of Two': If a prospective government contractor clears all these requirements in an advertised procurement, he may still be found ineligible for award in some cases, e.g., where the contract has been \u8216set aside\u8217 for a small business or for a labor surplus area concern. In each such case, there are procedures for determining eligibility, and the degree of leeway granted government officials by those procedures would ordinarily frame the appropriate standard for judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 97 - Keco Industries Inc v U S.doc, Paragraph with 'The Rule of Two': ; ASPR \u167 2.301; FPR \u167 1\u82122.301. Or it could be that a claim will follow from the defendant\rquote s failure to pursue the established procedures in selecting an awardee in a small business or labor surplus area set-aside. Cf. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': was promulgated in 1960, long prior to the Washington Plan of October 1970, but also that an almost identical provision had been included in the Armed Services Procurement Regulations since 1955. See 32 C.F.R. 2-405. The latter provision has been understood to relate directly to the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': The enactment of the Small Business Act in 1953 rendered the size of a firm significant for procurement purposes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': Under implementing regulations issued by the Small Business Administration the number of employees which a small business might have within the small business definition varied from industry to industry. See 41 Comp. Gen. 739-40 (1962). Bidders were asked to state the number of their employees so that contracting officers might determine whether their firms came within the relevant SBA small business definition. Such information clearly went to the \responsibility\ of the bidder rather than to the \responsiveness\ of the bid, since it did not affect the bidder\rquote s legal obligations. The term \number of employees\ as used in the \minor informalities\ provision relates to a firm\rquote s capacity and capabilities, to a matter of \responsibility\. The recent Armed Services Regulations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': For the purpose of this title * * * a small business concern shall be deemed to be one which is independently owned and operated and which is not dominant in its field of operation. In addition to the foregoing criteria the Administration, in making a detailed definition, may use these criteria among others: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': The company failed to state whether or not it is small business as required by page 2 of Standard Form 33 at 33A. (P. 4). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 04 - Northeast Const Co v Romney.doc, Paragraph with 'The Rule of Two': ASPR-405(ii) [the equivalent of 41 C.F.R. 1-2.405(b)] specifically includes the bidder\rquote s failure to make a representation concerning his size status as an example of the type of minor informality that can be waived. Therefore, it is of no consequence that the company failed to indicate in its bid whether it is a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Action for breach of contract. The Court of Claims, Cowen, Chief Judge, held that government cannot rescind validly awarded contract, advertised as total small business set-aside, even though successful bidder is subsequently declared not to be small business; and that judicial determination that successful bidder on contract, was not small business did not affect validity of contract already entered into. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Government cannot rescind validly awarded contract, advertised as total small business set-aside, even though successful bidder is subsequently declared not to be small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Contracting officer who delayed award of contract, advertised as total small business set-aside, until after Small Business Administration had determined that successful bidder was, and that another bidder was not, eligible for award, had necessary authority to award contract to successful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Judicial determination that successful bidder on contract, advertised as total small business set-aside, was not small business did not affect validity of contract already entered into. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': , this court held that the Government cannot rescind a validly awarded contract, advertised as a total small business set-aside, where the successful bidder is subsequently declared to be not a small business. Although the facts in this case are somewhat different, we think that the outcome should be the same. Accordingly, we grant plaintiff\rquote s motion for summary judgment, deny defendant\rquote s cross-motion, and remand the case to our trial commissioner for a determination of the amount of recovery. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': In March 1970, the United States Air Force issued an Invitation for Bids, on a \Small Business Restricted Advertising\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Several days after the bids were opened, both Wood and Chapman-Edwards Construction Co. (the fifth-low bidder) filed protests with the Small Business Administration in which they asserted that Dyson and Campbell were not small businesses. The Southeastern Area Office of the S.B.A., and later the Size Appeals Board, upheld their protests as to Dyson, but rejected their argument that Campbell\rquote s average annual receipts exceeded the $7,500,000 ceiling set out in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': S.B.A.\rquote s definition of a small business. (See 13 C.F.R. \u167 121.3-8 (1970).) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Upon receiving the decisions of the Size Appeals Board, the contracting officer at Eglin Air Force Base prepared on June 15, 1970, a Notice of Award to Campbell, which later that day he forwarded for mailing to the Registered Mail Center at the base. On the same day, Wood filed suit in the United States District Court for the Northern District of Alabama, in which it sought an injunction against the award and a declaration reversing the S.B.A.\rquote s determination that Campbell was an eligible small business. The contracting officer was not informed of Wood\rquote s suit until the following morning, by which time the Notice of Award had already been sent to Campbell. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Campbell subsequently intervened in the suit as a party-defendant, and a hearing was held on August 4, 1970. On August 13, the District Court issued a memorandum opinion which overturned the S.B.A.\rquote s determination that Campbell was an eligible small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': and that it was also without power to issue an injunction against either the Air Force or the Small Business Administrator. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': Subsequently, on August 26, 1970, the contracting officer \rescinded\ Campbell\rquote s Notice of Award on the basis that the District Court\rquote s determination that Campbell was not a small business rendered it ineligible for the award. Campbell protested Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': business, should not have substituted its own judgment for that of the Small Business Administration where that agency\rquote s decision was based upon its technical expertise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': . Like here, that case involved a contract set aside for small businesses, which was later cancelled when the successful bidder was declared to be not a small business. In rejecting the argument that such circumstances render the contract void (or voidable at the Government\rquote s option), we held that the sole inquiry is \whether the contracting officer was authorized, in the circumstances, to make the award to plaintiff even though the company was not truly a \u8216small business.\\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': the Small Business Administration had determined that Campbell was, and Dyson was not, eligible for the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': 32 C.F.R. \u167 1.703(b)(3)(iv) (1970). Indeed, he could no longer even question Campbell\rquote s eligibility (or Dyson\rquote s ineligibility) for the award, as the Small Business Act requires him to accept, as \conclusive,\ all size determinations by the S.B.A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': because the procurement was not urgent, at least not at the time of the original award to Campbell. Since there was no urgency, the contracting officer had no authority, the Government says, to waive the \small business limitation\ in the invitation as did the contracting officer in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': rights under that contract were established whether or not it was in fact a small business. As we read the District Court\rquote s decision, it did nothing more than declare that Campbell was not a small business. Such a declaration did not affect the validity of Campbell\rquote s contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 10 - Allen M Campbell Co v US.doc, Paragraph with 'The Rule of Two': . True, the District Court did not order an award to Lloyd Wood, or enjoin one to Campbell, measures it deemed outside its jurisdiction, but it said and did so much to bring about that outcome, it cannot now avoid responsibility for it. To \set aside\, as it did, the determination of the SBA that Campbell was a small business, left no other option but paralysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 18 - Wheelabrator Corp v Chafee.doc, Paragraph with 'The Rule of Two': Data for fiscal 1969 and 1970 derived from the Annual Reports of the Comptroller General for 1969 (p. 255) and 1970 (p. 111). Data for 1968 derived from Hearings, House Government Operations Committee on H.R. 474, p. 743, 91st Cong., 1st Sess. Data for 1967 derived from Hearings, Senate Select Committee on Small Business, February 6, 7 and April 2, 3, 1968, p. 237, 90th Cong., 2d Sess. (Represents statistics for period July thru December 1967). Data for fiscal 1971 derived from Paul G. Dembling, Bid Protest Techniques, address before the National Contract Management Association, Washington, D. C., September 1971. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 22 - Jamsar Inc v U S.doc, Paragraph with 'The Rule of Two': The pertinent facts are actually quite simple; it is the interjection of the human element that makes things complicated. It all began when the defendant, through the General Services Administration, invited several small business concerns to submit bids for the painting of Federal Building No. 1, Third & C Streets, SW., Washington, D.C. These bids were to contain estimates for painting the exterior as well as the interior of the second and third stories. However, the dispute to be discussed herein arises only as to the interior painting and, therefore, no further references will be made to exterior painting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 23 - Keco Industries Inc v U S.doc, Paragraph with 'The Rule of Two': Plaintiff, Keco Industries, is a \u8216Small Business\rquote corporation organized and existing under the laws of the State of Ohio, with its principal offices in Cincinnati. It is engaged in the business of manufacturing specialized air conditioning and does substantially all of its work either directly or indirectly for the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Corporation filed action against United States for breach of contract. The Court of Claims, Davis, J., on defendant\rquote s motion for summary judgment and plaintiff\rquote s motion for partial summary judgment, held that after plaintiff had submitted low bid in response to invitation with total small business setaside issued by Department of Agriculture, and after next low bidder had filed protest with Small Business Administration on ground that plaintiff was not qualified \u8216small business,\u8217 contracting officer was authorized upon passage of ten-day period in which SBA might have rule on the protest and upon determining that any further delay in procurement action on invitation for bids would be disadvantageous to the government, to make final award to plaintiff, even though the plaintiff, as later determined, was in fact not a qualified small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': After plaintiff corporation had submitted low bid in response to government invitation with total small business set-aside and after protest had been filed on ground that plaintiff was not qualified \small business\, contracting officer was authorized, upon passage of ten-day period in which Small Business Administration might have ruled on protest and upon officer\rquote s determining that any delay would be disadvantageous to government, to make final award of road construction contract to plaintiff, even though the plaintiff was in fact not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[1]\u82112 [18], 2[5] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Where Small Business Administration has failed to pass within 10 working days, upon protest that low bidder on contract with small business set-aside is not qualified \small business\ and where contracting officer makes determination that further delay would be disadvantageous to government and makes award, it is irrelevant whether contracting officer personally knew that his finding would result in a binding award despite SBA\rquote s subsequent determination that low bidder was not a small business. Small Business Act, \u167\u167 2[1]\u82112[18], 2[5] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Evidence supported contracting officer\rquote s finding, made when Small Business Administration had not made timely ruling on protest that lowest bidder was not a qualified small business, that any further delay in procurement action on the invitation for bids on Alaska road building contract would be disadvantageous to the government. Small Business Act, \u167\u167 2[1]\u82112[18], 2[5] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': to an invitation with a total small business set-aside issued by the Forest Service of the Department of Agriculture in May 1964. (A total small business set-aside means that the entire award is to go to a \u8216small business.\u8217) After the bids were opened in June and plaintiff\rquote s was determined to be low, the next low bidder, B & A and Yutan Construction Company (Yutan), protested that Mid-West was not a \u8216small business\rquote under 13 C.F.R. s \u167 121.3\u82122(g) (1963), which requires an otherwise eligible \u8216concern\u8217 to have \u8216a place of business located in the United States * * *\u8217 in order to qualify. The contracting officer forwarded the protest to the nearest regional office (Seattle) of the Size Standards Division, Small Business Administration (SBA). The Seattle office\rquote s decision in favor of plaintiff was affirmed in the District of Columbia on July 13 by the Acting Director of the Size Standards Division. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Plaintiff then filed its petition in this court, claiming that the contract was legally binding on the Government (and, therefore, its attempted disavowal was a breach) because the contracting officer had the authority to make an award no matter what the outcome of Yutan\rquote s appeal to the Size Appeals Board, and, alternatively, because Mid-West was in fact a small business at the time of the award (and, therefore, the decisions of the Board and the Comptroller General to the contrary were erroneous and invalid). Defendant has responded by moving for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': We start by putting wholly to one side plaintiff\rquote s secondary argument (that it was in fact a qualified \u8216small business\rquote ), and all the points and counterpoints that follow upon that theme. As we see the case, it makes no difference whether or not (a) plaintiff was an eligible bidder, (b) the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': We clear the decks in this way because, for us, the case turns entirely on the question whether the contracting officer was authorized, in the circumstances, to make the award to plaintiff even though the company was not truly a \u8216small business.\u8217 That narrow issue of contracting authority is governed by the pertinent regulations, which we must sketch in some detail. There are two sets\u8212the Small Business Administration Regulations (SBAR) and the Federal Procurement Regulations (FPR)\u8212which interconnect and have equal bearing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': The regulations each provide that bids for set-asides received from firms not qualifying as small businesses (as defined in the Small Business Act, 15 U.S.C. ss Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': , and the regulations under it) are to be rejected as nonresponsive. 13 C.F.R. s \u167 127.15\u82122 (1963) (SBAR); 41 C.F.R. s \u167 1\u82121.706\u82125 (1964) (FPR). But this generality must be read together with other sections dealing specifically with the procedures for determining small business status and the effect of those determinations (or lack thereof) on federal procurement activity. The SBA regulations say, for instance, that \u8216(i)n the absence Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': of a written protest or other information which would cause him to question the veracity of the self-certification (by the bidder in its bid that it qualifies as a small business), the contracting officer shall accept the self-certification at face value for the particular procurement involved.\u8217 13 C.F.R. s \u167 121.3\u82128(d) (1963). Under the FPR the officer, if there is no protest, is to accept the representation \u8216as conclusive for the purpose of a specific procurement.\u8217 41 C.F.R. s \u167 1\u82121.703\u82121 (1964). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': According to both sets of regulations, \u8216any responsive bidder or offeror may, prior to the award, question the small business status of any apparently low bidder or offeror\u8217 by filing a written protest with the responsible contracting officer, who is directed to forward it to the nearest SBA regional office. 13 C.F.R. s \u167 121.3\u82125(a) (1963) (SBAR); 41 C.F.R. s \u167 1\u82121.703\u82122(a) (1964) (FPR). Any protest made after an award is ignored. See 12 C.F.R. s \u167 121.3\u82122(p) (1963) (SBAR); 41 C.F.R. s \u167 1\u82121.703\u82122(b) (1964) (FPR). If the protest is timely, the SBA must determine the protested firm\rquote s qualifications and notify it of the decision \u8216within ten working days, if possible.\u8217 13 C.F.R. s \u167 121.3\u82125(c) (1963 & Supp.); 41 C.F.R. s \u167 1\u82121.703\u82122(d) (1964) (FPR). The contracting officer \u8216shall accept as conclusive the Administration\rquote s determinations as to which enterprises are to be designated \u8216small-business concerns\rquote * * *.\u8217 Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': the Small Business Administration\rquote s regulations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Procurement action shall be suspended pending SBA\rquote s determination or expiration of the 10-day period whichever is earlier, unless unusual conditions make it necessary that an award be made. If SBA\rquote s determination is not received by the contracting officer within 10 working days after SBA\rquote s receipt of the protest, the contracting officer shall ascertain when such determination can be expected. In cases where further delay in awarding the contract would be disadvantageous to the Government, it shall be presumed that the questioned bidder or offeror is a small business concern. (41 C.F.R. s \u167 1\u82121.703\u82122(e) (1964).) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': from unqualified bidders and since the Small Business Act directs those officers to accept, as conclusive, the SBA\rquote s size determinations, the contracting officer had no authority to award the contract to Mid-West because, by the conclusive finding of the SBA Size Appeals Board and the Administrator, the company was not a qualified small business. To avoid this, defendant argues, Mid-West would have to show that the contracting officer\rquote s determination of its status was conclusive, an impossible task since, as defendant correctly maintains, the FPR and SBAR give the contracting officer no decision-making role in size determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': But that does not end the matter, for plaintiff can prevail if the contracting officer had power to make an award regardless of whether Mid-West was in fact a \u8216small business\rquote . Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': , we held that the SBA and Armed Services Procurement Regulations on awarding small business set-asides in the absence of a protest Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': contemplated a binding award to the bidder \u8216whether it was one (a small business) in fact of not.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': business status in the absence of a protest, as well as the provision calling upon the contracting officer and the SBA to ignore a protest filed after an award. In each instance the award in binding on the Government even though the bidder, in fact, may not be a small business. Cf. 9 C.C.F. s \u167 72601 (1964) (No. B\u8212153780); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': (No. B\u8212146438). The crux of the argument, therefore, is not that a contracting officer can never award a contract to an unqualified, or nonresponsive, bidder but that the exceptional authority, granted in the no-protest and the late-protest situations, does not exist when the SBA, pursuant to the procedures outlined in its regulations, determines after the award that a bidder is not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': when such determination can be expected. In cases where further delay in awarding the contract would be disadvantageous to the Government, it shall be presumed that the questioned bidder or offeror is a small business concern.\u8217 As we understand this section, the contracting officer is expressly granted authority to accept a bid, even though the SBA might subsequently determine the bidder to be unqualified, if the delay in awaiting the ultimate SBA determination would be disadvantageous to the Government. In other words, if the SBA has had a 10-day period in which to rule on eligibility but has not yet acted finally, and if a speedy procurement is found necessary, the contracting officer may make a binding and valid award without waiting for the final SBA determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': Defendant denies this reading primarily on the ground that the phrase, \u8216it shall be presumed that the questioned bidder or offeror is a small business concern\u8217 (emphasis added), merely means that the contracting officer may accept a rebuttable presumption that the bidder qualifies, a presumption which will be overcome by any subsequent SBA determination to the contrary. \u8216Presumed\u8217 is, of course, a Joseph\rquote s-coat word, with a \u8216rebuttable inference\u8217 as one of its several tones\u8212but another common usage is a \u8216conclusive presumption\u8217 in which a particular fact, status, or quality cannot be refuted or, more accurately, its actual existence is thereafter held to be irrelevant. In this context \u8216presumed\u8217 is the same as \u8216deemed\u8217; both words mean that one thing is to be taken as the equivalent of another, regardless of a possible discordance in fact. This latter interpretation makes Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': We recognize, of course, that this reading of paragraph 1.703\u82122(e) creates some strain with the major policy of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': , in that an award of a small business set-aside to an unqualified concern will deprive an eligible small businessman of a Government contract. But those who administer the Act have plainly decided that the Congressional policy favoring small business was not expected to be enforced to the exclusion of all other interests. Witness the regulations accepting self-certification where no protest, a late protest, or a late appeal is filed, and the portion of paragraph (e) allowing an award\u8212where \u8216unusual conditions make it necessary that an award be made\u8217\u8212within the initial 10-day span allotted to SBA. Congress must be taken to have anticipated that general procurement interests would be given their place. In this instance, the serious risk of after-award cancellations resulting from the Government\rquote s interpretation of the regulation not only would be detrimental to contractors, see Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': is an explicit and permissible recognition by the executive of a situation in which the need for speed and certainty outbalances the single-minded enforcement of the policy of the Small Business Act to the limits of its own logic. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': that \u8216delay in the procurement was a factor which was present.\u8217 What the affidavit says is that (i) the contracting officer thought that the SBA had finally determined that plaintiff was qualified, and (ii) he did not make any determination \u8216that Mid-West should obtain the contract whether or not it was a qualified small business.\u8217 Even if we were to accept these statements at face value, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': The SBAR are promulgated by the Administrator of the Small Business Administration pursuant to authority granted by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': \u8216(d) SBA will, within 10 working days, if possible, after receipt of a protest, investigate and determine the small business status of the protested bidder or offeror and notify the contracting officer, the protestant, and the protested bidder or offeror of its final decision. Such decision is final unless appealed in accordance with paragraph (f) * * * and the procuring activity is notified of the appeal prior to award. If an award was made prior to the time the contracting officer receives notice of the appeal, the contract shall be presumed to be valid and any determination rendered shall be considered in future procurements.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': There is nothing in the paragraph which confines this authority to the period prior to a determination by the SBA regional office (or other low-level determination), and it would be extraordinary to limit it in that fashion since injurious delay can more readily be found the longer the SBA takes to make its ultimate determination. It is significant that the Federal Procurement Regulations on protests as to small business status treat the SBA as a unit and do not distinguish between the layers of authority within that agency. Paragraph (d) of s \u167 1\u82121.703\u82122 (immediately preceding the paragraph (e) in question) declares flatly that \u8216SBA (not merely the regional office or the Size Standards Division) will, within 10 working days, if possible, after receipt of a protest, investigate and determine the small business status of the protested bidder or offeror and notify the contracting officer, the protestant, and the protested bidder or offeror of its decision\u8217 (emphasis added). Similarly, when paragraph (e) refers to \u8216SBA\rquote s determination\u8217 it means SBA as a whole. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': \u8216We have your telegram of this date announcing your intention to appeal the Small Business Administration determination that Mid-West Construction Company, Ltd. has small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': \u82166. That, at this date, I cannot recall the exact time between 10:10 A.M. July 13, and 10:00 A.M. July 14, I obtained knowledge S.B.A. had determined Mid-West Construction, Ltd. to be small business. I do recall that immediately after being informed by S.B.A. of Mid-West small business status, I met with representatives of the Division of Engineering for the purpose of deciding on which proposal to accept. After the decision was made to accept Mid-West\rquote s Proposal 2\u8212C, I met with the Regional Budget Officer to obtain documented assurance sufficient funds were available and reserved for Proposal 2\u8212C. I then sent Mid-West a telegram of acceptance at 10:00 A.M. on July 14. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': \u82167. I can definitely recall, however, that I transmitted the award notice expressly upon my belief that it had been finally determined by S.B.A. that Mid-West Construction, Ltd. was a small business qualified to receive the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': That is, while delay in the procurement was a factor which was present (in that operating personnel desired a road to be constructed) I can definitely affirm that the award notice was transmitted only upon my belief that S.B.A. had ruled, finally, that Mid-West Construction, Ltd. was a qualified small business. I did not transmit the award notice upon any determination that Mid-West should obtain the contract whether or not it was a qualified small business, and, to my, knowledge, no such determination exists.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 37 - Mid-West Const Limited v U S.doc, Paragraph with 'The Rule of Two': If the contracting officer was correct in January 1967 in saying that on July 14, 1964, he felt that SBA consideration was already ended, it is very hard to see how he could have signed a letter on that same day, July 14, 1964, expressly acknowledging Yutan\rquote s \u8216telegram of this date announcing your intention to appeal the Small Business Administration determination that Mid-West Construction Company, Ltd., has small business status * * *,\u8217 and yet not have notified Mid-West that the award made a few hours before was made on the erroneous assumption that a final SBA decision had been rendered. Cf. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 42 - Micrecord Corp v U S.doc, Paragraph with 'The Rule of Two': On May 10, 1963, the court entered judgment in the amount of $3,577.21, plus interest, for defendant on its counterclaim based upon a loan to plaintiff by the Small Business Administration. This amount has not yet been paid by plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 46 - Warren Bros Roads Co v U S.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s bid for the proposed work was approximately $601,050. In compliance with the Invitation, plaintiff indicated that it was not a small business within the meaning of paragraph 10 of the Invitation for Bids. The bid submitted by Kershaw, which company fell within the definition of a small business, was for approximately $577,400. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 46 - Warren Bros Roads Co v U S.doc, Paragraph with 'The Rule of Two': Thereafter and on or about May 3, 1960, Kershaw applied to the Small Business Administration for a Certificate of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 46 - Warren Bros Roads Co v U S.doc, Paragraph with 'The Rule of Two': (a) SBA has statutory authority to certify the competency of any small business concern as to capacity and credit. \u8216Capacity\u8217 means the overall ability of a prospective small business contractor to meet quality, quantity, and time requirements of a proposed contract and includes ability to perform, organization, experience, technical knowledge, skills, \u8216know-how,\u8217 technical equipment, and facilities. Contracting officers shall accept SBA certificates of competency as conclusive of a prospective contractor\rquote s responsibility as to capacity (see ss \u167\u167 1.903\u82121 and 1.903\u82122) and credit (see s \u167 1.903\u82121(b)): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 46 - Warren Bros Roads Co v U S.doc, Paragraph with 'The Rule of Two': (4) This procedure does not apply where the contracting officer has found a small business concern nonresponsible for a reason other than lack of capacity or credit. Thus, it does not apply where a concern does not satisfy the criteria of responsibility in s \u167 1.903\u82121(a), (e), (f), and (g). Where the contracting officer determines that a concern does not meet the requirements of s \u167 1.903\u82121(d) as to a satisfactory record of performance, the procedure is mandatory only if the unsatisfactory record of performance was due solely to inadequate capacity or credit. However, if the contracting officer has any doubt as to whether the unsatisfactory record of performance can reasonably be attributed solely to lack of capacity or credit, the matter shall be discussed with the local SBA representative. If the local SBA representative is of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 46 - Warren Bros Roads Co v U S.doc, Paragraph with 'The Rule of Two': In an effort to obtain a withdrawal of the Certificate of Competency, representatives of the Corps of Engineers conferred with the officials of the Small Business Administration on May 20, 1960, but the SBA declined to accede to the request. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': Proceeding on a claim against the government by air carrier protesting as illegal cancellation of its airlift contract. The Court of Claims, Collins, J., held that Air Force contracting officer did not abuse his discretion in making determination of existence of urgency with respect to award of airlift services contract to small business firm, obviating reference to Small Business Administration, where Air Force desired service to begin by October 1 and rejection of low bidders as result of recommendation of capability survey committee, making it necessary for contracting officer to determine whether to issue certificate did not take place until meeting held on September 10 and 11, but that carrier could be properly limited in its recovery against government by termination-for-convenience clause of agreement so as to preclude recovery for anticipated profits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': Air Force contracting officer\rquote s certificate of urgency for award of contract to small business firm issued to obviate reference to Small Business Administration was valid though executed after award of contract without such reference where determination of urgency had actually preceded award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': Air Force contracting officer did not abuse his discretion in making determination of existence of urgency with respect to award of airlift services contract to small business firm, obviating reference to Small Business Administration, where Air Force desired service to begin by October 1 and rejection of low bidders as result of recommendation of capability survey committee, making it necessary for contracting officer to determine whether to issue certificate did not take place until meeting held on September 10 and 11. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': The pertinent facts can be summarized as follows: On August 13, 1958, the Military Air Transport Service (hereinafter \u8216MATS\rquote ) issued invitations for bids regarding 13 items of airlift service. One of these items, No. 7, is involved in the present suit. Only \u8216small business firms\rquote were permitted to bid with regard to item 7. Finding 6. The bid opening was held on September 4, 1958. Three firms submitted bids which were lower than plaintiff\rquote s. Before the contracting officer could make an award, he was required to obtain from the MATS Capability Survey Committee a recommendation as to the qualifications of the low bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': low bids be rejected. Moreover, the contracting officer stated that he had decided to (1) find that a condition of urgency existed, (2) issued a certificate to that effect, and (3) proceed with the procurement without referring the rejected bids to the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': On October 24, 1958, the GAO issued an opinion to the effect that (1) since the certificate of urgency was issued subsequent to the award of the contract to plaintiff, such certificate was invalid and (2) therefore, the low bidders were entitled to have their capacity judged by the Small Business Administration (hereinafter the \u8216SBA\u8217). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': First, it must be noted that referral to the SBA was not required in every instance when the bid of a small business concern was rejected for lack of capacity or credit. The pertinent regulation, ASPR \u167 1\u8212705.6, provided in part, as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': \u8216(b) If a small business concern has submitted an otherwise acceptable bid or proposal but has been found by the contracting officer to be nonresponsible as to capacity or credit, and if the bid or proposal is to be rejected for this reason alone, (i) SBA shall be notified of the circumstances so as to permit it to issue a certificate of competency, and (ii) award shall be withheld pending either SBA issuance of a certificate of competency or the expiration of ten working days after SBA is so notified, whichever is earlier; subject to the following: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 47 - Coastal Cargo Co v U S.doc, Paragraph with 'The Rule of Two': Plaintiff suggests that, since bidding on item 7 was limited to \u8216small business concerns.\u8217 ASPR \u167 1\u8212705.6 may not have been applicable to that item. Plaintiff notes that the purpose of the referral procedure is to assure that \u8216small businesses\rquote receive their fair share of Government contracts. Plaintiff\rquote s position is a reasonable one. However, in view of the decision which we reach, it is unnecessary for us to pass upon plaintiff\rquote s assertion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with 'The Rule of Two': Small business firms cannot be considered for this procurement since the urgency of the requirement necessitates awarding to the American Optical Company, a large business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 63 - Goldwasser v U S.doc, Paragraph with 'The Rule of Two': Defendant\rquote s purpose was to employ a printer to print its weekly newspaper over a 50-week period in quantity sufficient to provide each employee of the Shipyard with a copy. That is why the contract provided for a fixed minimum quantity for each issue, but gave the contracting officer authority to order increments in units of 1,000 copies. The long term of the contract and the large contract price are also the reasons why the defendant required plaintiff to obtain a Certificate of Competency from the Small Business Administration before it would make the award to him. If it were able to shut plaintiff off after purchasing $100 worth of printing, defendant would not have gone to the trouble of assuring itself of his competency to perform the contract Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 69 - Paul v US.doc, Paragraph with 'The Rule of Two': And in s 2(b) Congress declared that a fair proportion of purchases and contracts made under the chapter should be placed with small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 88 - Heyer Products Co v US.doc, Paragraph with 'The Rule of Two': Three months elapsed between the opening of the bids and the award of the contract. In the meantime, plaintiff\rquote s president had appeared before the Select Committee on Small Business of the United States Senate in connection with the rejection of a prior bid of the Heyer Products Company for 3,000 low-voltage circuit testers, and in that hearing he had testified that that contract had been awarded to Weidenhoff Company, who was higher than six other bidders and whose bid was $116,730 higher than plaintiff\rquote s low bid of $134,100. It is further alleged that after hearing this testimony, the Committee, to quote from its report (Senate Report 1092, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 88 - Heyer Products Co v US.doc, Paragraph with 'The Rule of Two': After hearing testimony of representatives of the Ordnance Corps, the Select Committee on Small Business made a report (Senate Report 2070, 82d Cong., 2d sess., p. 13), released April 28, 1952, quoted in the petition, in which it said: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 88 - Heyer Products Co v US.doc, Paragraph with 'The Rule of Two': After the rejection of its bid on July 3, 1952, and the award of the contract to Weidenhoff Company, plaintiff alleges he again appeared before the Select Committee on Small Business, which conducted further hearings and made Report No. 1092, 83d Cong., 2d sess., which plaintiffs sets out in its petition. In its report the Committee set out Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 88 - Heyer Products Co v US.doc, Paragraph with 'The Rule of Two': It is true that one of the purposes of the Act of February 19, 1948, the \u8216Armed Services Procurement Act of 1947,\u8217 was to induce the letting of a fair proportion of Government contracts to small business concerns; indeed, this was declared to be the \u8216policy of Congress\rquote in the beginning of the Act; but the main purpose of the Act was to give directions for the conduct of Government agents in making contracts, and this was for the purpose of protecting the public, and not the bidders. Clearly, section 3(b), which plaintiff says was violated, was enacted for the benefit of the public, and not for the benefit of bidders. This section reads: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 88 - Heyer Products Co v US.doc, Paragraph with 'The Rule of Two': seems to me to show that another purpose of the statute was to give small business men the right to get Government contracts if their bids were more advantageous to the Government than competing bids. I would treat the plaintiff\rquote s claim as one founded upon an Act of Congress. If, upon trial, the plaintiff proves that the Act has been violated by the agents of the Government, to his damage, I would give him a judgment for the damage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Alaska Movers Assn v Brown.doc, Paragraph with 'The Rule of Two': had been approved formally by the Department of Defense and coordinated with interested members of Congress prior to the DOD decision. In addition, correspondence and discussion regarding the program had taken place with industry representatives, the Government Accounting Office, the Small Business Administration, and the Office of Federal Procurement Policy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': for declaratory and injunctive relief, the United States District Court for the Northern District of Alabama at Tuscaloosa, Frank H. McFadden, J., set aside an Air Force award to the lowest bidder. The lowest bidder appealed. The Court of Appeals John R. Brown, Chief Judge, held that a substantial basis in the record upheld the action of the Small Business Administration, applying its own rules and following a long-established practice, in twice finding the low bidder to have satisfied the size requirement of the Small Business Administration based upon the \u8216completed contracts\rquote accounting method, and the District Court erred in holding that the \u8216completed contracts\rquote method was unacceptable for size computation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': , they could not be twisted to preclude judicial review of Small Business Administration\rquote s decision, arrived at under administrative regulations providing detailed and comprehensive procedure by which aggrieved bidder and others could contest determination as to size of business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Where administrative agency\rquote s interpretation of its rule obviously incorporates quasi technical administrative expertise and familiarity with situation acquired by law and experience with intricacies inherent in comprehensive regulatory scheme, judges should be particularly reluctant to substitute their personal assessment of meaning of regulation for considered judgment of agency, and if agency interpretation is merely one of several reasonable alternatives, it must stand even though it may not appear as reasonable as some other. Small Business Act, \u167 2[5] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Substantial basis in record upheld action of Small Business Administration, applying its own rules and following long-established practice, in twice finding government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': to have satisfied size requirement of Small Business Administration based upon \completed contracts\ accounting method, and district court erred in holding that the \completed contracts\ method was unacceptable for size computation. Small Business Act \u167\u167 2[2] et seq., 2[2], 2 [3], 2[5](b) (6), 2[15](3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': ; Small Business Investment Act of 1958, \u167 102 et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': We deal here with a judicial challenge to administrative action\u8212 more precisely, with an order of the District Court invalidating a Small Business Administration (SBA) size determination. After carefully reviewing the record and dispelling the aura of confusion that enshrouds this case, we have concluded that the judgment must be reversed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Company was the low bidder on a government contract set aside under the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': was not a \u8216small business\rquote under applicable SBA size standards Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': receipts \u8216do not exceed the $7.5 million size standard\u8217 and implicitly adopting the earlier size appeals decision in Pierre Aircon Co. (No. 130, March 1, 1965) which found the \u8216completed contracts\rquote accounting method \u8216acceptable under the applicable definition of a small business concern,\u8217 App. pp. 183, 287-88. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': , the Air Force contracting officer, and the Administrator of the Small Business Administration, seeking declaratory relief voiding the size determination and injunctive relief against the award to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Our decision must necessarily be influenced by the declared Congressional policy embodied in the Small Business Act to \u8216aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns in order to preserve free competitive enterprise.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': . This broad aim is supplemented by programs providing for special financing through Small Business Investment Companies, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': and preferred tax treatment for small business corporations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Inherent in the statutory plan is a legislative aim to provide small businesses with significant competitive advantages not available to others, as indicated by the Administrator\rquote s authority to insure that small businesses receive any award or contract or any part thereof after determining such action \u8216to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government are placed with small-business concerns,\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': . The preferred treatment accorded to small businesses under the Act and the latitude given the Administrator to to achieve it are thus primary components in our analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': The Small Business Administration\rquote s regulations provide a detailed and comprehensive procedure by which an aggrieved bidder and others can administratively contest a size determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': This is an elaborate structure which takes into account the privileges accorded to a \u8216small business\rquote and the decisive consequence of a size determination not only on competing \u8216small\u8217 businesses but \u8216large\u8217 ones not qualifying as \u8216small\u8217 under the standards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': had standing to challenge the size determination, there was a substantial basis in the record to support the Small Business Administration\rquote s initial decision and the District Court was in error when it found otherwise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': From the statute itself we learn nothing about size standards because a small business is defined only as one \u8216independently owned and operated and which is not dominant in its field of operation,\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': Here the District Court analysed extensively the accounting practices permitted under the Internal Revenue Code and concluded that calculations permissible in computing taxable income were not acceptable for size computations under the Small Business Act. However, there is no indication that in giving the Administration this broad responsibility and authority, the Congress had in mind constricting its regulator-enforcer to particular accounting theories to the exclusion of others. Courts have not demonstrated any great competence in either discerning or applying the sometimes esoteric mysteries of this profession. It is better left to those having, or thought to have, a business-experience-oriented expertise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': The Small Business Administration, applying its own rules and following a long-established practice, twice found Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Allen M Campbell Co General Contractors Inc v Lloyd Wood Construction Co.doc, Paragraph with 'The Rule of Two': The pragmatic nature of the inquiry\u8212 what is a small business?\u8212 is shown by the professional specializations of those comprising the Size Appeals Board. See note 3, supra. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': , Acting Administrator, United States Small Business Administration, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Lowest bidder brought action against acting administrator of the Small Business Administration to challenge decision to award contract to second lowest bidder. Administration moved for summary judgment. The District Court, Gesell, J., held that lowest bidder on construction project was affiliated with construction company, was not \small-business concern,\ and, therefore, was not entitled to award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Office of Hearings and Appeals of Small Business Administration was required to look at totality of all circumstances in deciding whether lowest bidder was affiliated with another company and whether lowest bidder was small-business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Plaintiff sues defendant in his official capacity seeking a declaratory relief setting aside a decision of the Office of Hearings and Appeals of the Small Business Administration (\SBA\) that plaintiff is not a \small-business concern\ benefitted by the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': The relevant facts in this case are not disputed. On July 31, 1985 the Department of the Navy solicited bids for Phase II of a project to repair the sea wall at the Treasure Island Naval Station in San Francisco. Only small businesses\u8212those with average annual receipts over the past three years of less than $17 million Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': \u8212were eligible to bid. Plaintiff, a construction company with receipts below the $17 million size standard, was awarded the contract as lowest bidder. On September 9, 1985, J.E. McAmis Industries, Inc. (\McAmis\), the second-lowest bidder, filed a challenge with SBA\rquote s San Francisco Regional Office (\RO\) pursuant to 13 C.F.R. \u167 121.9 (1986). McAmis argued plaintiff is not a small business because it is affiliated with Dutra Construction Company (\Dutra\) whose receipts, when added to plaintiff\rquote s as required by SBA regulations governing affiliated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': By opinion issued November 4, 1985, the RO concluded plaintiff and Dutra are not affiliated and therefore plaintiff is a small business. RO relied heavily on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aloha Dredging and Const Co v Heatherly.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': UNITED STATES of America, Federal Aviation Agency, and Small Business Administration, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Action for judgments declaring disappointed bidder on electrical construction contract, available to small business concerns only, to be a small business concern. The District Court, James M. Carter, J., held that plaintiff, which had total annual sales far exceeding $7.5 million when including all 18 affiliates it controlled, was not a \u8216small business concern\u8217 notwithstanding fact that only plaintiff itself and two affiliates were directly engaged in the electrical contracting business, in view of regulations defining small business in construction field as one whose average receipts did not exceed $7.5 million annually and requiring inclusion of annual sales of bidder and all affiliates when computing size status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Plaintiff determined not to be small business concern; findings and determinations of Small Business Administration and Size Appeals Board affirmed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': United States District Court had jurisdiction to entertain action for judgment declaring disappointed bidder, which had submitted lowest bid but did not receive contract because Small Business Administration and Size Appeals Board determined that it was not a small business concern, was actually a small business concern as defined by statute. Small Business Act, \u167\u167 2(3), 2(5) (b) (1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration criteria which are used for determining which concerns and other business enterprises are to be designated as small business concerns and which are published in code of federal regulations have force and effect of law. Small Business Act, \u167 2(3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Hawaii corporation which bid on electrical construction contract available only to small business concerns and which together with its 18 affiliates had annual sales far exceeding the maximum $7.5 million allowable for government procurement purposes in construction field was not entitled to have only itself and the two affiliates directly engaged in electrical contracting business considered in computing the sales figure. Small Business Act, \u167 2(3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration was authorized to establish a regulation providing that when computing size status of a bidder or offerer for purpose of determining whether it qualifies as a small business, the annual sales or receipts of the bidder or offerer and all of its affiliates shall be included. Small Business Act, \u167 2(3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Hawaii corporation which had total annual sales far exceeding $7.5 million when including all 18 affiliates it controlled was not a \small business concern\ for purposes of awarding electrical construction contract available only to small business concerns, notwithstanding fact that only corporation itself and two of its affiliates were directly engaged in the electrical contracting business, in view of regulations defining a small business in construction field as one having average receipts not exceeding $7.5 million annually and requiring inclusion of annual sales of bidder and all affiliates when computing size status. Small Business Act, \u167 2(3), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s determination that bidder on electrical construction contract available only to small business concerns was not a small business concern was to be upheld unless Administration\rquote s findings were erroneous or arbitrary and contrary to law; that district court might reach different result if making an original determination was not enough. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Electric Company, Ltd., a Hawaii corporation, bid on a small electrical construction contract known as the TACAN Modification to VOR Facility at Puu Ioleau on Kauai, Invitation No. PC-63-7-32, in competition against Heat-Cool Engineering, Inc., another Hawaii corporation. The contract was open for award to the lowest competitive bidder by the Federal Aviation Agency and was available to small business concerns only. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': submitted the lowest bid (Plaintiff\rquote s bid was for $6784.00; Heat-Cool\rquote s, $7974.00), since it was not a small business concern. The dispute was referred to the Small Business Administration and subsequently appealed to the Size Appeals Board, as provided by 13 C.F.R. \u167 121.3-5, 6. Both bodies concluded that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': was not a small business concern. Having exhausted all its available administrative remedies, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Electric is a small business concern under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': , it is provided that the Small Business Administrator may sue and be sued in any United States district court. Moreover, federal district courts have previously granted judicial review under the Administrative Procedures Act, 5 U.S.C. \u167 1009, for the purpose of reviewing size determinations of the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': , it is the declared policy of Congress that the government should assist small businesses as much as possible by placing a fair proportion of all government contracts with such concerns. Pursuant to that policy, the Small Business Administration was set up and empowered to determine within any industry which concerns and other business enterprises are to be designated as \u8216small business concerns.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': According to the Small Business Size Standards, 13 C.F.R. \u167 121.3-8, a small business for purposes of government procurement in the construction field is one whose average annual receipts for its preceding three fiscal years do not exceed $7 1/2 million. 13 C.F.R. \u167 121.3-8(a) 1. Both in the administrative hearing and at the hearing before this Court, it was acknowledged that the annual sales of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': interpretation is not only contrary to the express language of the applicable provisions, but it also conflicts with the spirit and policy of the small business legislation passed by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Under 13 C.F.R. 121.3-8, a regulation which the SBA was authorized to establish and which has the force and effect of law, it is specifically stated that affiliates must be included when defining a small business concern. The regulation further reads: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': In doing so, this Court agrees with the ruling of the SBA and the Size Appeals Board. In its decision, the Size Appeals Board stated that, \u8216There is no provision in the Small Business Size Standards Regulation under which receipts of an affiliate in an industry other than that in which the concern in question is engaged can be eliminated.\u8217 Cf. Size Appeal of United States Instrument Corporation #102, August 17, 1964. This Court has found none either. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': Small Business Act, for it would mean that corporate giants with small affiliates doing work different from the parent could reap the benefits of small business contracts through its affiliates. By statute, these contracts are now reserved exclusively for independently owned and operated small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Elec Co v US.doc, Paragraph with 'The Rule of Two': On the basis of the record presented, the Court finds and determines that the plaintiff is not a small business concern within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder sued to enjoin the award of a contract for night vision driver viewers, items used on military tanks and other armored military vehicles. The Claims Court, Lydon, J., held that: (1) the items were classified to the correct standard industrial classification, and (2) there was no violation of the applicable defense acquisition regulation in authorizing the contract as a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Before seeking to enjoin small business set-aside, protesting bidder should have presented its case first to the General Accounting Office and the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': In actions by disappointed bidder seeking to enjoin award of contract for production of night vision driver viewers, bidder failed to establish by clear and convincing evidence that small business set-aside could reasonably be deemed to be \partial\ rather than \total.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Government should further interest of small businesses whenever possible in awarding contracts. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': On November 8, 1982, the Communications-Electronics Command, Department of the Army (Command) issued Invitation For Bids No. DAAB07\u821183\u8211B\u8211E004 (IFB\u8211E004) for 1,074 AN/VVS\u82112 night vision driver viewers. This item is used on military tanks and other armored military vehicles, and enables drivers of such vehicles to view at night with closed hatches in order to avoid exposure to enemy fire. The IFB was designated as a small business set-aside and Standard Industrial Classification (SIC) No. 3662 was assigned thereto. SIC No. 3662 meant that in order to qualify for award under IFB\u8211E004, a bidder must not have over 750 employees. On November 15, 1982, plaintiff, who employed more than 750 persons, filed an appeal, as permitted under applicable regulations, with the Size Appeals Board (SAB), Small Business Administration requesting the SAB to rule that the assignment of SIC No. 3662 was erroneous. Plaintiff then requested the Command\rquote s contracting officer to delay bid opening until after a decision by the SAB. However, the contracting officer refused to do so, and the bids accordingly were opened on December 8, 1982. The bid opening revealed that plaintiff was the lowest bidder. However, aware of the contracting officer\rquote s intention to disqualify it for contract award because it was not deemed a small business since it employed over 750 persons, plaintiff instituted its pre-award suit in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': plaintiff asks the court to render a declaratory judgment to this effect. Alternatively, plaintiff asks this court to enjoin the Command to withdraw or cancel IFB\u8211E004 and to reissue it in conformance with applicable regulations, which, under plaintiff\rquote s view, would mean that IFB\u8211E004 could not be issued as a small business set-aside. In support of its relief requests, plaintiff contends first, that the Command erroneously assigned SIC No. 3662 to IFB\u8211E004 and that SIC No. 3795 was the proper classification to assign to IFB\u8211E004; and second, even assuming SIC No. 3662 was properly assigned, the Command violated Defense Acquisition Regulation (DAR) 32 C.F.R. \u167 1\u8211706.1(j)(ii) in authorizing IFB\u8211E004 as a total small business set-aside. After careful consideration of the submissions of the parties and oral argument relative thereto, it is concluded that plaintiff is not entitled to the relief sought. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': B. The Small Business Set-Aside Issue Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues, alternatively if the SIC issue is decided against it, that the Command\rquote s set-aside of IFB\u8211E004 for small business purposes was improper and thus cancellation of the solicitation and readvertisement of the procurement for bidding by both large and small businesses is required. It asks the court to issue an injunction to this effect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Further, plaintiff never obtained a ruling or decision from those agencies with expertise and authority to rule on the validity of small business set-aside, the General Accounting Office and the SBA, even though the situation should have been known, if it was not so known, to plaintiff at least by September 1982. Plaintiff did protest to GAO and appealed to SBA on the SIC code issue. It could have and should have presented the present issue to these agencies at that time. Determinations by those agencies would have been extremely helpful in this difficult area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the Command violated Defense Acquisition Regulation (DAR) 32 C.F.R. \u167 1\u8211706.1(j)(ii) (1981), which prohibits a total small business set-aside \when one or more large business Planned Emergency Producers of the item desires to participate in the acquisition.\ Plaintiff maintains that because it qualifies as a Planned Emergency Producer (PEP) under DAR 32 C.F.R. \u167 1\u82112201(d), defendant under existing circumstances improperly issued IFB\u8211E004 as a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': only logic but practicality to such a holding. It should not be left to a PEP supplier to determine, on its own, which item the government wants as an emergency item. Moreover, adoption of plaintiff\rquote s approach would enable it to preclude the military from setting aside for small business purposes the procurement of any AN/VVS\u82112 items. Such a situation would be contrary to certain regulations implementing the concern of Congress for small business firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': set-aside for (X) Small Business * * * )\ Upon review of the sketchy history and background of the procurement of this specific night driver viewer, it seems apparent that plaintiff\rquote s bald characterization of the set-aside as \total\ is too narrow and restrictive. In considering pre-award bid protest litigation, the court has a responsibility to consider the totality of the procurement process in its review of agency action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Originally, the total 1982 procurement of the devices in issue was to be implemented through the use of two solicitations, one open to competition for both large and small businesses for 1,522 units (IFB\u8211E\u8211034) (plaintiff was awarded this contract), and the second as a partial set-aside limited to small businesses for 1,357 units (IFB\u8211E033). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': bid protests and disputes this second solicitation was cancelled and subsequently reissued, but bifurcated into two solicitations. To satisfy the military\rquote s most urgent needs an emergency non set-aside solicitation for 955 units was issued. The other solicitation remained a small business set-aside, this one for 1074 units. Plaintiff was the successful bidder on the emergency (IFB\u8211E003) solicitation; the second solicitation, the small business set aside, is the subject of this litigation. It is to be noted that the IFB\u8211E004 set aside, the solicitation in issue, was the direct decedent of the original partial set aside, (IFB\u8211E033). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': This is a factor worthy of note since it indicates that SIC No. 3662 was not assigned just for this procurement. Assignment of this SIC number to contracts involving AN/VVS\u82112 items was thus one of long standing practice. Plaintiff notes that it was the primary producer and supplier for the government of the item in question since 1975 and was well aware that its production contracts, if they carried a SIC number, carried SIC No. 3662. Plaintiff seeks to diffuse this factual awareness by noting that it was unconcerned with this assignment since it did not affect its ability to receive the contracts, presumably because the item was not previously the subject of a small business set-aside or because plaintiff during that period had less than 750 employees. The point is, however, that assignment of SIC No. 3662 was not a precipitated act, or an act designed for achievement of a questionable purpose. It manifested instead the implementation of a regular, established, and unbiased practice relative to the procurement of the AN/VVS\u82112 items. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': Noteworthy is the Congressional intent that the government furthers the interest of small businesses whenever possible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Baird Corp v US.doc, Paragraph with 'The Rule of Two': . In this case, the contracting officer in her affidavit states that \[b]ifurcated solications were issued in order to further the goals directed by Defense Acquisition Regulation (DAR) \u167 1\u8211702 to develop small business participation in military procurement.\ Accordingly, the applicable regulations should be read in the light most favorable to the interests of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'The Rule of Two': Action by contractor against administrator, associate deputy administrator and construction contracting officer of Veterans Administration for declaratory judgment that contractor was responsibile low bidder for construction of hospital and that award of contract to another company for that construction job was illegal, and also for relief in nature of mandatory injunction. On plaintiff\rquote s motion for preliminary injunction and defendants\rquote motion to dismiss complaint for lack of jurisdiction, the District Court, William B. Jones, J., held that officials of Veterans Administration, who rejected contractor\rquote s low bid and awarded contract to another company after determining on basis of contractor\rquote s past performance record that it was not a responsible bidder, without, inter alia, consulting with contractor with respect to matter of its responsibility, or referring question to small business administration, acted within statutory powers, and absent showing that they acted through bias or prejudice or coercion, contractor\rquote s suit against officials was barred under doctrine of sovereign immunity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'The Rule of Two': Officials of Veterans Administration, who rejected contractor\rquote s low bid and awarded contract to another company after determining on basis of contractor\rquote s past performance record that it was not a responsible bidder, without, inter alia, consulting with contractor with respect to matter of its responsibility, or referring question to small business administration, acted within statutory powers, and absent showing that they acted through bias or prejudice or coercion, contractor\rquote s suit against officials was barred under doctrine of sovereign immunity. Federal Property and Administrative Services Act of 1949, \u167 205(c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'The Rule of Two': Plaintiff, in its complaint, alleges that pursuant to an invitation of the Veterans Administration it prepared and deposited a bid for the construction of the Tampa, Florida, Veterans Administration hospital; that it was one of five bidders and of the five it was the low responsive bidder; that thereafter on October 9, 1968 it received a telegram from the Construction Contracting Officer of the Veterans Administration advising plaintiff that the contracting officer did not consider it to be a responsible prospective contractor for the Tampa, Florida, hospital and that its bid was therefore rejected; that the contracting officer had not consulted or discussed with the plaintiff or requested any statements from plaintiff with respect to the matter of plaintiff\rquote s responsibility; and that the contracting officer, defendant Robinson, was by regulation required to refer any question he might have with respect to the capacity or credit or the plaintiff to the Small Business Administration for review and determination and that Robinson did not do so. Plaintiff also alleges that prior to receipt of notice of rejection of its bid it had filed a protest by telegram to the Veterans Administration and to the Comptroller General; that on October 10, 1968 it was advised by defendant Robinson of the award of the Tampa Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'The Rule of Two': Nor did Robinson fail to comply with the Federal Procurement Regulations, as alleged by plaintiff, when he did not refer to the Small Business Administration for that agency\rquote s review and determination of the question of plaintiff\rquote s responsibility as a prospective contractor. The section of the regulations alleged to be violated is \u167 1-1.310-8. (41 C.F.R. \u167 1-310-8.) But that section only requires the contracting officer to give consideration to the Small Business Administration\rquote s views in cases where the contracting officer is not satisfied as to the prospective contractor\rquote s responsibility qualification \u8216only because of the lack of adequate capacity or credit.\u8217 But Robinson did not reject plaintiff\rquote s bid because he considered plaintiff lacked capacity or credit. The bid was rejected because of plaintiff\rquote s past performance record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2 [3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': On September 21, 1984, the United States Navy issued an invitation for bids (\IFB\) for the construction of a new administration and communications building at the Navy Submarine Base in Kings Bay, Georgia. The Navy office issuing the bid invitations was the Office in Charge of Construction (\OICC\). Prior to issuing this bid, and in furtherance of the federal governmental policy of promoting small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': , the Navy determined that only small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': Apparently, the Navy hopes that these new plans will \result in the submission of lower bids by a larger number of qualified small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': . More specifically, plaintiff requests that this Court issue: (1) a preliminary injunction preventing the resolicitation of the bids; (2) a declaration that the actions taken by the Navy were arbitrary and capricious and in violation of the statutes regulating the distribution of defense contracts to small business concerns; (3) a declaration that plaintiff submitted the lowest responsive bid; and, (4) a permanent injunction requiring the Navy to award the project to plaintiff at its bid in accordance with the provisions of the original IFB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Caddell Const Co Inc v Lehman.doc, Paragraph with 'The Rule of Two': , a \small business concern\ is a business which is independently owned and operated and which is not dominant in its field of operation. For a more thorough definition of the small business concern, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Action was brought challenging validity of Small Business Administration regulation defining what constitutes small business in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Small Business Administration regulation defining what constitutes small business in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Small Business Act, \u167 2 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': In this proceeding the Court is asked to declare invalid a regulation, 13 C.F.R. \u167 121.2 (1986), issued by the Small Business Administration (\SBA\), defining what constitutes a small business in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': industry eligible for favorable governmental procurement consideration under the pertinent provisions of the Small Business Act (\Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': The Act is designed to encourage competition by enhancing the ability of small businesses to compete against larger concerns, through preferential set-asides on government contracts as well as loans and other assistance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': The Act defines \a small-business concern\ as \one which is independently owned and operated and which is not dominant in its field of operation.\ It charges SBA with \making a detailed definition\ of small businesses, based on the \dollar volume of business\ and other criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': at 10, SBA necessarily indicated that it considers the leading small firms dominant in those regions. But the Act definitely requires that a small business must be one \which is not dominant in its field of operation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': The Act does not specify that dominance is to be measured on a national scale and SBA may not limit its inquiry to promulgation of uniform national standards merely for convenience or because this approach may appear appropriate in the vast majority of cases. When most of the firms in an industry are regarded as being confined to a regional market by geographical and financial considerations, the small-business size standard cannot be one that gives a dominant firm in a regional market the preferred status of a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': industry. Given the purposes of the Act previously reviewed, SBA cannot avoid its responsibility by dismissing considerations of dominance as \indeterminate\ and refusing without explanation to consider the realities of competition in the regional markets it has found most truly reflect the competitive environment Congress has charged it to enhance by aiding small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': industry, is declared invalid as arbitrary and contrary to law; the administrative record is remanded to the Small Business Administration for further consideration; and Defendants\rquote Cross-Motion for Summary Judgment is denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': . In 1980 Congress reaffirmed that, \[f]or the purpose of preserving and promoting a competitive free enterprise economic system,\ it is \the continuing policy and responsibility of the Federal Government\ to work to \foster the economic interests of small businesses; insure a competitive economic climate conducive to the development, growth and expansion of small businesses; establish incentives to assure that adequate capital and other resources at competitive prices are available to small businesses; reduce the concentration of economic resources and expand competition; and provide an opportunity for entrepreneurship, inventiveness, and the creation and growth of small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': Additionally, in the Inland region firms 5, 9 and 10 are small; in the Great Lakes region firms 5 through 10 are small; and in the Southeast region firm 8 is small. The heavy percentage of set-asides recorded in these regions is unsurprising given that when a number of small firms are available in a region, federal procurement regulations require that a contract be set aside if the contracting officer reasonably expects that responsive bids at reasonable prices will be received from two responsible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: California Dredging Co v Sanders.doc, Paragraph with 'The Rule of Two': at 10. SBA\rquote s work in defining small businesses, however, is not a matter of preference; SBA is obliged to ensure that under the statute businesses which are dominant in their field of operation are not considered \small.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Century Metal Parts Corp v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder, alleging that bid set by United States on contract was ambiguous in its designation of precise item sought as either a mast section or antenna element, failed to establish any impropriety in bidding procedures sufficient to warrant cancellation of award to low bidder where national stock number, which specifically identified precise item demanded, was included in all bids set, a number which unsuccessful bidder used to verify item before making its bid, and invitation for bid invited bidders with questions to contact government at a specific number, a procedure which was utilized by low bidder to confirm its understanding. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Century Metal Parts Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff thereafter commenced bid protest procedures under the Small Business Administration Act and the Walsh-Healey Public Contracts Act. While administrative stays have been in effect pending determination of these protests, the court has been informed that the Department of Labor has rejected plaintiff\rquote s protest and that the Small Business Administration is expected to follow suit shortly, leaving the stay agreed upon by the parties pending resolution of this motion as the only impediment to confirmation of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': , Administrator, Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': , David S. Porter, J., which denied injunctive relief and entered a final judgment of dismissal of the defendant procurement officer on claims of violation of armed services procurement regulations. Appeals were taken and consolidated. The Court of Appeals, Lively, Circuit Judge, held that under a provision of an armed forces procurement statute expressing policy of Congress that a fair proportion of purchases and contracts made thereunder be placed with small business concerns, on unsuccessful bidder which alleges that it is a small business concern and that an agency representative has acted illegally in failing to follow regulations designed to implement such congressional policy has standing to seek judicial review of such actions, under the Administrative Procedure Act. Plaintiff was not shown to be entitled to a preliminary injunction, however. Under the statute concerning protest of an administrative determination as to whether a bidder qualifies at a \u8216small business concern\u8217 the time for filing of protest does not begin to run until the protestant knows the identity of the \u8216apparently successful bidder or offeror.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': Under provision of armed forces procurement statute expressing policy of Congress that fair proportion of purchases and contracts made thereunder be placed with small business concerns, unsuccessful bidder, which alleges that it is small business concern and that agency representative has acted illegally in failing to follow regulations designed to implement such congressional policy has standing to seek judicial review of such actions, under Administrative Procedure Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': Under statute providing that government officers having procurement or lending powers, inter alia, shall accept as conclusive a determination by the Small Business Administration as to which enterprises are to be designated \small business concerns,\ contracting officer of army could not be held to have acted capriciously or arbitrarily in awarding contract to bidder which Small Business Administration had determined was qualified rather than to bidder which Small Business Administration had determined was not so qualified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': Under regulation concerning protest of administrative determination as to whether bidder qualifies as \small business concern,\ time for filing of protest does not begin to run until protestant knows identity of the \apparently successful bidder or offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': This case presents consolidated appeals by an unsuccessful bidder for a government contract from two adverse rulings by the district court. On March 24, 1972 the Army issued invitations to bid on a multi-year procurement of radio sets. The invitations stated that 50 per cent of the total quantity would be set aside for award by negotiation to concerns located in labor surplus areas. First priority would be given to certified-eligible concerns which were also \u8216small business concerns.\u8217 The bids of eleven companies were opened on October 18, 1972. The apparent low bid was found to be nonresponsive and was rejected. The second low bid was that of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': was found not to be a small business concern within the meaning of the applicable regulations. This ruling gave Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': filed a protest against the award and requested the contracting officer to withhold making an award pending determination by the Small Business Administration (SBA) of the small business status of Sentinel. The protest was based upon information which Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': had obtained from a trade magazine which indicated that Sentinel had entered into a \u8216teaming agreement\u8217 with an Israeli concern which would disqualify Sentinel for preference as a small business concern. Prior to this time both the contracting officer and another bidder had obtained from SBA rulings that Sentinel continued to qualify as a small business concern and that the arrangement with the Israeli company did not disqualify it. A similar conclusion was reached by counsel for the Comptroller General of the United States when the denial of the protest filed by another unsuccessful bidder was appealed to that officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': was not qualified for preferential treatment as a small business concern and of the action of the Secretary of the Army, acting through the contracting officer, in refusing to forward its protest of Sentinel\rquote s small-business-concern status to SBA and in awarding the set-aside contract to Sentinel without awaiting the outcome of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': qualification as a small business concern because of the manner in which the case proceeded. The court entered a temporary restraining order against the defendant Callaway and set a hearing on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': status as a small business concern was not involved in the injunction proceedings. The district court denied the motion for a preliminary injunction and filed an opinion setting forth his findings and conclusions. An appeal was taken from the order denying the injunction pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': and the Secretary of the Army revolves around the alleged failure of the Secretary\rquote s representative to follow regulations which establish the procedure for handling protests of small business status in view of the fact that the Act opens with this \u8216Declaration of Policy\u8217: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': It is the policy of Congress that a fair proportion of purchases and contracts made under this chapter be placed with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': This statement indicates a \u8216zone of interests\rquote sought to be protected by the Act. We hold that an unsuccessful bidder under this Act who alleges that it is a small business concern and that an agency representative has acted illegally in failing to follow regulations designed to implement the congressional policy of awarding a fair proportion of contracts under the Act to small business concerns has standing to seek judicial review of such actions pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': where Congress has by \u8216constitutional legislation\u8217 recognized the legal right of a bidder for government contracts to benefit from the policy of granting a fair share of such contracts to small business concerns. Standing is conferred by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': was not qualified as a small business concern and that Sentinel was so qualified. It is provided in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': Offices of the Government having procurement or lending powers, or engaging in the disposal of Federal property or allocating materials or supplies, or promulgating regulations affecting the distribution of materials or supplies, shall accept as conclusive the (Small Business) Administration\rquote s determination as to which enterprises are to be designated \u8216small business concerns\rquote , as authorized and directed under this paragraph; . . . (emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': (a) Timely protest received prior to award. When the contracting officer receives a timely protest prior to award, he shall forward the protest record to the Small Business Administration district office serving the area in which the protested concern is located. The Small Business Administration will promptly notify the contracting officer and the protestant of the date of its receipt of any such protest and will advise the bidder or offeror in question that his small business status is under review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Cincinnati Electronics Corp v Kleppe.doc, Paragraph with 'The Rule of Two': of his intention to make the award to Sentinel. The regulations set forth the time limitations for filing protests. 32 CFR s 1.703(b)(1) provides that a protest which questions \u8216the small business status of an apparently successful bidder or offeror . . . must be received by the contracting officer prior to the close of business on the fifth working day . . . after bid opening date for formally advertised and small business restricted advertised procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': was not responsible, the matter would have had to be referred to the Small Business Administration under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Delta Data Systems Corp v Webster.doc, Paragraph with 'The Rule of Two': financial responsibility would have had to be referred to the Small Business Administration for final determination. See note 19, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': Evidence of contracting officer\rquote s bias was sufficient to sustain disappointed bidder\rquote s burden of proving likelihood of success on the merits upon motion for preliminary injunction in action against Government, alleging irregularities in contracting process; contracting officer stated to examiners that she had wished they had brought her anyone but disappointed bidder, contracting officer re-scored small business area so as to give disappointed bidder no points, adjustments were made to successful bidder\rquote s cost estimate and contracting officer placed telephone calls to successful bidder after best and final offers had been submitted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': raw technical score by \five points\ after deciding the company should receive no credit (a zero) instead of the full credit (a four) granted by PMRF in a category entitled \Small Business Utilization.\ Tab 14. The Contracting Officer did this because she believed the comprehensive small business subcontracting plan submitted by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': did not, despite the company\rquote s proven commitment to small business in its fifteen years on the contract, rise to the level of an \actual commitment\ and thus was entitled to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': The requirement that an offeror \actually show committments [sic] to small business via proposed subcontracts and teaming arrangements,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': b. My conclusion about the Contracting Officer\rquote s partiality is buttressed by several other incidents which took place in the course of awarding this contract which have not been sufficiently explained. The first of these is the re-scoring of the small business area by the Contracting Officer so as to give Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': had a sufficient commitment to small business to warrant some points. For instance, evidence presented at trial showed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': significant commitment to small business in the course of its present contract with PMRF. Moreover, there is little doubt that had Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': been aware of the Contracting Officer\rquote s oral requirements\u8212if such had in fact been articulated\u8212for small business proposals, it would have complied. While I understand the Contracting Officer\rquote s explanation of why she rescored Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Dynalectron Corp v US.doc, Paragraph with 'The Rule of Two': for clarification when she felt its proposal was deficient, namely on the small business issue. This differing treatment of similar situations is just the sort of appearance of bias that a Court must protect against. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': Second low bidder on government procurement contract set aside for small businesses could assert claims under Mississippi law for unjust enrichment and fraud against successful low bidder, its subcontractor, and its alleged joint venturer, based on low bidder\rquote s alleged misrepresentation of its eligibility for contract as \small business\ under Small Business Act and as \entering manufacturer\ under Walsh-Healy Act. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': \), the second low bidder on a government procurement contract set aside for small businesses, can assert state law claims for unjust enrichment and fraud against Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': \rquote alleged misrepresentation of its eligibility for the contract as a \small business\ under the Small Business Act (\SBA\) and as an \entering manufacturer\ under the Walsh-Healy Act. Answering this question affirmatively, the Court denies Defendants\rquote Motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': On November 18, 1983, the Army Corps of Engineers, Vicksburg, Mississippi District, solicited bids from small business concerns and/or \entering manufacturers\ for the manufacture of 200,000 squares of articulated concrete mattresses for Contract No. DACW38\u821184\u8211B\u8211001 at Delta, Louisiana. Both Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': submitted bids on the basis that they were small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': \rquote self-certification as a small business and its status as an \entering manufacturer\ under the Walsh-Healey Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': was a small business, it was ineligible for the procurement because of its alleged joint venture relationship with APAC, a large business ineligible for the contract and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': to be a small business for purposes of the procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': \rquote \improper and unlawful representation\ that it was a small business and an \entering manufacturer.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': , where the Eleventh Circuit reiterated that \although Congress did not intend to provide a civil private cause of action to the second lowest bidder of a federal contract when the lowest bidder has misrepresented itself as a small business, it had not expressly nor impliedly preempted a state remedy for fraud, unjust enrichment or interference with a business relationship based on such misrepresentation.\ The court further stated that the \key\ to such a case would be whether the successful low bidder was, indeed, ineligible to receive the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fordice Const Co v Central States Dredging Co.doc, Paragraph with 'The Rule of Two': the SBA had determined that Bamsi was a small business and eligible for the contract. The court determined that it must give deference to the SBA\rquote s determination of eligibility and affirmed the lower court\rquote s dismissal of the case, stating that \... the SBA\rquote s determination that Bamsi qualified as a small business ... eliminated the possibility of any state action based on misrepresentation, fraud or unjust enrichment.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Action by small businesses, which had been contractors under phase I of air traffic control center improvement program, against federal officials challenging withdrawal of phase II contract from competitive bidding and its award to a minority owned business. On cross motions for summary judgment, the District Court, John Lewis Smith, Jr., J., held that plaintiffs lacked standing to attack award of such phase II contract as being racially discriminatory, and that defendants were authorized to withdraw the contract from competitive bidding under the Small Business Act, the Economic Opportunity Act and two Executive Orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Small businesses which were seeking a government contract that they were barred from bidding on but which had not sought to be eligible for statutory program in question under which the Small Business Administration was authorized to set aside subcontracts to be awarded by federal procurement procedure to small businesses owned by socially or economically disadvantaged persons had standing to challenge federal officials\rquote use of the program but did not have standing, solely on basis of generalized interest in fair administration of the program, to attack award under such program of the government contract to a minority owned business as being racially discriminatory. Small Business Act, \u167 2[8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Federal officials were authorized, under Small Business Act, Economic Opportunity Act and two Executive Orders, to withdraw phase II contract for air traffic control center improvement program from competitive bidding. Small Business Act, \u167\u167 2 [5] (b)(6), 2 [8] (a)(1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Where eligibility standard for statutory program under which the Small Business Administration was authorized to set aside subcontracts to be awarded by federal procurement procedures to small businesses was not defined racially but rather by social or economic disadvantage, such program was not subject to objection that it was designed to award contracts on ground of race in violation of the Fifth Amendment and the Civil Rights Act of 1964. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': General policy of competitive bidding in federal procurement is wholly inapplicable to a contract which the Small Business Administration has specific statutory authority to enter. Small Business Act, \u167 2 [8] (a), (a)(2), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': In view of eligibility for placement through statutory program, under which Small Business Administration was authorized to place federal subcontracts with small businesses owned by \socially or economically disadvantaged persons,\ of recurring contracts not constituting mainstays of small businesses, contracts which were neither recurring nor mainstays of minority owned small business were properly placed through the program with such business. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': , Forest Builders, Inc. and Tectonics, Inc., assert that the Department of Transportation, the Federal Aviation Administration, and the Small Business Administration (hereinafter referred to as SBA) violated federal statutes and the Constitution in awarding a contract for an air traffic control center improvement program pursuant to Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': . Under the 8(a) program, SBA sets aside certain subcontracts to be awarded by federal procurement procedures to small businesses owned by \socially or economically disadvantaged persons.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': Plaintiffs, contractors under Phase I of the improvement program, challenge the withdrawal of the Phase II contract from competitive bidding and its award to a minority owned business as violations of the Small Business Act, SBA regulations, federal procurement policy, federal civil rights laws, and the fifth amendment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': The threshold problem is plaintiffs\rquote standing to sue. As small businesses seeking a government contract for which they were barred from bidding, plaintiffs have standing to challenge defendants\rquote use of the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': The Court finds that the defendants in this case were authorized to withdraw the Phase II contract from competitive bidding by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': ). The legality of Section 8(a) was recognized in Space Services of Georgia, Inc. v. Laird, et al., D.C.D.Conn. August 17, 1972, Civ.Action No. 15,170. Plaintiffs\rquote assertion that the program is designed to award contracts on the grounds of race has no merit in the face of an eligibility standard that is not defined racially, but by social or economic disadvantage. Kleen-Rite v. Laird, W.D.Mass., Sept. 21, 1971, Civ. Action No. 71-1968-W. The mere fact that, in some areas of the country, \disadvantaged\ is synonymous with \minority\ is no evidence that anything other than the standard of disadvantaged status was used. Having themselves benefitted from a program which uses contracts withdrawn from open competitive bidding to assist small businesses, plaintiffs ironically challenge this same procedure as a violation of federal procurement law. (see Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fortec Constructors v Kleppe.doc, Paragraph with 'The Rule of Two': \Recurring\ is a term of art used in reference to those contracts awarded on a regular, periodic basis, e. g., custodial contracts annually awarded. Such contracts are not placed under Section 8(a) whenever small business depend in part or in full on such contracts for their gross income. 13 C.F.R. 124.8-1(d)(3). Plaintiffs argued that since they had Phase I, Phase II was recurring and could be placed through \8(a).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Hayes Intern Corp v McLucas.doc, Paragraph with 'The Rule of Two': demonstrates the type of inefficiency which may be occasioned by judicial review of procurement decisions. In that case the district court originally entered an injunction restraining the Air Force from entering into a contract for the construction of housing when the plaintiff contended that the bidder to whom the contract was to be awarded was ineligible because it was not a \u8216small business\rquote within the meaning of the relevant statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: HLI Lordship Industries Inc v Committee for Purchase from the Blind And Other Severely Handicapped (1).doc, Paragraph with 'The Rule of Two': . In that case the Fourth Circuit stated that a court must examine the critical relationship between Congress\rquote s purpose in passing the particular act in question and the plaintiff\rquote s interest in challenging a decision made pursuant to that act, in order to determine whether plaintiff\rquote s interest is one with which Congress was concerned. The question in this case is whether, in the JWOD Act, Congress exhibited some interest in regulating or protecting small businesses such as plaintiff\rquote s, which in turn gives plaintiff standing to challenge the promulgated regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Horne Bros Inc v Laird.doc, Paragraph with 'The Rule of Two': Where contractor was a \small business concern,\ Navy violated armed services procurement regulation by determining that contractor was not responsible because of lack of business integrity, without providing substantial evidence documented in the contract files to the appropriate small business administration regional office and to appropriate departmental small business advisor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Horne Bros Inc v Laird.doc, Paragraph with 'The Rule of Two': is a \small business concern,\ as that term is defined in ASPR \u167 1-701.1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Horne Bros Inc v Laird.doc, Paragraph with 'The Rule of Two': 6. ASPR \u167 1-903.1(iv) has a mandatory reference to ASPR \u167 1-7054 [sic] (c) (vi) in the case of a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Horne Bros Inc v Laird.doc, Paragraph with 'The Rule of Two': , a small business concern, was not responsible because of a lack of business integrity, as defined in ASPR \u167 1-903.1(iv) without providing substantial evidence documented in the contract files to the appropriate SBA Regional Office, and to the appropriate departmental Small Business Advisor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: International Assn of Firefighters Local F-100 v US Dept of the Navy Naval Ed and Training Center N.doc, Paragraph with 'The Rule of Two': , and small business concerns in particular, see Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: International Assn of Firefighters Local F-100 v US Dept of the Navy Naval Ed and Training Center N.doc, Paragraph with 'The Rule of Two': staffing provided in the RHK bid concerned a different issue, the responsibility of RHK. Mr. Buonaccorsi testified that resolution of this issue had to await a determination whether the specifications were ambiguous. In addition, both Mr. Tanzi and Mr. Buonaccorsi testified that because RHK is a small business, the question of responsibility was one for the Small Business Administration (SBA). See DAR, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Small business, which had just successfully completed one-year competitively let contract to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': at Fort Carson, Colorado, brought action against officials of Small Business Administration and Department of the Army complaining of change in method of awarding the contract from one of competitive bidding to award under program designed to aid disadvantaged companies. On motion for preliminary injunction, the District Court, Charles R. Scott, J., held that fact that nearly 43% of plaintiff\rquote s business income was derived from its contract with the Army at Fort Carson did not constitute an interest threatened with irreparable injury sufficient to justify injunctive relief, that any \competitive edge\ which plaintiff might enjoy if contract were subsequently reopened to competitive bidding as a small business set-aside did not support issuance of an injunction, that the SBA did not abuse its discretion in switching the contract from competitive to noncompetitive bidding and that, in any event, court lacked jurisdiction to grant injunctive relief against either the SBA defendants or the army defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Fact that nearly 43% of plaintiff\rquote s small business income was derived from its successfully completed but now expired contract to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': at Fort Carson, Colorado, did not constitute an interest threatened with irreparable injury sufficient to justify preliminary injunctive relief against decision to change method of awarding the contract from one of competitive bidding to direct award to a \disadvantaged\ small business; furthermore, any \competitive edge\ which plaintiff might have over potential rivals if the contract were subsequently opened to competitive bidding was too speculative to justify injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': .; Small Business Act, \u167 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Determination of Small Business Administration that removal of contract to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': at Fort Carson, Colorado, from one of competitive bidding to one of direct award to a disadvantaged company could be done without serious harm to plaintiff\rquote s small business which had just successfully completed one-year competitively let contract, was not abuse of discretion where, although agency initially concluded that the disadvantaged business program was not suitable for the contract, the agency, in view of Department of Army\rquote s stated intention to reduce total number of disadvantaged business programs, reassessed the matter and concluded that such program at Fort Carson would be suitable and that none of the four adverse conditions counseling against use of such a program would result. Small Business Act, \u167\u167 2[2] et seq., 2[8](a)(2), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': District court lacked jurisdiction over administrator of Small Business Administration and the SBA regional director to grant injunctive relief as regards altering of program to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': at Fort Carson, Colorado, from a competitive bidding basis to program of awarding the contract to disadvantaged small businesses since although Small Business Act contains a provision waiving sovereign immunity the waiver and resultant jurisdiction are limited, and injunctive relief is expressly excluded. Small Business Act, \u167\u167 2[2] et seq., 2[5](b)(1), 2[8](a)(2), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Even if plaintiff small business, complaining of change in awarding contracts to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': , The Small Business Act (\u8216the Act\u8217), and its implementing regulations; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': There are basically three kinds of contracting by the government: general procurement; protective procurement; and negotiated contracts. In the general procurement situation, a federal agency or department issues an invitation for bids (\IFB\) from all interested parties. Pursuant to guidelines concerning IFBs, the parties competitively submit their bids and the agency or department accepts the lowest bid by a responsible bidder, in order to execute a contract. In the protective procurement situation, the set of parties invited to submit bids is less than all interested parties. Instead, only those members of a class of persons intended to be the recipients of federal assistance and protection are invited to submit bids. The Small Business Administration (\SBA\) was created to assist small businesses, and one of its methods is in securing contracts for small businesses with departments and agencies of the federal government. SBA determines whether a company is in fact a small business entitled to the protection of the act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': . Further, SBA assists in finding agencies and departments suitable for contracting with small businesses. An agency or department will then invite bids from all and only those small businesses that SBA has certified as competent to perform the work required by the potential contract. This instance of protective procurement is known as \a small business set-aside\ because the contract is set aside for bidding by SBA small businesses only. The bidding is competitive within that class of small businesses, with the contracting agency accepting the lowest bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': In the negotiated contract situation, there is no competitive bidding. Rather, where necessary or warranted, a federal agency or department negotiates a contract directly with a party to obtain performance of the work desired. Ordinarily, other interested parties have no participation unless, upon failure to successfully negotiate a proposed contract with the first party, the contracting agency should then turn to one of them. SBA has a program (\the 8(a) program\) designed to assist small businesses owned and controlled by socially or economically disadvantaged persons. The program is established by regulations, 13 C.F.R. Secs. 124.8-1 and 124.8-2, that implement SBA\rquote s statutory authority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Plaintiff is a small business under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': incorporated under the laws of Florida, with its principal place of business in Jacksonville. Through competitive bidding on a small business set-aside, plaintiff obtained a contract with the Department of Army (\the Army\) to provide mess attendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': \) at Fort Carson, Colorado. In previous years, a different contractor had held the K-P contract at Fort Carson each year. In fiscal 1973, the contract had been awarded to a contractor as the result of competitive bidding under a small business set-aside. In fiscal 1974, the Army and SBA had negotiated a contract that was subcontracted out under the 8(a) program to a disadvantaged subcontractor; but it was not renewed because of unsatisfactory performance. In fiscal 1975, the Fort Carson contract was once again a small business set-aside, reserved for competitive bidding among qualified small businesses. A different contractor won the bidding and was awarded that contract. Plaintiff\rquote s contract at Fort Carson, for fiscal 1976, ran from July 1, 1975 through May 31, 1976. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': On January 20, 1976, an officer in SBA\rquote s office of business development wrote to the assistant regional director of the SBA\rquote s region IV, requesting a size determination concerning plaintiff\rquote s business. That determination was needed in order to prepare an impact statement assessing the effect upon plaintiff of removing the Fort Carson contract from competitive bidding as a small business set-aside, and placing it in the 8(a) program. On January 22, 1976, the region IV assistant director wrote to plaintiff\rquote s vice-president, requesting him to complete and return a form concerning plaintiff\rquote s size and annual receipts. On January 28, 1976, after receipt of the completed form from plaintiff, the assistant director notified the SBA business development officer that plaintiff continued to qualify as a small business under the act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': (2) Public solicitation has already been issued under a small business set aside for the specific procurement in question in the form of an Invitation for Bid (IFB), Request For Proposal (RFP), or Request for Quotation (RFQ). Procurement Information Notices (PIN), annual procurement forecasts and other methods of disseminating information of general intention to procure are not sufficient reasons, in and of themselves, to preclude a procurement from 8(a) consideration. Past procurement actions and future probabilities (including the appearance of products in catalogs) do not preclude prospective procurement actions from 8(a) consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': (3) The procuring activity can make an award directly to a small business concern owned by an eligible disadvantaged person(s) or there is reasonable probability that a competitive award can be won by such a disadvantaged small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': (4) It is determined by the SBA that a small business concern may suffer a major hardship if the procurement is removed from competition, thereby denying the concern, otherwise historically dependent on such recurring procurement(s), the opportunity to compete. In establishing this determination, the affected firm should be a regular producer receiving one or more awards within the past year, and be dependent upon such recurring award(s) for a significant part of its overall sales. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': The associate administrator, on March 26, 1976, wrote to the assistant regional director, explaining interpretive guidelines concerning the four criteria in SOP 60-41-2, 13 C.F.R. Sec. 124.8-2(b), and the standard impact statements. It was his intention to correct an erroneous interpretation of the policy that those criteria reflect. Essentially he advised that the criteria should be interpreted in view of factually altered information: the Army\rquote s intention to reduce the total number of 8(a) programs at its installations. That interpretation would base an evaluation of the third and fourth factors on the recognition that fewer 8(a) programs would be available with the Army, but that more competitive bidding opportunities would be set aside for small businesses by the Army. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': . Neither is plaintiff an incumbent contractor seeking relief from the breach or infringement of present contractual rights. Although nearly 43% of plaintiff\rquote s business income was derived from its contract with the Army at Fort Carson, that fact does not constitute an interest threatened with irreparable injury sufficient to justify injunctive relief. First, there never was a breach in the original contract between plaintiff and the Army. It was successfully performed, with both parties\rquote rights and duties under it discharged upon completion. It remains extended month-to-month past its termination date only because the Court\rquote s ruling on plaintiff\rquote s preliminary injunction motion was pending. Second, if there had been a breach during performance of the contract, plaintiff would have had available a remedy at law for damages, to recover its lost income under the contract; but in that event, extraordinary equitable relief would be neither necessary nor justified. Third, as SBA officials recognized, the increased number of small business set-asides with the Army in fiscal 1977 provides greater opportunities for plaintiff to bid competitively for K-P contracts. Hence, the removal of the Fort Carson contract from competitive bidding does not deprive plaintiff of its only possible K-P contract. Fourth, in fact, plaintiff\rquote s president admitted that plaintiff is actively engaged in competition for contracts at Army installations where it had never before submitted bids. Clearly, plaintiff has no present contractual interest at stake that requires extraordinary injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': at Fort Carson, plaintiff might have an edge over potential rivals if the contract were opened to competitive bidding as a small business set-aside. Plaintiff further contends that if the K-P contract at Fort Carson is placed in the 8(a) program for one to three years, any edge that plaintiff might possess if the contract were opened to competitive bidding would likely be lost because plaintiff\rquote s status would be different. That purported interest is far too speculative, conjectural, and counterfactual to justify injunctive relief. It is not an interest that is discernible in any present state of facts. Only if some factual situation that is presently not the case should occur might plaintiff\rquote s alleged competitive edge arise. To be sure, as the Court observed, plaintiff\rquote s status, and that of all persons, will be different in a year or three. Heraclitus, a presocratic thinker, long ago concluded that one can never step into the very same river twice. Nevertheless, the mere fact of change cannot support the issuance of an injunction. There must be a recognized, legitimate interest that will vanish if it is not preserved from irreparable deterioration. Plaintiff has shown no such genuine interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': of the Small Business Act is a waiver of sovereign immunity, conferring jurisdiction over SBA and its officials to be sued. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': , rev\rquote d for substituting judicial determination in place of SBA\rquote s discretionary size-determination of small business, sub. nom. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Jets Services Inc v Hoffman.doc, Paragraph with 'The Rule of Two': Apparently Congress intended that the discretionary administrative decisions and activities of SBA remain unencumbered by equitable judicial remedies such as injunctions. Plaintiff, however, also seeks injunctive relief against the Army defendants. Still, plaintiff does not complain of any activities by the Army and its officials. The gist of this lawsuit, and the ultimate question before the Court at the final hearing on the merits, is whether SBA officials abused their discretion in withdrawing the Fort Carson K-P contract from competitive bidding as a small business set-aside, and placing it in the 8(a) program. Any hypothetical harm or adverse consequences to plaintiff are alleged to have resulted from that exercise of SBA\rquote s discretion. It is clear, therefore, that in seeking injunctive relief against the Army defendants plaintiff seeks to circumvent the plain policy behind the Congressional bar against enjoining SBA activities. Plaintiff seeks to accomplish indirectly, by enjoining the Army defendants, what it is expressly prohibited from doing directly: enjoining the activity of SBA officials. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': , Administrator, Small Business Adm., Robert C. Seamans, Jr., Secretary of the Air Force, Department of the Air Force, T/Sgt. Eglin Air Force Base, Florida, and United Eglin Air Force Base, Florida, and United States of America, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Action by unsuccessful bidder on housing project at Air Force base for declaratory and injunctive relief against the administrator, Small Business Administration, Secretary of the Air Force, contracting officer and the United States. The District Court, McFadden, j., held that Small Business Administration regulation that construction contractor will be considered small business if its annual average receipts for its preceding 3 fiscal years do not exceed $7 1/2 million required that contractor\rquote s receipts for each year be considered in determination of whether contractor qualified as small business even though contractor utilized completed contract method of accounting for tax purposes which deferred reporting of receipts until year of contract completion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Where invitation for bid for construction of 300-unit family housing project at Air Force base specified that project had been set aside for bidding and construction by small business concern in accordance with Small Business Act, a small business concern which was unsuccessful bidder had standing to sue administrator of Small Business Administration, Secretary of Air Force, contracting officer and the United States for declaratory and injunctive relief against award of contract to bidder who allegedly did not qualify as small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[5] (b) (1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act that no injunction shall be issued against the administrator of Small Business Administration or his property precludes any suit against administrator which seeks injunctive relief. Small Business Act, \u167 2[5] (b) (1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Provision of Administrative Procedure Act for issuance of process to postpone effective date of agency action or to preserve status or rights pending conclusion of review proceedings in order to prevent irreparable injury did not override express language in Small Business Act that no injunction, or other similar process, shall be issued against the Small Business Administrator or his property. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[5] (b) (1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Disappointed bidder on construction of housing project, which construction contract was to let to small business concern, was not entitled to enjoin Air Force contracting officer from awarding contract in accordance with finding of Small Business Administrator that successful bidder was small business concern. Small Business Act, 2[8] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Determination by Small Business Administration that particular business was \small business concern\ within the Small Business Act is subject to judicial review. Small Business Act, \u167\u167 2[2], 2[8] (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administrator has power to make determinations as to whether business qualifies as small business concern within Small Business Act and the determination must be upheld by the courts unless determination is arbitrary, capricious, in excess of statutory authority, erroneous as matter of law, or not supported by substantial evidence, and it is not enough that the reviewing court might reach a different result in making original determination. Small Business Act, \u167\u167 2[2], 2[8](b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administrator did not act capriciously or arbitrarily in his determination that second lowest bidder on government housing project at Air Force base was a small business concern within the Small Business Act and was entitled to award of contract. Small Business Act, \u167\u167 2[2], 2[8], (b) (6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Small Business Administration regulation that construction contractor will be considered small business if its annual average receipts for its preceding 3 fiscal years do not exceed $7\u189 million required that contractor\rquote s receipts for each year be considered in determination of whether contractor qualified as small business even though contractor utilized completed contract method of accounting for tax purposes which deferred reporting of receipts until year of contract completion. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': is the Administrator of the Small Business Administration, an agency of the federal government. Defendant Robert C. Seamans, Jr., is the Secretary of the United States Air Force. Defendant T/Sgt. Jack A. Sockock was the contracting officer at Eglin Air Force Base. Since the commencement of this action he has been transferred to Southeast Asia and has been succeeded by T/Sgt. Robert C. Hoffman who had been substituted as a party defendant by stipulation of the parties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The Air Force issued an invitation for bid for the construction of a 300-unit Family Housing Project at Eglin Air Force Base, Florida, Project No. AF-70-141-5. The invitation specified that the project had been set aside for bidding and construction by small-business concerns in accordance with the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Plaintiff and others submitted bids in response to the invitation. M. Dyson Building Company, Inc. was the lowest bidder; Allen M. Campbell Company was the second lowest bidder; and plaintiff was the third lowest bidder. Plaintiff protested the award to either Dyson of Campbell on the ground that neither was a small-business as defined by law and that it therefore was the lowest qualified bidder. The Air Force submitted this protest to the Small Business Administration which determined that Dyson was not a small-business but that Campbell was. The determination with respect to Campbell was appealed to the Size Appeals Board of the Small Business Administration which affirmed the area administrator\rquote s determination. In doing so, the Size Appeals Board held that Allen .m. Campbell was and affiliate of Gordon Campbell & Associates, but that the two firms combined still qualified as a small-business. Based on this determination, the Air Force tendered a contract to Campbell who signed and returned it. Prior to signature by the Air Force, this action was commenced and this Court entered a temporary restraining order against the execution thereof. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The Small Business Administration was created to implement a public policy of aiding small-business concerns. One of the methods used was to set aside certain federal procurement for small-business. The policy can only be carried out if the procurement is in fact given to concerns which are small as defined by the Act and the regulations. It would seem therefore that a small-business concern has a right under the Small Business Act and regulations that was not present in Perkins, supra. Perkins held that the statute therein was for the Government\rquote s benefit and conferred no enforceable right upon prospective bidders. It further held that the Government\rquote s Agent, the Secretary of Labor, was responsible solely to his principal for erroneous construction of his instructions because, it reasoned, that these instructions were given for the sole benefit of that principal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The legislation here was for the benefit of the small-business concern and it would appear that whether the legal interest test of Perkins or the public interest test of Scanwell is used a small business concern such as plaintiff here has standing to use. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': . These Courts held that they had jurisdiction under the Small Business Act which permitted the Administrator to be sued, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': , and under the Administrative Procedure Act, 5 U.S.C. 1009. Both of these case involved size determinations by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The Small Business Act authorizes the Administrator to sue and permits him to be sued, but specifically provides that \u8216no attachment, injunction, garnishment, or other similar process, mesne or final, shall be issued against the Administrator or his property;\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Vincent v. Small Business Administration, 402 F.2d 769 (4th Cir. 1968) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The Court is of the opinion that the Administrative Procedure Act does not override the express language of the Small Business Act and the Administrator is not subject to injunction. It is true that the Administrator has not been enjoined, but merely the Air Force contracting officer. Defendants claim this is doing by indirection what cannot be done directly in that the finding of the Administrator as to size is binding on the Air Force. The Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Defendants further argue that since the determination of a small business concern is left to the discretion of the Small Business Administration the courts cannot review it. We do not think this discretion is unfettered and it may be reviewed. American Electric Company v. United States, supra; Springfield White Castle Co. v. Foley, supra. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The Small Business Administration is a non-incorporated federal agency, ain integral part of the United States Government and charged with the execution and administration of the small-business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': It is the declared policy of Congress that the Government shall assist small businesses by placing a fair proportion of all government contracts with them. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': There is no question that the Administrator has the power to determine which firms are to be designated as small-business. Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The regulations promulgated by the Small Business Administration define a small-business concern in the construction industry as one which is independently owned, is not dominant in its field and whose average annual receipts for the three preceding years did not exceed $7 1/2 million. SBA chapter 1, 13 C.F.R. \u167 121.3-8(a)(1) (1970). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': 7. Section 121.3-2(b) has been amended to make it clear that, in determining whether a concern qualifies as a small business under an annual sales or receipts size standards, both sales and receipts must be included. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': The underlying goal in the Small Business program is entirely different. The Small Business Act defines a small-business concern as \u8216one which is independently owned and operated and which is not dominant in its field of operation. In addition to the foregoing criteria the Administrator, in making a detailed definition, may use these criteria, among others: Number of employees and dollar volume of business.\u8217 Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': There is no suggestion in the Small Business Act or the regulations thereunder indicating an intention to expressly allow an exception as the Tax Regulations have done. There is no need to defer the determination as in the case of income tax computations. Certainty of profit calculations is not an issue. The language \u8216sales and receipts\rquote and \u8216dollar volume\u8217 belies any such intention. Had the SBA intended such a result, it could have provided for an exception by regulation as did the Internal Revenue Service, although there would be some question as to the validity even then in light of the language of the statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Lloyd Wood Const Co v Sandoval.doc, Paragraph with 'The Rule of Two': Reading a completed contract method of accounting into the Small Business Act and regulations places an undue strain on the language. It is this Court\rquote s view that the regulation means what it says: A construction contractor will be considered small if \u8216its average annual receipts for its preceding three (3) fiscal years do not exceed $7 1/2 million.\u8217 There is nothing in the statute, legislative history or the regulations to indicate a purpose to allow such receipts to be deferred to later years. Likewise, this Court can see no reason for such a deferral as exists in the income tax situation. The income tax regulation cannot be read into this statute and its regulations. There is no reason to so strain language. As the Supreme Court stated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': which, in turn, would increase the amount of small business participation in government contracts and procurements. It was thought that this legislation would ultimately benefit minority businesses, who would normally fall within the classification of \a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': House Bill 4394, which was designed to amend existing legislation would have (1) increased the exemption for bonding requirements for contractors seeking work on public buildings from $5,000 to $25,000, (2) allowed small businesses to file an acceptable letter of credit in lieu of posting a performance or payment bond, and (3) required a bond of only 25% of the total contract amount rather than 50% under existing legislation. A governmental analysis of this Bill indicated that it would benefit the State, as well as the small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': community. The infusion of small business into the State procurement process would increase the number of contractors who could bid on a project, which would ultimately result in an increase in competition and a sizeable savings for the State. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': The Report then stated that minority owned businesses, which are often described as being synonymous with small business, have demonstrated a genuine potential for substantial growth in all segments of the economy. These enterprises have expanded into \contract construction, electronic manufacturing, banking and insurance, consumable product distribution, building and grounds maintenance, metal fabricating, publishing, entertainment, food processing and cosmetics manufacturing\ (Ex. 19B, p. iiii). A survey of \The Top 100\ Black businesses indicated that their growth compares favorably with that of the \Fortune 500\ companies. Thus, minority owned businesses represented, and continue to represent, a viable and expanding segment of the American economy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': The publication and dissemination of the Report spawned legislative and executive action. In June of 1975, the State Senate introduced Senate Bill 885, which was designed to establish a \set aside\ program for small businesses. This Bill was followed by Senate Bill 1461 (1976) and Senate Bill 10 (1977). Each of these Bills addressed a set aside for small businesses. Although none of the Bills expressly sanctioned a set aside for minority businesses, their legislative history and analysis indicate that they were designed, in part, to address the perceived problems which faced minority businesses. Senate Bill 1461 specifically attempted to set aside contracts for \socially or economically disadvantaged persons.\ The Department of Commerce recommended that the proposed legislation be amended to read: \Minority Business Enterprise means a business enterprise that is owned or controlled solely by 1 or more socially or economically disadvantaged persons. The disadvantage may arise from cultural, social, chronic economic circumstances or background, or other similar cause\ (Ex 19A, p. 3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': I am aware there are those who view this legislation as preferential treatment and the distortion of the competitive spirit of purchasing. I agree that this might be considered so, but unorthodox methods are needed to create opportunities for a major segment of our society that can contribute more to our economic stability. With regards to competition, what we have now in many industries is competition among the small operators and domination by a few large firms. Large businesses often can sell at a considerable lower price because of high volume sales, more efficient distribution systems and more advertising and promotion. Small businesses cannot equitably compete because of these disadvantages of size (Ex. 19A(26) pp. 5\u82116). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': Berman\rquote s testimony included specific references to the efforts of other States in fostering or encouraging small and minority business participation through legislative enactment or executive order. Particular reference was made to the results in Minnesota after it had enacted legislation which was similar to Senate Bill 1461. After only one year of operation under the statute, Minnesota exceeded the legislative mandate of a 10% set aside for small and minority businesses by 24%. In addition, it added 170 new vendors to its bidders\rquote list, of which 60 were small businesses and 110 were socially or economically disadvantaged vendors. Berman noted that Minnesota\rquote s Director of Purchasing had not perceived any problem with the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': In the midst of this legislative action, the Governor mounted a program of his own. On July 28, 1975, he issued Executive Directive 1975\u82114 (Ex. 19D) which created a Task Force on Small Business Participation in State Purchasing [Task Force]. The Directive reiterated the State\rquote s policy of encouraging \full participation by all facets of the business community, large and small.\ Nonetheless, it recognized that despite this policy \there [was] a need to take further steps to ensure full participation in state purchasing by small businesses.\ In addition, it placed particular emphasis on minority businesses who have \historically had greater difficulty getting into the mainstream of our American business enterprise system.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': The Task Force was directed to (1) review existing rules and regulations of state purchasing to determine \whether impediments may exist,\ that prevent small businesses from fully participating in State procurement, (2) review state law regarding procurement procedures and determine necessary and appropriate measures to enhance small business opportunities, and (3) consult public and private agencies, organizations and individuals. The Governor specifically directed the Department of Management Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': and Budget to cooperate with the Task Force in (1) identifying the percentage of state contracts awarded to small businesses, (2) appraise the methods used to notify prospective bidders of the availability of state contracts, (3) analyze present procedures to determine whether smaller awards would increase participation, and (4) propose modifications in procedure to accomplish the goals of the Directive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': businesses was set at 23% while that set for minority businesses was 1%. At the end of the fiscal year, the commitment for minority businesses had been reached and the commitment for small businesses was exceeded by 30%. The Task Force noted \[t]here is little doubt that the imminence of Senate Bill Number 10 had a stimulating effect upon departments, especially during the latter part of fiscal year 1977\ (p. 2). (Senate Bill 10 proposed a \set aside\ for small and minority businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': All of this information was available to the Legislature on March 15, 1979 when the House initiated House Bill 4335. The original House Bill 4335 proposed a set aside of 20% of state contracts, 13% for small businesses and 7% for minority businesses. In February 1980, the proposed set aside provision for small businesses was dropped and a 5% set aside section for women was added. In its final form, the absolute set aside language was removed from the Bill. Instead, the proposed legislation provided for a gradual attainment of ultimate percentages of contracts for minority and woman owned businesses. This was to be accomplished by increasing the percentage of actual expenditures to these businesses over a four year period in the case of minorities and a five year period in the case of woman owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': Even though a limited survey of small and minority businesses supports the belief that the State\rquote s complex purchasing procedures contributes to minority businesses\rquote inability to participate fully in State procurements, those perceptions do not negate the unmistakable conclusions which are drawn from the statistical evidence. The testimony of Berman before the Senate shows that the Executive Branch had taken steps to assist small and minority businesses in dealing with the complexities of State procurement prior to the introduction of Senate Bill 1461. The Office of Economic Expansion [OEE], through its Division of Minority Business Enterprise and Small Business Development [DMBE], provided assistance in \management/administrative training programs, problem solving with governmental regulatory agencies, and financial resource development\ (p. 2) prior to the enactment of P.A. 428. Moreover, while it appears that the Senate procurement policies adversely Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': Following the issuance of Executive Directive 1975\u82114, small business participation reached 26% of all State procurement for the 1976 fiscal year. In that same year, minority businesses obtained only 1% of all State contracts. During the same period of time, there were over 8,000 minority businesses in the State, whose activities span a wide range of goods and services and at least six of those businesses are among the Top 100 Black businesses in the country. Under these circumstances, an inference of discrimination can hardly be termed \magical.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': the Supreme Court noted that Congress first attempted to address the under-participation of minorities through \u167 8(a) of the Senate Small Business Act, Public Law 85\u8211536. Under the Act, the Small Business Administration [SBA] was permitted to assist small businesses in contracting to furnish goods and services to the Federal Government. In 1968, the President directed the SBA to develop a program to assist small businesses who were owned or controlled by \socially or economically disadvantaged [persons] to achieve a competitive position in the economy.\ In a 1975 Report, the House Subcommittee on SBA Oversight and Minority Enterprise expressed its disappointment in the limited effectiveness of \u167 8(a) of the Small Business Act. It noted that minorities received only 0.65% of Government contracts. The General Accounting Office and the United States Commission on Civil Rights also expressed dissatisfaction with the limited success of \u167 8(a). In addition, the Congress had a report from the Office of Minority Business Enterprise [OMBE] which concluded \that OMBE efforts were \u8216totally inadequate\u8217 to achieve its policy of increasing opportunities for subcontracting by minority businesses on public contracts. OMBE efforts were hampered by a glaring lack of specific objectives which each prime contractor should be required to achieve by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': In the present case, the State initiated a similar small business \set aside\ act (Senate Bill 1461). The Senate then introduced Senate Bill 10 which included particular assistance for businesses that were owned or controlled by \socially and economically disadvantaged\ persons. The definition of such persons is essentially the same as that which had been promulgated by the SBA in connection with \u167 8(a). The initiation of these Bills in the Legislature was accompanied by Executive action. The Reports from the MCRC, Small Business Task Force, and the Small and Minority Business Procurement Council all reached the same basic conclusions as those that were submitted by various commissions to Congress on the effectiveness of \u167 8(a). Each of these Reports noted that executive programs had been hampered by bureaucratic recalcitrance. One study noted that the impetus toward even limited success was caused by the imminence of set aside legislation (Senate Bill 10). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken (1).doc, Paragraph with 'The Rule of Two': , establishes a Small Business Development Program to provide small businesses with information, managerial, and technical assistance, and to assist the Legislature in developing and strengthening small businesses within the State. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Michigan Road Builders Assn Inc v Milliken.doc, Paragraph with 'The Rule of Two': Defendant Exhibit 46G has been superseded by MDOT\rquote s \Disadvantaged Business Enterprise (DBE), Minority Business Enterprise (MBE), and Woman Business Enterprise (WBE) Program Procedures\, dated June 27, 1984. See Defendant\rquote s Exhibit 55. That policy statement expressly cites P.A. 428 as MDOT\rquote s program authority for attaining the minority- and woman-owned business procurement goals required for 100 percent State funded projects. Defendant\rquote s Exhibit 55, pp. 1 and 8. In addition, Mr. Larry L. Leatherwood, Liaison Officer for MDOT\rquote s Office of Small Business Liaison, states in his Affidavit accompanying the State\rquote s Motion for Summary Judgment that: \Since at least January 1984 MDOT has recognized that the standards and requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Nolan Contracting Inc v Regional Transit Authority.doc, Paragraph with 'The Rule of Two': provide 30 percent goal for dollar value of work to be performed by minority business enterprises, was impliedly authorized under Louisiana public bid law and Small Business Procurement Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Nolan Contracting Inc v Regional Transit Authority.doc, Paragraph with 'The Rule of Two': The Louisiana Small Business Procurement Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: PRI Pipe Supports v Tennessee Valley Authority.doc, Paragraph with 'The Rule of Two': was rejected as nonresponsive. Mr. Strickland states that the bid was nonresponsive, and therefore unacceptable, for two reasons. First, paragraph 23(a) of the conditions of bid states that bids are solicited from companies \that will agree to perform as labor surplus area concerns.\ This condition is imposed in order to carry out the mandate of the Small Business Act, which gives priority in awarding government contracts to those concerns that operate in areas of concentrated unemployment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Thomas S. KLEPPE, Administrator Small Business Administration, et al., Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Action by small businesses engaged in refuse hauling challenging private placement by administrator of Small Business Administration and Secretary of the Department of the Air Force of subcontracts for refuse disposal at air force base. On motion for summary judgment, the District Court, King, J., held that private award of subcontracts violated statutory requirements obligating defendants to secure maximum competitive bidding practicable and arbitrarily and capriciously deprived plaintiffs, which sought to bid, of benefits extended to them by means of Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Independent firms, which were engaged in business of collecting and hauling refuse to disposal sites, which qualified as small businesses under Small Business Act and which sought opportunity to compete for contract for collection and removal of refuse from air force base, had legal standing and interest to bring action challenging Small Business Administration\rquote s private award of subcontract under program to aid \socially or economically disadvantaged persons\ as violating statutory obligation to secure maximum competitive bidding and denying due process and equal protection. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Action by administrator of Small Business Administration and Secretary of Department of the Air Force in setting aside contract for collection and removal of refuse from air force base for competitive bidding among small business concerns was authorized by Small Business Act. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': It is the general policy of Congress that government contracts, unless specifically excepted, shall be awarded by means of maximum competitive bidding, whether formal advertising or negotiation is used; such policy is binding on the Small Business Administration in making of contract awards to small businesses. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Private award of subcontracts for collection on removal of refuse from air force base by administrator of Small Business Administration, with active assistance of Secretary of the Department of the Air Force, violated statutory requirements obligating them to secure maximum competitive bidding practicable and arbitrarily and capriciously deprived other small businesses, which sought to bid, of benefits extended to them by means of Small Business Act; such contracts were unauthorized by law and illegal. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Small Business Act did not authorize program adopted by administrator of Small Business Administration to privately place subcontracts for benefit of \socially or economically disadvantaged persons\; regulation and program carried on under color of its provisions are unauthorized and illegal. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s program of awarding subcontracts to \socially or economically disadvantaged persons\ is invalid and illegal as lacking objective criteria other than those of race, color or ethnic origin for the identification of those persons deemed to be \socially or economically disadvantaged\ and otherwise eligible to receive contract awards without competition. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Exclusion of \whites,\ and specifically whites, who operated small businesses and who sought to bid for trash hauling at air force base, from participation, except on token basis, in Small Business Administration\rquote s program to award sub-contracts to \socially or economically disadvantaged persons,\ defined as minority group members, represented invidious discrimination in violation of equal protection. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Small Business Administration administrator\rquote s and Secretary of Department of Air Force\rquote s use of government lending and contracting powers to favor one small business, with which it privately placed subcontract for rubbish disposal at air force base at price higher than that which it had previously awarded contract to successful bidders, by enhancing its competitive advantage against other trash haulers in private commercial field violated other haulers\rquote rights under the Fifth Amendment in that it served to deprive them of their property without due process. Small Business Act, \u167 2 [8] (a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': Upon consideration of plaintiffs\rquote verified complaint, the admission in open court on 29 June 1971 by the United States Attorney for the Southern District of Florida and counsel for the Small Business Administration that there is no issue of material fact respecting the allegations set forth in said verified complaint and that there are present only legal issues to be determined by the Court without further hearing, and upon consideration of the motion for summary judgment filed in behalf of plaintiffs, the motion to dismiss or, in the alternative, for summary judgment filed by the Assistant Attorney General of the United States in behalf of the defendants, the affidavits, exhibits and briefs filed by the respective parties, the Court hereby adjudges and decrees as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 1. Plaintiffs are independent firms engaged in the business of collecting and hauling refuse to disposal sites, and each is a \small business concern\ as defined by applicable statute ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': ) and the regulations of the Small Business Administration, hereinafter referred to as \SBA\. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 3. Defendant All American Waste, Inc., hereinafter referred to as \All American\, is also engaged in the business of collecting and hauling refuse as a small business concern in competition with each of the plaintiffs, and its annual gross revenue approximates $100,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 4. Defendant All American was formed and began operation in 1970 solely through financial aid and other assistance extended to it by defendant Thomas S. Kleppe, Administrator of the Small Business Administration, hereinafter referred to as \Administrator\, and defendant Robert C. Seamans, Jr., Secretary of the Department of the Air Force, hereinafter referred to as \Secretary\. As part of such aid and assistance, the Administrator and Secretary secured for SBA from Homestead Air Force Base, Homestead, Florida, hereinafter referred to as \Homestead\, a contract for the collection and removal of refuse from the Base for the period 1 July 1970 through 30 June 1971 at a price of $65,000 and then without public notice of any kind privately subcontracted it to defendant All American at the same price for its sole benefit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 5. Prior to 1970 said contract services had been formally advertised each year by Homestead for competitive bidding restricted to small business concerns, including plaintiffs, as part of the statutory program instituted by SBA and the Department of the Air Force n accordance with the declared policy of the Congress ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 6. In 1969 plaintiff Santo was the successful bidder and received the contract at a price of $49,116.00. In 1968 plaintiff Jones was the successful bidder and received the contract at a price of $42,245.00. The $65,000 price awarded to defendant All American includes a premium designed to enhance its competitive position against plaintiffs and other similarly situated small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': of the Small Business Act, Public Law 85-536, 72 Stat. 384, July 18, 1958, and implementing regulations adopted by the SBA effective November 10, 1970, Title 13 Code of Federal Regulations \u167 124.8-1 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 8. In determining whether one is socially or economically disadvantaged, reliance is not placed on a single factor but rather on a composite of all of the factors. In addition, the Regulations promulgated with respect to 8(a) contracts apply equally to members of all races. Thus, a Caucasian may be found to be socially or economically disadvantaged and thereby eligible for participation in this program. Moreover, I am informed and believe the fact to be that since the inception of the 8(a) program in 1968 through August 31, 1971, 795 small business firms have been awarded 1,153 8(a) contracts of a total value of $115,449,027. A statement showing the totals for each fiscal year is attached as Exhibit 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 17. Prior to 10 November 1970, on which date the present 8(a) regulation became effective (Finding 11), the SBA regulation applicable to Section 8(a) of the Small Business Act provided in pertinent part as follows, effective 31 December 1968: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': (a) Section 8(a) (1) and (2) of the Small Business Act authorizes SBA to contract with any department or agency of the United States Government for the furnishing of articles, equipment, supplies or materials and to subcontract with small business concerns or others for the performance of such prime contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': (b) This prime contracting authority has been placed on a standby basis and will be activated as required to protect the interests of small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': (a) During periods of emergency determined by the Administrator to warrant exercise by SBA of its prime contract authority, SBA will review procurement plans and programs of other Government departments and agencies to determine the contracts for property, equipment, supplies, or materials which SBA should undertake to furnish to the Government through the exercise of its prime contracting authority. Upon making such determination, SBA will make the certification provided for in section 8(a) (1) of the Small Business Act and will enter into a formal contract with the procuring agency. Thereafter, SBA will widely publicize its requirements and fully utilize its facilities listing in soliciting bids or proposals. Awards will then be made to the best qualified supplier, price and other factors considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 19. The original 8(a) regulation was promulgated contemporaneously with the passage by Congress of the Small Business Act, approved 18 July 1958, P.L. 85-536, 72 Stat. 384. Prior to the passage of this statute SBA reported to Congress, which was at the time considering amendments to the Small Business Act of 1953 (Title II of Act of 30 July 1953, 67 Stat. 232) which contained the substantive provisions of the present Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 20. SBA\rquote s then stated belief that the 8(a) power was intended by Congress to be reserved for emergencies is confirmed by the legislative history attending the creation of the power by Congress. The power was initially entrusted to the Small Defense Plants Administration (SDPA) during the Korean War, to terminate on 30 June 1953, Defense Production Act Amendments of 1951, 31 July 1951, P.L. 96, 65 Stat. 131, 144. Concerned by the by-passing of small business in the Government\rquote s drive to achieve urgent war production, Congress stated that it was the \sense of the Congress that small-business concerns be encouraged to make the greatest possible contribution toward achieving the objectives of this Act.\ (Section 110, Defense Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 21. The power granted to SDPA had its origin in legislation sponsored by Senator Sparkman and Representative Patman. These gentlemen were respectively chairmen of the Senate and House Committees overseeing the interests and welfare of small business. In speaking to the bill which would enact an 8(a) power, Representative Patman advised, in part, the House of Representatives as follows (Cong.Rec., Vol. 97, Part 1, pp. 410, 412): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': *** This would enable the Small Defense Plants Corporation to act as a Government prime contractor and to sublet to small business concerns who would act as subcontractors to the Corporation. This very important provision was added to the Smaller War Plants Corporation Act after its original passage and proved to be extremely beneficial to small business. Actually, the Smaller War Plants Corporation took over very few contracts, but the power was there to do so if necessary and was, in effect, notice to the procuring agencies to award small business a fair proportion of the prime contracts. It is an effective provision by which the end result can be obtained, without its being used to any appreciable extent (section 3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 23. Congress in reposing the 8(a) power in SBA restricted the power by removing from it the right to exercise it without regard to any other provision of law. In the circumstances, the original 8(a) regulation promulgated by SBA, effective 31 December 1958 (Finding 17), represented a contemporaneous and accurate expression of the intention of Congress that the 8(a) power in the Small Business Act (1958) was one to be exercised in the event of emergency for the benefit of small business as a class, and that when exercised subcontracts must be entered into on a publicized, competitive basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 25. The fact that SBA instituted its subcontracting program for \socially or economically disadvantaged persons\ in 1968 at a time when its original 8(a) regulation spoke clearly to other purposes and unequivocally required the maximum competition practicable among small business as a class, makes it appear that SBA did not then view the program as falling within the limits of the 8(a) power. Obviously, unless SBA is to be charged with wilful violation of its own regulations, it must be assumed to have acted upon some other asserted legal basis than the 8(a) power. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': it has made provision for assistance to such individuals. In subchapter IV of this Act it has empowered SBA to provide financial assistance by means of loans and grants to small business firms in areas with high proportions of unemployed or low-income individuals, or which are owned by low income individuals; but it has specifically stated that such financial assistance shall \not include the procurement of plant or equipment, or goods or services.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 27. Defendants have not offered any evidence that Congress has specifically approved, much less considered, a private subcontracting program such as SBA with the active assistance of other Government departments and agencies is carrying on under color of the 8(a) statute. Defendants do not contend, nor have they offered any evidence that individual members of the so-called \minority\ groups identified in substitute regulation 8(a) have been discriminated against in the formation and operation of small business concerns by reason of race, color or ethnic origin. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 28. Plaintiff firms are owned and controlled by \whites\. Defendant All American is a firm owned and controlled by a \black\. It appears that SBA with the active assistance of other Government agencies is operating its 8(a) program in such a manner as to provide merely token eligibility for \whites\, and that plaintiffs are effectively barred from sharing in the benefits of such a program by reason of race and color, although they are similarly situated with defendant All American as small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 29. Defendant Administrator and defendant Secretary are actively supporting and assisting defendant All American by means of their lending and contract powers for the purpose of enhancing its viability and competitive position as against plaintiffs and other similarly situated small business concerns, and the basis for so favoring defendant All American is the race or color of the individual owning or controlling it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 30. Defendants\rquote actions have and are causing injury to plaintiffs\rquote economic interests and have and are depriving plaintiffs of the benefits extended to them as small business concerns by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 2. Congress has by means of the Small Business Act provided important and valuable benefits for small business concerns as defined by defendant Administrator. These benefits include the right to compete for Government contracts on an equal basis with other small business concerns. The setting aside by defendant Administrator and defendant Secretary, prior to the events here involved, of the Homestead contract for competition among small business concerns and award to the successful Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 3. It is also the general policy of Congress that Government contracts, unless specifically excepted, shall be awarded by means of the maximum competitive bidding practicable, whether formal advertising or negotiation is used. This policy is made binding by applicable statute upon the defendant Administrator and defendant Secretary in the making of contract awards. Section 8(a) of the Small Business Act does not create an exception to the statutes requiring the maximum competitive bidding practicable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 4. The private award of subcontracts to defendant All American by the defendant Administrator with the active assistance of the defendant Secretary constituted a violation of the statutory requirements obligating them to secure the maximum competitive bidding practicable, and arbitrarily and capriciously deprived plaintiffs of the benefits extended to them by Congress by means of the Small Business Act. The subcontracts are unauthorized by law and illegal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 5. Further, the legislative and regulatory history of the enactment and implementation of Section 8(a) of the Small Business Act demonstrates that Congress did not authorize by its provisions a program by defendant Administrator for the benefit of \socially or economically disadvantaged persons\ as provided for and operated by defendant Administrator under color of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 6. The 8(a) program as carried on by defendant Administrator is also invalid and illegal in that it lacks objective criteria other than those of race, color or ethnic origin for the identification of those persons who are deemed to be \socially or economically disadvantaged\ and otherwise eligible to receive contract awards from the defendant Administrator without competition. Plaintiffs are small business concerns similarly situated with defendant All American, but defendants in the operation of the 8(a) program ignore such a factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': 7. The primary criterion for eligibility under the 8(a) program is race, color or ethnic origin. \Whites\ are not eligible for the program benefits, except on a token basis. Plaintiffs have been excluded from consideration for the Homestead awards because of their race and color. There is no evidence that members of the \minority\ groups identified in substitute regulation 8(a) have been discriminated against in the formation and operation of small business concerns by reason of race, color or ethnic origin. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': The exclusion of \whites\, and specifically plaintiffs, from participation in the 8(a) program, except on a token basis, represents invidious discrimination against them. In this respect plaintiffs\rquote rights under the competitive bidding statutes and the Small Business Act have been violated by the actions of the defendants, as have their right to receive equal protection of the laws pursuant to the Fifth and Fourteenth Amendments to the Constitution of the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe (1).doc, Paragraph with 'The Rule of Two': American are unauthorized by law and illegal, and that the Homestead services shall be contracted for as soon as possible on the basis of the maximum competitive bidding practicable among plaintiffs and other similarly situated small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': , Administrator, Small Business Administration, et al., Defendants-Appellants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Small businesses engaged in refuse Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': brought suit challenging Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons.\ The United States District Court for the Southern District of Florida, at Miami, James Lawrence King, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': held that the program was not authorized by the Small Business Act and violated federal statutes requiring competitive bidding in government procurement, and defendants appealed. The Court of Appeals, Wisdom, Circuit Judge, held, inter alia, that the Small Business Act, in addition to congressional and presidential mandates issued after the passage of the Act, provides sufficient authority for the SBA\rquote s program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': As the Small Business Administration intended to continue its program of awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons,\ a real controversy existed and plaintiff refuse haulers could proceed with their appeal from district court judgment upholding the SBA\rquote s program, notwithstanding the fact that defendant refuse hauler did not satisfactorily perform its responsibilities under government subcontract privately awarded to it and that the Air Force terminated that subcontract and negotiated a refuse contract with one of the plaintiffs for the duration of the year. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Refuse haulers had standing to litigate the question of the statutory and constitutional authority of the Small Business Administration to establish program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons,\ where plaintiff haulers alleged not only that they had been injured by the SBA\rquote s action removing government procurement contracts from competitive bidding, but also that the program enabled defendant hauler, a socially or economically disadvantaged black-owned firm, to receive a premium price above that which would have prevailed under competitive bidding and that defendant had since used that premium to submit low bids for private commercial contracts thus causing plaintiffs to lose customers. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons\ was not unauthorized because it was not specifically mentioned in the statute; rather, since the program was a reasonable means of promoting the statutory goal, the SBA did not abuse its discretion or exceed its statutory authority in adopting the program; further, the program was supported by congressional and presidential mandates issued after the passage of the Act. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': It was not court\rquote s duty to evaluate arguments regarding allocation of government procurement contracts or to consider the wisdom of present programs; rather, the task of the court was to determine whether the Small Business Administration had abused its discretion or exceeded its statutory authority in adopting program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons.\ Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Authority of the Small Business Administration to use its powers under section of the Small Business Act authorizing the SBA to enter into all types of contracts with other government departments and agencies and to subcontract the performance of such contracts is not limited to periods of emergency. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Subcontracts under Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons\ may be awarded on a noncompetitive basis. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': As plaintiff refuse hauler who had previously been awarded air force base contract failed to perform the required services and abandoned the contract after nine and a half months, the Small Business Administration was not depriving plaintiff of renewal of an existing contract by placing the air force contract under Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons.\ Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': There is no constitutional duty to offer government procurement contracts for competitive bidding. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Plaintiff refuse haulers had no standing to litigate the issue of racial discrimination in the administration of Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons,\ since plaintiffs did not even apply for participation in the program. Small Business Act, \u167 2[8](a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': In this case the plaintiffs attack the Small Business Administration\rquote s program for awarding government procurement contracts to small business concerns owned by \socially or economically disadvantaged persons.\ 13 C.F.R. \u167 124.8-1(c). The district court held that the section 8(a) program is not authorized by statute and denies due process and equal protection in violation of the Fifth and Fourteenth Amendments. We reverse. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': refuse to disposal sites. They qualify as small business concerns under both the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': and the applicable regulations of the Small Business Administration. All American Waste, Inc., named as a defendant, is a black-owned firm that competes with the plaintiffs in the business of collecting and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': refuse and also qualifies as a small business concern. The dispute in the present case relates to a contract for the collection and removal of refuse from Homestead Air Force Base in Homestead, Florida. In 1968 and 1969, the Small Business Administration and the Department of the Air Force, pursuant to a joint program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': for placement with small business concerns. The Air Force awarded the contracts after formal advertising and competitive bidding restricted to small business concerns. Jones and Santo successfully bid for the contract in 1968 and 1969 respectively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': In 1970, the Small Business Administration promulgated new regulations establishing a \section 8(a) program\ providing for assistance to small business concerns owned by disadvantaged persons. 13 C.F.R. \u167 124.8-1. As part of the program, the SBA secured a prime contract from the Air Force for the collection and removal of refuse from the Homestead base for a two year period commencing July 1, 1970. The SBA then negotiated a similar subcontract with All American for the performance of the services in the prime contract between the SBA and the Air Force for a one year period commencing July 1, 1970 at $65,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Upon being advised that the SBA intended to enter into a second subcontract with All American for the performance of the prime contract services at Homestead for the fiscal year 1971, the plaintiffs demanded an opportunity to compete for the contract. They did not apply for participation in the program and they did not contend that they were eligible. The SBA rejected the demand and later executed the second subcontract with All American. On June 29, 1971, the plaintiffs commenced the present action for injunctive and declaratory relief in the District Court for the Southern District of Florida. The defendants were the Administrator of the Small Business Administration, the Secretary of the Department of the Air Force, the Contracting Officer assigned to Homestead Air Force Base, and All American Waste, Inc. In the complaint, the plaintiffs sought a permanent injunction enjoining the SBA from letting the Homestead contract under the section 8(a) program without competitive bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The court found that the SBA\rquote s section 8(a) program, providing for assistance to small business concerns owned by disadvantaged persons, was not authorized by the Small Business Act and violated the federal statutes requiring competitive bidding in government procurement. The court also found that the primary criterion for the program was race, color, and ethnic origin, that whites were ineligible for program benefits except on a token basis, and that the plaintiffs, as \non-minority\ owned firms, were denied due process and equal protection of the laws. The court concluded that the subcontract awarded to All American was illegal and ordered that the Homestead contract be awarded as soon as possible on the basis of the maximum competitive bidding practicable among the plaintiffs and other similarly situated small business concerns. The defendants appealed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Turning to the first of these issues, we conclude the plaintiffs have standing to litigate the question of the statutory and constitutional authority for establishing the section 8(a) program. The plaintiffs allege not only that they have been injured by the SBA\rquote s action removing government procurement contracts from competitive bidding, but also that the section 8(a) program enabled All American to receive a premium price above that which would have prevailed under competitive bidding and that All American has since used this premium to submit low bids for private commercial contracts, thus causing the plaintiffs to lose some of their customers to All American. In these circumstances, the injury to the plaintiffs is manifest. Moreover, as small business concerns, the plaintiffs are arguably within the zone of interests intended to be protected by the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': As stated in the regulations promulgated by the SBA, the purpose of the section 8(a) program is \to assist small business concerns owned by disadvantaged persons to become self-sufficient, viable businesses capable of competing effectively in the market place.\ 13 C. F.R. \u167 124.8-1(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Authority for the program is derived from section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': empowering the SBA to enter into all types of contracts (including contracts for supplies, services, construction, research, and development) with other departments and agencies of the federal government and to arrange for the performance of such contracts by negotiating or otherwise letting subcontracts to small business concerns. In awarding subcontracts under the section 8(a) program, the SBA limits eligibility to small businesses \owned or destined to be owned by socially or economically disadvantaged persons.\ 13 C.F.R. \u167 124.8-1(c). As the regulations recognize, this \often includes, but is not restricted to, Black Americans, Americans, American Indians, Spanish Americans, Oriental Americans, Eskimos and Aleuts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': unauthorized, that the SBA\rquote s powers under section 8(a) of the Small Business Act are limited to periods of emergency, and that the SBA was bound by other statutes requiring government procurement contracts to be awarded competitively. We disagree. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': A. The declared policy of the Small Business Act is to \aid, counsel, assist, and protect . . . the interests of small-business concerns in order to preserve free competitive enterprise [and] to insure that a fair proportion of the total purchases and contracts or subcontracts for property and services for the Government . . . be placed with small-businesses enterprises.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The Act is premised on the idea that \the essence of the American economic system of private enterprise is free competition,\ \[that] the preservation and expansion of such competition is basic not only to the economic well-being but to the security of this Nation,\ and that \[s]uch security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': To accomplish this goal, Congress vested the Small Business Administration with broad powers and responsibility over the economic life of small business concerns. The SBA is authorized to make loans to small business concerns, to provide technical and managerial aids, and to assist small business concerns in obtaining government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . Most importantly, in section 8(a) of the Act the SBA is authorized to enter into procurement contracts with other federal agencies and to arrange for the performance of those contracts by subcontracting with small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . This section unequivocally states that the SBA is empowered to let subcontracts to \small business concerns or others.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . In accordance with this statutory mandate, the SBA adopted its section 8(a) program through which government procurement contracts are awarded to small business concerns owned by disadvantaged persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': So it is with the case at bar. Congress has declared that the actual and potential capacity of small business concerns must be developed and that a fair proportion of total purchases and contracts of the federal government must be placed with such firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . It must select the programs that will insure the economic development of small business concerns and provide for their participation in government procurement contracts. The SBA has responded by adopting a program which reflects its judgment of priorities in light of current facts. It is not the duty of the courts to evaluate the arguments regarding allocation of government procurement contracts or to consider the wisdom of the present programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': There is ample indication that small business concerns owned by disadvantaged persons have traditionally received a disproportionally small number of government procurement contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Furthermore, the plaintiffs cannot complain because a specific type of small business concern is the primary beneficiary of the present program. It is well settled that an agency need not \strike at all evils at the same time,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': This amendment directs the SBA to \assist in the establishment, preservation, and strengthening of small business concerns . . . with special attention to small business concerns (1) located in urban or rural areas with high proportions of unemployed or low-income individuals, or (2) owned by low-income individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . In the second order, issued March 21, 1970, the President called for increased representation of the interests of small business concerns, particularly minority-owned Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': B. In reaching the conclusion that the SBA\rquote s powers under section 8(a) of the Small Business Act may be used only in periods of emergency, the district court relied on the fact that the statutory prototype of section 8(a), sections 714(b) (1) (B), (C), and 714(b) (2) of the Defense Production Act Amendments of 1951, was first enacted to increase the participation of small business concerns in the production of war material during the Korean War. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': First, section 8(a) of the Small Business Act clearly constitutes specific statutory authority to dispense with competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Second, competition is impractical in the present case. The purpose of the Act is to assist small business concerns. The Act is based on the premise that such firms are unable to compete effectively in the marketplace and therefore cannot secure government procurement contracts awarded through competitive bidding. By increasing their participation in government procurement, however, these firms can eventually become self-sufficient, viable businesses capable of competing effectively in the marketplace. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': To require competitive bidding would be contrary to the basic rationale of the Act. Even if competition were limited to small business concerns, there would still be many small business concerns that would never receive government procurement contracts. This result would clearly frustrate the congressional intent to assist small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': , the plaintiff sought to enjoin the SBA and the Department of Defense from awarding a subcontract for janitorial services to a small business concern owned by socially Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': D. The plaintiffs also contend that in awarding the Homestead contract the SBA violated section 124.8-1(d)(3) of the applicable regulations, which provides that \procurements [under section 8(a)] will not be considered where . . . (3) . . . small business concerns are dependent in whole or in significant part on recurring Government contracts.\ 13 C.F.R. \u167 1248-1(d) (3). It is clear from the evidence presented to the district court, however, that the plaintiff who had previously been awarded the Homestead contract failed to perform the required services and abandoned the contract after nine and a half months. Thus, the SBA was not depriving the plaintiffs of a renewal of an existing contract by placing the Homestead contract under the section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': In exercising this power, of course, the government remains subject to the constitutional requirement of due process. But in the case at bar we cannot accept the plaintiffs\rquote argument that the section 8(a) program is unconstitutional because the plaintiffs may be disadvantaged competitively. There is no constitutional duty to offer government procurement contracts for competitive bidding. The SBA has the statutory authority to assist small business concerns through private placement of contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': We have already held that the SBA has not abused its discretion in adopting the section 8(a) program. The program may produce some inequalities among small business concerns as a class. But in the area of socio-economic legislation, the government\rquote s action must be upheld if it is rationally related to a proper government purpose. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Section 2 of the Small Business Act defines \small business concerns\ as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Section 8(b) (11) of the Small Business Act authorizes the SBA to set aside contracts for placement with small business concerns. The SBA has the power: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The SBA contends that the contract price was arrived at by computing estimated cost plus allowance for a reasonable profit. The district court found that the contract price includes a premium designed to enhance All American\rquote s competitive position against the plaintiffs and other similarly situated small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': . Section 8(a) of the Small Business Act authorizes SBA to enter into all types of contracts (including supply, services, construction, research and development) with other Government departments and agencies and subcontract the preformance of such contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': (3) Where small business concerns are dependent in whole or in significant part on recurring Government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The limited extent to which minority business enterprises participate in federal government procurement indicates that these firms have received a disproportionately small number of contract awards. According to the Report of the President\rquote s Advisory Council on Minority Business Enterprise, at 5 (1971) \current figures place minority-owned businesses variously between 55,000 and 165,000, from a total of more than 5.5 million, or between one and three percent of the total business community.\ In Fiscal Year 1971 federal government procurement contracts let to minority-owned businesses (blacks, Indians, Puerto Ricans, Mexican Americans, and others) totalled $143.8 million. The SBA\rquote s section 8(a) program accounted for $66 million of this amount. Dept. of Commerce, Progress of the Minority Business Enterprise Program, at 9 (1972). The federal government\rquote s procurement contracting during this same period exceeded $45 billion. Secretary of the Defense, Military Prime Contract Awards and Subcontract Payments or Commitments\u8211July 1970 - June 1971, at 7-8 (1971); General Services Administration, Procurement By Civilian Executive Agencies, Period July 1, 1970 - June 30, 1971, (1971). Thus, minority-owned businesses participated in about one-third of one percent of the total dollar volume of federal government procurement during the Fiscal Year 1971. Although no figures were presented comparing contract awards to non-minority-owned small business firms with awards to minority-owned small business firms, it is apparent that in general minority-owned small business firms have received a disproportionately small share of federal government procurement contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': We hold that the Small Business Act alone provides sufficient authority for the SBA\rquote s section 8(a) program. We discuss these additional authorities, however, because we find they show convincingly that the SBA has not abused its discretion or exceeded its statutory authority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The legislative history clearly indicates that factors other than income may be considered. Indeed, it is unlikely that many persons who own small businesses are impoverished in the strict sense. Even for the Act to have meaning, therefore, it is necessary to read the term \low-income individuals\ in a broad manner. We conclude that the SBA\rquote s construction of the term has a reasonable basis in law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The Defense Production Act Amendments of 1951 were designed to insure the participation of small business concerns in the production of material for the Korean War. The Amendments authorized the Small Defense Plants Administration (SDPA) to enter into contracts with other government agencies and to subcontract with small business concerns \without regard to any other provision of law except the regulations prescribed under Section 201 of the First War Powers Act, 1944, as amended.\ Act of July 31, 1951, ch. 275, \u167 110, 65 Stat. 140-141. Section 201 of the War Powers Act authorized contracting \without regard to the provisions of law relating to the making, performance, amendment or modification of contracts,\ whenever such action would facilitate the prosecution of the war. On February 2, 1951, President Truman issued Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': In 1953, Congress established the Small Business Administration as the peacetime successor to the SDPA. The Small Business Act of 1953 conferred the subcontracting power upon the SBA but did not state, as did the earlier Amendments, that it could be exercised \without regard to any other provision of law.\ Act of July 30, 1953, ch. 282, 67 Stat. 235. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': In 1958, Congress enacted the second Small Business Act. The Act provided that the SBA could use the subcontracting power \whenever it determines that such action is necessary\ and that it could arrange for the performance of subcontracts \by negotiating or otherwise letting\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': (a) During periods of emergency determined by the Administrator to warrant exercise by SBA of its prime contract authority, SBA will review procurement plans and programs of other Government departments and agencies to determine the contracts for property, equipment, supplies, or materials which SBA should undertake to furnish to the Government through the exercise of its prime contracting authority. Upon making such determination, SBA will make the certification provided for in section 8(a) (1) of the Small Business Act and will enter into a formal contract with the procuring agency. Thereafter, SBA will widely publicize its requirements and fully utilize its facilities listing in soliciting bids or proposals. Awards will then be made to the best qualified supplier, price and other factors considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': Congress has stated on several occasions that section 8(a) can be used peacetime. In 1960, for example, the Final Report of the Select Committee on Small Business, referring to the SBA\rquote s initial position that section 8(a) could be used only in periods of emergency, stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': that it was the intention of Congress that it would be used whenever necessary to assure that small business receives its fair share of Government procurement and not just in \u8216national emergency Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': .\u8217 The committee believes that small business is not getting its fair share, and that there could very well be instances wherein the assuming of prime contracts by SBA for the purpose of letting subcontracts to small businesses would be feasible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': The plaintiffs point out that the SBA, in a report presented to the House Committee considering the legislation which became the Small Business Act of 1958, stated that it believed its authority to subcontract was limited to periods of emergency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Ray Baillie Trash Hauling Inc v Kleppe.doc, Paragraph with 'The Rule of Two': , provides that competition may be dispensed with where negotiation is \otherwise authorized by law.\ The regulations promulgated pursuant to the Act cite several examples, including \negotiation permitted by the Small Business Act.\ 41 C.F.R. \u167 18-3.217-3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Regional Scaffolding And Hoisting Co Inc v City of Philadelphia.doc, Paragraph with 'The Rule of Two': SEPTA, the Washington, D.C. Department of Transportation, the Small Business Administration, etc.), the MBEC staff must determine whether or not to certify the firm. Often personal interviews or hearings are required in order to verify that the firm is at least 51% owned by a person of the requisite ethnic or racial heritage or gender. Hearings may also be required in order to verify that the individual or individuals represented to be the owners of the firm in fact are capable of controlling and managing the operation of the firm. The certification process on any one bid may take several months and has caused significant delays in the awarding of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Action to recover profits which plaintiff alleged it would have realized had a contract been awarded to it. The United States District Court for the Middle District of Florida, William A. McRae, Jr., J., sustained a motion to dismiss, and an appeal was taken. The Court of Appeals, Orie L. Phillips, Circuit Judge, held, inter alia, that under Small Business Act, and rules and regulations promulgated thereunder, no intent may be implied therefrom giving a civil remedy to the second lowest bidder for loss of profits or for damages suffered because of an untrue statement made by the successful bidder in his certification respecting his status as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Where party complaining of award of custodial contract set forth in its complaint the findings, conclusions and decisions of administrative agencies or officers before whom it had challenged the small business status of defendant, Court of Appeals would consider such findings, conclusions and decisions, and since such party pleaded the pendency of its petition to the United States general accounting office to cancel the contract, and its brief referred to the decision denying such petition, Court of Appeals would also refer to the findings, conclusions and decisions of the comptroller general. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5)(b)(2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Record disclosed that reasonable men in exercise of a fair and impartial judgment might have reached an opposite conclusion to that of Small Business Administration Size Appeals Board when it decided that a small business contractor was subject to the control of two officers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Evidence sustained finding of comptroller general that administrative record before it did not indicate that certification of bidder as a small business was imprudent or lacking in good faith. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': In arriving at intent of parties to a contract between United States Air Force and awardee of small business custodial contract, court would consider pertinent provisions of Small Business Act and the rules and regulations promulgated thereunder in force at time bid was made and contract awarded. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Construction of provisions of Small Business Act and rules and regulations promulgated thereunder is a matter of federal, and not state, law. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Contract between United States Air Force and alleged small business custodial concern did not indicate an intent on part of the United States that a next lower bidder should be benefited by any promise or undertaking therein by such contractor. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': If an incorrect statement was made by small business contract bidder in its certification, accompanying its bid, as to its status as a small business concern over which its eligibility to bid was to be determined, although it may have been an inducement to, it was not a part of the contract proper. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Under Small Business Act, and rules and regulations promulgated thereunder, no intent may be implied therefrom giving a civil remedy to the second lowest bidder for loss of profits or for damages suffered because of an untrue statement made by successful bidder in his certification respecting his status as a small business concern. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Purpose of Small Business Act was public in character, that is, the preservation and expansion of full and free competition to insure nation\rquote s economic well-being and security, and there was no intent to create civil rights of action in private persons. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': Penal statute providing punishment for whoever makes any statement knowing it to be false for purpose of influencing in any way action of the administration would not be construed to create a civil remedy to the second lowest bidder for loss of profits or for damages suffered because of an alleged untrue statement made by the successful bidder in his certification respecting his status as a small business concern. Small Business Act, \u167\u167 2(2)\u82112(18), 2(3), 2(5) (b) (2) as amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': alleged that a concern, to be a small business concern, must not have had average annual receipts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': The declared purpose of the Small Business Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u8216the preservation and expansion of such competition is basis not only to the economic well-being but to the security of this Nation\u8217; and that \u8216such security and well-being cannot be realized unless the actual and potential capacity of small business is encouraged and developed.\rquote Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': and by the regulations prescribed by the Administrator of the Small Business Administration, pursuant to that section and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': was required to certify in writing to the Procurement Division of the Air Force that it was a small business concern, within the Rules and Regulations of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': filed a protest with the Regional Director of the Small Business Administration at Atlanta, Georgia, apparently based on the claim that the average annual receipts of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': clearly fell within the applicable size standards, as provided in the Small Business Administration Rules and Regulations, and \u8216therefore\u8217 qualified as an \u8216eligible small business\rquote concern for the purpose of bidding for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': appealed from such decision to the Director of the Office of Size Standards of the Small Business Administration, Washington, D.C. On July 29, 1964, such Director handed down his decision, in which he recited that the \u8216facts submitted, * * * show that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': appealed to the Size Appeals Board of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': the size status of a questioned bidder or offeror shall be the date of award, except that no bidder or offeror shall be eligible for award as a small business concern unless he has in good faith represented himself as small business prior to the opening of bids or closing date for submission of offers * * *.\u8217 (Italics ours.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': leave to file an amended complaint. The amended complaint set out the decisions of the several administrative agencies of the Small Business Administration, referred to above. It omitted any allegation of knowingly made misrepresentations and made no allegation with respect to average annual receipts. As the gravamen of its claim, in the amended complaint it alleged that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u8216breached the provisions of this contract when it represented to the Government that it was not owned or controlled by a parent company and further breached its provisions in that it represented to the Government at the time of the submission of its bid that it was a small business concern when in fact, it was not,\u8217 and in an amendment to the amended complaint alleged that \u8216on or about May, 1964,\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u8216negligently certified itself to the United States to be a small business concern for the purpose of bidding on\u8217 the contract \u8216when in fact it was not a small business concern\u8217 and \u8216as the sole and direct and proximate result of\u8217 such negligence, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u82161-703 Determination of status as Small Business Concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u8216(b) * * * no bidder * * * shall be eligible for award as a small business concern unless he has in good faith represented himself as a small business prior to the opening of bids * * *.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': The amended complaint was filed after the decision by the Director of the Size Standards Division of the Small Business Administration had found the average annual receipts of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': \u8216negligently certified itself to the United States to be a small business concern for the purpose of bidding on\u8217 the contract \u8216when in fact it was not a small business concern.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': , we must consider the pertinent provisions of the Small Business Act and the rules and regulations promulgated thereunder, in force at the time the bid was made and the contract awarded. The construction of those provisions, rules and regulations is a matter of federal, not state, law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': first contention is: Did Congress by the pertinent provisions of the Small Business Act and the rules and regulations promulgated thereunder and the requirement that a bidder prior to the opening of the bids make a good faith certification respecting his status as a small-business concern manifest an intent, in the event the certification was untrue and such bidder was awarded the contract, to give a cause of action against such bidder to the next lowest bidder for loss of profits? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': first contention. Clearly, there is no express provision in the Small Business Act or the rules and regulations promulgated thereunder giving a civil remedy to the second lowest bidder for loss of profits or for damages suffered because of an untrue statement made by the successful bidder in his certification respecting his status as a small-business concern, and we think no intent so to do may be implied therefrom. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': The declared purpose of the Small Business Act is to preserve and expand full and free competition for the economic well-being and security of the Nation, by encouraging and developing the actual and potential capacity of small business, through aiding, counseling, encouraging, assisting and protecting the interests of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': We think had Congress intended to give a civil remedy to the second lowest bidder against the lowest and successful bidder, because the latter made an untrue statement in his certification respecting his status as a small-business concern, it would have done so, either by express provision or by clear implication. It did not do so in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Royal Services Inc v Maintenance Inc.doc, Paragraph with 'The Rule of Two': The Small Business Act, as amended, is classified in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': Suit was filed on a claim of conspiracy to misrepresent successful bidder as a small business in order to obtain canal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': project contract. The United States District Court for the District of Nevada, Ray McNichols, Chief Judge, dismissed the complaint, and plaintiff appealed. The Court of Appeals, Weigel, District Judge, held that a private civil cause of action for lost profits could not properly be inferred from provisions of Small Business Act on claim of misrepresentation of successful bidder as a small business in order to obtain contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': contract to low bidder on contract reserved exclusively for award to small business under Small Business Act was made in conformity with pertinent regulations. Small Business Act, \u167\u167 2 [2] et seq., 2 [15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': A private civil cause of action for lost profits could not properly be inferred from provisions of Small Business Act on claim of misrepresentation of successful bidder as a small business in order to obtain contract. Small Business Act, \u167\u167 2 [2] et seq., 2 [15], 2 [16], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': Even if a cause of action were to be inferred from provisions of Small Business Act on claim of misrepresentation of successful bidder as small business in order to obtain contract, an award of lost profits would be improper, since contract did not come into existence between plaintiff and government and it would not have been certain to come into existence but for alleged wrongdoing of successful bidder. Small Business Act, \u167\u167 2 [2] et seq., 2 [15], 2 [16], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': In a suit on a claim of misrepresentation of successful bidder as a small business in order to obtain contract, proper measure of damages would be costs plaintiff incurred in preparing its bid. Small Business Act, \u167\u167 2 [2] et seq., 2 [15], 2 [16], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': A contract for the emergency rehabilitation of a canal system in Nevada was advertised for bids by the Department of the Interior. The contract was one reserved exclusively for award to a small business under the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': \) both certified themselves as a small business as defined in the Small Business Administration regulations, 13 C.F.R. s 121.3 (1972), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': filed a protest with the Small Business Administration, charging that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': did not properly qualify as a small business. The San Francisco Regional office of the Small Business Administration determined that Brooks Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': was a small business concern for purposes of the award, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': appealed this ruling to the Size Appeals Board of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': and Development Company, was not qualified as a small business. However, the Department of the Interior, because of the emergency nature of the work and the extent to which the work had been completed by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': of the Small Business Act by conspiring to misrepresent Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': as a small business in order to obtain the canal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': project contract. That section provides criminal penalties for anyone making \any statement knowing it to be false . . . for the purpose of influencing in any way the action of the (Small Business) Administration . . . .\ Alleging that it was the lowest qualified bidder on the contract, and that it would have received the award but for the illegal acts of appellees, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . However, the district court concluded that such a private cause of action by a disappointed bidder against a successful bidder for violation of the criminal provisions of the Small Business Act was neither expressly authorized by nor could be inferred from the Act. Upon motion of the defendants, the court dismissed the complaint for failure to state a claim upon Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . See also Burke v. Compania Mexicana de Aviacion, S.A. supra. Examining the set-aside provisions of the Small Business Act, it is evident that the Congressional intent and purpose, as manifested by the administrative regulations promulgated pursuant to the Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': As noted, those regulations authorize a contracting officer to award a contract, despite the pendency of a size appeal before the Small Business Administration, if the officer determines that further delay would be against the public interest. 41 C.F.R. s 1-1.703-2(e) (1964). Such a regulation indicates that Congress, by enacting the set-aside provisions, did not intend to benefit small businesses at any cost. The public interest obviously requires that Congress first insure that contracts for governmental projects are performed in a timely and competent manner. To the extent that award of the contract to a small business is consistent with these requirements, the set-aside program insures that such award will be made. The public interest is thus additionally benefited by the consequent strengthening of small business. However, to the extent that award to a small business is inconsistent with the requirements of competency and timeliness, the \by-product\ public interest derived from benefiting small business must yield. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': This Congressional purpose of aiding small business only insofar as the expeditious administration of government contracts is not jeopardized could be thwarted by permitting the private remedy requested here. In the present case, the federal contracting officer determined that the public interest would be better served by permitting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': For these reasons we hold that, on the facts in this case, a private civil cause of action for lost profits cannot properly be inferred from the provisions of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': Recognizing that \small business is the bulwark of free competitive enterprise,\ 1953 U.S.Code Cong. & Admin.News, pp. 2020, 2022, Congress enacted the Small Business Act to enable the federal government to \aid, counsel, assist, and protect, insofar as is possible, the interests of small-business concerns . . . .\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': The Act defines small business as \one which is independently owned and operated and which is not dominant in its field of operation,\ and authorizes the Administrator of the Small Business Administration to develop detailed size criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . These criteria are contained in the Small Business Administration regulations, 13 C.F.R. s 121.3, enacted pursuant to s 634(b)(6) of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': Each concern submitting bids for a government procurement contract may, applying these criteria to its own situation, certify itself as a small business. The regulation provides that \in the absence of a written protest or other information which would cause him to question the veracity of the self-certification, the Contracting Officer shall accept the self-certification at face value for the particular procurement involved.\ 13 C.F.R. s 121.3-8 (1972). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . These regulations establish procedures for the award of government contracts, and along with the pertinent Small Business Administration regulations, govern the award of contracts set aside for small businesses. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': It is unlikely the Department of the Interior could have properly terminated the contract with appellant had it wanted to. The Court of Claims has repeatedly held that the government cannot rescind a validly awarded contract, advertised as a small business set-aside, even if the successful bidder is subsequently declared not to be a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': In dismissing the complaint, the district court in the instant case relied on Royal Services, Inc. v. Maintenance, Inc., 371 F.2d 86 (5th Cir. 1966). The court there dismissed a similar action by a disappointed bidder on the grounds that the intended beneficiary of the set-aside provisions was the public rather than individual small businesses. We decline to adopt this reasoning. Since the public interest is furthered under the Act only by protecting individual small businesses, it cannot be said that the latter are not the intended beneficiaries. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . Also, the Small Business Administration regulations provide that in the absence of a protest concerning a bidder\rquote s qualifications, or in the event of a protest made after an award, the award is binding whether or not the successful bidder is a small business. 13 C.F.R. s 121.3-2(u). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . Clearly the Congressional intent to aid small businesses must be viewed in perspective with the efficient administration of government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Savini Construction Co v Crooks Brothers Construction Co.doc, Paragraph with 'The Rule of Two': . However, an action restricted to such relief would be ineffective in furthering the design of the Act, viz., to insure that small businesses derive the profits from a fair proportion of government contracts. Since such a limited cause of action would not be \necessary to insure the full effectiveness of the Congressional purpose,\ inferring it from a statute silent on the subject would be inappropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Paragraph with 'The Rule of Two': (e) Members of other groups, or other individuals, found to be economically and socially disadvantaged by the Small Business Administration under section 8(a) of the Small Business Act, as amended ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Paragraph with 'The Rule of Two': d. \minority business enterprise\ or \MBE\ means a small business concern defined pursuant to section 3 of the Small Business Act and implementing regulations, which is owned and controlled by one or more minorities or women. This definition applies only to financial assistance programs. For the purposes of this part, owned and controlled means a business: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Paragraph with 'The Rule of Two': and the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Paragraph with 'The Rule of Two': To implement the Federal Government\rquote s policy, that a fair proportion of its purchases and contracts be placed with small business concerns, certain agency regulations provide that the entire amount of a contract shall be set-aside, under certain circumstances, for exclusive small business participation. This overall policy was deemed by Congress to be in the national interest as part of our national defense. Plaintiff was a manufacturer excluded from competing for a contract that was set-aside for small business concerns. Plaintiff was excluded because of its size. The district court upheld the exclusion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: South Florida Chapter of the Associated General Contractors of America Inc v Metropolitan Dade Count.doc, Paragraph with 'The Rule of Two': First and most important is the fact that the Fifth Circuit in that case expressly declined to reach the \discrimination\ or equal protection issue. Second, the Small Business Administration is a federal agency and the challenged Section 8(a) program was found by the court to be \supported by Congressional and presidential mandates.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for small business set-aside contract to provide lodging and transportation services to Navy\rquote s Military Sealift Command (MSC) brought post-award bid protest, alleging that successful bidder was not an eligible small business. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination that successful bidder qualified as a small business had a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder for small business set-aside contract to provide lodging and transportation services to Navy\rquote s Military Sealift Command (MSC) demonstrated that it was prejudiced by award of contract to successful bidder, and thus had standing to file post-award bid protest, even though Small Business Administration (SBA) determined that unsuccessful bidder did not qualify as a small business; if bid protest succeeded and successful bidder was also found not to qualify as small business, there was a realistic possibility that MSC would reopen the bidding process on an unrestricted basis, and fact that unsuccessful bidder did not submit lowest-priced bid of its affiliated entities during initial bidding process did not preclude it from having substantial chance of winning a reopened bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': In deciding that successful bidder for small business set-aside contract to provide lodging and transportation services to Navy\rquote s Military Sealift Command (MSC) qualified as a small business concern, Small Business Administration\rquote s (SBA) determination that bidder\rquote s relationship with its subcontracted hotels did not violate the ostensible contractor rule had a rational basis; SBA reasonably determined that the primary element of the solicitation was the coordination of lodging, transportation, and other services, not just the provision of hotel rooms, as the solicitation required the contractor to secure an unpredictable and widely-varying number of acceptable hotel rooms on short notice, and provide transportation to and from those hotels. Small Business Act, \u167 2[3](a)(2)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Tinton Falls Lodging Realty, LLC (Tinton Falls) appeals from a final judgment of the United States Court of Federal Claims (Claims Court) entered in favor of appellees the government and DMC Management Services, LLC (DMC) after granting motions on the administrative record that DMC was eligible for an award of a small business set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': On February 19, 2013, the United States Department of the Navy, Military Sealift Command, in Norfolk, Virginia (MSC), issued contract Solicitation Number N3220513\u8211R\u82116005 (the solicitation). The solicitation involved the management and coordination of lodging and transportation services for federal civil service mariners (CIVMARs) who were completing required training at the MSC Training Center in Freehold, New Jersey. J.A. 172, 178\u821179. MSC issued the solicitation as a total small business set-aside under North American Industrial Classification System (NAICS) code 721110 (\Hotels (except Casino Hotels)\). J.A. 172. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Losing bidder DMC filed a size protest with the Area Office of the Small Business Administration (SBA). In evaluating the protest, the SBA Area Office found that Mali was not a small business. In particular, the Area Office determined that Mali, along with Tinton Falls and two other companies that had submitted bid proposals, were part of the same family of hotels operated under a parent entity called Hotels Unlimited, Inc. (Hotels Unlimited). J.A. 2745\u821153. After reviewing Mali\rquote s articles of incorporation, by-laws, financial statements, and income tax returns, the Area Office concluded that Mali was \affiliated\ with Hotels Unlimited for purposes of the solicitation, and that the combined entity\u8212which had annual receipts of above $30 million\u8212did not qualify as a \small business concern\ under the applicable NAICS code. J.A. 2752\u821153, 2770. Mali appealed this determination to the SBA\rquote s Office of Hearing and Appeals (SBA\u8211OHA), which affirmed the Area Office\rquote s conclusion. J.A. 2779\u821183. Because DMC had submitted the next lowest-priced, technically acceptable bid proposal, it was then declared as the successful bidder. J.A. 2654. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Tinton Falls then filed a size protest with the MSC contracting officer. Tinton Falls explained that DMC intended to subcontract the lodging services portion of the contract\u8212which accounted for more than 80% of the value of the contract\u8212to hotels that did not qualify as small businesses. J.A. 3457, 3459. As a result, Tinton Falls alleged that DMC was unusually reliant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . J.A. 2830\u821137. The Area Office disagreed, concluding that 1) DMC would perform the majority of the primary and vital requirements of the contract\u8212the management and coordination of lodging and transportation services to MSC\u8212and 2) DMC was not unusually reliant on any of its subcontractors. J.A. 3459\u821164. Therefore, because DMC qualified as a small business under the applicable NAICS code and had no affiliates or ostensible subcontractors, it was an eligible small business for purposes of the solicitation. J.A. 3465. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Tinton Falls appealed to the SBA\u8211OHA, arguing that the Area Office committed clear error in its decision. While Tinton Falls\rquote appeal was pending at the SBA\u8211OHA, the MSC contracting officer filed his own size protest of Tinton Falls and two other bidders with the Area Office, urging that these three entities (like Mali, the subject of the earlier determination) also did not qualify as small businesses. The protest asserted that the contracting officer believed the remaining acceptable bidders (other than DMC) were not small businesses under the applicable NAICS code due to their affiliation with Mali and Hotels Unlimited. J.A. 2786. The Area Office agreed, issuing a size determination that due to their affiliation with Mali, none of the remaining Hotel Unlimited entities qualified as a small business for purposes of the solicitation. J.A. 2815. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': J.A. 3560. The SBA\u8211OHA determined that DMC would be performing a significant portion of the contract\rquote s primary and vital requirements: coordinating hotel rooms and transportation services to meet MSC\rquote s needs. J.A. 3560\u821161. Thus, the SBA\u8211OHA determined that DMC\rquote s relationship with its subcontracted hotels did not violate the ostensible contractor rule and that DMC could be considered a small business concern for purposes of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': DMC contends that Tinton Falls cannot show prejudice because 1) it does not qualify as a small business, and therefore could not compete in a reopened bid process unless that bid is solicited on an unrestricted basis, and 2) it did not intend to win the original contract. To support the first point, DMC emphasizes that the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Area Office disqualified Mali, Tinton Falls, and their two related entities from the bidding process because they were not \small business concerns\ for purposes of the solicitation. J.A. 2802\u821106. DMC therefore contends that Tinton Falls cannot show prejudice because it is not a \small business concern\ eligible to compete for the solicitation. Thus, only one technically acceptable bid proposal remained\u8212DMC\rquote s. The Claims Court rejected DMC\rquote s argument, finding that, among other things, there was a \distinct possibility\ that if Tinton Falls were to succeed in proving that DMC was likewise ineligible, the government might be required to rebid the contract on an unrestricted basis, which would place Tinton Falls in the same position as any other interested party. J.A. 3774 (Tr. at 67:1\u821115). We find no clear error in the Claims Court\rquote s conclusion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . Here, there is no question that if Tinton Falls\rquote bid protest succeeds, MSC would be obligated to reopen the bidding process. In particular, if Tinton Falls were to prevail, DMC\rquote s relationship with its subcontracted hotels would violate the ostensible subcontractor rule and DMC would no longer qualify as a small business concern for purposes of the solicitation. Thus, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': eligible small business would have submitted a technically acceptable proposal during the initial bid process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': What is less clear is whether Tinton Falls could compete for this hypothetical reopened bid. Tinton Falls concedes that for the purposes of the original solicitation, it is not a small business concern under the applicable NAICS code. Oral Argument at 41:10\u821130, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': http://www.cafc.uscourts.gov/oral-argument-recordings/14\u82115140/all. But all parties appear to agree that MSC would be obligated to evaluate whether it could still solicit the contract as a small business set-aside, or whether it would need to reopen the bidding process on an unrestricted basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Oral Arg. at 19:30\u821153 (Government: \If there\rquote s no offerors remaining\u8212which would be the case if DMC is no longer the [contract] awardee\u8212then the agency would have the obligation to evaluate, based upon the market research\u8212which would have to be conducted\u8212whether or not [the rebid contract] could be set aside for small businesses.\). And although there is much speculation as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . The fact that Tinton Falls did not submit the lowest-priced bid of its affiliated entities during the initial bidding process does not preclude it from having a substantial chance of winning a hypothetical reopened bid for that contract, so long as the contract is solicited on an unrestricted basis instead of as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': In short, the question of standing hinges on whether Tinton Falls could compete for a reopened bid if it wins its protest of the initial contract award. The factual core of this question is whether, after having not received any technically acceptable proposals from eligible small businesses in response to its initial solicitation, MSC would maintain the contract as a small-business set-aside, or reopen the bidding process on an unrestricted basis. Both DMC and Tinton Falls agree that nothing in the record definitively answers this question, and both parties merely speculate as to the parameters of the hypothetical reopened bid for the contract. The government\u8212which does not appeal the Claims Court\rquote s denial of its motion to dismiss for lack of standing\u8212conceded at oral argument there is a sufficient probability MSC would reopen the bid on an unrestricted basis so that Tinton Falls Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Proceeding to the merits, at issue here is a narrow challenge to the Claims Court\rquote s determination that DMC\rquote s relationships with its subcontracted hotels did not violate the ostensible contractor rule, and thus did not disqualify DMC as a small business concern under the solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': and preclude award of the contract to DMC. Congress has given SBA the exclusive authority to establish definitions and standards for determining whether an entity qualifies as a \small business concern\ for purposes of federal law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . Qualifying as a \small business concern\ for the purpose of a bid proposal may have several advantages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . For example, solicitations for certain government procurements, like the solicitation here, are limited to \small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': When an agency issues a solicitation for a small business set-aside contract, it must select an NAICS code for that contract, \which best describes the principal purpose of the product or service being acquired.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . Each NAICS code is associated with a number of employees or amount of annual receipts, both of which limit the size of a business that can qualify as a small business for purposes of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . Pertinent to the inquiry here are the regulations relating to affiliated businesses. Even if a business falls within the employee and annual receipt limits of the applicable NAICS code, it may fail to qualify as a small business for purposes of the contract if it is affiliated with other entities. A business is affiliated with another business when \one controls or has the power to control the other.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Tinton Falls contends that when the primary and vital requirements of the solicitation are properly defined as lodging services, DMC\rquote s relationships with its subcontracted hotels violate the ostensible contractor rule. The SBA\u8211OHA estimated that the cost of hotel rooms accounts for about 80% of the contract value. J.A. 3551. DMC does not own any hotels and intends to subcontract the provision of these hotel rooms to several different hotels. J.A. 3550. And because at least the primary hotel subcontracted by DMC does not qualify as a small business for purposes of the solicitation, J.A. 3452, Tinton Falls concludes that DMC cannot be considered a \small business concern\ for purposes of the solicitation because, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Tinton Falls is other than small and does not qualify to compete for a small business set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': J.A. 2808\u821110 (Notice to Tinton Falls that \[t]he Small Business Administration (SBA) has made a formal size determination that your business is other than small\). Even if the government removed the small business set-aside and issued a revised, unrestricted solicitation, the record indicates that two other small businesses submitted lower bids than Tinton Falls and would have been next in line to receive the original contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': be obligated to rebid. Excluding DMC and the four other than small businesses associated with Hotels Unlimited, the record indicates that three proposals remained in the competitive Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': range. Those three proposals were submitted by offerors that self-certified as small businesses. Given that two or more offers from small businesses remained in competitive range, the government would have been obligated to award the contract to the next small business in line, or at least obligated to request revised proposals from the three offerors that remained in competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': (requiring an acquisition such as the one at issue here to be set aside for small business absent \a reasonable expectation\ of obtaining offers from responsible small businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': the Court of Federal Claims held that a bid protestor lacked standing to challenge a small business set-aside contract because the protester had been deemed other than small. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': (quoting Pl.\rquote s Opp\rquote n Def.\rquote s Mot. Dismiss at 22) (alterations in original). The Court of Federal Claims rejected that argument because, like here, there remained a small business in competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': The fact that the three remaining small businesses in competitive range originally submitted technically unacceptable proposals is insufficient to establish Tinton Falls\rquote standing. The technical unacceptability of an otherwise qualified offer in competitive range does not limit the offeror\rquote s ability to establish a substantial chance of winning a contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': . Even if the technical unacceptability of the remaining small business offers required the government to reassess whether two or more technically acceptable small businesses remained, the record indicates that seven additional vendors were interested in the solicitation. We cannot presume from the record that those seven additional vendors are other than small or that those vendors would submit technically unacceptable offers in the future. Nor can we presume that the three remaining small businesses in competitive range would be incapable of submitting technically acceptable proposals on rebid. As far as the record reveals, Tinton Falls failed to make any allegation to the contrary. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': Only in a future hypothetical world in which the government found no two eligible small businesses could Tinton Falls compete on rebid. Yet Article III standing, and by extension the more demanding standard provided by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 006 - Tinton Falls Lodging Realty LLC v US.doc, Paragraph with 'The Rule of Two': The dissent would reject Tinton Falls\rquote standing arguments on the ground that Tinton Falls had no \substantial chance\ of securing the award because certain companies that were disqualified earlier in the process qualified as small business concerns, and one of them would have been awarded the contract. The dissent states that regulation \obligate[s]\ the government to accept one of these companies\rquote technically unacceptable bids or at least to grant the companies an additional opportunity to remedy their bids. Dissent at 1364. But no party to this case has taken the position that a regulation requires the government to further consider these rejected bids. In fact, none of the briefing on appeal even raises the possibility that the government would give any further consideration to a deficient bid. And for good reason. Before rejecting these companies\rquote proposals as technically unacceptable, the government gave them an additional chance to correct their deficiencies. These companies still failed to submit an acceptable proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': Ability\u8211One Program, 41 C.F.R. \u167 51\u82111.1(a); Bid Protest, 28 U.S.C. \u167 1491; Competition In Contracting Act Of 1984, 31 U.S.C. \u167\u167 3551\u82113556; Judgment On The Administrative Record, RCFC 52.1; Small Business Concerns, 38 U.S.C. \u167 8127; Standing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': The ClayGroup, LLC (\ClayGroup\) is a Service\u8211Disabled Veteran\u8211Operated Small Business (\SDVOSB\) that supplies janitorial and sanitation supplies to the Government. AR 1558. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': purchases, purchases that are obtained under existing VA prime vendor arrangements, and purchases for motorized cleaning equipment and accessories as the anticipated FSSI solution does not anticipate awards to Veteran-owned small businesses (VOSBs) and/or service-disabled Veteran-owned small businesses (SDVOSBs) in this specific category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': (2) That the eventual vendor mix permits VA to maintain or increase our current spend with small businesses, especially our spend with VOSBs and/or SDVOSBs at costs equal to or less than current costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': (a) Contracting goals.\u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': (A) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'The Rule of Two': (B) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 009 - Cyios Corporation v United States.doc, Paragraph with 'The Rule of Two': The procurement was a 100% small business set-aside competitive acquisition, Tab 4, AR 62 \u182 1, resulting in a cost plus fixed fee (CPFF) term service contract for one 12\u8211month base period and one 12\u8211month option period, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': Solicitation issued by the Army Corps of Engineers for the design and construction of an Army Reserve training complex explicitly prohibited use of pre-engineered metal structures for the training and maintenance buildings included in the project, and thus, agency\rquote s decision to exclude bidder whose past performance consisted exclusively of construction of such metal structures was properly based on stated factors in the solicitation; although the agency\rquote s earlier acceptance of pre-engineered buildings to establish past performance was expressed during the market survey period conducted approximately two years earlier with the aim of awarding the work to a small business, the agency was entitled to refine its preferences as the procurement shifted from a small business set-aside to an unrestricted best value trade-off firm fixed price contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff also filed a motion for leave to supplement the administrative record with two affidavits from its employees, several documents pertaining to the agency\rquote s initial and unsuccessful attempt to compete this procurement through small businesses, and a design specifications sheet. Defendant filed a motion to correct the administrative record, agreeing with plaintiff that the design specifications sheet should be included in the record. The motions are fully briefed, and we heard oral argument on August 5, 2015. For reasons set out below, we grant in part and deny in part plaintiff\rquote s motion to supplement the administrative record; we grant defendant\rquote s motion to correct the administrative record; we deny plaintiff\rquote s motion for judgment on the administrative record; and we grant defendant\rquote s cross-motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': Prior to issuance of the current solicitation, the agency attempted to designate this project as a small business set-aside. The agency published a market survey requesting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': small businesses to submit descriptions of their past projects that were similar in scope to the proposed Aberdeen Complex. The survey specifically stated that projects considered to be similar in scope are those that involved \design and construction of multiple buildings that include: army reserve complexes, armed forces training complexes, office complexes, education facilities, and multi-story multipurpose complexes.\ AR 5. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': The agency received a number of responses to this survey. One response that the agency considered acceptable was from a small business joint venture, [Redacted], which submitted past performance examples, primarily consisting of pre-engineered metal buildings. AR 6\u82117, 54. Due to the interest generated, the agency issued the first solicitation for the Aberdeen Complex, RFP No. W912QR\u821114\u8211R\u82110018, as a small business set-aside. After receiving proposals from small businesses, however, the agency determined that the set-aside was unworkable due to its inability to generate an acceptable bid price. Later, in preparing to advertise the project as unrestricted, the agency noted that the \current scope was not modified from the prior acquisition attempt.\ AR 59. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': In the pre-solicitation notice for the second solicitation, the agency described several construction requirements for the Aberdeen buildings: \[P]ermanent construction with reinforced concrete foundations, concrete floor slabs, structural steel frames, masonry veneer walls, standing seam metal roof, Heating, Ventilation, and Air Conditioning (HVAC), plumbing, mechanical systems, security systems, and electrical systems.\ AR 69. This language is identical to that contained in the sources sought notice issued before the small business market survey. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': In Phase II, the five offerors were to submit a proposal comprised of technical information, schedule, small business participation, and price and pro forma sections. The SSEB then will review the proposals under another set of criteria before the contract is awarded by the Source Selection Authority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': On June 12, 2015, plaintiff filed a motion to supplement the administrative record with several documents: two affidavits by ACC employees; the pre-solicitation notice and the solicitation that the agency issued as part of its efforts to pursue the Aberdeen Complex as a small business set-aside; and an excerpt of the project\rquote s specifications that is referenced in the solicitation but not included in the administrative record. During oral argument, plaintiff dropped its request to add the two affidavits, and we agree, in any event, that they are not appropriately included. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': AR 1431\u821132. During oral argument, the government also conceded that the solicitation documents from the previous small business set-aside should have been properly included in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': We agree with the parties that the design guidelines, which are referenced in the current solicitation, along with the previous Aberdeen Complex solicitation and pre-solicitation notice for the failed small business set-aside are appropriately included in the administrative record. They were before the agency at the time of its decision and they explain the terminology and specifications used by the agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 010 - ACC Construction Co Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff points out that the prohibition of pre-engineered buildings was not absolute; the agency retained the discretion to permit pre-engineered metal structures, presumably if asked by a bidder. But there is nothing improper about the presumptive disallowance. Additionally, the agency\rquote s earlier acceptance of pre-engineered buildings to establish past performance was expressed during the market survey period conducted approximately two years ago with the aim of awarding the work to a small business. The agency is entitled to refine its preferences as the procurement shifted from a small business set-aside to an unrestricted best value trade-off firm fixed price contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': 49 C.F.R. Part 26. IDOT administers a small business initiative program, which reserves certain work on contracts for small business enterprises. Gary Hannig was the Secretary of IDOT from February 2009 through the end of June 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': that they are not discriminating against minorities and women in the award of contracts. Section 1101(b) of the TEA\u821121 provides that \not less than 10 percent of the amounts made available for any program under ... [TEA\u821121] shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals.\ A DBE is defined as a for-profit small business concern that is at least 51% owned and controlled by one or more socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': IDOT has five regions that are subdivided into a total of nine districts. Each district is headed by a district engineer who is responsible for the highways in his or her district. The district engineers report to the regional engineers who report to the Director of Highways/Chief Engineer. A district engineer and equal employment opportunity (EEO) officer review each construction contract to decide whether the contract presents DBE participation opportunities. At all relevant times, Christine Reed was IDOT\rquote s Director of Highways/Chief Engineer and was responsible for goal setting. Reed reviewed recommendations for contract goals and small business initiatives. Contracts had been withdrawn from bidding by Secretary Hannig\rquote s predecessor to review DBE goals. After the goals were reviewed, the contracts were re-advertised with higher DBE goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': Secretary Hannig and Reed were comfortable that the goal could be met within the law. Reed advised Secretary Hannig that the contract goals were \relatively low\ and there was opportunity to increase the goals under federal law. IDOT expanded the scope of the projects and items deemed eligible for DBE consideration\u8212by expanding the geographic areas to determine DBE eligibility and by adding pavement patching, landscaping, and other work originally reserved for small business initiatives to the existing DBE goals. These efforts increased the weighted average of the projects to 20%. IDOT issued a revised invitation for bids for a January 2010 letting with a new DBE participation goal on Contract No. 60I57 of 22%. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': After the reconsideration hearing, Faerber met with Lyle and Grunloh. Lyle initially believed that Dunnet Bay had demonstrated sufficient good faith efforts. She testified, however, that a major reason for this belief was because Dunnet Bay had been left off the For Bid List. Lyle subsequently expressed the opinion that Dunnet Bay could have done more to demonstrate good faith efforts, namely, by contacting supportive services as well as IDOT\rquote s Bureau of Small Business Enterprises and the district EEO officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': . The court also determined that Dunnet Bay, which does not qualify as a small business, lacks prudential \standing to vindicate the rights of a (hypothetical) white-owned small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': Moreover, even assuming that Dunnet Bay could establish that it was excluded from competition with DBEs or that it was disadvantaged as compared to DBEs, it cannot show that any difference in treatment was because of race. The regulations define a DBE as \a for-profit small business concern\ that is owned or controlled \by one or more individuals who are both socially and economically disadvantaged.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': (stating that as long as constitutional standing is satisfied, a party \may have standing to seek relief on the basis of the legal rights and interests of others\). In challenging the DBE program, Dunnet Bay is attempting to assert the equal protection rights of a non-minority-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': But here there is no allegation, let alone evidence, that a non-minority-owned small business could not challenge IDOT\rquote s DBE program on equal protection grounds. Because Dunnet Bay has failed to identify an injury in fact that is fairly traceable to the challenged DBE program, it lacks Article III standing. And because Dunnet Bay has not established Article III standing, it cannot raise an equal protection challenge to the DBE program based on the rights of a non-minority small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 011 - Dunnet Bay Const Co v Borggren.doc, Paragraph with 'The Rule of Two': FHWA approved IDOT\rquote s methodology to establish its statewide DBE goal of 22.77% and approved the individual contract goals for the Eisenhower project for the January 15, 2010 bid letting. Dunnet Bay has not identified any part of the regulations that IDOT allegedly violated by reevaluating and then increasing its DBE contract goal, by expanding the geographic area used to determine DBE availability, by adding pavement patching and landscaping work into the contract goal, by including items that had been set aside for small business enterprises, or by any other means by which it increased the DBE contract goal. Indeed, as the district court concluded, \because the federal regulations do not specify a procedure for arriving at contract goals, it is not apparent how IDOT could have exceeded its federal authority,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on Department of Housing and Urban Development (HUD) contract for property and preservation services for its single family real estate owned properties filed post-award bid protest challenging decision by the Office of Hearings and Appeals of the Small Business Administration (SBA) that bidder\rquote s joint venture was not a \small business\ within the meaning of SBA regulations. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': SBA\rquote s determination that joint venture did not qualify as a small business was plainly reasonable and consistent with SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Joint venture that had been denied small business status by Small Business Administration (SBA), and as a result had been unsuccessful in bidding on Department of Housing and Urban Development (HUD) contract for property and preservation services for its single family real estate owned properties, was an \interested party,\ as required to have standing to bring post-award bid protest under Tucker Act; joint venture was an actual bidder whose direct economic interest had been affected by the SBA\rquote s decision, in that it had originally been awarded HUD contracts for three of the areas for which it submitted offers, but as a result of the SBA\rquote s decision, was excluded from competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) determination, that joint venture consisting of mentor and prot\u233g\u233 components were affiliated, and therefore, did not qualify as a small business for the procurement of Department of Housing and Urban Development\rquote s (HUD) indefinite delivery, indefinite quantity (IDIQ) contract for property and preservation services for its single family real estate owned properties, was plainly reasonable and consistent with SBA regulations, and thus, entitled to substantial deference upon judicial review; SBA determined that joint venture failed to itemize all major equipment, facilities, and other resources to be furnished by each party to the joint venture, with a detailed schedule of cost or value of each, as required by regulations, and that joint venture agreement did not contain requisite provision specifying the responsibilities of the parties with regard to negotiation of the contract, source of labor, and contract performance. Small Business Act \u167 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Post\u8211Award Bid Protest; Small Business Administration; Joint Venture Agreement; 13 C.F.R. \u167 124.513; 13 C.F.R. \u167 121.103(h)(3); Mentor/Prot\u233g\u233; Affiliation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Plaintiff, IEI\u8211Cityside, is a joint venture comprised of Inspection Experts, Inc. and Cityside Management Corp. It filed this bid protest to challenge a decision by the Office of Hearings and Appeals of the Small Business Administration (\SBA\) that IEI\u8211Cityside is not a \small\ business within the meaning of SBA regulations for purposes of a solicitation issued by the Department of Housing and Urban Development (\HUD\) for property and preservation services for its single family Real\u8211Estate Owned properties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': In accordance with the Small Business Act, the Small Business Administration is charged with promulgating \detailed definitions or standards by which a business concern may be determined to be a small business concern for the purpose of this Chapter or any other Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': . Pursuant to this statutory authority, the SBA has issued regulations that \define whether a business entity is small and, thus, eligible for Government programs and preferences reserved for \u8216small business\u8217 concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': of these regulations may joint venture as a small business for any Federal government [contract], provided the prot\u233g\u233 qualifies as small\ and the joint venture agreement meets the requirements of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': Under SBA regulations, for contracts set aside for 8(a) participants, a joint venture must submit its agreement to the relevant SBA district office prior to contract award to confirm its compliance with the SBA regulations. \If the procurement is to be awarded other than through the 8(a) BD program (e.g., small business set aside, HUBZone set aside)\ as in this case, the \SBA need not approve the joint venture prior to award, but if the size status of the joint venture is protested,\ the joint venture agreement \must meet the requirements of [ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': sets forth the provisions that must be included in every joint venture agreement to perform a contract awarded as a small business set aside. Among other things, and most pertinent to this case, the joint venture agreement must itemize all major equipment, facilities, and other resources to be furnished under the contract by each joint venture partner, with a detailed schedule of its cost or value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': . Section (d), in turn, requires that the small business participant perform at least 40% of the work performed by the joint venture, and that this work consist of \more than administrative or ministerial functions so that [the small business] gain[s] substantive experience.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': On May 22, 2014, the Department of Housing and Urban Development issued Request for Proposals No. DU204SA\u821113\u8211R\u82110004 (\RFP\), for an indefinite delivery, indefinite quantity (\IDIQ\) contract seeking field service manager (\FSM\) services for HUD\rquote s single family Real\u8211Estate Owned (\REO\) properties. AR 1\u8211172. The HUD contracting officer set aside the procurement partially for small businesses and assigned NAICS code 531311, Residential Property Managers, with a corresponding size standard of $7 million average annual receipts, meaning that businesses larger than the size standard would not be eligible to compete. AR 139\u8211140. The RFP divided HUD\rquote s REO properties into eight geographic contract areas, seven of which were set aside for small businesses: 1P (Michigan); 3P (Connecticut, Maine, Massachusetts, Vermont, New Hampshire, New Jersey, New York, and Rhode Island); 4P (Ohio); 5P (Delaware, Maryland, Pennsylvania, Virginia, and West Virginia); 1D (Colorado, New Mexico, North Texas, and Utah); 4D (Iowa, Nebraska, South Dakota, and Wisconsin); and 5D (Minnesota, Montana, North Dakota, and Wyoming). AR 152\u821153. In turn, the contract areas are within larger regions administered by two of HUD\rquote s four regional Homeownership Centers (\HOC\) located in Philadelphia, Pennsylvania and Denver, Colorado. AR 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': number and skills of employees supplied to the joint venture by each venture participant, a brief description of the hiring and employee management responsibilities of each venturer, and an explanation of how project management would be handled. AR 1325. In addition, IEI\u8211Cityside included information on the breakdown of work tasks to be performed by each joint venturer and the ways that the small business partner (IEI) would meet the performance work requirements. AR 1326. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': On March 12, 2015, the Area Office issued Size Determination Nos. 2\u82112015\u821113/14/15, concluding that IEI and Cityside are affiliated for the procurement at issue, and that therefore IEI\u8211Cityside did not qualify as a small business for the procurement. AR 1045\u821159. The Area Office noted that IEI and Cityside were parties to an SBA\u8211approved mentor/prot\u233g\u233 agreement, and that IEI\u8211Cityside was competing for a procurement outside the 8(a) BD program. AR 1051. The Area Office explained that parties to a joint venture ordinarily are affiliated with each other with regard to the performance of such a contract (which normally prevents the joint venture from being eligible in a case like this one in which one of the joint venture partners is undeniably not small). AR 1051\u821152 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': ; and therefore (3) did not constitute an eligible small business for the procurement. AR 1053\u821154. The Area Office also determined, based on an analysis of extensive financial information that IEI, Cityside, and the joint venture had provided, that IEI in any event did not qualify as small based on its receipts and proportionate share of various joint ventures. AR 1054\u821158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': and did not reach the issue of whether IEI itself would qualify as a small business given its receipts and share in other joint ventures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': In this case, IEI\u8211Cityside objects to the SBA\rquote s determination that IEI and Cityside are affiliated, and that, therefore, IEI\u8211Cityside does not qualify as a small business for the purposes of the HUD procurement. IEI\u8211Cityside claims that the SBA violated its own regulations in rendering its size determination. Accordingly, this case involves an allegation that there has been a violation of a statute or regulation in connection with a procurement within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': (noting that the applicable regulations do not authorize an exception for situations where a joint venture may have difficulty providing detailed information). Indeed, carving out exceptions on this basis could undermine the SBA\rquote s purposes for imposing mandatory provisions on joint venture agreements and for requiring SBA approval of such agreements: to ensure that the 8(a) (or other small business) concern is bringing sufficient value to the joint venture relationship and that the relationship is genuine. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 014 - IEICityside JV v United States.doc, Paragraph with 'The Rule of Two': benefit that only SBA\u8211approved mentor/prot\u233g\u233 relationships can receive. The intent behind the exclusion generally is to promote business development assistance to prot\u233g\u233 firms from their mentors. Without [the requirements of section (c) ], the entire small business contract could otherwise be performed by an otherwise large business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 016 - Transatlantic Lines LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor\rquote s proposal that used slightly different northbound sailing schedules for primary and back-up vessels was not inconsistent with material terms of schedule requirements that sailings take place on fixed day of the week at least every 14 days, in solicitation by United States Transportation Command (TRANSCOM) for small business set-aside contract to provide commercial liner service between Florida and Guantanamo Bay; although contractor\rquote s proposal to switch between primary and back-up vessel every other week on different sailing days would require 15- or 16-day period between departures, proposed schedules for both vessels individually met fixed-day-of-week requirements at minimum every 14 calendar days, and proposal did not allow contractor to alternate between schedules at whim, as solicitation required 45-day notice of schedule changes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 016 - Transatlantic Lines LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor\rquote s discrepancy in proposal that used two different days for northbound departures for primary vessel was de minimis error that did not render proposal inconsistent with material terms of schedule requirements that sailings take place on fixed day of week, in solicitation by United States Transportation Command (TRANSCOM) for small business set-aside contract to provide commercial liner service between Florida and Guantanamo Bay, since solicitation did not require submission of contractually binding schedule, and contractor\rquote s written narrative and proposed sample schedule individually complied with fixed-day-of-week requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 016 - Transatlantic Lines LLC v United States.doc, Paragraph with 'The Rule of Two': at AR 221 (defining \[r]egularly [s]cheduled\ as \[s]ailing at regular intervals maintained between the same port ranges and consisting of regular arrivals, regular departures along an established route\). The Solicitation was designated as a small business set-aside, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 017 - Guam Industrial Services Inc v United States.doc, Paragraph with 'The Rule of Two': . In 2006, the contract work originally was awarded as a small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 017 - Guam Industrial Services Inc v United States.doc, Paragraph with 'The Rule of Two': . In 2010, when the incumbent lost its small business status, the State Department issued a solicitation to other small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest, challenging decision by Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': , affirmed by Office of Hearings and Appeals (OHA), that bidder was not qualified as service-disabled veteran-owned small business concern (SDVO SBC) and thus ineligible to bid on or be awarded set-aside contract with Department of State. Following intervention by two unsuccessful bidders as defendants, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) did not violate law or abuse its discretion in determining that service-disabled veteran holding 51% of bidder\rquote s Series A common stock but none of its Series B preferred stock did not hold more than 51% of \each class\ of voting stock, within meaning of regulation prescribing ownership criteria for status as service-disabled veteran-owned small business concern (SDVO SBC), and thus, bidder was ineligible to bid on or to be awarded set-aside contract with Department of State. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) is bound to follow its own precedent absent limited exceptions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims will give deference to the Small Business Administration (SBA) Office of Hearings and Appeals\rquote (OHA) interpretation of its own precedent, provided the OHA\rquote s interpretation is rational and reasoned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) reasonably determined that service-disabled veteran holding 51% of bidder\rquote s Series A common stock but none of its Series B preferred stock did not hold more than 51% of \each class\ of voting stock, within meaning of regulation prescribing ownership criteria for status as service-disabled veteran-owned small business concern (SDVO SBC), thus rendering bidder ineligible to bid on or to be awarded set-aside contract with Department of State, since plain meaning of common stock and preferred stock supported class distinction, and two series were not functionally equivalent but instead were separate classes with different dividend, conversion, and redemption rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Small Business Administration (SBA); Office of Hearings & Appeals (OHA); Service\u8211Disabled Veteran Owned Small Business Concern (SDVO SBC); Eligibility; Status; Ownership Criteria; 15 U.S.C. \u167 632(q); 13 C.F.R. pt. 125; 13 C.F.R. \u167\u167 125.9(d), 125.10; Decision After Remand to Agency Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In this bid protest, Precise Systems, Inc. challenges rulings of the Small Business Administration (SBA), affirmed by the Office of Hearings and Appeals (OHA), that found Precise was not an eligible \service-disabled veteran-owned small business concern\ (SDVO SBC) for failure to satisfy ownership criteria set forth in SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . In brief, Precise Systems, Inc. is a Maryland small business in the aviation management and engineering services industry. Compl. \u182\u182 9, 14, Dec. 5, 2014, ECF No. 1; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 020 - KWR Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Additionally, KWR alleged that the Air Force failed to consider its pre-Amendment 0009 evaluation of KWR\rquote s past performance; failed to adequately document and support its decisions regarding KWR\rquote s labor rates; and circumvented the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 022 - Guardian Moving and Storage Co Inc v United States.doc, Paragraph with 'The Rule of Two': The RFP restricted the competition to small businesses meeting the size standard of NAICS Code 493110. AR Tab 23 at 365. Offerors could submit a proposal for the East Coast only, a proposal for the West Coast only, and/or a combined proposal for both the East and West Coasts. AR Tab 23 at 367\u821168. The solicitation was amended twice. AR Tabs 24, 51. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 022 - Guardian Moving and Storage Co Inc v United States.doc, Paragraph with 'The Rule of Two': Guardian filed its first motion for judgment on the administrative record (\MJAR\) on January 30, 2015. In that motion, Guardian argued that MVS\rquote s proposal was unacceptable and ineligible for award because (1) MVS\rquote s proposal failed to provide the required fire marshal certification for its proposed East Coast facility, and the FAR did not authorize the agency to cure this deficiency using clarifications; (2) MVS\rquote s proposal failed to include the required 100\u8211year flood plain report; (3) MVS\rquote s proposal failed to include the required small business representation and certification with its proposal, and the FAR did not authorize the agency to cure this deficiency using clarifications; (4) neither MVS\rquote s proposed East Coast facility nor its proposed West Coast facility met the requirements of PWS 1.3.3.1 regarding the facilities\rquote ability to store fifteen million gross pounds of HHG/UB annually; (5) MVS\rquote s technical proposal failed to address the requirements of PWS 1.3.3.1.2 regarding fire wall separation and fire aisles. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Government Printing Office was not required to refer responsibility determination to Small Business Administration, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Courts do not read the Small Business Act as a series of unrelated and isolated provisions; courts must consider not only the bare meaning of each word but also the placement and purpose of the language within the statutory scheme. Small Business Act, \u167 2[2] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': The terms \Government contract\ and \Government procurement officer\ within the meaning of the Small Business Act exclude contracts and contracting on behalf of legislative agencies such as the Government Printing Office, regardless of whether such agencies are contracting for executive agencies. Small Business Act, \u167 2[8](b)(7), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Nonresponsibility determination made by Government Printing Office contracting officer, regarding low bidder for term contract to print Medicare handbooks, had been based on legitimate concerns about low bidder\rquote s performance history, i.e., increase in late deliveries for other GPO contracts in recent months, and therefore the determination was not arbitrary or capricious; ability to comply with proposed delivery schedules was important and mandatory consideration for contracting officer, and merely because some explanation was provided for late deliveries did not mean that contracting officer was required to accept those explanations, and it did not change historical past performance. Small Business Act, \u167 2[8](b)(7), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': before declining to award a contract to a small business concern, must, as part of its bid-evaluation process, refer the responsibility determination to the Small Business Administration (\SBA\). The other question is a familiar one\u8212whether the deciding official\rquote s determination was arbitrary or capricious as tested by the law relating to contract awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Appellant Colonial Press International, Inc. (\Colonial Press\) was the lowest bidder with a discounted bid of $2,418,443.54, while Fry Communications, Inc. (\Fry Communications\) was the second lowest bidder with a discounted bid of $2,502,545.05. Colonial Press was a small business concern for purposes of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Colonial Press filed its protest with the GAO. Colonial Press alleged that the GPO\rquote s determination of Colonial Press\rquote s non-responsibility constituted an abuse of discretion. Colonial Press also argued that the responsibility determination should have been referred to the SBA. The GAO, upon receipt of the protest, inquired of the SBA whether the GPO, a Legislative branch agency and not a part of the Executive branch, was nevertheless subject to the requirements of the SBA Certificate of Competency Program (\COC Program\) under provisions of the Small Business Administration Act, specifically Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Under the SBA\rquote s COC Program, a \Government procurement officer\ may not preclude a small business concern from being awarded a \Government contract\ due to non-responsibility without referring the matter to the SBA for a final disposition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': . The SBA may thereafter issue a certificate of competency to a particular Government contracting officer certifying that a small business concern is responsible with respect to a particular Government procurement contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': It is SBA\rquote s view that an open question exists as to whether the requirements of the COC program apply to GPO. While requirements for compliance with most of SBA\rquote s small business programs are generally not extended to non-executive branch agencies, the statutory provision creating the COC program does not refer to agencies but instead is directed more generally at government procurement officers. As a result, SBA believes it is possible to construe that provision as applying to all procurement officers, regardless of the agency or branch of government for which they work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Those decisions focused broadly on the definition of \u8216agency\u8217 in \u167 632(b) and used that as a basis for reaching the sweeping conclusion that no portion of the Small Business Act applies to any legislative branch agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': ] for on time high volume production.\u8217 \ J.A. 17 (citation omitted). The GPO \ \u8216concluded that nothing in the comments from the SBA changes the well-reasoned determination by GAO more than thirty years ago that procurements of GPO are not subject to the Small Business Act.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': We begin with the language of that part of the Small Business Act that relates to this question: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': It shall also be the duty of the [Small Business] Administration and it is empowered, whenever it determines such action is necessary\u8212 ... (7)(A) To certify to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the [SBA]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': Similarly, we do not read the Small Business Act as \a series of unrelated and isolated provisions,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': or in any section of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': does not apply to the Small Business Act as a whole. Instead, Colonial Press believes that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': only applies to the act which contained it\u8212An Act to Amend the Small Business Act and the Small Business Investment Act of 1958, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': interpreted the Small Business Act consistently since 1983 with our interpretation, i.e., that the GPO is not subject to the SBA\rquote s COC Program referral requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': (finding the GPO was not subject to the Small Business Act). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 028 - Colonial Press Intern Inc v US.doc, Paragraph with 'The Rule of Two': No. 82\u82112890, 1982 U.S. Dist. Lexis 18378, at *8 (D.D.C. Dec. 20, 1982), the district court, relying in no small part on an affidavit from SBA Associate General Counsel, held that the GPO is not subject to the Small Business Act because the SBA \itself does not now and has never regarded the GPO to be subject to its jurisdiction.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Small business owner brought action against Department of Defense and Small Business Administration, challenging facial constitutionality of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns. Parties cross-moved for summary judgment and to limit or exclude expert witnesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Expert\rquote s report on effect of minority ownership on likelihood of a small business receiving a government contract was reliable, relevant, and admissible on summary judgment in small business owner\rquote s action challenging facial constitutionality of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns, where expert fully explained exclusions and assumptions he made in his analysis, and although report was not before Congress at time provision was enacted, it was particularly relevant in light of fact that provision was over 30 years old and evidence justifying it had become stale. Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Expert\rquote s report on disparity studies measuring availability and utilization of minority-owned businesses in government contracting was reliable, relevant, and admissible on summary judgment in small business owner\rquote s action challenging facial constitutionality of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns, where although report was not before Congress at time provision was enacted, it was particularly relevant in light of fact that provision was over 30 years old and evidence justifying it had become stale, and any flaws in disparity studies that formed basis of report did not necessitate remedy of exclusion. Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Small business\rquote s vice president was not qualified to testify as a rebuttal expert at summary judgment in owner\rquote s action challenging facial constitutionality of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns, where vice president lacked training, education, knowledge, skill, and experience in statistical and econometric methodologies used by Small Business Administration\rquote s experts. Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Expert\rquote s report on disparity studies measuring availability and utilization of minority-owned businesses in government contracting was unreliable and inadmissible on summary judgment in small business owner\rquote s action challenging facial constitutionality of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns, where expert\rquote s preferred methodology for conducting disparity studies was well outside of mainstream, and portions of report were based on mistaken assumptions. Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Remedying race-based discrimination and its effects was a compelling government interest for a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns, as required to survive small business owner\rquote s facial equal protection challenge, where government presented evidence that minority-owned small businesses had faced and continued to face significant disadvantages in government contracting that could not be explained by nondiscriminatory factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns was narrowly tailored to achieve government\rquote s compelling interest in remedying race-based discrimination and its effects, as required to survive small business owner\rquote s facial equal protection challenge, where alternative race-neutral remedies had proved unsuccessful in addressing discrimination in government contracting, program was appropriately flexible in that it provided for aspirational goals and imposed no penalties for failing to meet them, and program was neither over nor under-inclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Enactment of a Small Business Act provision allowing government to make preferential contract awards to socially disadvantaged small business concerns did not violate nondelegation doctrine, where provision contained specific definitions of those individuals who qualified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 8(a), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': , establishes a business development program for \socially and economically disadvantaged small business concerns[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': . Plaintiff Rothe Development, Inc. (\Rothe\ or \Plaintiff\) is a small business based in San Antonio, Texas that has filed the instant action against the Department of Defense (\DOD\) and the Small Business Administration (collectively, \Defendants\) to challenge the constitutionality of the Section 8(a) program on its face. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Compl., ECF No. 1, \u182 1.) Rothe argues that the statute\rquote s definition of \socially disadvantaged\ small business owners, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': sued the DOD, the Small Business Administration, and the Department of the Navy alleging, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Congress enacted the Small Business Act of 1953 (\the Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u821157s, in order to encourage and develop the \capacity of small business\ in America, and thereby to promote national \economic well-being\ and \security[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': . Section 8(a) of the Act grants the Small Business Administration the authority to acquire procurement contracts from other government agencies and to award or otherwise arrange for performance of those contracts by small businesses \whenever [the agency] determines such action is necessary[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': , the current Section 8(a) program emerged with the express purpose of helping socially and economically disadvantaged individuals who own small businesses \compete on an equal basis in the American economy[,]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': The Section 8(a) program provides small businesses that socially and economically disadvantaged individuals own\u8212the Small Business Administration refers to such businesses as \small disadvantaged businesses\ or \SDBs,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': . As explained, a small business that can demonstrate its ability to succeed and that is owned by an individual citizen of good character who is considered socially and economically disadvantaged within the statutory definitions is eligible to participate in the Section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': The Section 8(a) program is but \one of a number of government-wide programs [that are] designed to encourage the issuance of procurement contracts to\ certain small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (establishing procurement program for woman-owned small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u167 657f (establishing procurement program for small businesses owned by service-disabled veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u167 657a (establishing contracting assistance and procurement program for HUBZone small businesses). As part of the legislative scheme that governs the Section 8(a) business development program and similar programs directed toward developing opportunities for small businesses in America, Congress has specifically directed the President to \establish [annual] Government-wide goals for procurement contracts awarded to [various] small business concerns[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': The participation goals with respect to other small business programs are similar\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (\not less than 5 percent\ for woman-owned small businesses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (\not less than 3 percent\ for small businesses owned by service-disabled veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (\not less than 3 percent\ for HUBZone small businesses)\u8212and all of the statutory targets are \aspirational\ and not mandatory, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Patenaude Aff. at 3), and it allegedly qualifies as a woman-owned small business under the Act and its accompanying regulations ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Rothe filed the instant action against the DOD and the Small Business Administration on May 9, 2012. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u182 2), and that the program is an unconstitutional delegation of authority to the Small Business Administration \to make or enact racial classifications\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': a small business that bid on and performed contracts and subcontracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': in the military simulation and training industry\u8212but that did not participate in the Section 8(a) program and was not an SDB\u8212sued the DOD, the Small Business Administration, and the Department of the Navy alleging, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': that the statutory provisions of Section 8(a) limiting certain contract awards to \small business concerns owned and controlled by \u8216socially and economically disadvantaged individuals\u8217 \ were unconstitutional on their face and also as applied to the industry in which the plaintiff operated. DynaLantic\rquote s Second Am. Compl. \u182 9; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': . Specifically, DynaLantic argued that the challenged provisions prevented it and other small businesses \from competing for federal procurements ... on the basis of race, thereby \u8216violat[ing] DynaLantic\rquote s rights under ... the equal protection component of the Due Process Clause of the Fifth Amendment of the Constitution.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': During the discovery period, the parties prepared and exchanged expert reports regarding evidence of discrimination in government contracting. Defendants retained two experts, who testified, broadly speaking, that socially disadvantaged and minority-owned small businesses are significantly less likely, statistically, to win government contracts than their non-minority and non-SDB counterparts ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': )). Defendants also argue that the Section 8(a) program conforms to the nondelegation doctrine because the statute defines \socially disadvantaged individuals\ and sets forth Congress\rquote relevant findings, and it also articulates the policies underlying the program\u8212all of which serve to guide the Small Business Administration in implementing the program. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Rubinovitz Report at 2.) Using regression analysis, Rubinovitz claims to have isolated the effect of minority ownership on the likelihood of a small business receiving government contracts. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Specifically, Rubinovitz used a \logit model\ (Rubinovitz Report at 10), to examine government contracting data for fiscal year 2012 that he collected from the General Services Administration\rquote s System for Award Management, the Federal Procurement Data System, the Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': at 4\u82119 (discussing sources)), in order to determine \whether the data show any difference in the odds of contracts being won by minority-owned small businesses, particularly those identified as SDBs and those that are part of the 8(a) program, relative to other small businesses\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': at 12). In particular, \the odds of an SDB firm winning a contract is roughly 11 percent lower than other types of small businesses, while small minority-owned firms, regardless of whether they are SDBs or in the 8(a) program, had roughly 30 percent lower odds of winning a contract than other firms.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': . This Court agrees, and it too concludes that Rothe\rquote s post-enactment relevance argument is rendered even less persuasive given the fact that the Act requires the Small Business Administration to \report annually to Congress on the status of small disadvantaged businesses generally and the Section 8(a) program in particular[,]\ and \thus, the statute itself contemplates that Congress will review the 8(a) program on a continuing basis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': large and adverse disparities facing minority business enterprises\ and that such disparities \are consistent with the presence of discrimination and its lingering effects in the small business contracting environment\).) Even setting aside the fact that the appropriate remedy for an alleged statement of legal opinion is to exclude only that particular portion of testimony, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': at 4 (\The proper level of analysis should be the precise six digit NAICS level[.]\).) Ultimately, Sullivan concludes that the record in the instant case \while hefty, is not sufficient. It does not justify the racial preferences of the [Small Business Administration]\rquote s 8(a) program.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Defs.\rquote MSJ Br. & Resp. at 26 (\[T]he presumption of social disadvantage in the Small Business Act is race-conscious and is subject to strict scrutiny.\); Pl.\rquote s MSJ Br. at 9 (\It is undisputed that the section 8(a) statute contains [a] racial classification ... and therefore that statutory racial classification is subject to judicial review under strict scrutiny.\).) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Wainwright and Rubinovitz have testified that minority-owned small businesses have faced, and continue to face, significant disadvantages in government contracting that cannot be explained by nondiscriminatory factors ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (\Congress attempted to use race-neutral measures to foster and assist minority owned businesses for at least twenty-five years prior to incorporating a race-conscious component in Section 8(a), and these race-neutral measures failed to remedy the effects of discrimination on minority small business owners.\). Second, the Section 8(a) program is appropriately flexible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': (discussing the program\rquote s \strict durational limits\ on participation, and the Small Business Administration\rquote s \continual[ ] reassess[ment]\ of participants\rquote eligibility). Fifth, the relevant aspirational goals for SDB contracting participation are numerically proportionate, in part because \[t]he evidence presented established that minority firms are ready, willing, and able to perform work equal to two to five percent of government contracts in industries including but not limited to construction.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': court noted, \[t]he presumption that a minority applicant is socially disadvantaged may be rebutted if [the Small Business Administration] is presented with credible evidence to the contrary[,]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Rothe is also mistaken when it argues that the Section 8(a) program should be struck down as not narrowly tailored because purported \overutilization of 8(a) firms in Rothe\rquote s primary NAICS codes imposes an undue burden on Rothe[.]\ (Pl.\rquote s MSJ Resp. & Reply at 15.) With this argument, Rothe invites the Court to compare the \percentage of total small business dollars in federal procurement that 8(a) firms in Rothe\rquote s NAICS codes are being awarded ... to the overall availability of 8(a) firms in Rothe\rquote s NAICS codes\ and argues that this comparison demonstrates that, far from being underutilized, Section 8(a) program participants Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Here, Rothe maintains that Section 8(a) contains insufficient guidance \to limit the [Small Business Administration\rquote s] discretion in deciding whether racial, ethnic or cultural bias has occurred or even what constitutes a racial, ethnic, or cultural group.\ (Pl.\rquote s MSJ Br. at 7.) Rothe is wrong for at least two reasons. First, Congress has specifically defined \[s]ocially disadvantaged individuals\ as \those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities[,]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u167 631(f)(1)(C). Thus, Congress has provided clear, intelligible direction regarding who can be deemed \socially disadvantaged\ for the purpose of the statute. What is more, Congress has provided additional context by explaining that one purpose of the Section 8(a) program is to \promote the business development of small business concerns owned and controlled by socially and economically disadvantaged individuals so that such concerns can compete on an equal basis in the American economy[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': A business may obtain SDB status by virtue of applying for and participating in the Section 8(a) program\u8212and only SDBs may participate in the Section 8(a) program\u8212however, a small business may also be deemed an \SDB\ for purposes of government contracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': \u821192. In other words, a small business must be an SDB to participate in the Section 8(a) program, but it need not participate in the program to be an SDB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'The Rule of Two': Some federal agencies use NAICS codes in the course of awarding government contracts to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 035 - Per Aarsleff AS v United States.doc, Paragraph with 'The Rule of Two': , was applicable and required that \[a]t least 50% of the cost of the contract performance incurred for personnel shall be expended for employees of the [small business].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 036 - US v Bowling.doc, Paragraph with 'The Rule of Two': \u182\u182 19, 26. Kolhagen also requested that the bidding be limited to designated Service Disabled Veteran Owned Small Businesses, of which Valour was one. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 041 - NVE Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation specified that the contract was a small business set-aside for a one-year base period with four one-year option periods, not to exceed a total of five years. AR 6. The contract required the awardee to \furnish all labor, supervision, management, tools, materials, equipment, facilities, transportation, incidental engineering, and other items necessary\ to provide the specified janitorial and custodial services. AR 10. The solicitation also stated that the \Service Contract Act (SCA) Wage Determination and a Collective Bargaining Agreement [ (CBA) ] are included in this solicitation.\ AR 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 041 - NVE Inc v United States.doc, Paragraph with 'The Rule of Two': Factor 1 as required by the solicitation. AR Tab 41, at 2088. Following the protest, NAVFAC determined that a reevaluation of the final revised proposals was necessary, and informed GAO that it again intended to take corrective action. Accordingly, on September 9, 2014, the GAO dismissed NVE\rquote s protest. AR Tab 43. NVE also protested the award to ACE at the U.S. Small Business Administration (\SBA\), challenging ACE\rquote s size status due to its use of a non-small business subcontractor, J & J Maintenance, Inc. The SBA denied NVE\rquote s size protest and the SBA Office of Hearing and Appeals affirmed (\OHA\). Notice of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': Limited liability company (LLC) brought action against Department of Veteran Affairs (VA), challenging VA\rquote s denial of LLC\rquote s application for verification as a Service Disabled Veteran Owned Small Business. Parties moved for summary judgment. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': Department of Veteran Affairs (VA) decision to deny limited liability company\rquote s (LLC) application for verification as Service Disabled Veteran Owned Small Business was not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to law; VA concluded non-veterans controlled or had power to control LLC, although manager-majority member was service disabled veteran, because operating agreement allowed manager to delegate authority to others without retaining control, LLC\rquote s minority members were affiliated with construction company that provided all of LLC\rquote s capital, and LLC\rquote s lack of staff meant it would be reliant on others to manage its projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': In this action, Plaintiff CS360, LLC, challenges a final decision of the U.S. Department of Veteran Affairs denying its application for verification as a Service Disabled Veteran Owned Small Business. More than three years ago, when the Court first considered the merits of this case, the Court concluded that it was \preclude[d] from effectively exercising its review function\ because of defects in the VA\rquote s written decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': . Subsequently, the Center for Veterans Enterprise considered additional documents that Plaintiff submitted. VA00705. On September 26, 2012, the Center for Veterans Enterprise issued a new determination (\Revised Final Determination\), once again denying CS360\rquote s application. VA00705. This action was then stayed pending the resolution of related proceedings before this Court and before the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': CS\u8211360, LLC v. U.S. Small Business Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': First, all of the capital for CS360 was provided by officers and employees of B & R Construction\u8212with none provided by the service disabled veteran. VA00709. Relatedly, while the service disabled veteran, Walter Davis, has retained a 51% stake in CS360\u8212the minimum required in order to qualify as a Service Disabled Veteran Owned Small Business\u8212the minority owners are all officers and employees of B & R Construction. VA00708. The structure of the capital contributions that financed the corporation in the first instance, together with the other aspects of CS360\rquote s relationship with B & R Construction, another business in the construction sector, supports the agency\rquote s inference that B & R Construction affiliates could seek to exercise control over CS360. The Court, in its previous Memorandum Opinion, stated that it was unconvinced by the agency\rquote s \cursory statement\ that \ \u8216it is unreasonable to conclude that any rational person, or group of persons, would personally fund a start-up construction concern ... and then relinquish total control over that concern.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': dependent on the mentor in a way that would prevent the prot\u233g\u233 from qualifying as a Service Disabled Veteran Owned Small Business. However, the Court agrees with Defendant that, in these circumstances, the nature of the mentor-prot\u233g\u233 agreement is yet one more piece of evidence that CS360 is reliant on B & R Construction. In particular, the agency notes that, although the agreement stated that B & R Construction would provide training to CS360 employees, B & R provided \all but two people to be the key personnel and is the entire operation of the prot\u233g\u233.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': Based on these several factors, the agency concluded that this is a \classic case of rent-a-veteran.\ VA00709. In light of the factors discussed here and on the agency\rquote s experience in managing the Service Disabled Veteran Owned Small Business program, the agency concluded that the Managing Member contributed his status as a service disabled veteran to CS360 while B & R Construction and its affiliates have supplied the funding and other resources necessary to create and maintain CS360, in order to provide B & R Construction and its affiliates access to contracts limited to Service Disabled Veteran Owned Small Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'The Rule of Two': VA00709. The Court concludes that, taken together, the factors on which the agency relies\u8212particularly the clause allowing the Managing Member to delegate authority to a non-veteran and the factors showing CS360\rquote s dependency on B & R Construction and its affiliates\u8212are sufficient to support the agency\rquote s determination that non-veterans control or have the power to control CS360. Accordingly, the Court concludes that the VA\rquote s decision to deny Plaintiff\rquote s VetBiz application is not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to law. In contrast to the agency\rquote s previous decision, the agency\rquote s Revised Final Determination\u8212while still not a model of clarity\u8212adequately explains the agency\rquote s determination that Plaintiff does not qualify as a Service Disabled Veteran Owned Small Business. Therefore, the Revised Final Determination survives the Court\rquote s deferential standard of review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': on issue of first impression, Court of Federal Claims had jurisdiction over North American Industry Classification System (NAICS) code determinations by Small Business Administration Office of Hearings and Appeals and contracting officer\rquote s amendment to solicitation; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': The regulations of the Small Business Administration under the SBA have the force and effect of law, since the SBA was authorized to engage in rulemaking. Small Business Act, \u167\u167 2[3](a)(2)(A), 2[8](b)(6), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': North American Industry Classification System code determination by Small Business Administration Office of Hearings and Appeals and contracting officer\rquote s amendment to solicitation were actions \in connection with a proposed procurement,\ and thus they were within scope of jurisdiction granted under Tucker Act, as required for Court of Federal Claims to have jurisdiction over them in prospective bidder\rquote s pre-award bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': Prospective bidder was not relieved of requirement to exhaust administrative remedies, with regard to North American Industry Classification System (NAICS) code determinations by Small Business Administration Office of Hearings and Appeals (OHA) and contracting officer\rquote s amendment to solicitation, by another interested party\rquote s filing of OHA NAICS appeal and OHA rendering final decision identifying most appropriate NAICS code, and thus it was barred from filing claim in court for failure to exhaust, since appeal taken to OHA was to be all encompassing and bidder was seeking use of altogether different code, rather than return to original code, and bidder could have participated in pending OHA appeal for solicitation but chose to not do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': Mere belief by prospective bidder that it was not required to participate in proceeding before Small Business Administration Office of Hearings and Appeals (OHA) because another interested party had filed OHA North American Industry Classification System (NAICS) appeal did not excuse its obligation to exhaust administrative remedies with regard to NAICS code determinations by OHA and contracting officer\rquote s amendment to solicitation, and thus it was barred from filing claim in court for failure to exhaust, since NAICS code selection was fact-specific determination that required agency expertise, bidder\rquote s urged code designation was not discussed during OHA appeal, and bidder had notice of appeal and knew, or should have known, that appeal could result in final decision changing the code and rendering bidder ineligible to compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': This case involves a pre-award bid protest. On February 28, 2014, the National Institute on Drug Abuse (\NIDA\), an institute within the National Institutes of Health (\NIH\), issued Request for Proposal (\RFP\) No. N01DA\u821114\u82114423 for the \NIH Pain Consortium Centers of Excellence in Pain Education Coordination Center\ (\the solicitation\). NIDA initially issued the solicitation as a small business set-aside under North American Industry Classification System (\NAICS\) code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),\ which limits offerors to small businesses with 500 employees or fewer. A prospective offeror appealed the NAICS code designation to the United States Small Business Administration (\SBA\) Office of Hearings and Appeals (\OHA\), and OHA ordered NIDA\rquote s contracting officer to amend the solicitation to change the NAICS code designation to 541611, \Administrative Management and General Management Consulting Services.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': (\the Act\) was designed to set aside certain contracts for the benefit of small business concerns. Congress created the Small Business Administration (\SBA\) to carry out the policies of the Act, and gave SBA authority to \specify detailed definitions or standards by which a business concern may be determined to be a small business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': (\Since the Administrator was specifically authorized to define a small business concern, these regulations have the force and effect of law.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': SBA uses the North American Industry Classification System (\NAICS\) to determine which entities qualify as small business concerns. The Office of Management and Budget assigns NAICS codes to various industry sectors, and SBA determines which firms qualify as small businesses \to assure that a fair proportion of government contracts for goods and services are performed by such entities in each industry category.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': ). To do so, SBA specifies the maximum number of employees or maximum annual receipts which a company may have in order to qualify as a small business within a particular NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': . The NAICS code assigned to a solicitation limits the small businesses that may submit bids to those that qualify under the size standard associated with that particular NAICS code. By regulation, the contracting officer\rquote s choice of NAICS code and corresponding size standard \is final unless timely appealed\ to the SBA\rquote s OHA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': . On February 28, 2014, NIDA published the solicitation at issue as a total small business set aside. The purpose of the solicitation was to fund a \Coordination Center,\ operated by the contractor, \to facilitate the activities of the CoEPEs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': NIDA\rquote s contracting officer, Kenneth E. Goodling, selected NAICS code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),\ for the solicitation. To qualify under this code, a business must have fewer than 500 employees. Palladian alleges that it qualified as a small business under this code and size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': OHA concluded by stating that \[t]his is the final decision of the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': court noted that this court \has yet to clarify how [the Court of Federal Claims\rquote ] bid protest jurisdiction interacts with the Small Business Administration\rquote s NAICS code review responsibilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': . The Court of Federal Claims rejected the government\rquote s approach, finding that it would require potential small business bidders to participate in an OHA NAICS proceeding to preserve their right to judicial review, even if they had not yet decided to bid, and even if the current NAICS code did not negatively affect their ability to bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': ) (\[N]othing either in the language or the legislative history of [the Small Business Act at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': Specifically, the court found it would be burdensome to require potential small business offerors to intervene in every SBA NAICS code challenge to the solicitation to preserve the possibility of judicial review. The court noted that, in many instances, intervention would require litigants to file \useless motions in order to preserve their rights.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': The court was also concerned that small businesses would \be forced to expend significant time and money to involve themselves in potentially costly litigation, in some cases, even before having made the decision of whether or not to submit a proposal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 051 - Palladian Partners Inc v US.doc, Paragraph with 'The Rule of Two': Although the Court of Federal Claims found that requiring intervention would be burdensome on small businesses, there is no indication that the regulations contemplate an onerous procedure. Indeed, at oral argument, the government explained that a party can preserve its right to judicial review by filing a letter with OHA stating whether or not it supports the contracting officer\rquote s original decision. Oral Argument at 5:58\u82117:20. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Agency\rquote s award of competitive bridge contract to successful bidder during pendency of disappointed bidder\rquote s administrative protest of challenged award to same successful bidder under small business set-aside was reasonable; awarding bridge contract ensured that agency would receive mission-critical services through date of administrative determinations and for one month beyond if corrective action was recommended, and by not restricting bridge contract as small business set-aside, agency avoided small business eligibility issues during performance of bridge contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder\rquote s challenge to agency\rquote s override of automatic stay of performance under Competition in Contracting Act (CICA) was rendered moot by agency\rquote s award of competitive bridge contract to successful bidder during pendency of disappointed bidder\rquote s administrative protest of challenged award to same successful bidder under small business set-aside; stay override was not necessary for agency to award bridge contract, and effect of bridge contract was to stay performance of challenged contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; CICA Stay Override Challenge; Small Business Set\u8211Aside; Corrective Action; Agency Decision to Award Competitive Bridge Contract; Motion to Dismiss; Mootness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Accountability Office (\GAO\). The Army awarded a contract to Defendant\u8211Intervenor Loyal Source Government Services (\Loyal Source\) on February 5, 2015 to provide field support training for M777A2 and M119A3 howitzers, including system updates, product improvements, and refresh initiatives. Administrative Record (\AR\) 61. The contract resulted from the Army\rquote s small business set-aside procurement for these training services. CF Day is the incumbent contractor, and its contract expired on March 5, 2015. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': On February 10, 2015, CF Day filed a size protest with the Small Business Administration (\SBA\) alleging that Loyal Source is not an eligible small business because it is unduly reliant on a large business subcontractor to perform the work. On March 12, 2015, the SBA issued a decision finding that Loyal Source was not a small business on the date of award. Loyal Source has appealed SBA\rquote s decision to the SBA Office of Hearings and Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': CF Day filed suit in this Court on March 19, 2015 challenging the Army\rquote s stay override, and on March 23, 2015, the Court conducted a telephonic hearing on CF Day\rquote s application for a temporary restraining order (\TRO\). Upon considering the arguments of counsel, the Court entered a TRO as CF Day had requested, principally on the basis that Loyal Source is not an eligible small business. Even though the stay override determination was issued one day before the SBA\rquote s size decision, Defendant made no mention in its filings or in the TRO argument of Loyal Source\rquote s ineligibility to receive the award. Moreover, based upon the representations of Plaintiff\rquote s counsel, the Court found that the Army easily could have continued with CF Day until the GAO bid protest was decided. While acknowledging the mission-critical importance of the required field training, the Court was persuaded that CF Day could have been reinstated as the contractor until the GAO\rquote s June 3, 2015 decision date. The Court also was mindful of obtaining a prompt SBA decision on Loyal Source\rquote s size appeal. The TRO took effect on the afternoon of March 23, 2015. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': On April 8, 2015, Defendant filed a motion to dismiss Plaintiff\rquote s complaint as moot based upon the Army\rquote s voluntary corrective action. In a supplemental declaration from the Contracting Officer, Ms. Houle explained that the Army had decided to award a competitive bridge contract to cover the period until after the GAO issues its decision on CF Day\rquote s bid protest. Ms. Houle released a solicitation for the bridge contract on April 6, 2015. She requested offerors to submit proposals by April 10, 2015. The competition was limited to the three companies that submitted acceptable proposals in response to the original solicitation, and was not considered a small business set-aside. The Army made award of the bridge contract to Loyal Source on April 15, 2015. The scope of work is identical to the contract awarded to Loyal Source in February 2015, and the period of performance will be from May 2 until June 30, 2015, with the option to extend the contract if necessary. Ms. Houle states that the Army intends to comply with GAO\rquote s recommendation on the protest, even if corrective action may be suggested. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 053 - Charles F Day And Associates LLC v United States.doc, Paragraph with 'The Rule of Two': Under the circumstances presented, the Army\rquote s award of a competitive bridge contract while the GAO protest is still pending is eminently reasonable. By awarding a bridge contract for the period May 2 through June 30, 2015, with an option to extend, the Army will receive its mission-critical services through the expected GAO decision date of June 3, 2015, and for nearly one month after that date if the GAO recommends any corrective action. Suppl. Houle Decl. \u182 9. Moreover, the Army should receive the decision of the SBA\rquote s Office of Hearings and Appeals within the period of the bridge contract advising whether Loyal Source is considered an eligible small business. By not restricting the bridge contract as a small business set-aside, the Army will avoid any small business eligibility issues during the performance of the bridge contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 055 - Coast Professional Inc v United States.doc, Paragraph with 'The Rule of Two': In July 2009, Education awarded identical TOs to twenty-two contractors that had submitted proposals in response to the RFP. These contractors were divided into two pools\u8212a small business pool and an unrestricted pool. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 055 - Coast Professional Inc v United States.doc, Paragraph with 'The Rule of Two': The TOs provided for in-depth evaluations of the contractors\rquote performance throughout the life of the TOs through the use of CPCS ratings. Within several months of the placement of accounts with the PCAs, and quarterly after that, Education was required to calculate CPCS ratings for each contractor. In calculating these ratings, the small business and unrestricted pools were assessed separately. CPCS scores were calculated according to detailed provisions in the TOs, which required the government to take into account three performance indicators. The contractor with the highest ranking in each performance indicator received the total potential points for that indicator. The points assigned to the remaining contractors reflected \the relative percentage each contractor is behind the lead contractor\ for each indicator. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 055 - Coast Professional Inc v United States.doc, Paragraph with 'The Rule of Two': To reward higher CPCS scores, Education gave out bonus payments and transferred a greater volume of accounts to the high-scoring contractors. A CPCS score of 85 or more also qualified the contractor for an award term extension pursuant to Section H.4 of the TOs. The TOs indicated that a CPCS score above 95 was an indicator of \Outstanding performance\ and a score from 85 to 95 was an indicator of \Excellent performance.\ The TOs noted that while these adjectival ratings \serve as convenient groupings and references,\ the government \may consider other factors including, but not limited to: complaints, small business subcontracting, security risks or violations, computer system inadequacies, or deficiencies in procedures, quality control or training.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 055 - Coast Professional Inc v United States.doc, Paragraph with 'The Rule of Two': The small business pool consisted of any concern with 500 or fewer employees and annual receipts of $6.5 million or less, \that is independently owned and operated, [and] not dominant in the field of operation in which it is bidding on Government contracts.\ All other contractors were in the unrestricted pool. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Apparent awardee brought pre-award bid protest against United States, challenging a decision by Small Business Administration (SBA) that awardee was ineligible for status as a service-disabled veteran-owned small business concern (SDVO SBC) and, therefore, ineligible for a set-aside contract with Department of State. Two unsuccessful offerors intervened as defendants, and parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction under Tucker Act over apparent awardee\rquote s claim that Small Business Administration (SBA) violated a regulation governing eligibility for status as a service-disabled veteran-owned small business concern (SDVO SBC) when it found that awardee was ineligible for SDVO SBC status, where awardee\rquote s only obstacle to a set-aside contract with Department of State was SBA\rquote s decision, which was rendered in course of Department\rquote s procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) failed to provide an adequately reasoned explanation for its conclusion that apparent awardee on a set-aside contract with Department of State was ineligible for status as a service-disabled veteran-owned small business concern (SDVO SBC), where SBA did not provide guideposts for its determination that variances between awardee\rquote s Series A and Series B stock were sufficient to render them separate classes and that service-disabled veteran, who owned 51% of Series A stock but none of Series B stock, lacked sufficient ownership rights to satisfy eligibility requirements for SDVO SBC status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Pre\u8211Award; Small Business Administration (SBA); Office of Hearings & Appeals (OHA); Service\u8211Disabled Veteran Owned Small Business Concern (SDVO SBC); Status; Ownership Criteria; 15 U.S.C. \u167 632(q); 13 C.F.R. pt. 125; 13 C.F.R. \u167 125.9(d); Remand Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Precise Systems, Inc. (Precise) was the apparent awardee on a Department of State solicitation entirely set aside for \service-disabled veteran-owned small business concerns\ (SDVO SBCs). Four unsuccessful offerors filed agency protests resulting in a decision by the Small Business Administration (SBA), affirmed by its Office of Hearings and Appeals (OHA), that Precise was ineligible for SDVO SBC status and, therefore, also ineligible for the contract award. Precise challenges the ineligibility determination and seeks reinstatement as a SDVO SBC so that it may compete for this procurement and future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Precise Systems, Inc. is a small business in the aviation management and engineering services industry. Compl., Dec. 5., 2014, ECF No. 1, at \u182 9. The company incorporated in 1990 under Maryland law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 15 at 826\u821128, 845\u821148, 883\u821188, Tab 14 at 773\u821174, Tab 15 at 791\u821193 (four protests). The protests claimed that Precise was not a valid SDVO SBC because it was not \owned\ and \controlled\ by a \service-disabled veteran,\ as those terms are defined by the Small Business Act of 1958, as amended and as codified in relevant part at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Within SBA programs, a \small business concern owned and controlled by service-disabled veterans\ (SDVO SBC) is defined, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': first and foremost, by Congress as \a small business concern\: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The inquiry into what constitutes \class[es] of voting stock\ is not just an intellectual exercise, but is part of the criteria for determining whether a service-disabled veteran sufficiently owns a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Tr., Mar. 4, 2015, ECF No. 44, at 11:13\u821113:1 (discussing size protests). On review, the Small Business Administration (SBA) Office of Hearing and Appeals (OHA) confirmed that the solicitation employed an appropriate NAICS code and an appropriate size standard, relative to which Precise qualified as \small.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (small business size eligibility protest procedures). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (holding the Claims Court had jurisdiction over the SBA\rquote s refusal to grant a certificate of competency to a small business contractor in connection with its bid on a contract to manufacture coats); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': This definition of SDVO SBC was adopted by the Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': of the Small Business Act, as amended, to add the definition of SDVO SBC in a new sub-section (q). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': ] [,] which addresses procurement programs for small business concerns (SBCs) owned and controlled by service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 15 at 801, 816 (Precise website screenshots, stating \Precise Systems is an Employee Owned Service Disabled Veteran\u8211Owned Small Business (SDVOSB)\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 061 - Starry Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Department of Health and Human Services (\HHS\) Program Support Center (\PSC\) issued Request for Quotations No. 15\u8211233\u8211SOL\u821100023 (\RFQ\ or \solicitation\) on November 13, 2014. The procurement was set aside for small businesses and was to be awarded to the lowest priced, technically acceptable offeror. Through the solicitation, PSC sought to procure a range of business operations services which would support PSC\rquote s implementation of HHS\rquote s Unified Financial Management System (\UFMS\). Plaintiff, Starry Associates, Inc. (\Starry\), is the incumbent provider of on-site operational support for UFMS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 062 - Visual Connections LLC v United States.doc, Paragraph with 'The Rule of Two': On June 26, 2014, AHRQ issued Request for Quote No. AHRQ\u821115\u821110003 (RFQ). The RFQ sought quotations from \service-disabled veteran-owned small businesses holding Federal Supply Schedule (FSS) 70 contracts with the General Services Administration (GSA).\ The RFQ indicated that, \[t]he purpose of this task order is to maintain agency production systems as well as the architectural, engineering, configuration management, and hosting services needed to support those systems. The contractor shall provide support for application operations and maintenance, and testing and deployment of complex technologies into the existing IT environment.\ The period of performance was for a \Base Period of 12 months with four, 12 month option periods.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 062 - Visual Connections LLC v United States.doc, Paragraph with 'The Rule of Two': Alternatively, protestor asserts that the RFQ is \facially ambiguous,\ and, \therefore it was a latent ambiguity which triggered no duty to inquire.\ Protestor argues the RFQ was facially ambiguous because \[t]he Evaluation Factors and Evaluation Schema announced by Defendant United States Department of Health & Human Services\rquote AHRQ\rquote s Request for Quotations entirely follow the precepts set out for a Simplified Procedures Acquisition competed among the many holders of Multiple Award Schedule Contracts,\ while protestor also argues, \[b]ut it is equally reasonable to have concluded that the announced conditions for this Request for Quotations (an Acquisition greater than $5,000,000 set-aside and restricted only to those Offerors which also are Service\u8211Disabled, Veteran\u8211Owned Small Business Concerns) precluded the use of Simplified Acquisition Procedures.\ Protestor quotes from Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation at issue in this protest was identified by the agency as a follow-on for two specific BPA call orders, 18 and 19. Administrative Record (\AR\) 91 (Acquisition Plan). Call orders 18 and 19 were for support services related to the CVE\rquote s verification of small business status. Monterey had performed under both of those orders pursuant to the BPA. Monterey also provided support for other OSDBU work, including acquisition support under call order 17. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': for service-disabled veteran owned small businesses holding one or both of two GSA FSS contracts for support services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': Monterey filed suit here on December 3, 2014; Loch Harbour subsequently intervened on the side of the government. Plaintiff\rquote s initial complaint sought declaratory and injunctive relief, challenging both the agency\rquote s OCI investigation and Loch Harbour\rquote s eligibility to receive award as a small business. Monterey filed a motion for preliminary injunctive relief along with its complaint. We denied that motion on December 4, 2014. Following a size determination regarding Loch Harbour by the Small Business Administration, plaintiff amended its complaint on January 5, 2015, dropping its allegations challenging Loch Harbour\rquote s eligibility for award. The parties subsequently filed cross-motions for judgment on the administrative record, limited to the issue of the asserted OCI. Plaintiff challenges the CO\rquote s determination and corrective action as both irrational and wrong in fact. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'The Rule of Two': VA\rquote s OSDBU is responsible for increasing small business utilization in VA contracting through a variety of means. The CVE is a subunit of OSDBU and is responsible for verifying the small and disadvantaged status of contractors doing business with the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': Under the Federal Program, which was first enacted in 1982, USDOT is to expend no less than 10% of authorized funds through DBEs\u8212\small business concerns owned and controlled by socially and economically disadvantaged individuals.\ Moving Ahead for Progress in the 21st Century Act (\MAP\u821121\), Pub.L. No. 112\u8211141, \u167 1101(b), 126 Stat. 405 (2012). The 10% goal is set at the national level and is aspirational. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': The Federal Regulations, along with the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': break down the definition of a DBE. First, a DBE must be a \small business concern\ that falls within the size standards published by the Small Business Administration (\SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': Recipients must develop outreach programs that foster small business participation across the board, regardless of DBE status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': DBEs. IDOT adds the dollar value of these line items together, and then divides this amount by the total contract cost to arrive at a maximum DBE participation goal. IDOT then submits the goal to its Bureau of Small Business Enterprises for review. If the Bureau of Small Business Enterprises determines the goal is reasonable and can be supported in the project\rquote s locality, IDOT publishes the goal when the contract is let. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': . Race-neutral means include making contracting opportunities more accessible to small businesses, providing assistance in obtaining bonding and financing, and offering technical and other support services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': Survey of Small Business Owners, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': IDOT has identified several race-neutral programs it has used to increase DBE participation, including its Supportive Services, Mentor\u8211Prote\u769ge\u769, and Model Contractor Programs. The programs provide workshops and training that help small businesses build bonding capacity, gain access to financial and project management resources, and learn about specific procurement opportunities. To demonstrate that these programs cannot remedy discrimination on their own, IDOT has conducted several studies involving zero-participation goals. For instance, from 2006\u82112008, IDOT let approximately half of all contracts without any DBE participation goal. Of those contracts, DBEs received only .84% of the total dollar value awarded. Midwest challenges the probative value of this figure, arguing that it conflicts with a zero-goal experiment introduced in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 067 - Midwest Fence Corp v United States Department of Transportation.doc, Paragraph with 'The Rule of Two': program that allows smaller contracts to be unbundled from larger ones, a Small Business Initiative that sets aside contracts for small businesses on a race-neutral basis, partnerships with agencies that provide support services to small businesses, and other programs designed to make it easier for smaller contractors to do business with the Tollway in general. The Tollway\rquote s race-neutral measures are consistent with those suggested under the Federal Regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 068 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': As initially structured, the Army\rquote s procurement was a small business set-aside subject to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 069 - Electronic OnRamp Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation sought offers only from disadvantaged small businesses, pursuant to the Small Business Administration\rquote s 8(a) Business Development Program. AR 10:141. The contract would be awarded to the offeror whose proposal represented the best value to the government. AR 10:175. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 069 - Electronic OnRamp Inc v United States.doc, Paragraph with 'The Rule of Two': Based upon the SSA\rquote s determination that Premier\rquote s proposal represented the best value to the government, the agency awarded the contract to Premier on September 20, 2013. AR 40:7588. Shortly thereafter, two unsuccessful offerors lodged protests with the Small Business Administration (SBA), asserting that Premier did not properly qualify as a business entitled to participate in the 8(a) program. AR 43:7735\u821137; 45:7740\u821157. The SBA rejected these protests. AR 61:8547, 8549. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'The Rule of Two': Plaintiffs allege misconduct by Defendants in rendering certain decisions affecting Plaintiffs\rquote ability to obtain set-aside government contracts through the VA\rquote s \qualified Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\)\ program, and in failing to pay Plaintiffs for their services pursuant to a contract for the use of a para-transit bus. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'The Rule of Two': (Sec.Am.Compl.\u182 37.) The VIP database includes all SDVOSBs and Veteran Owned Small Businesses (\VOSBs\) that are verified to be at least 51% \owned and controlled\ by a veteran or service-disabled veteran. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'The Rule of Two': On April 25, 2011, Storms \criticized\ Eckenrode, a CVE employee, for failing to remove unverified contractors from the VIP database in accordance with the Small Business Verification Act, and a \personal feud ensued\ between Storms and Eckenrode. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 074 - Raymond Express International LLC v United States.doc, Paragraph with 'The Rule of Two': REI is the incumbent contractor supplying FFV to DeCA commissaries in South Korea, Japan\u8212including Okinawa, and Guam. The incumbent contract is a small business set-aside. AR at 3784. The incumbent contract includes a transportation subsidy, because \[t]he Government [pays] transportation costs from designated points within the United States to the commissary locations located throughout South Korea, Guam, Okinawa and Japan.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 074 - Raymond Express International LLC v United States.doc, Paragraph with 'The Rule of Two': The source selection plan was approved on January 30, 2014. AR at 532. Because much of the contract would be performed outside the United States, DeCA removed the small business set-aside requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with 'The Rule of Two': On September 25, 2012, the agency issued the \Information Technology Enterprise Solutions\u82113 Hardware\ (\ITES\u82113H\) Solicitation W52P1J\u821111\u8211R\u82110171 (hereinafter the \Solicitation\ or \RFP\) to furnish the agency with IT equipment and solutions at a reasonable price. Administrative Record (\AR\) 72\u821174. The agency plans to award to at least eight offerors under an indefinite delivery/indefinite quantity (\IDIQ\) contract with up to four awards reserved for small businesses. It reserves the right to make no awards or more than eight awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with 'The Rule of Two': The army is utilizing a two-phase evaluation process for the acquisition. The first phase has been completed, and the agency is currently conducting the second phase. Phase I required bidders to demonstrate their capabilities in supplying commercial IT hardware in compliance with the operating environment. The agency evaluated the Phase I proposals on an acceptable/unacceptable basis and eliminated any offerors that failed to receive an acceptable rating. As a result of the Phase I evaluation, 39 out of 50 initial offerors were invited to submit a Phase II proposal. Phase II proposals consist of information regarding managerial and technical capability, track record of handling similar projects, and the price proposed for the work. Eight of the offerors that moved on to Phase II were large businesses, and the remaining 31 offerors, including plaintiff, were small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with 'The Rule of Two': The Mission Support factor has three subfactors. Subfactor 1, Management, is more important than Subfactor 2, Technology; and Technology is more important than Subfactor 3, Small Business Participation. The solicitation provides that the Mission Support factor and the three subfactors would be rated using one of the following adjectives: (1) \Outstanding;\ (2) \Good;\ (3) \Acceptable;\ (4) \Marginal;\ and (5) \Unacceptable.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s proposal garnered an overall rating of \Good\ for the Mission Support factor, scoring the same rating for all three subfactors. In assigning the \Good\ rating to all three subfactors, the agency identified four strengths for the Management subfactor and no weaknesses, two strengths and no weaknesses for the Technology subfactor, and five strengths that outweighed two weaknesses and one significant weakness for the Small Business Participation subfactor. AR 918. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with 'The Rule of Two': and (2) The agency unreasonably evaluated plaintiff under the Small Business Participation technical subfactor. On September 18, 2014, plaintiff filed a supplemental protest with the GAO, contending that the agency: (1) failed to properly consider price in establishing the competitive range; (2) failed to properly document its evaluations; (3) disparately treated information when evaluating plaintiff\rquote s past performance; and (4) evaluated offerors\rquote proposals in an unreasonable and unequal manner. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': Small business contractor, under Small Business Administration\rquote s (SBA) 8(a) program, sued United States, seeking compensation for alleged breaches of contract to provide broadband and very small aperture terminal (VSAT) network for installation at Defense Commissary Agency (DeCA) sites in and outside of continental United States (CONUS), after termination of contract for convenience of government. Government moved to dismiss for lack of subject matter jurisdiction and for failure to state claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': Small business contractor\rquote s claim that government breached contract to provide broadband and very small aperture terminal (VSAT) network for installation at Defense Commissary Agency (DeCA) sites by failing to give advance notice to Small Business Administration (SBA) prior to termination for convenience was same claim submitted to contracting officer, as required for jurisdiction over claim, under Contract Disputes Act (CDA), since contractor submitted to contracting officer claim that government breached contract by bad faith wrongful termination of contract, relying on same operative facts as claim for breach of contract by failing to give advance notice, and requesting same type of relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': Small business contractor\rquote s allegations that government owed contractor $3,296,543.18 for breaching contract to provide broadband and very small aperture terminal (VSAT) network for installation at Defense Commissary Agency (DeCA) sites by failing to give advance notice to Small Business Administration (SBA) prior to termination for convenience did not plausibly state claim, under Contract Disputes Act (CDA); contract\rquote s advance notice provision existed for benefit of SBA not for contractor, and there was no causal link between government\rquote s six-hour delay in notifying SBA and contractor\rquote s requested amount of damages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation was a \competitive 8(a) set-aside\ for small businesses. Compl. \u182 5. E & E was, at all relevant times, a certified 8(a) small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': \u182 16. Under the 8(a) program, the Small Business Administration (SBA) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': . The small business performing the contract services is generally referred to as the 8(a) contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': \u182\u182 160\u821161, E & E contends that the agency failed to \ \u8216give advance notice to the Small Business Administration before it issue[d] a final notice terminating the right of E & E, as the subcontractor, to proceed with further performance, either in whole or in part, under the contract,\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with 'The Rule of Two': Although plaintiff has not buttressed the plausibility of its claim in Count IV with citations to caselaw, the court conducted its own research and found no indication that the SBA advance notice provision in plaintiff\rquote s contract has ever supported a successful CDA claim. Further, the court does not consider that this contract provision guarantees any rights of a small business performing under an 8(a) contract. The introduction to the contract clause containing the notice provision addresses the commitments and contracting rights of the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 082 - QBE LLC v United States.doc, Paragraph with 'The Rule of Two': The Solicitation contemplates the award of three Indefinite Delivery Indefinite Quantity (IDIQ) contracts to small businesses as set-asides but reserves for the Agency the right to make more or less than three awards. AR 791 (Amendment 0022). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor brought bid protest to challenge Department of Labor (DOL) solicitation for operation of Job Corps facility, and specifically that DOL improperly set aside procurement for small businesses, making contractor ineligible to compete. Parties cross-moved for judgment on administrative record, and DOL moved in alternative to dismiss for lack of jurisdiction and to strike extra-record material offered by contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims lacked jurisdiction to consider any aspect of contractor\rquote s bid protest to challenge Department of Labor (DOL) solicitation for operation of Job Corps facility, which it argued DOL had reopened with improper set-aside for small businesses that made contractor ineligible to compete after Congress passed Consolidated Appropriations Act of 2014, which encouraged awards to high-performing incumbents, such as contractor, during pendency of prior bid protest; DOL\rquote s notice of plan for upcoming procurements did not reopen prior solicitation, contractor was excluded by DOL action that was upheld by courts and no new agency action had occurred to change outcome, and Act offered no indication that Congress intended to interfere with ongoing solicitation, but rather indicated that Congress intended to give DOL fair warning as to how it was expected to handle future program monies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Job Corps Centers; Small Business Set\u8211Asides; Statutory Construction; Workforce Investment Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': that challenge, and the current one, is that DOL improperly set aside the procurement for small businesses, making Adams, a large business, ineligible to compete. The first protest was unsuccessful. We held that the agency had properly conducted a \rule of two\ analysis and that the set-aside did not violate the Workforce Investment Act, Pub.L. No. 105 220, 112 Stat. 936 (1998) (\WIA\) (amending various sections codified throughout Title 29). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': When DOL, having weathered Adams\rquote challenge, began moving ahead with the procurement as a small business set-aside, Adams filed a protest in April 2014 with the Government Accountability Office (\GAO\). The thrust of the challenge was that, in the interim, Congress had taken certain legislative measures which directly impacted the procurement. The GAO rejected that challenge, in part because it viewed the new allegations as subject to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': On December 14, 2012, DOL issued solicitation DOL12QA20003 for the operation of the Shriver center as a small business set-aside. AR at 3. By designating the contract for competition solely among small businesses, Adams, which is a large business, was excluded from competing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Our jurisdiction requires more solid ground. DOL\rquote s willingness to receive industry feedback on its long range plan for future procurements simply does not morph into a new final decision with respect to the Shriver procurement. Adams has been excluded from competition by an agency action that was upheld by the courts and there has been no new agency action that would change that outcome. Adams is a large business and thus has no standing to object to an award limited to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 085 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': This fact is not altered by the Consolidated Appropriations Act of 2014 or its appended JES. While Section 4 of the Act provides that the explanatory statement regarding the Act by the Chairman of House Appropriations Committee \shall have the same effect with respect to the allocation of funds and implementation of divisions A through L of this Act as if it were a joint explanatory statement of a committee of conference,\ 128 Stat. 7, we hold that the Act needs no explanation. It merely appropriates money. There is no ambiguity as to meaning. The JES is superfluous legislative history, at best, and, in any event, does not have the weight of law. Neither the Act itself nor the JES reopen the solicitation. It remains limited to small businesses, and Adams is thus not a prospective bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 095 - Akima IntraData LLC v United States.doc, Paragraph with 'The Rule of Two': Beginning in 1999, AID has performed the BOS contract for the St. Louis location; since 2009, AID has performed the BOS for both of NGA\rquote s NCW locations. AR 4269\u821170. The original contract was awarded to AID under the Small Business Administration\rquote s 8(a) program with a ten-year term. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 095 - Akima IntraData LLC v United States.doc, Paragraph with 'The Rule of Two': sources. They also argue that to the extent the plaintiff is challenging CFP\rquote s reading of the relevant regulation, CFP\rquote s reading is entitled to deference. They also argue that AID\rquote s preference argument is without merit. While they agree that, as a matter of informal policy, CFP does not add contracts awarded pursuant to a small business preference to the procurement list, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 100 - Framaco International Inc v United States.doc, Paragraph with 'The Rule of Two': (An agency\rquote s stated goal of 40 percent small business participation, as measured by total contract price, was lawful when \nothing in the FAR affirmatively prohibits an agency from establishing such goals in terms of total contract value\ and \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 004 - Lynxnet LLC v United States.doc, Paragraph with 'The Rule of Two': On January 16, 2014, the United States Department of Justice, Federal Bureau of Investigation (\FBI\) solicited Request for Proposals No. DJF\u821114\u82111200\u82110000040 (the \RFP\) for approximately 116 Full\u8211Time Equivalent (\FTE\) service employees to support the TSC Operations Branch for a base period of one year with up to four additional one-year option periods. AR Tab 1, at 1\u8211255. The RFP was set aside for small businesses, certified under the Small Business Administration\rquote s (\SBA\) Section 8(a) Business Development Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 004 - Lynxnet LLC v United States.doc, Paragraph with 'The Rule of Two': . In addition, \[t]he contracting officer shall insert the clause at 52.219\u821114, Limitations on Subcontracting, in solicitations and contracts for supplies, services, and construction, if any portion of the requirement is to be set aside for small business and the contract amount is expected to exceed $150,000.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 004 - Lynxnet LLC v United States.doc, Paragraph with 'The Rule of Two': On April 30, 2014, Lynxnet also filed a size protest to the United States Small Business Administration (\SBA\). AR Tabs 41 & 41a, at 3188\u82113270. On August 18, 2014, the SBA concluded that \STOPSO will perform more than 50 percent of the contract labor with its own employees,\ as \reflected in its contract proposal and in its response to the protest.\ AR Tab 56, at 3584. On August 29, 2014, Lynxnet filed an appeal of that decision with the SBA Office of Hearings and Appeals (\OHA\) that is currently pending. Pl. 8/29/14 Mem. at 10. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 004 - Lynxnet LLC v United States.doc, Paragraph with 'The Rule of Two': United States Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 004 - Lynxnet LLC v United States.doc, Paragraph with 'The Rule of Two': The LOS Requirement sets aside certain government contracts for small business requiring that \[a]t least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 005 - FirstLine Transportation Security Inc v United States.doc, Paragraph with 'The Rule of Two': ). Although the Court denied that protest, TSA followed the Court\rquote s recommendation and amended the solicitation to remove an ambiguity regarding the 40 percent small business participation goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 005 - FirstLine Transportation Security Inc v United States.doc, Paragraph with 'The Rule of Two': (noting FirstLine narrowed its protest to two arguments: the small business participation goal and the amount of information TSA provided to allow offerors to compete on an intelligent and relatively equal basis). Fourth, TSA evaluated each proposal independently and offered sufficient justification for FirstLine\rquote s and Akal\rquote s identical evaluation ratings. Def.\rquote s Remand MJAR at 15\u821116 (noting each proposal was evaluated on its own merits); AR Tab 41 at 2300. Finally, FirstLine misunderstood the solicitation, which called for innovative approaches to airport security screening. Def.\rquote s Remand MJAR at 17. Just because Akal\rquote s proposal was different from FirstLine\rquote s does not mean that it is inherently risky or that it is an area of service where innovation is not required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 006 - IBM Corporation v United States.doc, Paragraph with 'The Rule of Two': The RFP provided that the Army would award the contract \to the Offeror who gives the Government the greatest confidence that it will best meet or exceed the requirements,\ using a best-value tradeoff approach. CAR 296. The RFP identified seven factors for evaluation: (1) Experience, (2) Approach to Sample Scenario, (3) Past Performance, (4) Key Personnel, (5) Transition Plan, (6) Small Business Utilization Factor, and (7) Price. CAR 296. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 007 - Inforeliance Corp v United States.doc, Paragraph with 'The Rule of Two': AR, Tab 49 at 4570\u821171, Tab 50 at 4644\u821145. InfoReliance was told that the pricing and number of hours allotted for certain tasks was deemed unrealistic. AR, Tab 49 at 4570, Tab 49b at 4574\u821178. Intervenor was informed that it had received a \Marginal\ rating for Small Business Participation and that its price was high, relative to other offerors, and therefore potentially non-competitive. AR, Tab 50 at 4644, Tab 50a at 4647, Tab 50b at 4650. After InfoReliance\rquote s and SAIC\rquote s revisions were submitted and evaluated, the USMC awarded the contract to SAIC based on its higher technical rating and lower price. AR, Tab 57 at 5957\u821159. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 007 - Inforeliance Corp v United States.doc, Paragraph with 'The Rule of Two': Even more curious is the conduct allegedly witnessed by Ms. Stefaniga\rquote s MERP team member, Mr. Wright. The MERP was charged with evaluating the management, past performance, and small business participation portion of the proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 007 - Inforeliance Corp v United States.doc, Paragraph with 'The Rule of Two': The solicitation identified four evaluation factors that would receive adjectival ratings in this best value procurement\u8212in decreasing order of importance: Technical Approach, Management Approach, Past Performance, and Small Business Participation. AR, Tab 19a at 1011\u821112. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 007 - Inforeliance Corp v United States.doc, Paragraph with 'The Rule of Two': InfoReliance received the following adjectival ratings in the initial evaluation: Technical Approach\u8212Good; Management Approach\u8212Outstanding; Past Performance\u8212Very Relevant/Substantial Confidence; and Small Business Participation\u8212Acceptable. AR, Tab 46 at 4538. In comparison, SAIC received the following ratings: Technical Approach\u8212Outstanding; Management Approach\u8212Good; Past Performance\u8212Very Relevant/Substantial Confidence; and Small Business Participation\u8212Marginal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'The Rule of Two': The Veterans Technology Services Government\u8211Wide Acquisition Contract (the \VETS GWAC\) allows service-disabled veteran-owned small businesses (\SDVOSBs\) to bid on information technology (\IT\) services for the federal government. AR 76 (2012 VETS Ordering Guide). The VETS GWAC applies to Systems Operations and Maintenance, as well as Information Systems Engineering. AR 77. In this case, the Administrative Record verifies that the required FAR clauses (52.222\u821141 and 52.222\u821153) were incorporated into the VETS GWAC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Bidder on Department of Veterans Affairs (VA) construction contract, who despite being the apparent responsible, responsive lowest-cost bidder, had been declared ineligible to receive award after its certification for service-disabled veteran-owned small business (SDVOSB) eligibility had been cancelled, filed suit against government, seeking injunctive relief of reinstatement as an SDVOSB and award of the contract. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Government contractor who challenged decision of Department of Veterans Affairs (VA) canceling the contractor\rquote s certification for service-disabled veteran-owned small business (SDVOSB) eligibility, and resulting ineligibility to receive award of VA set-aside contract, claimed statutory or regulatory violation \in connection with a procurement,\ or a proposed procurement, within meaning of Tucker Act\rquote s jurisdictional provision, so as to properly invoke bid protest jurisdiction of Court of Federal Claims; even though contractor\rquote s protest involved VA\rquote s decertification decision, the decision was made pursuant to VA\rquote s own procurement regulations and resulted in loss of award despite contractor being apparent responsible, responsive lowest-cost bidder on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Procedural due process protections apply in agency-level protests within the Department of Veterans Affairs challenging VA determinations regarding a contractor\rquote s status as a service-disabled veteran-owned small business (SDVOSB) or a veteran-owned small business (VOSB) entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Cancellation of government contractor\rquote s certification for service-disabled veteran-owned small business (SDVOSB) eligibility by the Veterans Affairs (VA), sua sponte, contravened Administrative Procedure Act\rquote s (APA) provision setting forth the minimal procedural requirements for an informal adjudication; there was no indication that the agency had afforded contractor any notice, let alone adequate notice, that it was the subject of an agency-initiated status protest, and since contractor was entirely unaware of the investigation and cancellation of eligibility until it was disqualified for a construction contract, despite being the apparent responsible, responsive lowest-cost bidder, it had no opportunity to respond or submit documentation regarding its status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Veterans Affairs\rquote (VA) decision to decertify contractor\rquote s eligibility as a service-disabled veteran-owned small business (SDVOSB), based on its finding that owner of the limited liability company (LLC) business was not an \unconditional owner,\ as a result of new involuntary withdrawal provisions in contractor\rquote s operating agreement, was arbitrary and capricious, and not in accord with VA\rquote s regulations, as would warrant reinstatement of eligibility by court; one provision provided only that in the event member is adjudged bankrupt or insolvent, involuntary withdrawal would occur, and other provision provided for the transfer of ownership on account of court order or otherwise by operation of law, so ultimately, neither provision directly affected the unconditional nature of the LLC\rquote s ownership, as would violate VA\rquote s SDVOSB eligibility regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Government contractor whose service-disabled veteran-owned small business (SDVOSB) eligibility was cancelled as a result of arbitrary and capricious decision by Veterans Affairs (VA) as to contractor\rquote s unconditional ownership, was substantially prejudiced by the action, as required to obtain relief in post-award bid protest; contractor had lost a government construction contract as a result of decertification, even though it was the apparent responsible, responsive lowest-cost bidder on the solicitation, and without SDVOSB eligibility, contractor would suffer the loss of future opportunities to compete for set-aside contracts, which would result in loss of a substantial portion of its revenues. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Permanent injunction, preventing Veterans Affairs (VA) from decertifying government contractor\rquote s eligibility as a service-disabled veteran-owned small business (SDVOSB) on basis of lack of unconditional ownership was warranted, where contractor had succeeded on the merits of its claim that such eligibility had been wrongfully denied, contractor suffered irreparable harm by the decertification, which disqualified it from consideration for construction contract and removed it from VA\rquote s set-aside eligibility database, balance of hardship weighed in favor of granting injunctive relief, and the public had a significant interest in the effective, reliable, and coherent operation of VA\rquote s procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Post-award bid protest; challenge to decertification of Service\u8211Disabled Veteran\u8211Owned Small Business for eligibility for an award of a construction contract as to which it was the apparent responsible, responsive lowest-cost bidder; protestor\rquote s lack of opportunity to address issue treated as dispositive by the agency; procedural due process; 5 U.S.C. \u167 555; unconditional nature of service-disabled veteran\rquote s majority ownership of the business; prejudice; remedy Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': This post-award bid protest arises out of a dispute emanating from a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) set-aside solicitation, issued by the Department of Veterans Affairs (\VA\). Plaintiff, AmBuild Company, LLC (\AmBuild\), was the apparent responsible, responsive lowest-cost bidder. The second lowest bidder, Welch Construction, Inc. (\Welch\) filed an administrative protest, challenging AmBuild\rquote s eligibility as a SDVOSB. The Small Business Administration (\SBA\) rejected Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': 2. A second letter with attachment[s] to Small Business Administration to determine (1) size AND (2) if the SDVOSB firm is in violation of 13 C[.]F[.]R[. \u167 ] 121.103(h)(4)[,] the Ostensible Subcontractor Rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': applicable to the procurement and that AmBuild was affiliated with other firms. AR 32\u8211252 to \u821154 (SBA Size Determination Mem. (July 11, 2014)). Notably, SBA found \[AmBuild] to be a small business for [its] referenced size standard,\ and concluded that \AmBuild has never subcontracted with or received financial assistance from Christa.... There [ is] no common ownership or common management.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': (\SDVOSB/VOSB Small Business Status Protests\) and 38 C.F.R. Part 74 (\Veterans Small Business Regulations\) violates due process, the Administrative Procedure Act (\APA\), and VA\rquote s own procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': . Part 74 recites the standards CVE is to consider in determining Veteran\u8211Owned Small Business (\VOSB\) eligibility. Those standards are incorporated into the Veterans Affairs Acquisition Regulation System (\VAAR\) provisions set out in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': ). The Act provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': One of the prior contracts won by AmBuild was subject to an administrative protest based on the contention that it was affiliated with a much larger construction company. Hr\rquote g Tr. 7:4\u821110. That protest was resolved by the Small Business Administration in AmBuild\rquote s favor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'The Rule of Two': Two years earlier, SBA had rejected a similar protest related to AmBuild. As SBA stated in rejecting Welch\rquote s protest in 2014: \In 2012, SBA Area office made a size determination of A[m]Build and found the company to be a small business for size standard $33.5 Million.\ AR 32\u8211253. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 013 - IBM Corporation v United States.doc, Paragraph with 'The Rule of Two': The RFP identified seven factors for evaluation: (1) Experience, (2) Approach to Sample Scenario, (3) Past Performance, (4) Key Personnel, (5) Transition Plan, (6) Small Business Utilization Factor, (7) Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder filed pre-award bid protest challenging United States Department of Agriculture\rquote s (USDA) selection of $33.5 million size standard for small business set-aside procurement and subsequent affirmance of that decision by Small Business Administration (SBA) Office of Hearings and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Size determinations of Small Business Administration (SBA) Office of Hearings and Appeals (OHA) are reviewable by the Court of Federal Claims pursuant to the Administrative Procedure Act (APA), providing that an agency\rquote s decision may be set aside only when it is arbitrary, an abuse of discretion, capricious, or otherwise not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims affords the Small Business Administration (SBA) deference in its North American Industry Classification System (NAICS) code determinations, and likewise the decisions of SBA\rquote s Office of Hearings and Appeals (OHA), as it is within the repository of Congress\rquote delegated authority to give preference to small businesses in federal contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims will set aside a size determination by Small Business Administration (SBA) Office of Hearings and Appeals (OHA) only if the decision lacks a rational basis or violates an applicable statute or regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s (CO) determination that dredging exception to small business set-aside size standard did not apply to procurement by United States Department of Agriculture (USDA) for restoration of lake shoreline was irrational and violated regulations, requiring determination of relative value of components of work to ascertain whether dredging was primary activity involved, since CO did not adequately consider whether dredging was primary activity for procurement specifying marsh creation and preservation as project\rquote s ultimate end, as CO focused on ultimate end, rather than work performed to achieve that end, and failed to conduct any quantitative analysis to value work components. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) Office of Hearings and Appeals\rquote (OHA) determination that dredging exception to small business set-aside size standard did not apply to procurement by United States Department of Agriculture (USDA) for restoration of lake shoreline was irrational and violated regulations, requiring determination of relative value of components of work to ascertain whether dredging was primary activity involved, since OHA\rquote s decision was devoid of any quantitative analysis of value or importance of work items in procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder for small business set-aside procurement for which United States Department of Agriculture\rquote s (USDA) selection of small business size standard was irrational and contrary to regulations would suffer irreparable harm absent permanent injunction preventing award of contract and directing USDA to reconsider application of dredging exception to size standard, where bidder would lose opportunity to compete for award for which bidder was qualified other than disputed size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of harms weighed in favor of granting bidder\rquote s request for permanent injunction preventing award of small business set-aside contract for which United States Department of Agriculture\rquote s (USDA) selection of small business size standard was irrational and contrary to regulations and directing USDA to reconsider application of dredging exception to size standard, since bidder\rquote s loss of opportunity to compete for contract due to size standard outweighed any harm to USDA from any delay in awarding contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Public interest supported granting bidder\rquote s request for permanent injunction preventing award of small business set-aside contract for which United States Department of Agriculture\rquote s (USDA) selection of small business size standard was irrational and contrary to regulations and directing USDA to reconsider application of dredging exception to size standard, since public interest favored enforcement of procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; NAICS code 237990; Small business size standard; Small Business Administration Office of Hearings and Appeals; Injunctive relief Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': This is a bid protest of the United States Department of Agriculture\rquote s (\USDA\ or \agency\) selection of a $33.5 million dollar size standard for this small business set-aside procurement and the subsequent affirmance of that decision by the Small Business Administration (\SBA\) Office of Hearings and Appeals (\OHA\). The parties submitted cross-motions for judgment on the administrative record, and oral argument was held on September 23, 2014. We announced at the conclusion of oral argument that we would sustain plaintiff\rquote s protest, and we entered an injunction that same day. We explain our reasoning more fully below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': The contracting officer (\CO\) set the contract aside for small businesses, choosing North American Industry Classification System (\NAICS\) code 237990, Other Heavy and Civil Engineering Construction, as the applicable industry category. The SBA-set small business size standard for NAICS code 237990 was, at the time, $33.5 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Also included in the dredging exception is a requirement that the small business \perform at least 40 percent of the volume dredged with its own equipment or equipment owned by another small dredging concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': ). We afford the SBA deference in its NAICS code determinations, and likewise the decisions of OHA, as it is the repository of Congress\rquote delegated authority to give preference to small businesses in federal contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': We are not persuaded that these are serious concerns. We note at the outset that the protest was filed on July 24, 2014. We immediately convened a telephone conference in which the parties presented a schedule for bringing the matter to conclusion in an expeditious manner. At no point did the defendant raise the question of possible prejudice to the agency from delay inherent in even an expedited briefing consideration. It is too late to do so now. We adopted the parties\rquote proposed schedule and, after reviewing the parties\rquote arguments, now agree with plaintiff that there was prejudicial error in the procurement. The absence of injunctive relief would thus punish plaintiff for standing on its rights. Plaintiff was faced with a choice after the agency resolicited the procurement. It could have submitted a bid and waived its right to compete against similarly-sized small business dredging concerns, or it could, as it did, file a pre-award protest and forego bidding. Absent an injunction, plaintiff will not be able to compete, which will effectively punish it for taking the risk of challenging the agency\rquote s error. Moreover, we notified the agency of our decision during oral argument, presumably giving it time to take corrective action before the end of the fiscal year. The balance of the harms thus weighs in plaintiff\rquote s favor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 014 - RLB Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': As mentioned earlier, this is the requirement that 40 percent of the dredging work be performed by a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 017 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Congress enacted Equal Access to Justice Act (EAJA), which provides a mechanism that allows a qualifying party to receive reasonable attorney fees and expenses for prevailing in litigation against the United States, to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the federal government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 017 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': was a small business set-aside. The solicitation incorporated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 017 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': , \Limitations on Subcontracting,\ which requires all offerors submitting a proposal in response to a solicitation designated as a small business set-aside for a contract of the type the Army sought, to self-perform at least 50 percent of all labor costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 017 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Congress enacted EAJA \ \u8216to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'The Rule of Two': This dispute involves the application of the crime-fraud exception to the attorney-client privilege. Defendant David Gorski has been charged with mail fraud and conspiracy to defraud the United States. The indictment alleges in substance that from approximately late 2005 until November 2010, Gorski defrauded the United States by fraudulently representing that his company, Legion Construction, Inc. was a Service\u8211Disabled Veteran Owned Small Business Entity (\SDVOSB\) in order to qualify for and obtain government contracts. According to the indictment, Gorski is not a service-disabled veteran, and he concealed his \true ownership and control of Legion from the [government] by making false statements, representations, and omissions regarding the ownership, operation, and control of Legion.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'The Rule of Two': As to the remaining documents, the Court finds that there is a reasonable basis to believe that defendant Gorski, whether individually or as an officer, director, and stockholder of Legion, used the services of Mintz Levin in order to foster or further a crime or fraud against the United States and its agencies. Among other things, the relevant documents appear to show that there is a reasonable basis to believe that Gorski used the law firm to create backdated documents and a false affidavit in order to submit them to the Small Business Administration and make it appear that Legion qualified as a SDVOSB within the meaning of new federal regulations that went into effect on February 8, 2010. Therefore, the crime-fraud exception applies, and the documents are not protected by the attorney-client privilege. The Court is making no finding as to Gorski\rquote s guilt beyond a reasonable doubt, or any other finding other than the applicability of the exception. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor, as incumbent provider of home oxygen supplies and services for Veterans Administration (VA) in veterans integrated services network (VISN), filed pre-award bid protest challenging VA\rquote s decision to issue small business set-aside solicitation, for contract to provide home oxygen supplies and services to veterans and beneficiaries located in VISN, that allegedly failed to consider application of various statutes and regulations, and seeking permanent injunction requiring VA to bring solicitation into statutory and regulatory compliance or reissue solicitation without small business set-aside. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Non-manufacturer rule, as part of Small Business Act, applies to all government supply contracts, whether they implicate some level of services or not. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': deference was not required for Small Business Administration\rquote s new regulation, stating that where government contract classified as service contract also had supply component, Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) did not apply to supply component; new regulation was trumped by prior judicial construction of NMR as unambiguously applying to \any procurement contract for the supply of a product,\ meaning all contracts involving procurement of supplies rather than only contracts for supplies alone, regardless of North American Industry Classification System (NAICS) code designating services contract. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Veterans Administration\rquote s solicitation for home oxygen supplies and services to be provided to veterans and beneficiaries was for contract that included supplies, thus requiring inclusion of Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) in solicitation, even though solicitation was assigned North American Industry Classification System (NAICS) code designating services contract, where majority of solicitation\rquote s line items were for manufactured products to be provided to VA patients and only handful related to provision of services. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor that was ineligible for small business set-aside award would suffer irreparable harm by loss of business opportunity in absence of permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include non-manufacturer rule (NMR) or reissue solicitation without small business set-aside. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships favored permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) or reissue solicitation without small business set-aside, since incumbent contractor that was ineligible for small business set-aside suffered irreparable harm by VA\rquote s violation of NMR by failing to include NMR in solicitation, and VA would suffer very little in reissuing solicitation conforming to NMR. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Public interest supported grant of permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) or reissue solicitation without small business set-aside, since public had strong interest in having applicable federal laws followed when bids were solicited. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': The current Solicitation was offered as a 100 percent small business set-aside and issued with a North American Industry Classification System (\NAICS\) code of 532291, titled \Home Health Equipment Rental.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Rotech is admittedly not a small business concern under the issued NAICS code (or likely any other code) and thus is not eligible to submit a bid on the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': On April 7, 2014, Rotech filed a timely appeal of the Solicitation to the Small Business Administration\u8212Office of Hearings & Appeals (\OHA\). Def.\rquote s Mot. J. Admin. R. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': The OHA dismissed the appeal noting that \in order to have standing to bring a NAICS code appeal, the aggrieved party \u8216must show that it is a potential bidder or offeror on a small business set aside.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': at 11. Since Rotech is admittedly not a small business concern, it could not have submitted a bid on the Solicitation, and thus was not a potential bidder or offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': The CO also noted that challenges to a NAICS code were \not within the purview of an agency protest\ and that they are \for review solely by the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': The second count is that the VA failed to issue the Solicitation in compliance with the statutory nonmanufacturer rule, which requires that a business concern \represent that it will supply the product of a domestic small business manufacturer\ unless a waiver is granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': As relief, Rotech seeks \[a]n injunction requiring the VA to amend the Solicitation to either bring it into compliance with [the various statutes and regulations cited in the complaint]; or reissue the Solicitation without a small business set-aside such that the Solicitation is subject to full and open competition.\ Compl. Section V. Additionally, Rotech seeks an injunction \requiring the VA to take other corrective action as appropriate,\ a \declaratory judgment that the VA\rquote s Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Central to this case is whether the NMR applies to the instant Solicitation. Rotech believes that the current Solicitation will lead to a situation where the winning bidder or bidders are in violation of the NMR because they will be unable to provide the product of a domestic small business. The Government argues that the NMR is inapplicable in this case because the NMR only applies to contracts for supplies and that the instant Solicitation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': , is part of the Small Business Act, and the provision that is pertinent to this dispute allows a small business to bid on a contract even though it will not itself supply the product to be procured as long as it \represent[s] that it will supply the product of a domestic small business manufacturer or processor, unless a waiver of such requirement is granted.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': . \The clear purpose of the non-manufacturer rule is \u8216to prevent brokerage-type arrangements whereby small \front\ organizations are set up to bid [on] government contracts but furnish the supplies of a large concern.\u8217 The rules serves, in other words, \u8216to prevent dealers from acting as mere conduits for the products of large manufacturers on small business set-aside procurements.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': . As is the case in the instant case, both RFPs were issued as small business set-asides, although the two RFPs in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': The plaintiff argued that the VA\rquote s decision to award the RFPs as small business set-asides was arbitrary and capricious because although the winning bidders were both small businesses, they intended to fulfill their contracts by supplying the product of a large business, in violation of the NMR. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': holding, in 2011, the Small Business Administration (\SBA\) promulgated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Nevertheless, to further bolster this point, Judge Bush examined the history of the statutory NMR, noting that \nothing in the legislative history of the Small Business Act indicates that Congress intended to create an exception to the nonmanufacturer rule like the one suggested by the government. In fact, the unique history of the rule, in its statutory and regulatory forms, indicates just the opposite.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': contract called for the provision of rented equipment and those were treated identically to CLINs calling for the purchase of new supplies. Pl.\rquote s Mot. J. Admin. R. at 18. The entire purpose of the NMR is to ensure that when a small business contractor needs to acquire supplies it does not itself produce, it gets them from another small business concern. Whether renting the supplies or selling them, the small business contractor must still acquire them from another entity, and the NMR governs that transaction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': and explain why it is inapplicable to the instant case. Def.\rquote s Mot. J. Admin. R. at 17\u821122. Furthermore, the Government contends that the proper NAICS code was used because Rotech, the incumbent contractor for VISN 19 since 2003, was awarded the VISN 19 contract, among many other contracts, under NAICS code 532291. Def.\rquote s Mot. J. Admin. R. at 27. The Government argues that it \stands to reason Rotech believes that the contract they have been performing for the last 6 years was properly constituted under the correct NAICS code\ and that \[t]he only difference is that the current procurement is a small business set aside whereas the previous contract was unrestricted.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': Solicitations offered as small business set-asides are governed by regulations promulgated by the Small Business Administration (\SBA\). Small business set-asides exist in order to ensure that a certain percentage of government contracts are available for small business concerns. Whether a business exceeds the maximum threshold for earnings or employees for small business set-aside qualification depends on the NAICS code, discussed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': . Compl. at 94\u821195. The former statute provides that when a small business set-aside requires supplies, the chosen small business concern must supply the product of a domestic small business manufacturer, while the latter statute states that a small business concern cannot spend more than 50% of the amount awarded under the contract on subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': provides that before a Solicitation can be offered as a total small business set-aside, two separate determinations must be made: (1) that at least two responsible small business concerns can reasonably be expected to submit proposals; and (2) that those concerns must be offering the products of different small business manufacturers. Compl. at 108. By failing to include this FAR provision in the Solicitation, Rotech contends that the VA will be unable to recognize that the two factors are unlikely to be met by any potential bidders, thus making the Solicitation inappropriate for a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': RFP 583 was issued under a three tier cascade structure \all business concerns both large and small are able to submit bids at the onset. If at least two responsible bids from HUBZone small businesses are received, the government retains the right to convert the RFP into a total HUBZone set aside. If that is not met, the second tier looks for at least two responsible bids from general small business concerns with the ability to convert the RFP into a small business set-aside. Finally, if no such bids are received, the RFP is offered on the basis of full and open competition.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'The Rule of Two': . This structure is different from the instant Solicitation, which was initially offered as a full small business set-aside, precluding the Plaintiff\rquote s ability to submit a bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 028 - Kvichak Marine Industries Inc v United States.doc, Paragraph with 'The Rule of Two': AR at 231\u8211232. The acceptable proposals were evaluated on four factors: (1) technical, (2) price, (3) data rights, and (4) small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 031 - CGI Federal Inc v United States.doc, Paragraph with 'The Rule of Two': contracting methods (Parts 13, 14, and 15), and small business programs (Part 19)).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': The winning proposal would be the proposal offering the best value to the government. AR at 744. The four evaluation factors, in descending rank of importance, are: (1) Technical; (2) Past Performance; (3) Cost; and, (4) Small Business Participation Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': ranked better than Sotera in the Small Business Participation Plan factor, the least important evaluation factor. For this factor, Raytheon received an Outstanding rating with six strengths and no weaknesses, whereas Sotera received a Good rating with two strengths and no weaknesses. AR at 7472\u821173, 7517\u821118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': [i]n consideration of the equal Technical ratings, the more advantageous Past Performance and Cost Factor assessments which outweigh the differences in the Small Business Participation Plan assessments, it is my determination that the proposal submitted by Offeror B provides superior value to the Government than the proposal provided by Offeror A. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': The re-evaluation of proposals by the SSEB was completed by October 16, 2013. Broadly speaking, some evaluation ratings remained unchanged for all four offerors: (1) the Technical Approach sub-factor ratings, as well as the strengths and weaknesses in this sub-factor; (2) the overall Past Performance Confidence ratings; (3) the Small Business Participation Plan ratings, as well as the strengths and weaknesses in this factor; and, (4) the Cost Factor evaluated prices of the proposals. AR at 8555. Raytheon, however, made significant gains in the Management sub-factor, gaining a strength and improving this sub-factor rating from Acceptable to Good. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with 'The Rule of Two': retained its cost advantage over Raytheon in the re-evaluation process, but lost the slight edge it previously had enjoyed in the Past Performance Factor. This change was due to a correction of the weight previously assigned to the past performance of Sotera\rquote s sub-contractors. AR at 8555, 9341, 9372. Once the re-evaluation results were considered by the SSAC, Raytheon\rquote s proposal presented advantages in its Technical Approach, Management, Past Performance and Small Business Participation Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': at 126, 129, 151, 161. One of the contracts was to be set aside for a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': at 126, 151, 159, and the other was to be set aside for a section 8(a) small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': Because the contract was set aside for a section 8(a) small business, the EPA was required to refer the issue of PK\rquote s responsibility to the United States Small Business Administration (\SBA\) for evaluation in the SBA\rquote s Certificate of Competency program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': . at 1164\u821165. The EPA planned to conduct a sole-source procurement and award the contract\u8212set aside for a section 8(a) small business and valued at $800,000\u8212to Prudent Technologies, Inc. (\Prudent\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation for the contract set aside for a small business was solicitation SOL\u8211R7\u821112\u821100005. AR 151. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 036 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': It appears that the Lawson contract was the contract set aside for a small business described in solicitation SOL\u8211R7\u821112\u821100005, the companion to the solicitation at issue in this protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 037 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': On March 29, 2012, the EPA issued an invitation for bids to remediate the soil on as many as 2,600 residential properties at the Omaha Lead Site (\OLS\) in Omaha, Nebraska. The EPA ultimately awarded the contract to PK Management Group, Inc. (\PK\). After an unsuccessful protest before the United States Government Accountability Office, plaintiff lodged a protest in the United States Court of Federal Claims (\Court of Federal Claims\), alleging that the EPA improperly awarded the contract to a bidder with a nonresponsive bid and that the United States Small Business Administration improperly determined that PK was a responsible bidder in the absence of a finding that PK submitted a responsive bid. Defendant, who at that time was represented by [former defense counsel] of the United States Department of Justice (\DOJ\), filed an administrative record. However, before the parties completed briefing on the merits of the protest, defendant advised the court in a March 5, 2013 notice that the \EPA intend[ed] to terminate for convenience the contract that it awarded to PK in this procurement, thereby concluding the procurement,\ and \then reassess its needs for these lead remediation services.\ Consequently, defendant stated, it intended to move for dismissal of the protest as moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 039 - Lawrence Battelle Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder waived argument that Air Force failed to apply appropriate employee size standard for small business set-aside contract to provide specialized cost services and also applied incorrect North American Industry Classification System (NAICS) code that was identified in solicitation, since bidder raised argument for first time in responsive brief, failed to comply with regulatory procedures for challenging NAICS code or size standard designation, and failed to object to NAICS code prior to submitting bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 039 - Lawrence Battelle Inc v United States.doc, Paragraph with 'The Rule of Two': The contracting program at issue in this case is known as Specialized Cost Services IV (\SCS IV\). It includes requirements for cost estimating and analysis to be provided to various Air Force bases over a period of five years pursuant to task orders. The Air Force issued the specialized cost services solicitation, Request for Proposals (\RFP\) FA8721\u821110\u8211R\u82110001, on September 10, 2010 (\the solicitation\). AR Tab 12 at 201. In May 2010\u8212prior to issuing the solicitation\u8212the Air Force designated SCS IV as a Small Business set-aside. AR Tab 7 at 110. The Air Force selected North American Industry Classification System (\NAICS\) 541712 (Research and Development in the Physical, Engineering, and Life Sciences) as the appropriate small business designation. The Air Force indicated that it would accept offers from companies in that NAICS code with up to 1,500 employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 039 - Lawrence Battelle Inc v United States.doc, Paragraph with 'The Rule of Two': LBI argues\u8212for the first time\u8212in its responsive brief that the Air Force \fail[ed] to apply the proper employee size standard for the small business set-aside ...\ and also \applied the wrong [NAICS] code based on the support to be provided[.]\ Pl.\rquote s Resp. & Cross\u8211Mot. 10\u821111. The government argues that even assuming LBI can show prejudice with regard to the NAICS Code, plaintiff\rquote s argument has been waived under a variety of theories. The court agrees with the government for the reasons set forth below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 039 - Lawrence Battelle Inc v United States.doc, Paragraph with 'The Rule of Two': It is for this reason that plaintiff\rquote s various arguments regarding the fairness of this contracting process to LBI as a small business do not change the outcome of this protest. Having failed to submit an \acceptable\ technical proposal or challenge the government\rquote s technical evaluation, none of plaintiff\rquote s process concerns are legally relevant. Put another way, because the technical proposal was not given a high enough rating, plaintiff has not been prejudiced by possible other errors in the government\rquote s evaluation of its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that plaintiff\rquote s \small business set-aside and bundling allegations are untimely, and should have been raised before proposals were submitted\) (citation omitted); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small-business (SDVOSB), as former contract awardee, filed post-award bid protest action challenging corrective action by General Services Administration (GSA) in response to two Government Accountability Office (GAO) protests by disappointed bidder and seeking to enjoin resulting termination of competitive award to SDVOSB of set-aside contract for administrative support services for Public Buildings Service (PBS) and subsequent sole-source reprocurement of set-aside contract for Small Business Administration\rquote s (SBA) business development program. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small-business (SDVOSB), as former awardee of General Services Administration\rquote s (GSA) set-aside contract for administrative support services, filed bid protest, rather than contract dispute under CDA, as required for SDVOSB\rquote s standing to challenge GSA\rquote s corrective action in response to two Government Accountability Office (GAO) protests by disappointed bidder that resulted in termination of competitive award to SDVOSB and sole-source reprocurement set-aside for Small Business Administration\rquote s (SBA) business development program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': General Services Administration\rquote s (GSA) termination of competitive award of set-aside contract to service-disabled veteran-owned small-business (SDVOSB), to provide administrative support services, and instead commencing sole-source reprocurement awarding new set-aside contract for Small Business Administration\rquote s (SBA) business development program, was not reasonable corrective action in response to administrative bid protests, thus rendering sole-source award null and void, where SDVOSB\rquote s contract could have been modified to address GSA\rquote s alleged budget-mandated reduced needs that led to termination for convenience of SDVOSB\rquote s contract that cost less than sole-source non-competitive contract, and GSA had already addressed issues in administrative bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small-business (SDVOSB) would be irreparably harmed in absence of permanent injunction preventing General Services Administration (GSA) from terminating competitive award of set-aside contract to SDVOSB to provide administrative support services, and instead commencing sole-source reprocurement set-aside for Small Business Administration\rquote s (SBA) business development program, where SDVOSB lost contract representing approximately 38% of its current revenue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships favored permanent injunction preventing General Services Administration (GSA) from terminating competitive award of set-aside contract to SDVOSB to provide administrative support services, and instead awarding set-aside contract by sole-source reprocurement for Small Business Administration\rquote s (SBA) business development program, since SDVOSB would be irreparably harmed due to loss of contract and significant and unrecoupable revenue, government would not be harmed as services would continue to be performed at lower cost than sole-source reprocurement to new contractor whose harm from loss of anticipated revenue was less than harm to SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Public interest supported grant of permanent injunction preventing General Services Administration from (GSA) terminating competitive award of set-aside contract to SDVOSB to provide administrative support services, and instead awarding set-aside contract by sole-source reprocurement for Small Business Administration\rquote s (SBA) business development program, since integrity of procurement process was compromised by GSA\rquote s conduct. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Post\u8211Award Bid Protest; Corrective Action; Service\u8211Disabled Veteran\u8211Owned Small Business; Termination for Convenience; Reduction in Requirements; Reprocurement As Sole Source 8(a) Set\u8211Aside; FAR 19.804.29; FAR 19.804\u82112(a); 13 C.F.R. 124.504(a); 13 C.F.R. 124.504(c). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': GSA\rquote s invocation of budget-mandated reduced needs to conclude that ABMSI\rquote s contract no longer met agency requirements was unsupported by the record and erroneous. ABMSI\rquote s contract from the start accommodated a reduction in requirements and could have remained in place without the agency\rquote s ensuing conduct\u8212its rush to the Small Business Administration (\SBA\) to secure an 8(a) sole-source contract for services that cost more than ABMSI\rquote s contract and displaced a competitive award to a service-disabled veteran-owned small business. GSA\rquote s conduct was arbitrary, capricious, and anti-competitive, lacked a rational basis, and prejudiced a service-disabled veteran-owned small owned business. As such, this Court declares GSA\rquote s sole-source award to Premier Management Corporation (\Premier\) null and void, permanently enjoins GSA and Premier Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': On February 1, 2012, the General Services Administration (\GSA\) issued solicitation number GS\u821111P\u821112\u8211YA\u8211C\u82110017 (\original Solicitation\) as a service-disabled veteran-owned small business (\SDVOSB\) set-aside for \administrative support services\ for the Public Buildings Service (\PBS\), National Capital Region for a one-year base period with four one-year options. AR Tab 1 at 6; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': [T]his contract was previously awarded as an Administrative set-aside as a Small [Disabled] Veteran Owned Small Business. However, due to agency budgetary commitments to reduce the level of internal contractor support, our support needs were changed therefore resulting in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': GSA\rquote s Sole\u8211Source Offer Letter to the Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': 9. No solicitation for the specific acquisition has been issued indicating this requirement as a small business, HUBZone, service-disabled veteran-owned small business set-aside, nor a set-aside under the Women\u8211Owned Small Business (WOSB) Program, etc., nor has this requirement been publicly announced. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': On Thursday, March 13, 2014, at 12:44 p.m. SBA\rquote s 8(a) Business Opportunity Specialist, Christine Kingston, emailed GSA\rquote s Contract Specialist, Theophilus Hlovor, asking for additional information to process GSA\rquote s February 27th request for a sole-source set aside namely, (1) the original offer letter, (2) the statement of work, and (3) the acquisition history, including the firm currently performing the work. AR Tab 78 at 1112. Two hours later, Contract Specialist Hlovor responded via email that \Below is the original letter sent and the statement of work. The incumbent is not an 8a firm. It is a service-disabled veteran own[ed] small business. It was competed with 61 vendors participating. The name is ABMSI....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': (1) No small business performed this requirement for at least 24 months; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': (2) No small business was performing the requirement at the time this requirement was offered to the 8(a) BD [Business Development] Program, or the small business\rquote performance of the requirement ended within 30 days of the procuring activity\rquote s offer of the requirement into the 8(a) BD [Business Development] Program; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': (3) and the dollar value of the requirement that the small business is or was performing does not constitute 25 percent or more of its most recent annual gross sales (including those of its affiliates) ... the acceptance of this requirement ... will have no adverse impact on an individual small business, a group of small businesses located in a specific geographical location, or other small business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': Additionally, FAR 19.804 required GSA to determine \the extent to which a requirement should be offered in support of the 8(a) Program\ by evaluating six factors, including \[w]hether the items or work have previously been acquired using small business set-asides and then offering the requirement to SBA providing information, such as \the names and addresses of any small business contractors that have performed this requirement in the previous 24 months.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': . SBA regulations prohibit SBA from accepting a procurement for award as an 8(a) contract if the procurement will adversely impact an individual small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'The Rule of Two': ). Here, GSA attempted to justify terminating ABMSI\rquote s contract and reprocuring via a sole-source award based on two circumstances\u8212an inconsequential budget cut and an unwarranted concern about Moody\rquote s GAO protests. Neither justification supported displacing a competitive award to a service-disabled veteran-owned small business and effecting a noncompetitive higher priced sole-source award. The integrity of the procurement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'The Rule of Two': Defense counsel\rquote s representation of defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), posed potential conflict of interest, where counsel were one current non-equity partner and one former equity partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts, they were potential witnesses at trial, and counsel could have divided loyalties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'The Rule of Two': Potential conflict of interest posed by defense counsel\rquote s representation of defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), based on one counsel\rquote s current status and one counsel\rquote s former status as partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts, was waivable, pursuant to the Sixth Amendment and the Massachusetts rules of professional conduct; there was no showing that no rational defendant would refuse to waive the defense or that a disinterested lawyer would conclude that defendant should not continue to allow counsel to represent him. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'The Rule of Two': Defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), validly waived conflict of interest, with respect to his formal advice-of-counsel defense, but not with respect to his general lack of mens rea defense, posed by one counsel\rquote s current status and one counsel\rquote s former status as partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts; defendant contended that he would argue that he acted in good faith because he retained counsel, but would not contend that he believed what corporation did was legal because he followed counsel\rquote s specific legal advice, and waiver did not specifically address counsel\rquote s potential divided loyalties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'The Rule of Two': a corporation\rquote s eligibility to obtain contracts as a service-disabled veteran-owned small business (\SDVOSB\). Defendant David Gorski is charged with one count of conspiracy to defraud the United States in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'The Rule of Two': Regulations promulgated by the United States Department of Veterans Affairs (\VA\) and the Small Business Association govern SDVOSB eligibility. To qualify as a SDVOSB under those regulations, an entity must be at least 51 percent owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Bidder on small business set-aside contract to produce, test, and deliver blast demolition kits for the United States Army filed pre-award bid protest, claiming that contracting officer improperly determined that bidder lacked adequate financial resources to perform the contract. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Bidder on small business set-aside contract to produce, test, and deliver blast demolition kits for the United States Army demonstrated a direct economic interest, as required to have standing in pre-award bid protest against the government; bidder claimed that absent agency\rquote s alleged legal error in finding bidder financially non-responsible, bidder would have had a substantial chance of winning the contract, since only two offers had been made in response to the solicitation, and it had already been determined that plaintiff was the apparent successful offeror, pending determination of financial responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s determination, following two independent findings based on thorough audits, that bidder on small business set-aside contract to produce, test, and deliver blast demolition kits for the United States Army lacked adequate financial resources to perform the contract was well within the bounds of her discretion and was neither unreasonable nor contrary to law; officer had broad leeway to decide how much information was needed to make a responsibility determination, and agency was under no legal obligation to reconsider its non-responsibility determination in the matter up until the contract award date. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': ; Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Motion for Judgment on the Administrative Record; RCFC 52.1; Small Business Administration (SBA); Responsibility; Certificate of Competency (COC); Adequate Financial Resources or Ability to Obtain Them; FAR 9.104\u82111(a); FAR 9.104\u82113(a) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': On January 16, 2013, the Army Contracting Command issued Solicitation No. W15QKN\u821113\u8211R\u82110040 for the \planning, management, procurement, manufacturing, testing, inspection, Load, Assembly and Pack (LAP), packaging, and delivery of the M303 BDK.\ CAR 89. The solicitation was a 100 percent small business set-aside, and it contemplated the award of a five-year, firm fixed price (FFP) indefinite delivery indefinite quantity (IDIQ) contract with a minimum guarantee of approximately $1.1 million. CAR 2\u82113. The solicitation called for a negotiated procurement, under which the offeror representing the best value would receive the award. CAR 1, 83. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': On December 6, 2013, the contracting officer referred the matter of BTM\rquote s financial capability to the Small Business Administration (\SBA\) pursuant to section 8(b)(7) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Special procedures exist for establishing the responsibility of a small business offeror such as BTM. For example, \[u]pon determining and documenting that an apparent successful small business offeror lacks certain elements of responsibility,\ the contracting officer must withhold the contract award and refer the matter to the SBA for review and for a determination of whether the offeror is eligible for a COC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': Under this section of the Small Business Act, the SBA has authority to certify prospective small-business contractors \with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity ... to receive and perform a specific Government contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 049 - Bailey Tool And Mfg Company v United States.doc, Paragraph with 'The Rule of Two': \A COC is a written instrument issued by the SBA to a government contracting officer. It certifies that a small business concern possesses the responsibility to perform a specific procurement contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 050 - BCPeabody Construction Services Inc v United States.doc, Paragraph with 'The Rule of Two': Congress enacted EAJA \ \u8216to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 052 - Foster v Michigan.doc, Paragraph with 'The Rule of Two': http://www.dot.gov/osdbu/disadvantaged-business-enterprise. \To be certified as a DBE, a firm must be a small business owned and controlled by socially and economically disadvantaged individuals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 053 - Orbis Sibro Inc v United States.doc, Paragraph with 'The Rule of Two': the Navy\rquote s electronic platform for acquiring support services in 22 functional areas including Engineering, Financial Management, and Program Management. The Navy Systems Commands (NAVSEA, NAVAIR, SPAWAR, NAVFAC, and NAVSUP), the Office of Naval Research, the United States Marine Corps, and the Defense Threat Reduction Agency (DTRA) compete their service requirements amongst 1800+ SeaPort-e IDIQ multiple award contract holders. The SeaPort-e portal provides a standardized, efficient means of soliciting offers from amongst the diverse population of large and small businesses and their approved team members. All task orders are competitively solicited, awarded and managed using the SeaPort-e platform. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 055 - Metropolitan Washington Chapter v District of Columbia.doc, Paragraph with 'The Rule of Two': (finding that a plaintiff that would not have qualified for the Small Business Association\rquote s set-aside program and did not wish to participate in the program nevertheless had standing because its injury was \its lack of opportunity to compete for Defense Department contracts reserved\ for firms that could participate in the program). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 055 - Metropolitan Washington Chapter v District of Columbia.doc, Paragraph with 'The Rule of Two': (denying motions for summary judgment in a case evaluating the constitutionality of the Small Business Association\rquote s set aside program for small businesses owned and controlled by disadvantaged individuals because the parties had not demonstrated whether the asserted compelling government interest had a strong basis in evidence). At this stage in the litigation, the District has not provided sufficient substantive Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': contracting officer\rquote s determination not to set aside solicitations exclusively for small business concerns was proper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Contracting officer may consider and base its decision to set aside acquisition for small business participation on such factors as prior procurement history, the nature of the contract, market surveys, or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s determination not to set aside solicitations for commercial soft shelter tent systems for Defense Logistics Agency (DLA) exclusively for small business concerns was not arbitrary or capricious, or in violation of procurement law, where officer had called eleven companies to gauge their interest, compared the most popular tents under current system to those offered by small businesses that had submitted proposals, sought equivalent products amongst small businesses, and ultimately determined that although small businesses offered some of the products that would likely be obtained, soft shelter systems provided by both large and small businesses were necessary to achieve the full range of products required by the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Small Business Set-Asides; Statutory Construction; Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The TLSP was designed to provide a wide range of special operations equipment and was thus not limited to tents. Contracts under the TLSP were set aside for small businesses pursuant to the Federal Acquisition Regulation (\FAR\) part 19.502\u82112(b), which provides the following: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': (1) Offers will be obtained from at least two responsible business concerns offering the products of different small business concerns ...; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': (\Rule of Two\). Because some of the items supplied through the TLSP were not manufactured by small businesses, the Small Business Administration (\SBA\) issued a waiver to the non-manufacturer rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Before settling on the instant procurement strategy, DLA Troop Support Contracting Officer (\CO\), Maria Sesso\u8211Punzo conducted market research by contacting three commercial soft shelter manufactures that each responded with interest in competing. Ms. Sesso\u8211Punzo relied on DLA\rquote s knowledge of the industry and the market research to conclude that the Rule of Two could not be satisfied because \there is not one small business or group of small businesses that provide the full array of shelter systems required.\ AR 609.1. She decided to pursue the procurement as multiple award, unrestricted IDIQ contracts with delivery orders to be competed among contract holders, at which level the question of small business set asides would have to be considered again. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The last date to submit a proposal was June 26, 2012. DLA Troop Support received proposals from [redacted] companies, fifteen of which were small businesses. AR 422\u821123. Even though distributors like SEK were permitted to provide offers in response to the solicitation, plaintiff did not submit a proposal. Rather, SEK challenged the solicitation at the Government Accountability Office (\GAO\) on June 25, 2012, on the grounds that it should have been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff and the agency participated in GAO\rquote s outcome prediction alternative dispute resolution program. During this process, GAO informed the parties that it was likely to sustain SEK\rquote s protest because there was insufficient information in the record to support the agency\rquote s decision not to set the procurement aside for small businesses. On September 24, 2012, DLA decided to take corrective action and shortly thereafter the protest was dismissed as moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': AR 433\u821154 (September 26, 2013 Market Research Memorandum). First, the CO estimated that moving from the TLSP to a multiple award contracting vehicle would save the agency between $[redacted] and $[redacted] of \pass through costs\ per year. AR 434. Then as part of its market research, the agency contacted eleven soft shelter manufacturers, eight of which were small businesses. Each of the manufacturers contacted \expressed a willingness to submit offers.\ AR 433. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Next, the CO performed a detailed comparison of the most popular product lines currently procured under the TLSP with the products offered by small businesses \[t]o determine if there are two or more Small Businesses currently offering items that are the same or similar to those items offered by the Large Businesses.\ AR 435. After ten pages of analysis, the CO observed the following: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Based on the analysis above, there is significant demand on the part of the customer for products only offered by Large Businesses and for which no Small Business has shown the ability to produce. While there were a few instances in which a Small Business offered a tent that could be considered similar to a tent offered by a Large Business, certain features of each tent were distinguishable enough to determine these tents were not the same. This is further evidenced by the lack of \or Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Equal\ offers submitted on behalf of Small Business manufacturers under the TLSP. As a result of this information, there is no evidence of two or more Small Businesses having within their product line the exact items, or acceptable alternatives, to the items manufactured by Large Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': AR 453. Thus, the CO concluded that \the solicitation will continue as an Unrestricted procurement, as both large and small business are crucial to satisfy the requirements and there are not two or more small businesses within this market capable of providing the full array of Shelters and associated components desired by the customers.\ AR 454. The CO noted that each delivery order will be competed and that the contractors will have the opportunity to respond with \Brand Name or Equal\ items. AR 453\u821154. The CO also stated in the market research memorandum that \[p]rior to issuing Request for Quotations (RFQs), the Contracting Officer will determine whether the item has been purchased from Small Businesses in the past and, if so, then the RFQ will be set-aside [sic] for Small Business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': \Prior to issuing Request for Quotations (RFQs), the Contracting Officer will determine whether the conditions for issuing the RFQ as a Small Business Set\u8211Aside have been met and, if so, will issue the RFQ as a Set\u8211Aside for Small Business in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': II. Whether the Contracting Officer\rquote s Decision Not to Set this Procurement Aside for Small Businesses was Arbitrary or Capricious Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the CO failed to conduct the necessary Rule of Two analysis. The Rule of Two provides that the CO shall set aside acquisitions over $150,000 when he or she has a reasonable expectation that \offers will be obtained from at least two responsible small business concerns\ and at \fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff contends that \DLA\rquote s failure to determine the government\rquote s actual needs, and identify those items in the Solicitation, makes it impossible for the Agency to conduct the mandated \u8216Rule of Two\u8217 analysis because the Agency cannot determine whether small businesses offer products that will satisfy the government\rquote s needs.\ Pl.\rquote s Mot. J. on the AR 21. Plaintiff\rquote s argument about the Rule of Two is linked to its first argument; namely, that the agency must specify its actual and legitimate needs before it issues a solicitation or conducts market research. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument is not really that the CO completely failed to conduct a Rule of Two analysis, which would be contrary to the evidence in the record, but that the CO\rquote s analysis was fundamentally flawed because she was not asking the right questions. The CO analyzed whether there were two or more small businesses capable of providing DLA with the range of tents client customers might need and concluded that \both large and small business are crucial to satisfy the requirements and there are not two or more small businesses within this market capable of providing the full array of Shelters and associated components desired by the customers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': AR 454. According to plaintiff, if the solicitation had actually identified needs on a more particularized basis, and if the CO then had asked whether two small businesses could meet that specific need, then there might have been two or more small businesses available to meet that need at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': is triggered, the CO may consider \prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': . In this case, defendant argues that the CO undertook reasonable efforts to determine if the Rule of Two was satisfied because she called eleven companies to gauge their interest, compared the most popular tents under the TLSP to those offered by small businesses that had submitted proposals, and sought equivalent products amongst small businesses. While the CO found that small businesses offered some of the products that would likely be obtained through the Emall, the CO reasonably concluded that soft shelter systems provided by both large and small businesses were necessary to achieve the full range of products required by the government. This is reflected in the fact that under the previous procurement, the TLSP, the small business manufacturer rule had to be suspended so that small businesses could offer products manufactured by large businesses. It was logical, moreover, to test the agency\rquote s initial hypothesis (that the umbrella contract could not be limited to small businesses) by isolating a few items from past procurements that were in high demand. If those were not offered by small businesses, there was no point undertaking the exercise more extensively. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': We agree with defendant that the CO employed reasonable efforts in her analysis and came to a reasonable conclusion, which we are not in a position to second guess. We note that even the SBA consented to the CO\rquote s decision not to set this solicitation aside. AR 455. Finally, DLA committed to setting aside delivery orders that could be filled by small businesses pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': The non-manufacturer rule states \[f]or small business set-asides other than for construction or services, any concern proposing to furnish a product that it did not itself manufacture must furnish the product of a small business manufacturer unless the SBA has granted either a waiver or exception to the non-manufacturer rule....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': , which provides, \(i) The contracting officer shall give every awardee a fair opportunity to be considered for a delivery-order or task-order exceeding $3,000 unless one of the following statutory exceptions applies: .... (F) ... contracting officers may, at their discretion, set aside orders for any of the small business concerns....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': At oral argument, for the first time plaintiff raised the argument that, even if the CO reasonably determined that the full spectrum of tents could not be supplied by small businesses, the CO was still required to decide whether part of the full spectrum qualified for a partial set-aside pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 056 - SEK Solutions LLC v United States.doc, Paragraph with 'The Rule of Two': (Partial set-asides). Because this argument was not timely raised, we need not address it. We feel confident, however, that the agency\rquote s commitment to set aside delivery orders for competition amongst small businesses achieves the same result sought by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder brought a bid protest against United States, challenging General Services Administration\rquote s (GSA) award of small business set-aside contracts for professional services. Bidder moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder\rquote s speculative assertion that General Services Administration (GSA) committed errors in evaluating offerors\rquote self-assessment scores in awarding small business set-aside contracts for professional services was insufficient to demonstrate prejudice, and, thus, bidder could not gain access to proposals it believed had been improperly scored; bidder did not have any specific knowledge of any mistakes by GSA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': General Services Administration\rquote s (GSA) decision to eliminate disappointed bidder from consideration for a small business set-aside contract for professional services without considering its price was not arbitrary and capricious; GSA determined that only top 40 offerors would be evaluated for price, and disappointed bidder was well outside of top 40. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': The protestor, Octo Consulting Group, Inc. (Octo), filed a bid protest in this court challenging the General Services Administration\rquote s (GSA\rquote s) awards of contracts to 43 awardees under Pool 3 of the OASIS SB (One Acquisition Solution for Integrated Service\u8212Small Business) request for proposals No. GS00Q\u821113\u8211DR\u82110002 (the Solicitation). Protestor alleges that the \Agency [GSA] improperly failed to award Octo a contract,\ because \either the Agency improperly rated its proposal or Octo\rquote s original self-assessment was incorrect.\ Protestor also alleges that \[e]ven if the Agency did properly determine Octo\rquote s score, based upon the mistakes that Octo discovered the Agency made in evaluating its proposal, the Agency probably improperly evaluated the proposals of some of the 43 awardees.\ Therefore, protestor sought an order declaring that the Agency\rquote s actions in evaluating Octo\rquote s proposal were Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': The following day, July 31, 2013, the Agency issued the Solicitation. The Solicitation was a 100% small business set-aside contract, and stated the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'The Rule of Two': Small Disadvantaged Veteran\u8211Owned Small Businesses], WOSB [Women\u8211Owned Small Businesses], EDWOSB [Economically Disadvantaged Women\u8211Owned Small Businesses], and/or 8(a). If at least three representatives are present for each socio-economic sub-group, no additional awards shall be made. In the event that any particular socio-economic sub-group does not have at least three representatives in a given Pool, the Government will award to the next highest rated Offeror eligible for award (in addition to the Top 40 and/or Top 20 highest technically rated Offerors) within a given socio-economic sub-group until each socio-economic sub-group has three representatives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': (brackets in original). The market research report also discussed TRANSCOM\rquote s findings regarding other elements of the GPC III solicitation, including the pricing arrangement, period of performance and performance incentives, contractor transition, technical requirements, and small business concerns. The report came to the following conclusions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': The Government will conduct a Past Performance Price Tradeoff (PPT) source selection in which competing offerors\rquote past performance history will be evaluated on a basis approximately equal to cost or price considerations. Each offeror\rquote s business proposal, technical proposal, and small business subcontracting plan will be evaluated on an Acceptable/Unacceptable basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': (4) Small Business Proposal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': (A) Subfactor 1\u8212Small Business Subcontracting Plan Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': (B) Subfactor 2\u8212Small Business Utilization Strategy Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': This is a competitive best value source selection. The Government will conduct a Performance Price Tradeoff (PPT) source selection in which competing offerors\rquote past performance history will be evaluated on a basis approximately equal to cost or price considerations. Award will be made to the offeror who is deemed responsible IAW [in accordance with] FAR Part 9, who submits an acceptable business proposal, technical proposal, and small business proposal, and is judged, based on their past performance Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': The business proposal was to be \evaluated to determine whether it complies with all terms and conditions of the solicitation. Business proposals will be rated as Acceptable or Unacceptable.\ Both the technical and small business proposals were to be \evaluated as Acceptable or Unacceptable at the subfactor level.\ If any subfactor for either the technical or small business proposals were \rated as Unacceptable\ that particular proposal section would be rated as \Unacceptable.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': Regarding the price proposal, the solicitation stated that a \Total Evaluated Price\ would be determined based on a number of factors and formulas, and that \[t]he summation of the extended prices for the base period, all options, and the 6\u8211month extension will constitute the TEP [Total Evaluated Price].\ The solicitation also stated, \[i]n order to be considered for award, the Total Evaluated Price (TEP) must be determined fair, reasonable, and realistic,\ and that TRANSCOM would conduct price reasonableness and realism evaluations as well as separately check for \[u]nbalanced pricing.\ Protestor has not contested the government\rquote s evaluation of any offerors\rquote business, technical, small business, or pricing proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': The solicitation also stated that \[t]he relevancy of each contract reference will be considered in the overall confidence assessment rating for the offeror,\ and that \[i]n assigning an overall confidence assessment for each offeror, the Government will consider at a minimum: POV processing, arranging for or providing ocean transportation, arranging for or providing inland transportation, customer service, storage, overall performance, and small business utilization.\ The solicitation also stated that \[i]n evaluating past performance, the Government will give greater consideration to information on those contracts deemed most relevant to the effort described in this RFP.\ Additionally, the solicitation stated that: \Past performance regarding predecessor companies or principal subcontractors that will perform major or critical aspects of this requirement will be weighted the same (equally as important) as the past performance information for the offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': \ its \10 years excellent past performance on GPC II,\ \99.4% RDD compliance,\ \99.8% customer satisfaction ratings of Excellent/Good,\ \[e]stablished global network of proven subcontractors and affiliates,\ \[e]stablished and exclusive VPC and storage facilities,\ \[p]roven and efficient claims site settlement process,\ \[p]roprietary and copyrighted logistics management system with enhanced functionality to meet or exceed GPC III requirements,\ \[e]ffective utilization of qualified Small Business concerns,\ and \[o]pen, collaborative working environment with USTRANSCOM and GPC program stakeholders.\ (emphasis in original). American Auto Logistics provided a graphic Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': American Auto Logistics stated in its small business proposal that, \for the GPC II contract term to date, AAL has awarded $288 million, representing 45.2% of subcontracted dollars to small business,\ and that \[o]ur Small Business Subcontracting Plan (Subfactor 1) complies fully with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': International Auto Logistics also submitted a small business proposal, in which it described its small business utilization strategy, stating, \[w]e have assigned a GPC III Subcontract Plan Administrator (SPA) to ensure we meet our obligations under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': , Small Business Subcontracting.\ The proposal also noted that \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': Team IAL is a Small Business and Veteran Participation Leader\u8212We Exceed Small Business and Veteran-owned Small Business Subcontracting Goals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': .\ (emphasis in original). International Auto Logistics indicated in a chart in its proposal that its goal was to award 24.6% of its total contract dollars to small businesses, as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': Most significant and of greatest consideration was AAL\rquote s two Very Good\u8212Exceptional past performance references for its Very Relevant (VR) current contract providing all of the same services required (POV processing, arranging for/providing ocean and inland transportation, customer service, storage), with both CONUS and OCONUS operations, under a single long term contract of the same magnitude and scope as required in this solicitation. Also considered significant and given substantial consideration was the Very Good\u8212Exceptional past performance of two of AAL\rquote s subcontractors on VR efforts providing all of the same services required (POV processing, arranging/providing ocean and inland transportation, customer service, and storage), with both CONUS and OCONUS operations, under a single contract of the same magnitude and scope as required in this solicitation. The Government also considered, though less significantly, the Satisfactory\u8211Exceptional past performance on the SR [Somewhat Relevant] references, which considered together, reflect further successful performance of all of the services required by this solicitation (POV processing, arranging for/providing ocean and inland transportation, customer service, and storage) with both CONUS and OCONUS operations. Overall, the offeror\rquote s past performance for all efforts considered reflect Satisfactory\u8212Exceptional ratings, with the performance on the VR references rated Very Good to Exceptional. The Government also considered AAL\rquote s documented Very Good past performance in Small Business Subcontracting Utilization. A Confidence Assessment Rating of Substantial Confidence was assigned as the Government has a high expectation the offeror will successfully perform the required effort. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': as they have not performed the services together in a single long term contract of the same magnitude and scope as required in this Solicitation. Most significant and of greatest consideration was the Very Good\u8212Exceptional performance of one of IALs subcontractors on two R efforts of similar scope and magnitude of effort and complexities as this solicitation as the efforts covered CONUS and OCONUS operations, providing/arranging for inland and ocean transportation, customer service, and POV processing. Only storage was not provided under these similar efforts. The Government also considered the Satisfactory\u8211Exceptional past performance on the SR references, which considered together, reflect successful performance of all of the services required by this solicitation (CONUS and OCONUS operations, POV processing, arranging for/providing ocean and inland transportation, customer service, and storage). The Government considered that Horizon, one of IAL\rquote s subcontractors, has Unsatisfactory ratings on one reference, however IAL satisfactorily addressed the adverse past performance and the rating is of minimal concern. The Government did not consider the ten efforts that were determined not relevant nor the two determined not recent. The offeror has no documented past performance in the area of Small Business Subcontracting Utilization, therefore performance in this area is unknown and will not be treated favorable [sic] nor unfavorably. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': The Government utilized a variation of the Trade-off Source Selection Process in accordance with (IAW) the mandatory DOD Source Selection Procedures. Specifically, the Government conducted a Past Performance Price Tradeoff (PPT) source selection in which competing offerors\rquote past performance history was evaluated on a basis approximately equal to cost or price considerations. Award will be made to the offeror deemed responsible IAW FAR Part 9, as supplemented, who submitted an acceptable Business Proposal, Technical Proposal, and Small Business Proposal, and is judged, based on their past performance and total evaluated price, to represent the best value to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': past performance references in establishing an overall confidence assessment rating for IAL. IAL had no Very Relevant references for the services required as they have not performed the required services together in a single long-term contract of the same magnitude and scope as the current requirement. Although IAL has no Very Relevant references, its Relevant references are considered significant as they include all required services with the exception of storage. Most significant and of greatest consideration was the Very Good\u8212Exceptional performance of IAL\rquote s subcontractors on two Relevant efforts of similar scope and magnitude of effort and complexity as this solicitation, which included CONUS and OCONUS operations, providing/arranging for inland and ocean transportation, customer service, and POV processing, representing all performance areas noted in the solicitation except for long-term storage. The Government also considered the Satisfactory\u8211Exceptional past performance on the Somewhat Relevant references, which considered together, reflect successful performance of all of the services required by this solicitation, including long-term storage. The offeror has no documented past performance in the area of Small Business Subcontracting Utilization, therefore performance in this area is unknown and was treated neither favorable [sic] nor unfavorably. Because IAL and its subcontractors combined have provided numerous references to demonstrate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': I [Kay Lester] am the President and owner of Trans Global Auto Logistics, Inc., (\TGAL\), a Woman\u8211Owned Small Business (\WOSB\), a position I have held since 2002.... I am also the President and owner of Global Auto Logistics, LLC (\GAL\), a WOSB, a position I have held since GAL was formed in early 2013 for the purpose of participating on support contracts with the U.S. Government. My duties for these companies consist of overseeing and managing day-to-day and overall operations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': As an initial matter, protestor has not provided sufficient evidence that Global Auto Logistics is projected to earn only $3\u82114 million per year on the contract. It is correct that International Auto Logistics advertises Global Auto Logistics in its proposal as a \woman-owned small business,\ and states in a separate chart within the proposal that women-owned small businesses are anticipated to receive between $3\u82114 million of the overall contract per year. At the same time, however, Global Auto Logistics is slated in the proposal to operate five contractor owned Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': The solicitation also indicates: \In assigning an overall confidence assessment for each offeror, the Government will consider at a minimum: POV processing, arranging for or providing ocean transportation, arranging for or providing inland transportation, customer service, storage, overall performance on small business utilization,\ but did not mention price. The broad definitions of \Relevant\ allowed the agency flexibility to determine relevance. The solicitation allowed the agency to make its relevancy determination, \based on, but not limited to, the similarities between a given past performance effort and this solicitation\ in the five areas of \POV processing, arranging for or providing ocean transportation, arranging for or providing inland transportation, customer service, and storage.\ The parties created and submitted a joint, comparative chart, which suggested that a reference was credited as \Very Relevant,\ \Somewhat Relevant,\ or \Not Relevant,\ based in part on how many of the five areas of work the past performance reference covered, as well as two additional evaluation parameters: whether the past performance reference covered work inside the continental United States, and outside the continental United States. It appears from a review of the joint submission that a past performance reference was in part credited as \Very Relevant\ if it covered all seven evaluative parameters, \Relevant\ if it covered six of seven evaluative parameters, and \Somewhat Relevant\ if it included activity in three to five of seven evaluative parameters, although the record indicates that, overall, the agency took a more nuanced approach than indicated by the parties\rquote summary charts. The agency did not have to make a relevancy determination based solely or even primarily on price or size. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': assessment\ was to reflect the agency\rquote s overall review of an offeror\rquote s proposal, and was to be conducted after ratings were given for each of the five individual business, technical, past performance, small business utilization, and price evaluation factors. The source selection authority\rquote s integrated assessment focused primarily on how the various offerors\rquote performance and price proposals compared between offerors, an evaluation described in the solicitation as the \Performance Price Tradeoff.\ According to the Source Selection Decision Document, \[t]he integrated assessment takes into consideration the potential tradeoffs in terms of performance confidence assessment ratings and price. Ratings for technical subfactors are not factored into this confidence assessment rating because the factors were rated on an Acceptable/Unacceptable basis and all offerors\rquote proposals were rated as Acceptable.\ The solicitation provided guidance for the offerors on how the performance price tradeoff was to be conducted: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': This is a competitive best value source selection. The Government will conduct a Performance Price Tradeoff (PPT) source selection in which competing offerors\rquote past performance history will be evaluated on a basis approximately equal to cost or price considerations. Award will be made to the offeror who is deemed responsible IAW [in accordance with] FAR Part 9, who submits an acceptable business proposal, technical proposal, and small business proposal, and is judged, based on their past performance and total evaluated price, to represent the best value to the Government.... However, the Government will not pay a price premium that it considers to be disproportionate to the benefits associated with the proposed margin of service superiority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': a Judge of this court upheld a small business market research report that only garnered nine responses, only four of which were from small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': Protestor estimates in its submission to the court that the proposal indicated that International Auto Logistics is assigning 2.2% of total contracted dollars to WOSB or women-owned small business, equal to approximately $3\u82114 million a year, and that Global Auto Logistics is a woman-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'The Rule of Two': Protestor also projects that another of intervenor\rquote s subcontractors, SDV Command Source, is only going to earn \approximately $1.6\u82112.1 million\ per year on the contract if awarded, \which equates to approximately 1.2 percent of the total annual contract value.\ Protestor alleges that, therefore, \TRANSCOM should not have considered SDV Command\rquote s past performance at all because it is not proposed as a \u8216principal subcontractor.\u8217 \ Protestor reaches this projection, as it does with respect to Global Auto Logistics, by relying on the intervenor\rquote s proposal\rquote s indication that International Auto Logistics is assigning 1.2% of all subcontracting dollars to \SDVOSB [Service\u8211Disabled Veteran\u8211Owned Small Business],\ and noting that SDV Command Source fits that category in the proposal. Defendant does not attempt to project SDV Command Source\rquote s earning potential off the GPC III contract if awarded, but, instead states that \the awardee has proposed SDV Command Source to operate vehicle processing centers in Georgia, Missouri, and Puerto Rico and a vehicle storage facility in South Carolina. As noted above, plaintiff\rquote s restrictive definition of \u8216principal subcontractor\u8217 is not found in the solicitation.\ (internal citation omitted). SDV Command Source is slated in the proposal to operate three vehicle processing centers and one vehicle storage site. According to intervenor\rquote s proposal, the revenue generated from just the three vehicle processing centers alone will be more than what protestor alleges SDV Command Source will earn on the contract per year. In addition, even if protestor\rquote s analysis of SDV Command Source\rquote s earnings under the contract is correct, as is discussed more below, TRANSCOM still was not arbitrary and capricious in categorizing SDV Command Source as a \major subcontractor.\ Moreover, since SDV Command Source\rquote s references were rated as \Somewhat Relevant\ to the GPC III solicitation, it appears from the record the references were not given as much weight as Global Auto Logistics\rquote two \Relevant\ references. As noted by the source selection authority in her decision document, the two \Relevant\ Global Auto Logistics references were treated as \[m]ost significant and of greatest consideration\ in determining intervenor\rquote s overall past performance confidence rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': at 140\u821144. The VA anticipated awarding two contracts; work for two of the medical centers was set aside for a small business, while competition for the remaining work was unrestricted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': at 232. They were also to submit a small business subcontracting plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': at 235. The VA intended to evaluate the offerors\rquote proposals on five factors: (1) technical capability, (2) quality control program, (3) past performance, (4) participation of service-disabled veteran-owned small businesses (\SDVOSB\) and commitment to small businesses, and (5) price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': at 1221\u821139. Based on the contents of the document, the contracting officer considered the following information: the TEB\rquote s report; other information provided by the TEB but not included in the administrative record, such as the TEB\rquote s consensus ratings; the evaluations of the past performance evaluation team, which also were not included in the administrative record; and her evaluations of the SDVOSB/small business and price factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': provided summaries of how each proposal fared under the past performance factor, summarized her findings under the SDVOSB/small business factor, and discussed the price factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': A service-disabled veteran-owned small business brought bid protest claim seeking injunctive relief compelling Department of Veterans Affairs (VA) to comply with Veterans Benefits, Health Care, and Information Technology Act of 2006, alleging that the VA conducted procurements in violation of Act by failing to set aside those procurements for veteran-owned small businesses or service-disabled veteran-owned small businesses. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , Circuit Judge, held that Veterans Act did not require VA to conduct Rule of Two analysis in every procurement, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Veterans Act did not require Department of Veterans Affairs (VA) to conduct Rule of Two analysis in every procurement, which was procedure well-known throughout government in connection with award of contracts set aside for competition restricted to small businesses, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Kingdomware is owned and controlled by a service-disabled veteran. The Department of Veterans Affairs (\VA\) certified Kingdomware as a service-disabled veteran-owned small business in September 2010 and recertified Kingdomware in September 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': It has long been the policy of the United States to promote small businesses, including small businesses owned and controlled by veterans. Congress has expressed this policy through the Small Business Act, 15 U.S.C. ch. 14A, and stated its expectation that small businesses generally will receive \a fair proportion of the total purchases and contracts for property and services for the Government....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Veteran\u8211Owned Small Businesses (\VOSBs\) and Service\u8211Disabled Veteran\u8211Owned Small Businesses (\SDVOSBs\) are expressly recognized in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The policy directive to promote small businesses lies within the statutes and regulations that guide Government contract formation. The general policies and procedures for Government contracting are contained in the Federal Acquisition Regulation (\FAR\), 48 C.F.R. ch. 1, which implements the Office of Federal Procurement Policy Act of 1974, 41 U.S.C. ch. 7. Certain agency-specific contract regulations are established agency by agency, and contract regulations specific to the VA are stated in the Veterans Affairs Acquisition Regulation (\VAAR\), 48 C.F.R. ch. 8. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The FAR explicitly states that an agency placing an order against the FSS is exempt from requirements of the small business set-aside programs under FAR part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': otherwise to set aside contracts for competition among small businesses. \Although GSA awards most Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \u167 38.000. For other goods and services, the VA uses the GSA FSS program. As a matter of policy, the VA encourages VOSBs and SDVOSBs to participate in the FSS program. Press Release, Dept. of Veterans Affairs, Statement on VA Veteran\u8211Owned Small Business Contract (Oct. 28, 2011). Purchasing goods and services through the FSS is important to the VA and to VOSBs: in 2011, the VA used FSS contracts for 20% of its total spending, and 13% of these FSS expenditures went to VOSBs. Kathleen Miller, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Dispute Simmers Between VA and Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': In 1999, Congress amended the Small Business Act to establish an aspirational Government-wide goal of awarding 3% of Government contracts to SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Congress again amended the Small Business Act in 2003 to focus on SDVOSBs. The 2003 Act grants discretionary authority (\a contracting officer may award\) to contracting officers, Government-wide, to award sole-source contracts of restricted dollar amounts to SDVOSBs when the contracting officer estimates receipt of a fair and reasonable price, and otherwise to award contracts on the basis of competition restricted to SDVOSBs \if the contracting officer has a reasonable expectation that not less than 2 small business concerns owned and controlled by service-disabled veterans will submit offers and that the award can be made at a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . The discretionary authority to award contracts beyond the limited dollar amount specified for sole-source contracts requires satisfaction of the Rule of Two, a procedure well-known throughout the Government in connection with award of contracts set aside for competition restricted to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': History again showed a failure to achieve the goal of the Small Business Act to award 3% of Government contacts to SDVOSBs: only 0.605% of Government contracts went to SDVOSBs in 2005. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , at 16 (2006) ( \H.R. REP.\). Consequently, in 2006 Congress returned to the subject of preferences for businesses owned and controlled by veterans, enacting a statute specifically and only directed to the VA. While the Small Business Act and previous amendments contained provisions relating only to SDVOSBs, the 2006 Veterans Act expanded the reach of the small business provisions to include both VOSBs and SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': VA contracts by VOSBs, and \shall\ establish a goal for participation in VA contracts by SDVOSBs which \shall not be less\ than the Government-wide goal set by the Small Business Act, which remained at 3%. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': , gives contracting officers in the VA certain specific tools in subsections (b), (c), and (d) for achieving the goals to be set by the Secretary. As the House Report accompanying the statute explained: \[g]iven this new set of acquisition tools, there should be no reason for VA not to meet the veteran and service-disabled veteran small business contracting goals.\ H.R. REP., at 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (d) USE OF RESTRICTED COMPETITION.\u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': As an assist for achieving the goals under subsection (a), Congress ordered the VA in subsection (i) to give contracting priority to SDVOSBs and VOSBs over other small business entities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, SDVOSBs and VOSBs enjoy primary opportunities over other small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': If only one VOSB makes a fair and reasonable price offer, the contract officer \should make\ the award to that offeror, and if no acceptable offer is made, the contracting officer \shall\ process the procurement under other small business set-aside programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \does not apply to FSS task or delivery orders\ and that the VA would \continue to follow GSA guidance regarding applicability of 48 CFR part 19 of the FAR, Small Business Programs, which states that set-asides do not apply to FAR part 8 FSS acquisitions.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Memorandum from James B. Peake, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Facility Directors (Jan. 28, 2008); Memorandum from Eric K. Shinseki, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Directors (May 7, 2010); Memorandum from Eric K. Shinseki, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Directors (Feb. 21, 2012); Summary of Veterans Affairs Veteran Owned Small Business Goals Achieved for FY 2006 through FY 2012 (Mar. 18, 2014). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Press Release, Dept. of Veterans Affairs, Statement on VA Veteran\u8211Owned Small Business Contract (Oct. 28, 2011), and in litigation. Because the regulations themselves do not expressly state that the subsection does not apply to the FSS, the court declined Chevron deference to the VA\rquote s interpretation. But since the regulations only recite statutory language verbatim, and that language was found ambiguous, and because the regulations are wholly silent as to what role the FSS might play in meeting the goals set by the Secretary, the court considered granting deference under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': does not apply to the FSS has been consistent over time, reflecting a uniform administrative and litigation stance by the VA. Second, the VA\rquote s view is not directly in conflict with the words of the statute or the regulations, both of which are silent on the role of the FSS in meeting the Secretary\rquote s goals. Also, the legislative history of the statute expressed an intent that the VA retain the \option\ to award contracts to SDVOSBs and VOSBs, and would \exercise reasonable judgment\ in meeting the required set-aside goals alongside the VA\rquote s obligation to satisfy small business awards to other groups, such as women\rquote s owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (Dec. 8, 2006). Third, the VA\rquote s interpretation as stated in the preamble of the regulations is crystal clear and was made in the context of notice and comment rulemaking. Finally, the court noted that the VA\rquote s interpretation is consistent with the Government-wide traditional relationship between set-asides for small businesses and the FSS as found in the FAR, namely that agencies are not required to implement small business set-aside programs before or while using the FSS. The Court of Federal Claims thus found the VA\rquote s interpretation sufficient to warrant deference. Accordingly, the VA\rquote s cross-motion for summary judgment was granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': H.R. 1773, the Native American Veteran Home Loan Act; H.R. 3082, the Veteran\u8211Owned Small Business Promotion Act of 2005; and Four Draft Bills: Hearing Before the Subcomm. on Econ. Opportunity of the H. Comm. on Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': Finally, Kingdomware notes that in the Report accompanying the legislation, the Committee on Veterans\rquote Affairs stated that \small businesses owned and controlled by veterans and service-disabled veterans should Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The VA also asserts that Kingdomware\rquote s reading of \shall\ conflicts with its multiple small business contracting responsibilities. According to the VA, if it were to follow subsection (d)\rquote s Rule of Two in every instance, in addition to respecting the contracting priorities of subsection (i), it would be unable to meet other small business contracting goals specified by the Small Business Act. Moreover, the VA points out that under the Small Business Act, including the 2003 Veterans Act amendments, agencies have always retained the discretion to use the FSS in lieu of following the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': changed what had been a \may\ to a \shall\ in terms of goals. Congress chose the VA to set the example among Government agencies by imposing on it the obligation to meet the goals set by the Secretary for both categories of veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': while at the same time fulfilling the goals it has set for other small business entities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority holds that the 2006 Veterans Act does not require the Department of Veterans Affairs (\VA\) to conduct a Rule of Two analysis in every procurement, as long as the VA satisfies its annual small business participation goals. I do not construe the 2006 Veterans Act as giving the VA discretion to decide whether to conduct a Rule of Two analysis. For this and other reasons set forth below, I respectfully Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': task or delivery orders under the Federal Supply Schedule (\FSS\) from this imperative. Despite the statute\rquote s clarity, the majority guts the Rule of Two imperative of its full force and effect by holding that a Rule of Two analysis is not required for every contract \as long as the goals set under subsection (a) are met.\ Maj. Op. at 933. Participatory goals, however, are aspirational, and an agency cannot refuse to set aside an acquisition solely because small businesses already receive a fair proportion of the agency\rquote s contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': (emphasis added). This provision is part of a broader veteran-owned small business contracting program congressionally tailored to the VA, which requires the Secretary of the VA to increase small business contracting opportunities by establishing annual participation goals for veteran-owned small businesses (\VOSB\) and service-disabled veteran-owned small businesses (\SDVOSB\) in VA acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': use procedures other than competitive procedures\ in awarding contracts to veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': award a contract\ to a veteran-owned small business using noncompetitive procedures as long as certain requirements are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Moreover, these statistics were not before the Court of Federal Claims or relied upon by either party, but were provided in response to a request during oral argument. As the appellant notes, the VA submission does not identify the source of the data and \appears to have been created specifically in response to the Court\rquote s request in this litigation.\ ECF# 50, Appellant Letter to Court (Apr. 2, 2014). Significantly, there is no evidence in the record to show that VA contracting officers rely on, or have access to, these types of data in making contracting decisions, and the GAO has explicitly held that an agency\rquote s belief it has satisfied its small business goals does not affect its obligation to conduct a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority, on the other hand, finds mischief in requiring contracting officers to continue conducting Rule of Two analyses after the agency\rquote s goals are met. The majority concludes that requiring a Rule of Two analysis in every VA procurement would render the goal-setting provision superfluous, as \the goal would be whatever number the Rule of Two produces, regardless of the Secretary\rquote s preference.\ Maj Op. at 932. The majority seemingly believes it is bad policy to require an agency to continue efforts to award contracts to small businesses once its participation goals are met, overlooking that participation goals are aspirations, not destinations. Indeed, the FAR explicitly provides that an agency may not refuse to set aside an acquisition solely on the basis that small businesses are \already receiving a fair proportion of the agency\rquote s contracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': if they have a reasonable expectation that (i) offers will be made by at least two responsible small businesses, and (ii) award will be made at fair market prices, contracting officers are entitled to exercise their business judgment in determining whether these two conditions are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer is not required to use any particular method of assessing small business availability, and factors such as \prior procurement history, market surveys and/or advice from the agency\rquote s small business specialist and technical personnel may all constitute adequate grounds for a contracting officer\rquote s decision not to set aside a procurement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . The Rule of Two, therefore, does not diminish the contracting officer\rquote s discretion to ultimately conclude that there is (or is not) a reasonable basis for setting aside any given procurement for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The majority\rquote s reticence to requiring agency advancement of small business participation beyond the aspirational goals is due to a misapprehension of the interplay between a Rule of Two analysis and agency-wide goals. The former is undertaken by the contracting officer on a contract-by-contract basis, while the latter are set by the head of the agency and inform the agency\rquote s entire procurement process. Under the majority\rquote s rationale, the participation goals established under the Small Business Act would also be rendered superfluous by the FAR\rquote s existing Rule of Two requirement, which applies in nearly every acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': . Such an outcome would overturn more than thirty years of federal procurement law upholding the Rule of Two as a legitimate method of ensuring that agencies award a \fair proportion\ of contract dollars to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': regardless of whether the agency\rquote s \small business goals have already been satisfied.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': The real mischief here is that the majority opinion would saddle contracting officers with the obligation in every acquisition to determine the status of the agency\rquote s small business goals\u8212expressed as percentages of total awarded contract Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the [Rule of Two is satisfied]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': \ the acquisition for small businesses \when there is a reasonable expectation that\ the Rule of Two will be met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'The Rule of Two': and that \it has been adopted as the FAR\rquote s implementation of the [Small Business] Act\rquote s requirements\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 074 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation was initially issued under solicitation number VA244\u821109\u8211RP0252 as a small business set-aside under North American Industry Classification System (NAICS) code 532291\u8212a services code restricted to offerors with annual receipts of $7 million or less. Admin. R. at 252. Plaintiff, which would not have met that size standard, objected to this classification code and the contracting officer changed the code to supply NAICS code 339112\u8212a standard requiring 500 employees or fewer, which B & B met. Defendant-intervenor Eagle Home Medical Corporation (Eagle Home) filed a size appeal with the Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA), and OHA determined that the original NAICS code of 532291 was appropriate for the procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 074 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Two events subsequent to the filing of the complaint have made this case moot. First, based on more current industry data, the SBA has increased the size standard for small businesses under NAICS code 532291 to $30 million in annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 074 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Standards: Real Estate and Rental Leasing, 77 Fed.Reg. 58,747, 58,754 (Small Bus. Admin. Sept. 24, 2012) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 074 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff concedes that it qualifies as a small business under this standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction under Tucker Act to review contracting officer\rquote s decision to amend North American Industry Classification System (NAICS) code applicable to a solicitation for a contract to facilitate activities of National Institute of Health\rquote s (NIH) Centers of Excellence in Pain Education, even though Small Business Administration\rquote s Office of Hearings and Appeals suggested that officer amend code, where officer chose to amend code rather than to exercise his discretion to select code that most accurately reflected solicitation\rquote s statement of work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': wood, Office of General Counsel, United States Small Business Administration, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Injunction; Jurisdiction; Standing; Cross\u8211Motions for Judgment on the Administrative Record; Small Business Administration Office of Hearings and Appeals; NAICS Code 541611. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Protestor, Palladian Partners, Inc. (Palladian), filed a pre-award bid protest on April 21, 2014, seeking \declaratory and injunctive relief to enjoin the National Institute on Drug Abuse\ (NIDA), an institute within the National Institutes of Health (NIH), from accepting and evaluating proposals under solicitation N01DA\u821114\u82114423 (the solicitation), for a \NIH Pain Consortium Centers of Excellence in Pain Education Coordination Center.\ Protestor states that it is a \communications company serving both the government and nonprofit customers in the health and social science sectors,\ and that it is \the incumbent provider of the services called for under the Solicitation as a subcontractor to Altarum Institute.\ The solicitation was initially issued as a small business set-aside under North American Industry Classification System (NAICS) code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),\ with offerors limited to small businesses with 500 employees or fewer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . Following a final decision by the United States Small Business Administration Office of Hearings and Appeals, NIDA amended the solicitation to be under NAICS code 541611, \Administrative Management and General Management Consulting Services,\ with offerors limited to small businesses with annual receipts of $14.0 million or less, with no restriction on the number of employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': the principal nature of the product or service being acquired even though for other purposes it could be classified in more than one.\ (emphasis in original). Protestor alleges that, based on the requirements of the solicitation, the agency should have issued the solicitation under a third NAICS code, 519130, \Internet Publishing and Broadcasting and Web Search Portals,\ which would allow the agency to accept offers from small businesses, including Palladian, with 500 employees or fewer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': NIDA intends to solicit proposals from qualified small businesses (NAICS Code 541712) for Coordination Center to work in conjunction with the NIH Pain Consortium Centers of Excellence in Pain Education (CoEPEs). The Coordination Center will be to maintain and facilitate conversations and collaborations of the CoEPEs on an interactive online communication portal and via other means. This Center will also create online interactive case based teaching scenarios that will be put on the NIH Pain Consortium site and used in teaching students in various professional schools (e.g. nursing, dental, medical and pharmacy schools) about how to diagnose and properly treat pain. Further, the Coordinating Center will design, program, maintain and update the page to be place [sic] on the NIH website. The Coordinating Center will review content from the CoEPEs for each case, proofread and correct content, and program content into interactive cases. One example of a program to create these cases is Storyline, but similar programs may be used. However, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': NOTICE OF SMALL BUSINESS SET\u8211ASIDE Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': ,\ stated, \[o]fferors are solicited only from small business concerns.\ (capitalization and emphasis in original). The solicitation, under subsection L.1.c, \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': ,\ originally indicated, \[t]he North American Industry Classification System (NAICS) code for this acquisition is 541712,\ and \[t]he small business size standard is 500 employees.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': that it intended to submit a proposal in response to the solicitation, and that it would have been eligible to do so under the NAICS code selected for the original solicitation, NAICS code 541712, as \[t]his NAICS code allowed any small business with fewer than 500 employees to be eligible to compete.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Prior to the issuance of Amendment 2, on March 10, 2014, one of the potential offerors to the solicitation, Information Ventures, Inc. (Information Ventures), filed an appeal with the Small Business Administration Office of Hearings and Appeals, challenging the use of NAICS code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology).\ The Office of Hearings and Appeals issued a \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': \ the same day, stating that \[t]he Office of Hearings and Appeals (OHA) hereby notifies all currently known parties, all prospective offerors, and other persons that an appeal of the North American Industry Classification System (NAICS) code designated in the above-captioned solicitation was filed on March 10, 2014.\ (capitalization and emphasis in original). On March 11, 2014, NIDA issued Amendment 1 to the solicitation \[t]o notify all potential offerors\ of the appeal at the Small Business Administration Office of Hearings and Appeals, but no changes to the solicitation were indicated in the amendment. Information Ventures asserted in its appeal to the Small Business Administration that the NAICS code applied to the solicitation at that time, NAICS code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),\ was inappropriate, as \the contractor here must perform seven tasks unrelated to Research and Development.\ Information Ventures alleged that NAICS code 541611, \Administrative Management and General Management Consulting Services,\ \corresponds closely with the services NIDA seeks to procure here.\ Information Ventures maintained that Task 1 involves creating \monthly progress reports,\ and is an administrative consulting service, as is Task 2, which, according to Information Ventures, \requires the Contractor to maintain, host and manage an interactive online communication portal for the NIH, Contractor and CoEPEs to use.\ Information Ventures also claimed: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': In his filing to the Small Business Administration Office of Hearings and Appeals, the contracting officer also stated that Tasks 4 and 5, \will take place through conference calls and have minimal impact on the cost of the contract.\ Furthermore, according to Mr. Goodling, \Task 6 will require the Contractor to post all videos on a YouTube channel that it will help to create. Much like the Task 1, 2, 4, and 5, this task is for disseminating information created during the Task 3 process,\ \will not require great expense and is ancillary to the primary requirements of Task 3.\ The contracting officer continued: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . Instead, the Office of Hearings and Appeals judge held that the Small Business Administration\rquote s regulations restrict \ \u8216research and development\u8217 \ to mean \ \u8216laboratory or other physical research and development,\u8217 \ and not \ \u8216computer programming,\u8217 \ \ \u8216nonphysical research,\u8217 \ or \information technology functions.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (capitalization in original). The Office of Hearings and Appeals judge concluded: \This is the final decision of the Small Business Administration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': decision was issued by the Small Business Administration Office of Hearings and Appeals, the contracting officer issued Amendment 3 to the solicitation, changing the NAICS code from 541712 to 541611, for \Administrative Management and General Management Consulting Services.\ On April 8, 2014, NIDA issued Amendment 4 to the solicitation, extending the due date for offers from April 15, 2014 to April 22, 2014. The solicitation, under the new NAICS code, limited the pool of potential offerors to those with $14.0 million or less in annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': In its April 14, 2014 appeal to the Office of Hearings and Appeals, Palladian alleged that NAICS code 541611, \Administrative Management and General Management Consulting Services,\ is the incorrect code for the solicitation, as \[t]he Solicitation does not call for advisory or consulting services as contemplated by that code.\ Palladian did not defend the use of the original NAICS code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology),\ but, instead, asserted NAICS code 519130, \Internet Publishing and Broadcasting and Web Search Portals,\ as the correct NAICS code which should be used for the solicitation. Protestor maintained at the Office of Hearings and Appeals that the solicitation \calls for the creation and publication of content on the Internet consistent with NAICS code 519130.\ Palladian contended that the Small Business Administration Office of Hearings and Appeals judge previously had failed to conduct a comprehensive search of alternative NAICS code options, but instead simply had accepted the NAICS code the appellant, Information Ventures, proposed in its March 10, 2014 appeal, without considering other alternatives. Palladian stated that the \OHA must review Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': On May 7, 2014, the same Small Business Administration Office of Hearings and Appeals judge who had decided the earlier March 10, 2014 NAICS code appeal regarding solicitation N01DA\u821114\u82114423 filed by Information Ventures, dismissed Palladian\rquote s appeal. The Office of Hearings and Appeals judge declined to revisit his past decision, although filed as a subsequent and separate appeal to the inclusion of NAICS code 541611 by Palladian, and not as a motion for reconsideration of the earlier decision which contested the original inclusion of NAICS code 541712 in the solicitation. The Office of Hearings and Appeals judge dismissed Palladian\rquote s appeal, citing principles of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': at *6 (citation omitted). As noted, the Office of Hearings and Appeals judge confirmed his earlier decision and concluded, \the instant appeal is DISMISSED. This is the final decision of the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Prior to the May 7, 2014 decision by the Small Business Administration Office of Hearings and Appeals, protestor filed a pre-award bid protest in this court on April 21, 2014. Protestor alleges that the \Contracting Officer\rquote s decision\ to amend the solicitation to be under NAICS code 541611, \Administrative Management and General Management Consulting Services,\ following the Small Business Administration\rquote s order Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (2013)) (emphasis in original). Protestor alleges that NIDA should have selected NAICS code 519130, \Internet Publishing and Broadcasting and Web Search Portals,\ and that the failure to do so \was arbitrary and capricious, an abuse of discretion and contrary to law.\ Protestor argues that \the narrative description of NAICS code 519130, Internet Publishing and Broadcasting and Web Search Portals, along with its Index Entries closely correspond to the principal purpose of the Solicitation, creation of a publishing website.\ Protestor states that it \would be eligible to bid as a small business under the proper NAICS code: 519130.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': In the above captioned pre-award bid protest, the contracting officer amended the solicitation on April 4, 2014, to change the NAICS code from NAICS code 541712 to 541611, following the Small Business Administration Office of Hearings and Appeals decision, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': ). Protestor contends that even if it was the Small Business Administration Office of Hearings and Appeals that directed the contracting officer to change the NAICS code used in the solicitation, \[t]he statutes defining the Court\rquote s bid protest jurisdiction do not include express or implied limitations on the Court\rquote s jurisdiction based on the process by which the alleged violations occurred.\ Defendant, during the April 22, 2014 hearing before this court, initially contended that there may be an issue with the court\rquote s jurisdiction over this case; in its April 30, 2014 motion for judgment on the administrative record, however, defendant conceded jurisdiction, stating that a \ \u8216contracting officer\rquote s NAICS designation is made \in connection with\ a proposed procurement\u8217 and \u8216the SBA [Small Business Administration] OHA\rquote s decision is similarly \in connection with\ a proposed procurement,\u8217 \ quoting from Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (citation omitted))). The FAR, as well as the Small Business Administration\rquote s regulations, require that NIDA select the NAICS code which \best describes the principal nature of the product or service being acquired.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . As discussed further below, in the above captioned pre-award bid protest, the contracting officer chose to amend the solicitation to be under the NAICS code suggested by the Small Business Administration Office of Hearings and Appeals, rather than exercise his discretion to select the NAICS code which most accurately reflects the solicitation\rquote s statement of work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Protestor acknowledged at the May 6, 2014 hearing that the United States Court of Appeals for the Federal Circuit has yet to clarify how this court\rquote s bid protest jurisdiction interacts with the Small Business Administration\rquote s NAICS code review responsibilities. Defendant added at the same May 6, 2014 hearing, \we would agree that it hasn\rquote t been decided at the Circuit.\ In at least a few instances, however, judges of the United States Court of Federal Claims have found jurisdiction to review a contracting officer\rquote s decision under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': , even when the Small Business Administration has spoken to the applicable NAICS code. In Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': the United States Air Force issued a small business solicitation under NAICS code 811212, \Computer and Office Machine Repair and Maintenance.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . Red River was ineligible to compete for the solicitation under the particular NAICS code selected for the procurement, and filed an appeal with the Small Business Administration Office of Hearings and Appeals challenging the chosen NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': to review the Small Business Administration\rquote s final determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': , a contractor was prohibited from participating in a small business procurement under the NAICS code and size standard chosen by the agency, and filed a pre-award bid protest in the United States Court of Federal Claims after a failed appeal to the Small Business Administration Office of Hearings and Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Defendant contends that this court should not reach the merits of protestor\rquote s claims because protestor failed to exhaust its administrative remedies at the Small Business Administration before filing its pre-award bid protest. According to defendant, \[b]y not participating in the IVI [Information Ventures] appeal, Palladian failed to exhaust its administrative remedies.\ Defendant cites to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . Therefore, the court examines the contracting officer\rquote s actions to modify the solicitation and to adopt the new NAICS code advocated by the Small Business Administration Office of Hearings and Appeals. The contracting officer\rquote s responsibility, under the FAR, requires that the NAICS code used for a small business solicitation \best describes the principal nature of the product or service being acquired.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Defendant argues that \[p]ermitting Palladian to litigate in this court without first exhausting administrative remedies before OHA will give rise to several adverse consequences,\ including bypassing of the Small Business Administration Office of Hearings and Appeals process. Defendant states: \Remarkably, Palladian suggests that contractors should be able to bypass the administrative process simply because they may not have decided to submit an offer by the deadline for filing an appeal. Surely, such interests cannot form the basis for allowing potential offerors to ignore procurement regulations and administrative processes.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Adopting defendant\rquote s approach, however, would require any small business considering offering a bid to a solicitation, even if it has not yet decided whether or not to submit an offer, to intervene in every Small Business Administration NAICS code challenge to the solicitation, in order to preserve the possibility of judicial review, even if the NAICS code currently in the solicitation had no adverse impact on the prospective small business offeror. The need to intervene would exist even for those who are satisfied with the existing NAICS code in the solicitation, because of the risk that a Small Business Administration Office of Hearings and Appeals judge could choose a different NAICS code, given the Office of Hearings and Appeals\rquote responsibility to review all NAICS codes, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (selecting a NAICS code that, \was neither designated by the CO nor advocated by the Appellant\))). Therefore, in any solicitation with a small business set-aside, many small businesses, potentially, would have to intervene in order to preserve an opportunity for judicial review, making many of these interventions \ \u8216useless motions in order to preserve their rights.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': ). Moreover, if the Small Business Administration Office of Hearings and Appeals chooses an incorrect and inapplicable NAICS code, under defendant\rquote s theory, that new NAICS code could become completely unreviewable, a seemingly unusual, and unfair result, which is inconsistent with a transparent and fair procurement system. Small businesses considering competing for a contract in which the NAICS code is challenged could be forced to expend significant time and money to involve themselves in potentially costly litigation, in some cases, even before having made the decision of whether or not to submit a proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . If the original NAICS code is reexamined and then changed by the procuring agency following a decision by the Small Business Administration Office of Hearings and Appeals, however, a small business impacted by the change would then be the party which would have to show that the contracting officer\rquote s decision to revise the solicitation was \arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': The protestor argues, \Palladian is an interested party because it was eligible for, and intended to submit an offer for, this contract as a small business under the initial Solicitation, which was set-aside for small businesses under NAICS code 541712, Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology).\ The Tucker Act grants the United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': whether protestor\rquote s economic interests are affected, Palladian contends that it \would have been eligible to bid under the NAICS code initially assigned to the Solicitation and would be eligible to bid as a small business under the proper NAICS code\u8212519130\u8212because it meets the size standards for those codes requiring fewer than 500 employees.\ Palladian alleges that under the current NAICS code in the amended solicitation, NAICS code 541611, however, it is ineligible to compete because of the limitation to small business with annual receipts of $14.0 million or less. The contract to be awarded is a one year contract with the potential for four option years, making it conceivable protestor will not have the opportunity to bid on these services again for up to five years. Having been rendered ineligible to compete by a change in the solicitation, specifically, by a change in the NAICS code, is sufficient to grant standing. It is a \nontrivial competitive injury,\ which this court can address, if appropriate, through an injunction of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Despite the deference the United States Court of Federal Claims typically affords an agency\rquote s contracting officer in a bid protest review, this is an atypical case in which the decision under review in this court is one that the contracting officer himself opposed at the Small Business Administration Office of Hearings and Appeals. The contracting officer initially chose to issue the NIDA solicitation under NAICS code 541712, \Research and Development in the Physical, Engineering, and Life Sciences (except Biotechnology).\ When the solicitation\rquote s original NAICS code was appealed to the Office of Hearings and Appeals, the contracting officer wrote an assertive defense of his original decision to use NAICS code 541712, and listed many reasons why he thought NAICS code 541611, \Administrative Management and General Management Consulting Services,\ proposed by Information Ventures, did not match the solicitation\rquote s statement of work. The contracting officer stated in his March 20, 2014 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': \ that, \[t]he Contracting Officer strongly maintains that the North American Industry Classification System (NAICS) code 541712 for Research and Development in the Physical, Engineering, and Life Sciences is the proper NAICS designation for this requirement,\ and that the reasoning given by Information Ventures was \seemingly without consideration to the predominant cost or ... primary purpose of the contract.\ (emphasis in original). After the Small Business Administration Office of Hearings and Appeals decision was issued, on April 2, 2014, the contracting officer amended the solicitation to use the NAICS code chosen by the Small Business Administration Office of Hearings and Appeals judge, without any apparent analysis as to whether it was the correct NAICS code to use for the procurement, given the statement of work in the solicitation. Amendment 3 to the solicitation simply states that \[t]he NAICS code is changed from 541712 to 541611 in accordance with United States Small Business Administration decision Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': \ appended to defendant\rquote s motion for judgment on the administrative record, indicates that after the April 2, 2014 Office of Hearings and Appeals decision, the contracting officer only reviewed his market research to determine that, \there were sufficient small businesses to compete for the work to warrant continuing to restrict the solicitation to small businesses.\ (capitalization and emphasis in original). The record does not indicate that the contracting officer performed any other analysis when he received the Office of Hearings and Appeals decision, before he issued Amendment 3 and changed the solicitation to reflect the new NAICS code on April 4, 2014. Defendant maintains in its May 5, 2014 and May 7, 2014 filings in this court that \the contracting officer had no discretion and was required to issue Amendment 03,\ citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . By issuing the amended solicitation, however, the contracting officer took responsibility for the change in the solicitation. By blindly accepting the NAICS code chosen by the Small Business Administration Office of Hearings and Appeals judge, and amending the solicitation without any further consideration, the contracting officer did not properly exercise his discretion, as required in accordance with his responsibility as a contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Under the FAR, when determining which NAICS code is applicable to a small business procurement, \a product or service shall be classified in only one industry, whose definition best describes the principal nature of the product or service being acquired even though for other purposes it could be classified in more than one.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . This general requirement is similarly stated in the Small Business Administration\rquote s regulations: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . The Small Business Administration\rquote s regulations offer the following instruction for choosing between two competing NAICS codes: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . The Small Business Administration\rquote s regulation is more general and states that a \procurement is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Moreover, in response to the March 10, 2014 appeal to the Small Business Administration Office of Hearings and Appeals by Information Ventures, the contracting officer stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Protestor states that these index entries are \a list of phrases that leads to classification in this NAICS category.\ Both the FAR and Small Business Administration\rquote s regulations instruct contracting officers to refer to the NAICS code definitions that are in the \NAICS Manual.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': The protestor\rquote s allegation that the majority of the solicitation\rquote s anticipated cost and effort, which appears to be generated by Task 3, aligns better with NAICS code 519130 than with NAICS code 541611, has merit. As the contracting officer described in his filing to the Office of Hearings and Appeals during Information Ventures\rquote March 10, 2014 appeal to the Small Business Administration Office of Hearings and Appeals: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . The Small Business Administration Office of Hearings and Appeals\rquote holding in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': , the United States Department of Health and Human Services\rquote Centers for Disease Control and Prevention issued a small business solicitation \to provide services for the NPIN [National Prevention Information Network] program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . The Small Business Administration Office of Hearings and Appeals judge found that a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': The record before this court indicates that solicitation N01DA\u821114\u82114423 gives responsibility to the contractor for two major categories of deliverables: (1) using the \materials researched and submitted by the CoEPEs to develop the online case-scenarios,\ and (2) \develop[ing] a website on the NIH Pain Consortium webpage,\ which are more akin to Internet publishing than to administrative management and general management consulting. As the contracting officer emphasized in his response to Information Ventures\rquote March 10, 2014 appeal to the Small Business Administration Office of Hearings and Appeals, the other Tasks \are Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': The April 2, 2014 Small Business Administration Office of Hearings and Appeals decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . The record before this court, however, indicates that \assisting with administrative matters, and managing communications and interactions between NIH and the CoEPEs,\ constitute only a \minor and rare\ portion of the overall effort envisioned under the solicitation. The brief April 2, 2014 decision does not reflect that the Office of Hearings and Appeals judge considered \the relative value and importance of the components of the procurement making up the end item being procured,\ or which components of the solicitation\rquote s statement of work account \for the greatest percentage of contract value,\ as required under the Small Business Administration\rquote s own regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (\A lost opportunity to compete in a fair competitive bidding process for a contract is sufficient to demonstrate irreparable harm.\). Protestor contends that, \Palladian is a small business and the subcontractor currently providing the services required under the Solicitation. Absent an injunctive [sic], Plaintiff will be ineligible to compete for the contract.\ This court agrees that without an injunction, Palladian will not have an opportunity to compete in this solicitation, and possibly for five years. The loss of an opportunity to compete represents not only irreparable injury in terms of lost profit, but also in terms of lost experience working with the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': . Moreover, the loss of an opportunity to gain experience working with the federal government takes on greater importance when dealing with small businesses, which may not have as many such opportunities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': THIS IS A 100 PERCENT SET\u8211ASIDE FOR SMALL BUSINESS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Proposals received from firms that are not small business concerns, as defined by the North American Industry Classification System (NAICS) code, are not eligible for award. The NAICS code applicable to this buy is 541712. See Section L.1.c. of this RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': A line of decisions also suggests this court has jurisdiction to review the final decisions of the Small Business Administration, as long as those decisions are in connection with a proposed procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': (\[N]othing either in the language or the legislative history of [the Small Business Act at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': has jurisdiction to review SBA decisions\) (emphasis in original). As the court has jurisdiction pursuant to the Tucker Act to review the contracting officer\rquote s decision to amend the solicitation, the court does not reach the issue of whether it has jurisdiction to review the Small Business Administration\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': Without specifying the time period, the Small Business Administration in a March 1, 2010 notice of proposed rulemaking stated, \OHA receives very few NAICS code appeals. On average 10 NAICS code appeals are filed annually,\ and offered as a reason, \the short appeal timelines.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 077 - Palladian Partners Inc v United States.doc, Paragraph with 'The Rule of Two': During the May 6, 2014 hearing, defendant argued that there were only a limited number of potential offerors for the NIDA solicitation at issue. Mr. Goodling, the NIDA contracting officer, stated that \[u]nder the current NAICS code, there are three\ potential offerors, and that \[w]e received intent sheets from six companies; three of them were thrown out based on the new NAICS code.\ The contracting officer stated, however, that \we don\rquote t have an exact clue until we receive the proposals,\ and that their estimate of offerors came only from intent sheets received thus far by NIDA. Although until after the closing date for receipt of offers it is impossible to know how many offers are received, even assuming defendant\rquote s estimate of six offerors is true, it would still mean that, under defendant\rquote s approach, any small business, potential offeror would have had to intervene in the March 10, 2014 appeal to the Small Business Administration Office of Hearings and Appeals in order to preserve their opportunity for judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest action challenging Department of Homeland Security\rquote s (DHS) award of small business contract to provide information technology (IT) services. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder\rquote s omission of prices for labor rates that amounted to only 0.0041% of projected total value of proposal for award of small business contract to provide information technology (IT) services for Department of Homeland Security (DHS) in indefinite delivery/indefinite quantity (ID/IQ) procurement was not de minimis error, but rather was material error rendering bidder ineligible for contract award, since solicitation explicitly stated that omission of even one labor rate, no matter its significance, would result in material non-conformity with solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Homeland Security (DHS) was under no obligation to waive or allow bidder to correct erroneous omission of prices for labor rates in proposal, rendering bidder ineligible for award of small business contract to provide information technology (IT) services for DHS, since bidder\rquote s error was material. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': This post-award bid protest concerns a procurement by the Department of Homeland Security (\DHS\ or \the government\) of information technology (\IT\) services. In issuing the pertinent solicitation, DHS sought proposals by offerors responding in one of two different tracks, small business and unrestricted. DHS anticipated making multiple awards of indefinite delivery/indefinite quantity (\ID/IQ\) contracts for each track. The procurement was subject to the Federal Acquisition Regulations (\FAR\), 48 C.F.R. Part 15. This case focuses on the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': small business track. Business Integra submitted a timely offer under that track but was not awarded a contract because it had omitted some pricing information. It filed a protest with the Government Accountability Office (\GAO\) and, after GAO denied its protest, brought suit in this court. Now pending before the court is Business Integra\rquote s Motion for Judgment on the Administrative Record (\Pl.\rquote s Mot.\), ECF No. 18, as well as the government\rquote s Cross\u8211Motion for Judgment on the Administrative Record (\Def.\rquote s Cross\u8211Mot.\), ECF No. 19. Business Integra contends that its omission of certain pricing information was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': Of particular interest is Functional Category 1, which sought \a full range of services and products in support of developing, implementing, and maintaining technology to support the DHS mission and business functions across the entire lifecycle of a program.\ AR 1\u821122. For proposals in FC1, the small business track was divided into four groups, \8(a),\ \HUB Zone,\ \SDVOSB,\ and \All SB,\ depending on the classification of the business. AR 1\u82111. The 8(a) group was designated for businesses certified as 8(a) by the Small Business Administration or falling within specified codes of the North American Industry Classification System. AR 1\u8211104. Proposals under the FC1, 8(a) group were evaluated against other offerors within that track and group, separately and distinctly from the other groups within the small business track. AR 1\u8211116 to \u821117. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': AR 1\u8211117 to \u821118. In descending order of importance, the factors were corporate experience, past performance, program management, staffing, small business participation approach (unrestricted track only), and price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': In response to the EAGLE II solicitation, Business Integra timely filed a proposal under the FC1, 8(a) group of the small business track. AR 7\u8211777. In its proposal, Business Integra took no exceptions or deviations from the solicitation, AR 7\u8211770, and stated that it \proposes ... labor rates for all government-required labor categories and for all contract periods,\ AR 7\u8211771. Business Integra elaborated on its labor rates by noting that they increased Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': In addition, Business Integra fails to account for the fact that the EAGLE II solicitation is for an ID/IQ procurement. The government asserts that the requirement to commit to ceiling rates in all labor categories for all years is important because the solicitation\rquote s purpose includes providing a basis for robust competition within a pool of small businesses that are ready and willing to provide all the FC1 IT services DHS requires. This purpose would be frustrated if the labor-rates provision were to be considered immaterial. Def.\rquote s Mot. at 17. Without this requirement, DHS would have been unable properly to select a manageable pool of businesses that would be able to compete for future task orders. Def.\rquote s Mot. at 17; Hr\rquote g Tr. 17:12 to 18:5. In addition, pricing on individual elements of the proposal might become important in selecting awardees to perform particular task orders under the ID/IQ framework. Def.\rquote s Mot. at 17 (\[I]t is safe to say the requirement that contractors commit in advance to ceiling rates for the entire ID/IQ contract in all labor categories is a substantial concession that will have a significant impact on future task order pricing.\). The court accepts that the requirement to provide pricing for all labor categories for all years was a material term of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 079 - Business Integra Inc v United States.doc, Paragraph with 'The Rule of Two': Although DHS did not provide a pre-determined maximum for the number of contracts it would award, it did state that EAGLE II was to be limited to a \manageable\ number of awards. AR 1\u82115. It noted that the original EAGLE program was manageable at the size of 25 awards for the unrestricted track and 28 awards for the small business track. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor filed bid protest action, challenging decision of Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA), affirming area office\rquote s determination that contractor was ineligible to receive Special Operations Command\rquote s (SOCOM) award of small business set-aside contract until after solicitation closed. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': contractor was not qualified as small business in time to submit bid; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor\rquote s bid protest challenging decision of Small Business Administration (SBA) Office of Hearings and Appeals (OHA), affirming area office\rquote s determination that contractor was ineligible to receive Special Operations Command\rquote s (SOCOM) award of small business set-aside contract, claimed statutory or regulatory violation \in connection with a procurement or a proposed procurement,\ within meaning of Tucker Act\rquote s jurisdictional provision, where SOCOM requested confirmation of small business status from SBA specifically for purpose of awarding contract, and SBA\rquote s determination directly affected outcome of procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor\rquote s mentor-prot\u233g\u233 agreement (MPA), allowing contractor to form joint venture with mentor in order to qualify for set-aside contract under Small Business Administration (SBA) program, was not approved in time for contractor to submit bid on small business set-aside procurement issued by Special Operations Command (SOCOM), under regulations providing that MPA was required to be approved by SBA\rquote s Associate Administrator for Business Development (AA/BD), where AA/BD did not approve contractor\rquote s MPA until two days after solicitation closed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) Associate Administrator for Business Development\rquote s (AA/BD) late approval of mentor-prot\u233g\u233 agreement (MPA), allowing contractor to form joint venture with mentor in order to qualify for small business set-aside contract issued by Special Operations Command (SOCOM), did not constitute ratification of unauthorized prior approval by SBA\rquote s Business Opportunity Specialist (BOS), as would have resulted in timely approval of MPA prior to close of solicitation, where AA/BD did not have knowledge of material facts involving BOS\rquote s unauthorized approval. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration (SBA) Business Opportunity Specialist\rquote s (BOS) prior timely approval of mentor-prot\u233g\u233 agreement (MPA), allowing contractor to form joint venture with mentor in order to qualify for small business set-aside contract issued by Special Operations Command (SOCOM), did not equitably estop SBA from determining that approval of MPA by SBA\rquote s Associate Administrator for Business Development (AA/BD) was not received in time for contractor to submit bid, since contractor was not ignorant of true facts regarding untimely approval, and any affirmative misconduct by BOS\rquote s unauthorized prior approval was remedied by SBA\rquote s subsequent notice to contractor of misunderstanding regarding approval. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': General principles of equity did not warrant allowing contractor to circumvent Small Business Administration\rquote s (SBA) rules and regulations in order to award contractor small business set-aside contract issued by Special Operations Command (SOCOM), after SBA determined that contractor was ineligible to bid on contract due to untimely approval of mentor-prot\u233g\u233 agreement (MPA) that would have allowed contractor to form joint venture with mentor in order to qualify for small business set-aside contract, where contractor was informed of mistaken initial unauthorized approval of MPA before contractor submitted bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': This is a bid protest action. Basically, the issue in this case is whether LVJV was qualified as a small business under the Small Business Administration\rquote s 8(a) Business Development Program in time to submit a proposal on a procurement issued by United States Special Operations Command (\SOCOM\) that has a 100% set-aside for 8(a) Program participants. The case is now before the Court on cross-motions for judgment on the administrative record. For the reasons that follow, LVJV\rquote s motion for judgment on the administrative record is DENIED, the Government\rquote s cross-motion is GRANTED, and ITA\rquote s cross-motion is DENIED, as moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act (the \Act\) authorizes the Small Business Administration (\SBA\) to establish \detailed definitions or standards by which a business concern may be determined to be a small business concern for the purpose of this Act or any other Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': SBA\rquote s small business size standards are found in 13 C.F.R. Part 121. Pursuant to Part 121, the SBA uses the North American Industry Classification System (\NAICS\) to establish size standards, which are either limited by number of employees or annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': . A business concern that wishes to bid on a contract that has been set aside for small business participation must meet the NAICS size standard specified in the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': Two firms approved by the SBA to be a mentor and prot\u233g\u233 under \u167 124.520 of these regulations may joint venture as a small business for any Federal government prime contract or subcontract, provided Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': the prot\u233g\u233 qualifies as small for the size standard corresponding to the NAICS code assigned to the procurement and, for purposes of 8(a) sole source requirements, has not reached the dollar limit set forth in \u167 124.519 of these regulations. If the procurement is to be awarded other than through the 8(a) BD Program, SBA must approve the joint venture pursuant to \u167 124.513. If the procurement is to be awarded other than through the 8(a) BD program (e.g., small business set aside, HUBZone set aside), SBA need not approve the joint venture prior to award, but if the size status of the joint venture is protested, the provisions of \u167\u167 124.513(c) and (d) will apply. This means that the joint venture must meet the requirements of \u167\u167 124.513(c) and (d) in order to receive the exception to affiliation authorized by this paragraph. In either case, after contract performance is complete, the 8(a) partner to the joint venture must submit a report to its servicing SBA district office explaining how the applicable performance of work requirements were met for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': presents a similar situation. In that case, the plaintiff\rquote s initial offer on a solicitation included a certification of small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': After receiving the plaintiff\rquote s offer, the agency awarded two task orders to the plaintiff, neither of which required re-certification of small business status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 083 - Lukos VATC JV LLC v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). The broad \in connection with\ language of the Tucker Act clearly encompasses the agency actions here, both in that SOCOM requested confirmation of small business status from the SBA specifically for purposes of awarding a procurement contract and in that the SBA\rquote s determination had a direct effect on the outcome of that procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 087 - Insight Systems Corp v United States.doc, Paragraph with 'The Rule of Two': . On August 5, 2013, USAID informed all concerned parties that it was cancelling the procurement and intended to issue a new solicitation in 2014 \for a larger, small business set-aside procurement that will entail a changed scope of work.\ USAID also stated that it intended to \incorporate all the present requirements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 087 - Insight Systems Corp v United States.doc, Paragraph with 'The Rule of Two': On December 6, 2013, this court ordered defendant to file a status report indicating the progress of USAID\rquote s new procurement following its cancellation of the old solicitation. On December 19, 2013, defendant reported that USAID was proceeding with a follow-on procurement and had posted on November 22, 2013, an expression of interest (EOI) on the FedBizOpps.gov website for solicitation number SOL\u8211OAA\u821114\u8211000024 (Global Health Services III). Defendant further reported that \USAID received 22 responses from small businesses, including from Insight Systems Corp., but not from CenterScope Technologies, Inc.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 087 - Insight Systems Corp v United States.doc, Paragraph with 'The Rule of Two': On February 26, 2014, this court ordered an additional update by defendant on the status of the new procurement. On March 21, 2014, defendant filed a status report indicating that on March 7, 2014, USAID issued a Request for Proposals (RFP) on the FedBizOpps.gov website for the Global Health Services III solicitation. That RFP stated that USAID intends to award a cost-plus, fixed-fee term contract for a term of five years. Further, the procurement would be \a total small business set-aside,\ with proposals due by April 7, 2014. On March 24, 2014, CenterScope responded to defendant\rquote s status report indicating that under the North American Industry Classification System (NAICS), it would \not be able to certify that it is small\ for purposes of the Global Health Services III RFP and thus would be unable to submit a proposal. CenterScope provided no further facts or explanation as to why this may be the case. On April 1, 2014, defendant responded to CenterScope\rquote s report, asserting that the contractor\rquote s claim that it could not submit a proposal was \unsupported\ and \contradicted by CenterScope\rquote s certification in the Federal Government\rquote s System for Award Management (SAM) online database, www.SAM.gov, and by its representations to the [c]ourt.\ Defendant also noted that the NAICS code for the new procurement is 541990, which is the same code under which CenterScope claimed small-business eligibility in its SAM certification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 087 - Insight Systems Corp v United States.doc, Paragraph with 'The Rule of Two': CenterScope initially claimed that it was entitled to bid preparation and proposal costs because USAID decided to cancel the first procurement. In its motion, it indicated that \[i]f the Agency would not have cancelled the procurement, [CenterScope\rquote s] bid preparation and proposal costs would not have been unnecessarily incurred.\ However, plaintiff continued to seek those costs even after the agency, as it had previously indicated it would do, initiated a second procurement covering essentially the same subject matter as the first (enjoined) procurement. CenterScope claimed that it could not submit a proposal in response to this second RFP because it could not certify that it was a small business under the NAICS code that is the subject of the procurement. However, it provided no factual support for this claim\u8212and defendant supplied evidence to refute this claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 090 - Champagne v US.doc, Paragraph with 'The Rule of Two': Plaintiff and his firm disproved these claims by filing protests and appeals with the Small Business Administration, and Plaintiff\rquote s firm received the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 090 - Champagne v US.doc, Paragraph with 'The Rule of Two': that the solicitation would be publicly advertised and was set aside for 100 percent small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on small business set-aside contract with the United States Army for installation and infrastructure upgrades to fiber optic cable networks in Jordan filed post-award bid protest. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on small business set-aside contract with the United States Army for installation and infrastructure upgrades to fiber optic cable networks in Jordan had standing, under Tucker Act, to pursue post-award bid protest, even though bidder was fourth in line for the award; bidder claimed that the government had erred in its evaluation of each of the other three proposals to the solicitation in that it had improperly found them to be technically acceptable, and that but for the government\rquote s error, unsuccessful bidder would have received the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Bid proposals submitted in response to solicitation for small business set-aside contract with the United States Army for installation and infrastructure upgrades to fiber optic cable networks in Jordan failed to demonstrate compliance with requirement that 50 percent of the work be performed on site by contractor utilizing its own resources, as opposed to that of subcontractors, and thus, were technically unacceptable to government\rquote s offer; one proposal which set forth that bidder\rquote s labor costs would be allocated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on small business set-aside contract with the United States Army for installation and infrastructure upgrades to fiber optic cable networks in Jordan was prejudiced by government\rquote s error in awarding the contract, as required for bidder to succeed on merits of claim that the contract should be set aside, even though bidder was fourth in line for the award; government failed to act reasonably by inquiring into shortcomings of other three proposals during discussions or by finding the final proposal technically unacceptable for failing to meet subcontracting limitation requirement, and if it had done so, bidder would have had a substantial chance of receiving the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Following finding that United States Army\rquote s award of small business set-aside contract for installation and infrastructure upgrades to fiber optic cable networks in Jordan was arbitrary and capricious, in that it failed to properly consider subcontracting limitations factor in solicitation, equitable relief of setting aside the award was proper where unsuccessful bidder had succeeded on merits of claim that government acted unreasonably in evaluating technical compliance with proposals, unsuccessful bidder lost potential work due to unlawful procurement process so as to suffer irreparable harm, terminating award and reevaluating proposals would not result in excessive hardship to government, as opposed to bidder, and public had strong interest in ensuring that government procurement process was fair and even-handed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': Post-award bid protest; small business set aside; lowest price technically acceptable procurement; limitation on subcontracting; FAR \u167 52.219\u821114(c); required inclusion in proposals of analyses to establish the reasonableness of proposed subcontract prices; FAR \u167 15.404\u82113(b)(1)-(2); prejudice; equitable relief Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': The procurement was a small business set-aside acquisition intended to result in the award of a single firm, fixed-price contractual award to the lowest priced technically acceptable (\LPTA\) proposal. Four entities submitted offers, and, after entering into initial discussions with all offerors and receiving changes, the Army eventually determined that all four proposals were technically acceptable. The Army then awarded the contract to the lowest priced proposal. Hyperion\rquote s price was the highest of the four offerors. Hyperion contends, however, that each of the other proposals were technically unacceptable for various reasons, and this protest focuses on that contention. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': small business set-aside, AR 5\u8211139, under the LPTA regime, AR 5\u8211141. The non-price subfactors were \technical\ capability and \past performance.\ AR 2\u8211105. After the solicitation was issued, potential offerors asked a series of questions about the solicitation, and the questions and the Army\rquote s answers were published. In pertinent part, the government clarified that (1) offerors were permitted to subcontract with Jordanian companies, AR 5\u8211142, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': , Notice of Total Small Business Set\u8211Aside, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': requires that offerors submitting a proposal in response to a solicitation designated as a small business set-aside agree that \[a]t least 50% of the cost of the contract performance incurred for personnel shall be expended for employees of the [small business].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': the awardee of a small business set-aside contract failed to demonstrate a facial compliance with the incorporated limitation on subcontracting in its initial proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': defines a small business concern as \a concern, including its affiliates, that is independently owned and operated, not dominant in the field of operation in which it is bidding on [g]overnment contracts, and qualified as a small business under the size standards in this solicitation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': has a specific subsection that addresses \[g]eneral construction,\ which provides that \[t]he [contracting small business] concern will perform work for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': the contracting officer decided not to limit a solicitation to small businesses after receiving responses to a sources-sought synopsis from two small businesses and determining that no small businesses could reasonably be expected to submit an acceptable offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': . The contracting officer made this determination after asking the two small businesses that responded to the sources-sought synopsis how they would comply with the 50% self-performance requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 091 - Hyperion Inc v United States.doc, Paragraph with 'The Rule of Two': In 2013, Congress added to the severity of sanctions imposed on disadvantaged small business contractors who violate a requirement specifying limitations on subcontracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 095 - AM General LLC v United States.doc, Paragraph with 'The Rule of Two': Factor 3 (Management) had three subfactors, Subfactor 1 (Workforce /Manpower Planning) and Subfactor 2 (Integrated Logistics Support), were of equal importance, and both were more important than Subfactor 3 (Small Business Subcontracting Plan). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 095 - AM General LLC v United States.doc, Paragraph with 'The Rule of Two': [i]t is not surprising that nowhere does it state, \... an Outstanding rating on a factor is impermissible if an Acceptable rating is given on a subfactor ...\ The Government\rquote s evaluation is a subjective assessment of the merit of the offeror\rquote s proposal.... In any event, however the Protestor was not prejudiced by the roll-up error as even if the rating for Factor 3 was raised to Outstanding [which would obviously require AMG to provide extraordinary commitment on behalf of the Subfactor 3 small business], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 095 - AM General LLC v United States.doc, Paragraph with 'The Rule of Two': that the agency held misleading discussions because if AMG had known that the agency planned to lower its rating to Good, AMG \could have raised its rating back to Outstanding by improving its submission with regard to Subfactor 3 (Small Business Contracting Plan).\ Pl.\rquote s Mot. 64. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 095 - AM General LLC v United States.doc, Paragraph with 'The Rule of Two': Moreover, the agency provided plaintiff with an evaluation notice after review of its initial proposal, in which it specified those areas of plaintiff\rquote s Subfactor 3 (Small Business Subcontracting Plan) proposal that could be improved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 096 - Ocean Ships Inc v United States.doc, Paragraph with 'The Rule of Two': Unsuccessful bidder on United States Navy small business set-aside contract for the operation and maintenance of eight large government-owned sea vessels filed post-award bid protest against the government. After successful bidder was permitted to intervene, both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 096 - Ocean Ships Inc v United States.doc, Paragraph with 'The Rule of Two': to award a small business set-aside contract for the operation and maintenance of eight large government-owned sea vessels to Patriot Contract Services LLC (\Patriot\ or \the defendant-intervenor\). Plaintiff, the incumbent contractor, argues that the $ * * * Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 096 - Ocean Ships Inc v United States.doc, Paragraph with 'The Rule of Two': the delay occasioned by OSI\rquote s challenge of Patriot\rquote s status as a small business before the Small Business Administration (\SBA\), OSI entered into an extension contract with MSC. Plaintiff further contends that under the Collective Bargaining Agreements (\CBA\) between OSI and some of its unions, this extension triggered a mandatory 4% wage increase for at least some of its workers. OSI and the government agree that this wage increase is binding on the contract-awardee under the terms of the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 097 - DM Petroleum Operations Company v United States.doc, Paragraph with 'The Rule of Two': AR 1741 (\Fluor chose APOM as our pre-selected small business subcontractor and Mentor\u8211Prote\u769ge\u769 based on their experience managing oil field operations, strong performance on the SPR CMS contract....\). Plaintiff also makes much of the fact that neither in this protest nor before the GAO did Fluor offer evidence that APOM is distinct from AGSC or that APOM would not utilize AGSC\rquote s personnel and resources in performance of the M & O contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': USCIS\rquote s evaluation of bidder\rquote s business proposal as \Acceptable\ under small business subcontracting factor was rational Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': United States Citizenship and Immigration Services (USCIS) appropriately assigned significant weaknesses, and no strengths, to bidder\rquote s business proposal for contract award to perform Field Office Support Service (FOSS) for USCIS, and then awarded bidder rating of \Marginal,\ under participation in Department of Homeland Security (DHS) Mentor\u8211Prot\u233g\u233 Program subfactor of small business subcontracting factor, in accordance with evaluation criteria provided in request for proposal (RFP); in contravention of RFP\rquote s requirements, bidder\rquote s proposal did not contain approval letter and agreement that bidder did submit lacked official approval at time of its submission. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': The RFP required submissions in two volumes. AR 154. To be addressed in the submitted technical proposal (volume one) was the offeror\rquote s Management Capability (Factor One), as determined by four subfactors: (1) Operational Approach; (2) Staffing; (3) Management Approach; and (4) Relevant Corporate Experience. AR 154\u821158. To be addressed in the submitted business proposal (volume two) was the offeror\rquote s Small Business Subcontracting (Factor Two), as determined by three subfactors: (1) Maximization of Small Business Opportunities; (2) Participation in the Department of Homeland Security (DHS) \Mentor\u8211Prot\u233g\u233 Program;\ and (3) \Small Disadvantaged Business Participation Program\u8212Targets.\ AR 160\u821162. Also to be addressed in the business proposal were the offeror\rquote s Past Performance (Factor Three) and Price (Factor Four). AR 163\u821167. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': With respect to the other factors, all of the \non-price factors when combined\\u8212(1) Management Capability, (2) Small Business Subcontracting, and (3) Past Performance\u8212were \significantly more important than the Price factor [ (4) ].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': The Management Capability and the Small Business Subcontracting factors, and their subfactors, were \rated using [the] adjectival ratings: Outstanding, Good, Acceptable, Marginal and Unacceptable.\ AR 175, 178; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': AR 178 (permitting an additional Neutral rating for Small Business Subcontracting). The Past Performance factor was rated according to the assessed risk: \Low Risk, Medium Risk, High Risk, and Neutral.\ AR 180. Lastly, the Price factor focused on the offeror\rquote s hybrid pricing schedule (a mix of Firm\u8211Fixed\u8211Price and Time and Materials contract line items) and was evaluated for reasonableness in light of the business matters of the proposal. AR 181. The RFP allowed the Agency to determine the competitive range without discussions. AR 182. The RFP permitted, but did not require, the Agency to conduct later discussions with offerors in the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': AR 897\u82111403 (detailed pricing spreadsheets); 1404 (USCIS receipt acknowledgement). Ten days later (after the solicitation deadline), CMI also submitted its \Mentor\u8211Prot\u233g\u233 program\ approval letter dated April 11, 2013, AR 1405\u821106 (cover email and approval letter), for Agency consideration under the solicitation\rquote s Small Business Subcontracting inquiry (Factor Two, Subfactor Two). Six offerors, including CMI, submitted proposals. AR 1891. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': AR 1407\u821189 (TEC report, Management Capability), 1508\u821150 (BEC report, Small Business Subcontracting), 1559\u82111604 (BEC report, Past Performance), 1672\u82111707 (BEC report, Pricing). With respect to the first factor (Management Capability), the TEC evaluators identified each offeror\rquote s Strengths, Weaknesses, Significant Weaknesses and Deficiencies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': AR 1414\u821115 (defining adjectival ratings). The BEC evaluators engaged in a similar assessment of strengths and weaknesses for the second factor (Small Business Subcontracting). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': Factor 2: Small Business Subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': Subfactor 1: Maximization of Small Business Opportunities Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': CMI complains that the Agency erred by assigning it a negative Marginal rating for its Small Business Subcontracting, Mentor\u8211Prot\u233g\u233 Program (Factor Two, Subfactor Two). Pl.\rquote s Mot. 36\u821139; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': CMI\rquote s challenge to the Agency\rquote s evaluation of its proposal focuses primarily on its rating under the most important subfactor, Subfactor One (Operational Approach) under the most important factor, Factor One (Management Capability). CMI also questions the Agency\rquote s ratings of Subfactors Three (Management Approach) and Four (Relevant Corporate Experience) under Factor One, and Subfactor Two (Participation in DHS Mentor\u8211Prot\u233g\u233 Program) under Factor Two (Small Business Subcontracting). Defendant introduces a discussion of Subfactor Two (Staffing), under Factor One, to defend the Agency\rquote s decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': B. The Agency\rquote s Evaluation of CMI\rquote s Business Proposal as Acceptable for Factor Two, Small Business Subcontracting, Was Rational Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': The two contractors included in the competitive range were rated Marginal (USIS) and Outstanding (FCi) under Factor Two, Small Business Contracting. AR 1516. CMI was rated Marginal based on its ratings of Marginal for Subfactors One and Two, and its rating of Acceptable for Subfactor Three. AR 1525, 1528\u821129. FCi received a rating of Outstanding based on ratings of Outstanding for Subfactors One and Two and its rating of Acceptable for Subfactor Three. AR 1531\u821133. USIS was rated Marginal based on its rating of Marginal for Subfactor One, Outstanding for Subfactor Two, and Acceptable for Subfactor Three. AR 1547\u821149. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': (2) Small Business Subcontracting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 100 - CMI Management Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff attached a communication from DHS regarding its approval to participate in the program with its proposal. AR 1526. A DHS Small Business Advocate advised CMI that, \[t]he [CO] normally gives the mentor a sufficient amount of time to furnish the approval letter if it is not in [its] proposal. I am contacted by the CO directly if [he or she] require[s] additional information [on] the status of a mentor-prot\u233g\u233 application.\ AR 1526. Plaintiff reported that the communication was dated March 11, 2013. AR 1526. Plaintiff submitted its proposal without an approval letter on April 1, 2013, but forwarded the letter on April 11, 2013, after its receipt. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': The Solicitation listed the evaluation factors as: (I) \MISSION CAPABILITY,\ (II) \PAST PERFORMANCE,\ (III) \SMALL BUSINESS PARTICIPATION,\ and (IV) \PRICE.\ (capitalization in original). The relative order of importance of the four evaluation factors was described as: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': b) The Mission Capability Factor is Significantly More Important than the Small Business Participation Factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': c) The Past Performance Factor is More Important than the Small Business Participation Factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': d) The Past Performance Factor and Small Business Participation Factor are each More Important than the Price Factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': The Solicitation instructed offerors to arrange their proposals into five volumes. Each of the first four volumes was to be dedicated to discussing one of the four evaluation factors, mission capability, past performance, small business participation, and price, respectively, and the fifth was to contain completed solicitation forms, surveys, certifications, and representations. The Solicitation made clear, in bold font, that: \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': The Cost/Pricing nor Small Business Commitment evaluations were not within the scope of this team\rquote s tasks except to determine the reasonableness of the cost in relation to the technical merits of the proposal. Otherwise, Cost/Pricing will be evaluated by the contracting officer when determining the best value to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': With respect to the third evaluation factor, \Small Business Participation,\ Mr. Wilson evaluated all offerors, but [redacted] as \outstanding.\ Regarding the fourth evaluation factor, price, Mr. Wilson found that \[redacted] had incomplete pricing, [redacted] and the remaining five were found to be reasonable....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': Since the Following [sic] three vendors, RGS Federal, Inc. [sic] [redacted], and FCN received Outstanding Mission Capability ratings along with Substantial Past Performance and Outstanding Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'The Rule of Two': The past performance proposals and small business participation proposals, volumes two and three of the overall proposals, were not included in the record before the court for any of the offerors, and were not put into issue in the current protest before the court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': once bid was rejected as incomplete, agency\rquote s referral of proposal to Small Business Administration (SBA) was improper; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': When a government agency cannot evaluate information in a bid proposal because the offeror fails to provide it, the agency does not reach the question of responsibility, and thus, is not required to refer the matter to the Small Business Administrator for review under the agency\rquote s certificate of competency program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': Once Department of Veterans Affairs (VA) rejected bid on contract to provide custom surgical packs for use at five VA medical centers, as an incomplete proposal due to lack of required information on past performance sources using a lowest price technically acceptable (LPTA) source selection process, the corrective action it then took in referring the matter to the Small Business Administrator (SBA) for review under the agency\rquote s certificate of competency program, and ultimately accepting the bid on basis of lowest price, was improper in that it was not rationally related to the SBA responsibility defect it purported to correct; VA failed to even reach the question of responsibility, so SBA review, as corrective action, was not warranted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': Bid Protest; Small Business Set\u8211Aside; Lowest Price Technically Acceptable (LPTA) Source Selection Process; Incomplete Proposal; Agency\rquote s Use of the SBA\rquote s Certificate of Competency Procedures; Injunctive Relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': This bid protest raises the question of whether a procuring agency may cure an incomplete proposal from a small business offeror by submitting the matter to the Small Business Administration (\SBA\) for a Certificate of Competency. For the reasons explained below, the Court finds that an agency cannot lawfully cure proposal defects by submitting them to the SBA, and that the contract award to an ineligible offeror cannot stand. Accordingly, the Court sustains Plaintiff\rquote s protest, and permanently enjoins the agency from proceeding with a contract that was illegally awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': This case arises from a Department of Veterans Affairs (\VA\) procurement for custom surgical packs to be used at five VA Medical Centers in Denver, Colorado; Grand Junction, Colorado; Salt Lake City, Utah; Cheyenne, Wyoming; and Fort Harrison, Montana. Administrative Record (\AR\) 26. On August 24, 2012, the VA issued the solicitation as a set-aside for Service\u8211Disabled, Veteran\u8211Owned Small Businesses. AR 23. Plaintiff, Manus Medical, LLC (\Manus\), and Defendant\u8211Intervenor, Marathon Medical, LLC (\Marathon,\ or \MMC\) were among the six offerors who competed for the award. AR, Tabs 15, 16. The solicitation contemplated the award of an indefinite delivery, indefinite quantity (\IDIQ\) contract for a base year and four option years. AR 26. The VA intended to evaluate proposals and make an award by using a Lowest Price Technically Acceptable (\LPTA\) source selection process. AR 88. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': Where an offeror is a small business and an agency finds an otherwise technically acceptable small business offeror to be unacceptable under a LPTA pass/fail evaluation of responsibility-type criteria (here, the responsibility criteria being the two factors under which Marathon \failed\), that constitutes a nonresponsibility determination that is required to be referred to the SBA for a Certificate of Competency determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': small business offeror Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'The Rule of Two': . The protestor, MDA, submitted a proposal that omitted some required information about its experience and past performance, resulting in the rejection of its proposal as unacceptable. One of MDA\rquote s arguments was that the agency \should have referred its technical unacceptability to the Small Business Administration (SBA) for review under that agency\rquote s certificate of competency program, citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In pre-award, pre-solicitation bid protest, incumbent contractor challenged decision of Department of Labor (DOL), Employment and Training Administration (ETA), designating contract for operation of Job Corps center as small business set aside and, because contractor could not be considered small business under applicable law, precluding contractor from competing for new contract to operate center. Parties moved and cross-moved for judgment on administrative record, contractor moved for permanent injunctive relief, and government moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor satisfied both \actual or prospective bidder\ and \non-trivial competitive injury\ elements to show that it was prejudiced by government\rquote s conduct, and thus it had standing to file its pre-award, pre-solicitation bid protest to challenge decision of Department of Labor (DOL), Employment and Training Administration (ETA), designating contract for operation of Job Corps center as small business set aside and, because contractor could not be considered small business under applicable law, precluding contractor from competing for new contract to operate center; contractor, if permitted, would have submitted bid for instant procurement, and therefore was \prospective bidder,\ and contractor alleged loss of opportunity to compete in instant procurement as its injury. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Decision of Department of Labor (DOL), Employment and Training Administration (ETA), designating contract for operation of Job Corps center as small business set aside and, because contractor could not be considered small business under applicable law, precluding incumbent contractor from competing for new contract to operate center, satisfied finality requirement, and thus it was fit for review under ripeness doctrine in contractor\rquote s pre-award, pre-solicitation bid protest; Tucker Act clearly contemplated Court of Federal Claims jurisdiction over bid protests beyond context of solicitation, court had previously heard numerous such bid protests, and ETA\rquote s own actions, including public announcement of formal decision and inviting only offerors that qualified as small businesses to attend \Pre\u8211Proposal conference,\ demonstrated that it did not consider set-aside decision to be merely tentative or interlocutory. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Decision of Department of Labor (DOL), Employment and Training Administration (ETA), designating contract for operation of Job Corps center as small business set aside and, because incumbent contractor could not be considered small business under applicable law, precluding incumbent contractor from competing for new contract to operate center, imposed immediate and substantial hardship on plaintiff, and thus it satisfied ripeness requirement on contractor\rquote s pre-award, pre-solicitation bid protest under Tucker Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Workforce Investment Act (WIA) did not prohibit Department of Labor (DOL), Employment and Training Administration (ETA), from designating contract for operation of Job Corps center as small business set aside, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge that decision, since critical premise in contractor\rquote s argument, that phrase \competitive basis\ meant competition among all possible competitors, was contrary to Act\rquote s plain language and plain, ordinary meaning of \competition,\ as rivalry between two or more equally matched individuals or forces, and \competitive basis\ was not synonymous with phrase \free and open competition,\ as used in Competition in Contracting Act (CICA), since Congress did not use that phrase in WIA, and instead opted for broader notion encompassed by term \competitive basis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Under \fair proportion\ provision of Small Business Act and \Rule of Two\ in implementing regulations, contracting officer was not required to make predicate determination as to fair proportion in order to designate contract for operation of Job Corps center as small business set aside, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge that decision; use of progressive tense word \assuring,\ in \Rule of Two\ was not grammatically parallel to other clauses that obviously expressed condition, use of same language as in \fair proportion\ provision appeared to be sloppy, backward reference to overall statutory goal of promoting small businesses, which was advanced by applying \Rule of Two,\ and even if \Rule of Two\ provision contained two express conditions, it did not explicitly specify that contracting officer was person who should do \assuring\ or who should determine that regulatory circumstances were met, and nothing in Small Business Act indicated that determination had to be made on contract-specific basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Decision to set aside a solicitation for small businesses is a matter of business judgment within the contracting officer\rquote s discretion and, as such, must be upheld unless the Court of Federal Claims finds the decision to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; this standard requires only that the agency\rquote s decision be supported by a rational basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Although the assessment as to whether to set aside a solicitation for small businesses must be based on sufficient facts so as to establish its reasonableness, no particular method of assessing the availability of small businesses is required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL), Employment and Training Administration (ETA), reasonably expected to receive offers from at least two responsible small businesses, and thus contracting officer\rquote s \Rule of Two\ determination was not arbitrary and capricious, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge ETA\rquote s decision to designate contract for operation of Job Corps center as small business set aside; officer determined that three of \Request for Information\ (RFI) respondents were capable, statutory criteria that contractor cited were to be considered at award stage, but there was no requirement that they be considered at set-aside stage, and officer had no obligation to award procurement to any RFI respondent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL), Employment and Training Administration (ETA), reasonably expected award to be made at fair market prices, and thus contracting officer\rquote s \Rule of Two\ determination was not arbitrary and capricious, for purposes of incumbent contractor\rquote s pre-award, pre-solicitation bid protest to challenge ETA\rquote s decision to designate contract for operation of Job Corps center as small business set aside; contractor\rquote s contrary argument confused fair market price with lowest possible price, and \Rule of Two\ only required fair market prices, not lowest cost, and officer\rquote s reliance on expected competition among responsible bidders was reasonable in light of fact that applicable criterion was fair market price, rather than lowest price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In this pre-award, pre-solicitation bid protest, plaintiff Management & Training Corp. (\Management\) challenges the decision by the Department of Labor\rquote s (\DOL\) Employment and Training Administration (\ETA\) to designate the contract for the operation of the Paul Simon Job Corps Center (\Paul Simon JCC\) as a small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': could not be considered a small business under applicable law, it was precluded from competing for a new contract to operate the job center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': This case involves the propriety of a small business set-aside used in the procurement for the operation of a Job Corps center (\JCC\). The Job Corps program is the nation\rquote s largest career technical training and education initiative for poor and at-risk youths and currently serves more than 60,000 students annually at 125 centers nationwide. Compl. \u182 21. It is administered by the Department of Labor Employment and Training Administration and is governed in part by the Workforce Investment Act of 1998 (\WIA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Tab 1, AR 1\u82117. The RFI specifically noted that ETA reserved the right to set aside each procurement covered by the RFI for small business competition depending upon what concerns responded to the RFI. Tab 1, AR 3. In that vein, the RFI emphasized that \ALL QUALIFIED SMALL BUSINESSES ... ARE ENCOURAGED TO PARTICIPATE\ in responding to the RFI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ETA received \capability statements\ expressing interest in operating the Paul Simon JCC from four small business concerns\u8212Chugach Education Services, Inc. (CESI), Education Management Corporation (EMC), Human Learning Systems, LLC (HLS), and Odle Management (ODLE). Tab 6, AR 42. All of them, except for HLS, attempted to explain how they complied with each of the twelve capability requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL\rquote s Office of Contracts Management (\OCM\) reviewed the responses from small businesses to ETA\rquote s RFI and determined that the \Rule of Two\ analysis required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': was properly done. Tab 6, AR 41\u821159. This section of the Federal Acquisition Regulations (\FAR\) requires a set-aside if the contracting officer finds (1) that there is a reasonable expectation of receiving bids from at least two responsible small business concerns, and (2) that award can be made to a small business concern at fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In a memorandum dated September 25, 2012, contracting officer Jillian Matz, the Division Chief for the Division of Job Corps Procurement in OCM, noted that ETA had received capability statements from four small business concerns expressing interest in operating the Paul Simon JCC, and reported that three of them\u8212CESI, EMC, and ODLE\u8212had been found \capable\ by OCM. Tab 6, AR 41\u821143. Citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': , the contracting officer \determine[d] that this procurement should be conducted as a total small business set-aside.\ Matz justified this determination by stating that CESI, EMC, and ODLE \are capable under all of the capability factors identified in the RFI,\ and have, in the past, been awarded JCC contracts at fair market price. Tab 6, AR 42\u821144. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': stating that ETA had decided to conduct the procurement of the new Paul Simon Job Center as a complete small business set-aside. Tab 7, AR 60. The Presolicitation Notice contained a statement that the applicable North Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Tab 7, AR 60. Management alleges that it is not a small business under NAICS 611519 and that the Presolicitation Notice, accordingly, precluded it from competing to continue operating the Paul Simon JCC. Compl. \u182 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). The parties disagree as to whether the use of a small business set-aside is consistent with the statutory requirement that JCC operators be selected on a \competitive basis.\ Compl. \u182\u182 5, 26; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Second, plaintiff alleges that the set-aside decision in this case is arbitrary and capricious because the contracting officer did not make a \predicate determination\ as to whether a set-aside would be in the interest of assuring that a \fair proportion\ of JCC contracts go to small businesses. Compl. \u182 6, 100\u8211113. More specifically, the parties disagree as to whether Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': , which authorize set-asides when in the interest of assuring that a \fair proportion\ of government contracts are awarded to small business concerns, require the contracting officer to make such a predicate determination. Compl. \u182\u182 6, 27; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Third, plaintiff alleges that the set-aside decision was arbitrary and capricious because the contracting officer failed to consider relevant factors in applying the so-called \Rule of Two,\ which authorizes a set-aside if the contracting officer has a \reasonable expectation\ of receiving bids from at least two \responsible\ small business concerns. Compl. \u182 7, 114\u8211131. Specifically, the parties disagree as to whether the contracting officer improperly failed to consider the compliance of the small business concerns with four statutory criteria set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Mot. Dismiss & Cross\u8211Mot. at 25\u821127. The parties also disagree as to whether the contracting officer improperly failed to consider various non-statutory factors as part of the Rule of Two determination, including the small business concerns\rquote (1) higher indirect rates, (2) past performance problems, (3) ability to operate multiple centers concurrently, and (4) lack of a federally approved purchasing system and written procurement policies to manage the Paul Simon JCC pursuant to the proposed cost-reimbursement contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': prohibits small business set-asides in procurements for the operation of Job Corps Centers; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': requires a contracting officer to make a \predicate determination\ for each procurement that setting aside that procurement is in the interest of assuring that a \fair proportion\ of government contracts are awarded to small business concerns; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (applying the same definition of \procurement\ in the context of a pre-award bid protest). Since \DOL\rquote s decision to designate the contract as a small business set-aside is made \u8216in connection with a proposed procurement,\u8217 \ this court has jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': over a bid protest action against DOL\rquote s decision to set aside for small businesses a portion of a construction project) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': a formal decision has been made and publicly announced in the Presolicitation Notice. Moreover, ETA announced in the Presolicitation Notice that a \Small Business Set Aside Request for Proposal\ would be available October 26, 2012, and that offerors for this small business set-aside would be invited to attend a \Pre\u8211Proposal conference\ on October 23. Tab 7, AR 61. Thus, ETA\rquote s own actions demonstrate that it does not consider the set-aside decision merely \tentative\ or \interlocutory.\ Additionally, defendant\rquote s insistence that the set-aside is interlocutory is at odds with its posture in this litigation, that because the Rule of Two is satisfied, the agency has no choice but to set aside the Paul Simon JCC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': 2. Small Business Set Asides Are Not Foreclosed Under the WIA Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The court begins by addressing plaintiff\rquote s primary contention in this bid protest\u8212that the Workforce Investment Act expressly prohibits small business set-asides in JCC procurements. To review, the relevant portion of WIA, codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Undisputedly, a small business set-aside does not fall within any of the exceptions codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': However, the parties disagree as to whether the use of a small business set-aside is consistent with the \competitive basis\ requirement enumerated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': do not include small business set-asides, but encompass only instances where sole source procurements are required or situations of \unusual or compelling urgency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Finally, the Federal Circuit\rquote s view of \competitive basis\ is consistent with the language of CICA. In particular, the phrase \competitive basis\ is very similar to the phrase \competitive procedures\ that is used in the CICA exception allowing small business set-asides, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ., the \Rule of Two\), by setting aside the procurement without making a \predicate determination\ as to whether a set-aside would be in the interest of assuring that a \fair proportion\ of contracts go to small business concerns. Compl. \u182\u182 100\u8211113, Pl.\rquote s Cross\u8211Mot. at 30\u821132. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': small-business concerns ... shall receive any award or contract ... as to which it is determined by the [Small Business] Administration and the contracting procurement or disposal agency ... to be in the interest of assuring that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': of the total ... contracts for ... services for the Government in each industry category are placed with small business concerns.... These determinations may be made for individual awards or contracts or for classes of awards or contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (2) Assuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (1) Offers will be obtained from at least two responsible small business concerns ...; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': , which states more broadly that the determination is to be made \by the [Small Business] Administration and the contracting procurement or disposal agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (finding that plaintiff\rquote s \formulation .... finds no support in the Small Business Act, from which the \u8216fair proportion\u8217 language originated\). The use of that same language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': appears to be a sloppy backward reference to the overall statutory goal of promoting small businesses, which is advanced by applying the \Rule of Two.\ In light of the grammar and structure of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ] repudiates [the plaintiff\rquote s] suggestion that the \u8216fair proportion\u8217 determination is part of a two-part process executed by a contracting officer. There is no indication in the Small Business Act that the ... determination must be made on a contract-specific basis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . In fact, plaintiff\rquote s position that the contracting officer must make a \predicate determination\ conflicts with the applicable federal statute, which states more broadly that the determination is to be made \by the [Small Business] Administration and the contracting procurement or disposal agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': calls on the President to \annually establish Government-wide goals for procurement contracts awarded to small business concerns ... not less than 23 percent of the total value of all prime contract awards for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Subsection (g) also requires each agency to set \an annual goal that presents, for that agency, a maximum practicable opportunity for small business concerns ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The \Rule of Two,\ as stated above, requires the contracting officer to \set aside any acquisition over $150,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Moreover, although \the assessment must be based on sufficient facts so as to establish its reasonableness,\ no \particular method of assessing the availability of small businesses\ is required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': a. DOL Reasonably Expected To Receive Offers from At Least Two Responsible Small Business Concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff contends that DOL acted arbitrarily and capriciously by finding that three of the respondents to the RFI were capable without fully considering all the statutory and non-statutory criteria listed above, including past performance and capacity to operate additional JCCs. The contracting officer applied the twelve criteria included in the RFI and found that three of the four small businesses that applied were responsible. However, as the plaintiff observes, the contracting officer\rquote s primary basis for its conclusion is that all three small businesses are currently operating or have recently operated another JCC. Pl.\rquote s Reply at 35 (citing AR tab 6 at 42\u821144). Moreover, the contracting officer stated that she had a \reasonable expectation that [the] award [would] be made at fair market price\ because all three companies had been found capable and would be submitting proposals in a competitive environment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (citing AR tab 6 at 42). Plaintiff argues that the contracting officer did not consider the higher overhead rates for small businesses, as well as the performance rankings of the three small businesses who responded to the RFI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': small businesses will be able to make offers at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Should the contracting officer eventually find that none of the offers made by small businesses in response to the solicitation are responsible, then Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Finally, the court finds that the ETA\rquote s methodology in past set-aside decisions is irrelevant in this case; the only issue before the court is whether the ETA had a rational basis for this particular set-aside. The matrix in the administrative record shows that the contracting officer applied all twelve criteria from the RFI, and the fact that the contracting officer excluded one of the small business concerns shows that the contracting officer took the criteria seriously. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the contracting officer\rquote s determination that an award could be made to a small business concern at fair market price lacks a rational basis because the contracting officer failed to consider small business concerns\rquote higher indirect cost rates. Plaintiff also argues that the contracting officer acted irrationally in basing her expectation that there would be at least two responsible bidders competing for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . In fact, the reason Congress passed the Small Business Act was to favor small businesses, which are presumably unable to compete purely on the basis of price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': but excluding other than small business concerns ....\ (emphasis added). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also argues that the Rule of Two is not mandatory because the contracting officer must make a discretionary \predicate determination\ that a set aside is in the interest of assuring that a \fair proportion\ of contracts go to small business concerns. The court has already considered and rejected this argument in the previous section. Moreover, this court has consistently held that the Rule of Two is mandatory. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 006 - Management and Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Congress passed the Small Business Act in 1953 to \aid, counsel, assist, and protect, insofar as possible, the interests of small-business concerns....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 008 - Jacqueline R Sims LLC v United States.doc, Paragraph with 'The Rule of Two': It is not clear from the record precisely when this occurred, but sometime prior to February 28, 2012, JRS submitted a bid to provide radiology technologies services at the Federal Correction Institution in Miami, Florida (\FCI Miami\). On February 28, 2012, JRS was informed by phone that it had received a negative determination of responsibility and that the matter had been referred \to the SBA [Small Business Administration] for a COC [Certification of Competency] determination.\ Ceramics Compl. Ex. F at 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 008 - Jacqueline R Sims LLC v United States.doc, Paragraph with 'The Rule of Two': (g) Past performance evaluations shall include an assessment of contractor performance against, and efforts to achieve, the goals identified in the small business subcontracting plan when the contract includes the clause at 52.219\u82119, Small Business Subcontracting Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor filed pre-award bid protest challenging decision by Department of Veterans Affairs (VA) to cancel small business set-aside solicitation for home healthcare oxygen. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': , J., held that protest was rendered moot by regulatory change in small business size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor\rquote s pre-award bid protest challenging allegedly arbitrary decision by Department of Veterans Affairs (VA) to cancel small business set-aside solicitation for home healthcare oxygen, on grounds that VA purportedly wrongfully interpreted non-manufacturer rule to determine bidder eligibility, was rendered moot by formal change in regulation governing size standard for small businesses, where contractor qualified as small business under changed size standard, so contractor no longer suffered harm from cancellation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Pre-award bid protest; RCFC 12(b)(1); lack of subject-matter jurisdiction; small business set-aside; 48 C.F.R. \u167 19.102(f); non-manufacturer rule; VA home healthcare oxygen; NAICS codes; moot due to changes in size standard regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 1, 10, 20\u821122. This solicitation, for home healthcare oxygen, was a small business set-aside under North American Industry Classification System (NAICS) code 339112, limited to offerors with 500 or fewer employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Admin. R. at 23. It also contained the Federal Acquisition Regulation (FAR) provision commonly known as the non-manufacturer rule, which states that \[a]ny concern submitting a bid or offer in its own name, other than on a construction or service contract, that proposes to furnish an end product it did not manufacture (a \u8216non-manufacturer\u8217), is a small business if it has no more than 500 employees....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': the Contracting Officer (CO) agreed with B & B and reissued the solicitation under the supply NAICS code 339112, attempting to comply with a Small Business Administration (SBA) decision in a separate matter which found that the non-manufacturer rule does not apply to solicitations with services NAICS codes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 1, 17\u821119, 27\u821131. Plaintiff\rquote s harm from the cancellation was that it \exceeds the $7 million size standard\ and thus \if NAICS 532291 is applied to the now-cancelled and to-be-reissued Solicitation ... it will not qualify as a small business concern under a 100 percent set aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': At the request of the parties, due to the pendency of a related case and to a proposed rule that would change one of the relevant small business size standards, the case has been stayed beginning in 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Order (Sept. 21, 2012). The latter reason has given rise to the government\rquote s mootness motion, as the size standard for small businesses under NAICS code 532291 has been increased to $30 million in annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Size Standards: Real Estate and Rental Leasing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff concedes that it qualifies as a small business under this standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': 48 C.F.R. \u167 19.303(c)(5). If there were any doubts as to the agency\rquote s intentions in this regard, they have been dispelled by the pre-solicitation notice, issued January 6, 2014, identifying the revised procurement as a total small business set-aside under NAICS code 532291. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': Def.\rquote s Notice (ECF No. 37), Attach. A. As we have seen, under the current regulations, B & B qualifies as a small business under this particular code, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation also instructed offerors that \the small business size standard for a concern which submits an offer in its own name, but which proposes to furnish an item which it did not manufacture, is 500 employees.\ Compl., Ex. A at 61; Admin. R. at 637; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor brought pre-solicitation bid protest, challenging decision of Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside, for which contractor, due to small business size limitations, could not compete. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': contract\rquote s designation as small business set-aside did not violate Workforce Investment Act (WIA); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': regulation directing agency to apply FAR to procurements for operation of job training facilities was enforceable, such that \rule of two\ addressing small business set-asides applied; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Procurements set aside for small businesses were competitive, even though competition was limited, and therefore decision by Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside did not violate provision of Workforce Investment Act (WIA) requiring that selection of contractors to operate such facilities be made on competitive basis, particularly given that statute\rquote s list of eligible entities was simply that, and did not dictate that every procurement be open to all types of entities. Workforce Investment Act of 1998, \u167 147(a)(1)(A), (a)(2)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Workforce Investment Act of 1998, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to provision of Small Business Act addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility, where contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Because Adams fails to establish that the U.S. Department of Labor\rquote s (\DOL\) decisions to designate the contracts for the operation of the Gadsden and Shriver Job Corps Centers as small business set-asides were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, the Court of Federal Claims is affirmed in both cases. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams is the incumbent contractor for both the Gadsden and the Shriver Job Corps Centers. Because of the small business limitation placed on the contracts for the follow-on operation of these Centers, Adams cannot compete for the contracts since it does not qualify as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams was awarded the contract to operate the Gadsden Center in 2004. In April 2011, the DOL declined to exercise its option to extend Adams\rquote s contract. Prior to issuing a solicitation for a new contract, the DOL issued a Request for Information (\RFI\) to conduct market research regarding the businesses, especially small businesses, that might be willing to compete for the operation of Gadsden. Based on the results of this research, the DOL decided to limit the right to compete for the Gadsden contract to small businesses. Adams filed a pre-award bid protest, in response to which the DOL cancelled the Gadsden solicitation. Adams\rquote s protest was then dismissed without prejudice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': the only code applicable to Job Corps Centers. The small business revenue limit associated with this code is $35.5 million in annual receipts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Therefore, if the contract for the operation of Gadsden were to be set aside for small businesses, any business with more than $35.5 million in annual receipts, including Adams, would not qualify. After conducting its second RFI, the DOL concluded that there was a reasonable expectation that at least two capable small businesses would bid on the Gadsden contract. Therefore, on May 8, 2012, the DOL issued a solicitation notice for the Gadsden contract as a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams\rquote s contract to operate the Shriver Center ran from 2008 to 2013. Before issuing a solicitation for a new contract, the DOL issued an RFI to conduct market research regarding businesses that might be willing to compete for the operation of Shriver. This RFI included the criteria developed in the second RFI for Gadsden, and the contract was assigned the same industry code (NAICS 611519). Therefore, like Gadsden, if the Shriver contract were designated for small businesses, any business with more than $35.5 million in annual receipts, including Adams, would not qualify. Six businesses responded to the RFI, four of which were small businesses. Because the DOL concluded that there was a reasonable expectation that at least two of these small businesses would be interested in bidding on the Shriver contract, on October 16, 2012, the DOL issued a solicitation notice for the Shriver Center as a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (\The Secretary ... shall take such actions as the Secretary determines to be appropriate to provide for the orderly transition from any authority under the Job Training Partnership Act ... to the workforce investment systems established under the [Workforce Investment Act].\). Under this authority, the Secretary promulgated regulations directing the DOL to apply the procurement procedures of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Federal Acquisition Regulation establishes procedures for agencies to make small business set-aside determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (\Requirements for setting aside acquisitions\). These regulations provide a \contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when ... [a]ssuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; and the circumstances described in 19.502\u82112 [i.e., the so-called \Rule of Two\] ... exist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . The Rule of Two requires the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': III. The DOL Properly Used Small Business Set\u8211Aside Procedures for the Procurements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': was not ambiguous, and the plain meaning of \competitive basis\ does not preclude competition among small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': a case involving a small business set-aside for another Job Corps Center, holding that \[a] selection process confined to multiple small businesses bidding to operate a [Job Corps Center] ... satisfies the statutory \u8216competitive basis\rquote requirement.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Notably, Adams does not deny that small business set-asides are competitive, nor does it dispute the ordinary meaning of the word \competitive\ used by the Court of Federal Claims in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Limiting competition to small businesses did not contravene the Workforce Investment Act\rquote s \competitive basis\ requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . When using the small business set-aside procedures of the Competition in Contracting Act for the Job Corps Center procurements, the DOL was acting in compliance with its own regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams contends that the DOL\rquote s interpretation of the Workforce Investment Act is not entitled to deference and the DOL was not permitted to determine that small business set-asides are permissible under the Workforce Investment Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': The regulations directing the DOL to apply the procurement procedures of the Small Business Act and the Competition in Contracting Act were properly promulgated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (a) The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': of Government contracts in each industry category is placed with small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (emphases added). Transposing the language of subsection (a)(1) of the Regulation onto subsection (a)(2), Adams reads the provision as: \a [contracting officer] shall set aside an individual acquisition when, and only when, (1) \u8216it is determined ... to be in the interest of assuring a fair proportion of Government contracts in each industry category is placed with small business concerns;\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': To reach its interpretation, Adams had to rephrase the Federal Acquisition Regulation. That formulation is refuted by the plain language of the Regulation. Adams\rquote s interpretation of the Federal Acquisition Regulation also finds no support in the Small Business Act, from which the \fair proportion\ language originated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': of the total purchases and contracts for property and services for the Government in each industry category are placed with small business concerns.... These determinations may be made for individual awards or contracts or for classes of awards or contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': (emphases added). The plain language of the statute repudiates Adams\rquote s suggestion that the \fair proportion\ determination is part of a two-part process executed by a contracting officer. There is no indication in the Small Business Act that the \fair proportion\ determination must be made on a contract-specific basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Here, the DOL conducted market research to assess the interest among small businesses in bidding on the contracts, applied the appropriate NAICS size standard, and received the endorsement of the Office of Small and Disadvantaged Business Utilization as part of its \fair proportion\ determination. The Court of Federal Claims correctly concluded that the DOL had satisfied the \fair proportion\ determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': \u8212goal setting by the Executive Branch, input from the [Office of Small and Disadvantaged Business Utilization], and the industry specific application of size standards by [the Office of Management and Budget] and the [Small Business Administration]\u8212were implemented.... [N]othing more was required to satisfy the \u8216fair proportion\u8217 requirement.\). It was then left to the Contracting Officer to perform the Rule of Two analysis based on the results of the RFIs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Notably, Adams has not articulated a means by which an individual contracting officer would make a \fair proportion\ determination in the context of a specific procurement. While Adams is correct that the DOL must make a \fair proportion\ determination prior to designating a contract as a small business set-aside, the method it proposes for doing so is without support. The DOL properly employed a method that comports with the Small Business Act; therefore, its decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, and must be sustained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': \Rule of Two\ framework, the DOL did not apply it correctly to these procurements. As noted, the Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': at least two responsible small business concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Adams\rquote s reading of the Rule of Two ignores that \a reasonable expectation\ that at least two responsible small businesses will submit bids at fair market prices is all that is required. Here, through the RFI process, the DOL performed market research about the level of interest from small businesses in bidding on the Shriver and Gadsden contracts. It then determined from the responses that there was a reasonable expectation that at least two responsible small businesses would make offers for the operation of each of the Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; the former determines whether there is a reasonable expectation that at least two responsible small businesses will make an offer at fair market prices, while the latter determines whether an individual contractor is responsible in the context of awarding a contract. As the lower court noted, a set-aside determination requires only that the contracting officer have a reasonable expectation that likely small business offerors will survive a future responsibility determination. The DOL was not required to impose the requirements of the contractor-selection process onto the small business set-aside determination, and it properly applied the Rule of Two. Because its decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law, it will not be disturbed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': the small business set-aside determination was for the Shriver Job Corps Center, while in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': Each industry category is assigned an NAICS code. The Small Business Administration then imposes a corresponding limitation on company size and revenue to determine which entities will be considered \small\ within any industry category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 014 - Adams and Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Respondents to either an RFI or a solicitation notice are required to indicate whether they can be considered small businesses according to the size and revenue limitations for the job category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 015 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with 'The Rule of Two': Even if plaintiff who successfully challenged United States Air Force\rquote s award of software contract was eligible to recover its bid preparation and proposal costs under federal statute governing such awards, its proposed costs were merely general small business management activities rather than \bid preparation and proposal costs,\ and thus not recoverable; plaintiff sought costs for activities including attending a contractor training class, marketing attempts to visit, call, or e-mail government officials responsible for contract program, budgeting, planning for the infrastructure needed to perform potential contract services, considering possible sub-contractors, gathering information about recent developments in the field, and monitoring a website for any announcements regarding procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 015 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with 'The Rule of Two': general small business management activities such as business planning and looking for business opportunities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 016 - SRA International Inc v United States.doc, Paragraph with 'The Rule of Two': (exercising jurisdiction to adjudicate a small business set aside); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 017 - Sentrillion Corporation v United States.doc, Paragraph with 'The Rule of Two': Finally, Sentrillion contends that USMS\rquote s interpretation of the solicitation and May 7, 2013 discussion letters as requiring binding subcontracting agreements was unduly restrictive and unreasonable given that pricing could become obsolete or a subcontractor\rquote s small business status could change between the time of proposal and award. Pl.\rquote s Mot. 17. This requirement, however, clearly had a rational relationship to the agency\rquote s needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 020 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': Because the contract was set aside for a small business, the contracting officer was required to refer the issue of PK\rquote s responsibility to the United States Small Business Administration (\SBA\) for evaluation in the SBA\rquote s Certificate of Competency program. In the referral, the contracting officer did not address whether PK submitted a responsive bid. On June 22, 2012, the SBA issued a Certificate of Competency to PK and notified the EPA that it considered PK to be a responsible bidder. The SBA advised the EPA that the EPA was required to award the contract to PK. The contracting officer disagreed with the SBA\rquote s responsibility determination, and filed an appeal with the SBA. The contracting officer once again did not address whether PK submitted a responsive bid. The SBA denied the appeal, leading the contracting officer to award the contract to PK in September 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 020 - Coastal Environmental Group Inc v United States.doc, Paragraph with 'The Rule of Two': worth $800,000, would be set aside for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': Central Contractor Registration, 48 C.F.R. \u167 52.204\u82117(a) (2013) (changing the name of the CCR to the \System for Award Management\); Pre\u8211Award Bid Protest Jurisdiction (28 U.S.C. \u167 1491(b)(1)); Service\u8211Disabled Veteran\u8211Owned Small Business Set\u8211Aside (15 U.S.C. \u167 644(g)(1)(A)(ii)); Standing; Federal Acquisition Regulations, 1.102(b)(3) (\The Federal Acquisition System will ... [c]onduct business with integrity, fairness, and openness.\); 1.102\u82112(c)(3) (fair and impartial treatment of contractors); 1.602\u82112(b) (\impartial, fair, and equitable treatment\ of contractors by contracting officers); 3.101\u82111 (standards of conduct for government personnel); 15.305 (evaluation of proposals); 16.504 (indefinite quantity contract); 19.1405 (SDVOSB set-aside procedures); 52.219\u82111 (voluntary certifications); 13 C.F.R. \u167 125.15(e)(1) (SDVOSB status determined at the time of an initial offer); 48 C.F.R. \u167 4.1201 (2012 and 2013) (representations and certifications); 48 C.F.R. \u167 52.204\u821113(b) (contractors responsibility for the accuracy of information in the Central Contractor Registration). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': This bid protest concerns allegations made by a service-disabled veteran-owned small business that the United States Environmental Protection Agency acted arbitrarily and capriciously and in bad faith when the agency determined the bidder to be non-responsible, proposed the bidder for debarment, and then declined to award the contract to any bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': The Evaluation Of Service\u8211Disabled Veteran\u8211Owned Small Business Proposals, Initial Contract Award, And Subsequent Protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': The Agency\rquote s Decision To Terminate Plaintiff\rquote s Proposed Debarment But Not To Award The Service\u8211Disabled Veteran\u8211Owned Small Business Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 1 at 121. In addition, the Solicitation stated that the award would be made on a competitive basis, pursuant to a small business set-aside. AR Tab 1 at 121. The Solicitation also identified only the \Program Manager\ and \Response Managers\ as key personnel. AR Tab 1 at 144\u821145. The third contract, however, was to be \awarded based on competition restricted to service-disabled veteran-owned small businesses\ (the \SDVOSB Contract\ or the \SDVOSB set-aside\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': B. The Evaluation Of Service\u8211Disabled Veteran\u8211Owned Small Business Proposals, Initial Contract Award, And Subsequent Protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2010, NEIE filed a protest with the Contracting Officer (\CO\) and the United States Small Business Administration (\SBA\) challenging Earthcare\rquote s claimed status as a small business. AR Tab 20. On the same date, NEIE also filed a protest with the CO and the SBA challenging Earthcare\rquote s claimed status as a SDVOSB. AR Tab 21. On May 25, 2010, the SBA determined that EarthCare met the SDVOSB eligibility standards as of the date of the Solicitation. AR Tab 24 at 1447\u821148 (May 25, 2010 eligibility letter). On October 29, 2010, however, the SBA\rquote s Office of Government Contracting, Area II, issued Size Determination Nos. 2\u82112010\u821177 & 79, finding EarthCare to be \other than a small business\ and ineligible for award of the April 30, 2010 SDVOSB Contract. AR Tab 27 at 1470. On January 12, 2011, the SBA Office of Hearings and Appeals affirmed this determination. AR Tab 34 at 1513 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': On May 11, 2012, NEIE asked if the CO \received the information that NEIE provided to SBA ... as part of our response to the Guardian protest\ and offered to forward that information, if necessary. AR Tab 149 (5/11/12 email from Chris Coleson to the CO). NEIE then forwarded NEIE\rquote s February 6, 2012 response to Guardian\rquote s SBA protest to the CO, explaining that NEIE\rquote s failure to update various databases \[was] the result of changes taking place since the death of James Coleson and the fact that his Will [was] currently in probate.\ AR Tab 149A at 2192.1 (5/14/12 email from Chris Coleson to the CO). Therein, NEIE included a March 14, 2012 email, regarding a different solicitation, also explaining that NEIE Medical Waste was a distinct, independent company from NEIE. AR Tab 149A at 2192.17. In addition, NEIE included a February 22, 2012 email to the United States Navy regarding a different matter, stating that NEIE was no longer a SDVOSB, but was a small business. AR Tab 149A at 2192.19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': On May 21, 2012, Guardian filed an agency-level protest with the CO alleging that \NEIE is not an affirmatively responsible small business contractor.\ AR Tab 152.1 at 2227. Guardian\rquote s protest reiterated, almost verbatim, the prior SBA protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': In addition, the CO advised the SBA that \[i]n order to secure the possibility of a lucrative Government contract set-aside for a service-disabled veteran-owned small business, NEIE, Inc. knowingly and intentionally misled the Government by failing to advise EPA ... that James Coleson had died.\ AR Tab 154 at 2356. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': G. The Agency\rquote s Decision To Terminate Plaintiff\rquote s Proposed Debarment But Not To Award The Service\u8211Disabled Veteran\u8211Owned Small Business Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': \[i]n order to secure the possibility of a lucrative Government contract set-aside for a service-disabled veteran-owned small business, NEIE, Inc. knowingly and intentionally misled the Government by failing to advise EPA ... that James Coleson had died.\ AR Tab 154 at 2356. This reasoning, however, was deeply flawed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': James Coleson\rquote s death and, in fact, the Administrative Record contains evidence to the contrary suggesting that NEIE took proactive steps to ensure compliance with relevant requirements by declining to bid on other SDVOSB set-asides. AR Tab 149A at 2192.11 (\NEIE has not pursued any Government contracts with this CCR since the date of James Coleson\rquote s death.\); AR Tab 149A at 2192.15 (NEIE Corporate Meeting Notes) (same); AR Tab 149A at 2192.17 (turning down a solicitation from the United States Air Force in March 2012, because \NEIE, Inc. cannot respond as an SDVO at this time.\); AR Tab 149A at 2192.19 (turning down an inquiry from the United States Navy in February 2012, because \right now we are only Small Business\ and not veteran-owned). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': allows a small business to apply for a COC from the SBA after a contracting officer issues a non-responsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': Upon determining and documenting that an apparent successful small business lacks certain elements of responsibility (including, but not limited to, ... integrity ... ), the contracting officer shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'The Rule of Two': (allowing a small business to apply for a Certificate of Competency to challenge the contracting officer\rquote s determination); AR Tab 191 at 2863\u821174 (NEIE\rquote s June 19, 2012 application for a Certificate of Competency). It was the agency, not NEIE, that acted in an untimely fashion. AR Tab 155 at 2590 (declining to tell NEIE, in an email exchange four days after issuing the Non\u8211Responsibility Determination, of that fact); AR Tab 166 at 2713 (requesting that the SBA withhold a decision on NEIE\rquote s application); AR Tab 167 at 2715 (requesting an additional week from the SBA to revise the May 25, 2012 Non\u8211Responsibility Determination); AR Tab 170 at 2735 (delaying to forward the revised Non\u8211Responsibility Determination to the SBA for two weeks, citing an \oversight\). The EPA compounded this delay by simultaneously proposing NEIE for debarment, an action that took several more months to resolve. AR Tab 184 (8/2/2012 Notices of Proposed Debarment). Only after the EPA refused to award the SDVOSB Contract to NEIE did it become clear, as a practical and legal matter, that NEIE had no other recourse but litigation. AR Tab 220 (declining to award the SDVOSB Contract); AR Tab 227 and 228 (stating, in a 1/15/13 email exchange, that NEIE was ineligible to receive the SDVOSB Contract); AR Tab 237 at 3175 (following the termination of NEIE\rquote s proposed debarment, informing NEIE on 2/12/13 that NEIE remained ineligible to receive the SDVOSB Contract). Therefore, the court finds the Government\rquote s argument concerning the timeliness of NEIE\rquote s challenge to be without merit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with 'The Rule of Two': . The plaintiff was a small business contractor that had no experience providing similar services to the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed pre-award bid protest, seeking to permanently enjoin Army Corps of Engineers from awarding to another bidder contract to widen canal and replace bridge as part of flood control project, on grounds that Corps allegedly violated federal statutes and regulations by not intending to award contract to Historically Underutilized Business Act (HUBZone) small business and alleging that if Corps applied HUBZone Act\rquote s price preference, bidder would be eligible for award as lowest bidder. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Under the Historically Underutilized Business Act (HUBZone), in qualifying circumstances, the government grants a preference to HUBZone businesses, and will award a contract to them even when their price is 10% higher than a non-HUBZone bidder. Small Business Act \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder for Army Corps of Engineers\rquote contract to widen canal and replace bridge as part of flood control project was ineligible for contract award, on grounds that its bid exceeded 25% cap, under statute prohibiting Corps from awarding contract for river and harbor improvements to bidder whose price was more than 25% greater than independent government estimate (IGE), even though award allegedly violated Historically Underutilized Business Act (HUBZone) that gave preference to qualified HUBZone business whose price was not more than 10% higher than lowest bidder\rquote s price, where bidder\rquote s price was 25.77% above Corps\rquote IGE even if it was lowest bidder upon any application of HUBZone Act. Small Business Act \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': (\the Corps\) from proceeding to award Shavers\u8211Whittle a contract to widen a canal and replace a bridge as part of the Southern Louisiana Urban Flood Control Project in Jefferson Parish, Louisiana. AquaTerra alleges that the Corps, in evaluating bids, does not intend to award the contract to a Historically Underutilized Business Act (\HUBZone\) small business in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': , Notice of Price Evaluation Preference for HUBZone Small Business Concerns, as required by 48 C.F.R. \u167 19.1308(b) for solicitations conducted using full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': . The HUBZone Act was enacted by Congress as part of the Small Business Reauthorization Act of 1997 in order to \target government contracts to small businesses located in economically distressed areas which employ residents from these areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': [I]n any case in which a contract is to be awarded on the basis of full and open competition, the price offered by a qualified HUBZone small business concern shall be deemed as being lower than the price offered by another offeror (other than another small business concern), if the price offered by the qualified HUBZone small business concern is not more than 10 percent higher than the price offered by the otherwise lowest, responsive, and responsible offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 024 - AquaTerra Contracting Inc v United States.doc, Paragraph with 'The Rule of Two': was whether a small disadvantaged firm within the meaning of \u167 8(a) of the Small Business Act had submitted a bid that exceeded the \fair market price\ set in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': ratings did not trigger referral to Small Business Administration (SBA) under Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': A \comparative evaluation,\ as will trigger referral to Small Business Administration (SBA) for determination of non-responsibility on bid for government contract under Small Business Act, is one with competing proposals that will be rated on a scale relative to each other, as opposed to a pass/fail basis; when a proposal is determined to be deficient pursuant to a comparative evaluation, the matter is one of relative technical merit, so as to require SBA referral. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Ratings National Guard Bureau (NGB) made on proposal to provide Army and Air National Guards with psychological health support services, which ultimately eliminated bidder from the competitive range, were not the result of a pass/fail test, rather than a \comparative evaluation,\ as would trigger a referral to Small Business Administration (SBA) for determination of non-responsibility under Small Business Act, where ratings did not deem bid proposal unawardable, but instead merely identified deficiencies related to how bidder proposed to perform contract. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': as a small business set-aside and provided for the award of multiple, indefinite-delivery/indefinite quantity contracts with a 3\u8211year base period and a 2\u8211year option period. AR 854. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': and 4) should have referred OCI to the Small Business Administration (SBA) for a responsibility determination before excluding it from the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': The RFP was issued on July 6, 2012. In its terms, it provided that proposals would be evaluated on a best-value basis, encompassing three non-price factors and one price factor. AR 984\u821185. In order of priority, the factors were: Mission Capability, Past Performance, Small Business Participation, and Price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Plan prescribed an adjectival rating scale\u8212Outstanding, Good, Acceptable, Marginal, and Unacceptable\u8212to be used to evaluate the Mission Capability and Small Business Participation factors. AR 62. It also provided, however, \To receive consideration for award, an offer must receive no less than an \u8216Acceptable\u8217 rating for the Mission Capability Factor and sub-factors.\ AR 57. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': OCI\rquote s proposal received a rating of \Marginal\ on Mission Capability. AR 5494. It received a \Good\ rating on Small Business Participation. AR 5505. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': OCI argues that the evaluation it was given was irrational. The NGB had noted in the acquisition planning stage of the instant procurement, \Three small business entities [of which OCI was one] currently hold contracts for substantially similar requirements which will be subsumed by this family of contracts.\ AR 37. Thus, to assert that OCI \had no significant similar past performance beyond handling the ANG PHP program across one half of the nation,\ AR 5396, is nonsensical when OCI\rquote s pilot program experience \likely is the most relevant past performance reference.\ Pl.\rquote s Mem. at 22. Yet OCI\rquote s argument overlooks the following salient components of the SSEB\rquote s determination: 1) OCI\rquote s pilot program indeed extended to just half of the country, whereas the Solicitation at issue was nationwide in geographical scope; 2) OCI\rquote s pilot program involved just the ANG, but that it had no experience in providing psychological health services to the ARNG; and 3) the SSEB\rquote s \somewhat relevant\ rating was based in large part on the recognition that two of the three past performance examples proffered by OCI were not found particularly relevant to the behavioral health focus of the instant Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': OCI objects that its technical evaluation ratings by the NGB amounted to a determination of nonresponsibility, which, by statute, requires referral to the Small Business Administration (\SBA\) for a conclusive finding. \The Agency\rquote s determination that OCI lacks the requisite management and resources to perform the contract is tantamount to a non-responsibility determination.\ Pl.\rquote s Mem. at 31. Because no SBA finding was made in this respect, Plaintiff argues, it was improperly excluded from the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': As decisions of the United States Government Accountability Organization (\GAO\) have noted, \Under the Small Business Act, agencies may not find a small business nonresponsible without referring the matter to the SBA, which has the ultimate authority to determine the responsibility of small businesses ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': To certify to Government procurement officers, and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': a small business firm is determined to be an apparently successful offeror.\ Def.\rquote s Mot. at 30 (emphasis added); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': The court does not find the Government\rquote s position here initially dispositive. It agrees with the GAO that, where traditional \responsibility\ factors are employed as technical evaluation criteria and the evaluation renders an offeror\rquote s proposal flatly ineligible for award, \the agency has effectively made a determination that the small business offeror is not a responsible contractor capable of performing the solicitation requirements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': the offeror\rquote s approach to management and staffing factors, which may sometimes be considered responsibility criteria, was found to create \a high risk of unacceptable performance\ even though it was not technically \inadequate.\ The offeror\rquote s proposal was rated \marginal,\ rather than \unacceptable.\ The GAO re-emphasized that \no SBA referral is needed where the small business offeror is not selected for award merely because, while its proposal is evaluated as acceptable, another offeror\rquote s proposal is evaluated as superior under a comparative analysis or because of a cost/technical tradeoff analysis.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'The Rule of Two': Thus, an offeror\rquote s proposal was to consist of five volumes: Volume I\u8212Mission Capability; Volume II\u8212Past Performance; Volume III\u8212Small Business Participation; Volume IV\u8212Cost/Price; and Volume V\u8212Solicitation, Offer and Award Documents and Certifications/Representations. AR 591. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed pre-solicitation bid protest of Department of Labor\rquote s (DOL) decision to designate a contract for operation of a job training facility as a small business set-aside, seeking declaratory and injunctive relief. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': small business set-aside designation was proper, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': declaration of plaintiff\rquote s officer was not relevant to issue of whether small business set-aside designation was proper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Despite incumbent\rquote s contention that Department of Labor (DOL) had by-passed requisite competitive bidding process by designating proposed contract for operation of job training facility as a small business set-aside, designation was proper; two small businesses had been identified as capable under all of the capability areas identified in agency\rquote s sources, there was a reasonable expectation that award would be made at fair market prices based on past offers, and awards made under small business set-asides were, by definition, competitive. Workforce Investment Act of 1998, \u167 147(a)(2)(A), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': An agency\rquote s contracting officer\rquote s decision to set aside a contract for small businesses invokes highly deferential rational basis review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Declaration of incumbent contractor\rquote s executive vice president of operations, outlining fact that contractor had done a good job operating job training facility under present government contract, and that small businesses as a group generally had not, was not relevant to issue of whether Department of Labor\rquote s decision to designate proposed contract for the continued operation of the facility as a small business set-aside was appropriate, and thus, declaration was properly excluded as supplement to administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Res\u8211Care, Inc. (\Res\u8211Care\) appeals the decision of the United States Court of Federal Claims (\Claims Court\) interpreting the statute as permitting the United States Department of Labor (\DOL\) to select a contractor for the Blue Ridge Job Corps Center (\Blue Ridge\) program through a set-aside for small businesses. For the reasons set forth below, we affirm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': In December 2011, DOL published a Sources Sought Notice for a Request for Information (the \Request\) seeking information from potential bidders on an upcoming procurement for the operation of Blue Ridge. At the time, Res\u8211Care was operating Blue Ridge under a contract that expired on March 31, 2013. The Request invited \[a]ll interested parties\ to submit a response but specifically encouraged firms that qualify as small businesses to respond with a \capabilities statement\ that demonstrated their ability to operate the facility successfully. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': In response to the Request, one large business and four small businesses submitted capabilities statements. Res\u8211Care, a large business, did not respond to the Request. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Based on the responses, a DOL contracting officer found the large business and two of the four small businesses capable of operating Blue Ridge. In her review, the contracting officer considered twelve relevant areas of experience and the financial resources of each business. She specifically found that both small businesses were capable under \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': of the capability areas identified in the [Request].\ J.A. 3063. In particular, she found that, based on the responses from the two capable small businesses, DOL would likely receive bids (1) from at least two responsible small businesses and (2) at fair market prices. Because both of these requirements of Federal Acquisition Regulation (\FAR\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (the so-called \Rule of Two\), had been met, the contracting officer recommended conducting the Blue Ridge contract selection as a small business set-aside. DOL subsequently issued a presolicitation notice indicating that the next Blue Ridge contract, with a value of $25 million, would be solicited as a \100% Set\u8211Aside for Small Business\ for the two-year base period beginning April 1, 2013, with three unilateral option years. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': that DOL violated WIA by setting aside the Blue Ridge contract for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': describe instances in which the government may award a contract on a noncompetitive basis. Res\u8211Care argued that setting aside the Blue Ridge contract for small businesses violated the \competitive basis\ provision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Before the Claims Court, Res\u8211Care sought to supplement the administrative record with a declaration of its Executive Vice\u8211President of Operations, Richard Myers (the \first Myers declaration\), and with a report entitled \Analysis of Small Business Contracting in Job Corps\ (the \Rell & Doran Report\). Based on assorted criteria, the report concluded that large businesses outperform small businesses in administering JCCs. The Claims Court denied Res\u8211Care\rquote s request to supplement the administrative record with the Rell & Doran Report but admitted the first Myers declaration for the sole purpose of evaluating whether Res\u8211Care was entitled to injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . On that basis, the court concluded that WIA did not preclude small business set-asides in which two or more small businesses compete for a JCC contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': The court also found that the contracting officer did not violate the Rule of Two in setting aside Blue Ridge for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Res\u8211Care now appeals to this court, reiterating its contention that WIA does not permit small business set-asides. We have jurisdiction under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . The first question before this court is one of pure statutory interpretation: whether WIA\rquote s \competitive basis\ language permits small business set-asides. Because the underlying issue is a question of statutory interpretation, it is also subject to review without deference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Authorized selection criteria may circumscribe the range of permitted rivals. Here, Congress clearly viewed the use of set-asides for small businesses as \competitive\ as indicated by the CICA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (providing that \competitive procedures\ shall be used for small business set-asides); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (defining \competitive procedures\ to include competition limited to further Small Business Act). A selection process confined to multiple small businesses bidding to operate a JCC thus satisfies the statutory \competitive basis\ requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Those three exceptions contemplate (1) a small business set-aside exception to CICA\rquote s \full and open competition\ requirement ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': \rquote s authorization of small business set-asides, Res\u8211Care argues that the plain meaning of WIA dictates that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': is the only exception allowed by the statute. Under that interpretation, DOL would lack the flexibility and discretion to use small business set-asides in administering WIA and instead must always hold full, open, and unfettered competition among all possible competitors\u8212except in the very special cases when Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': We find nothing in the legislative history that suggests any intent to bar the widespread, established government practice of small business set-asides for this particular category of government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Before setting aside a contract for small business participation under the Rule of Two, the Federal Acquisition Regulations require that a contracting officer shall determine that a reasonable expectation exists that \at least two responsible small business concerns\ will submit offers and that an \award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . A contracting officer\rquote s decision to set aside a contract for small businesses invokes \highly deferential rational basis review.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Applying the first factor of the Rule of Two, she determined that two responding small businesses were \capable under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': It does not contain any negative performance data about the two small businesses that satisfied the Rule of Two. As the Claims Court stated, whether other small businesses, as a general class, performed at lower levels than larger firms has no bearing on the question of whether the contracting officer used appropriate criteria or properly assessed the capabilities of the identified small businesses against those criteria. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 028 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': In the alternative, the court determined that, if WIA was unclear, DOL was entitled to deference in construing WIA as permitting small business set-asides under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder brought pre-award bid protest proceeding to contest a determination of the Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU), which decertified bidder as qualified veteran-owned small business (VOSB) and nullified apparently-successful offer that bidder made for contract to work on construction project. After the Court of Federal Claims, Lettow, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU), was substantially justified in its position, in pre-award protest proceeding, that veteran, as disappointed bidder\rquote s majority owner, did not exercise day-to-day management of bidder, thus precluding award of attorneys\rquote fees under Equal Access to Justice Act (EAJA) after bidder\rquote s successful challenge to decertification as qualified veteran-owned small business (VOSB); OSDBU focused solely on veteran\rquote s legal residence, even though he kept two residences and could have managed bidder via telecommunications when in another state, but veteran\rquote s legal residence did raise significant question because bidder failed to make veteran\rquote s legal residency apparent to investigators, and, for at least half of each year, veteran had task of managing bidder while being physically present in another state. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': (\KWV\) in this pre-award bid protest contesting an action by the Department of Veterans Affairs (\VA\), Office of Small and Disadvantaged Business Utilization (\OSDBU\), decertifying KWV as a qualified veteran-owned small business (\VOSB\) and nullifying an apparently successful offer KWV had made for a contract for work on the Boston Health Care System Project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': , Tit. II, 94 Stat. 2325, in 1980 \u8216to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.\u8217 \ (quoting H.R.Rep. No. 96\u82111005, at 9 (1980))); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': In considering Mr. Maron\rquote s legal residency to be the determinative factor for control, OSDBU cited as its only authority a decision by the Small Business Administration (\SBA\) that was inapposite on its facts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': referral of nonresponsibility determination, to determine plaintiff\rquote s eligibility for Small Business Administration\rquote s (SBA) Certificate of Competency (COC) program, was not required; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': Government Printing Office (GPO), as a legislative branch agency, was not part of the \Government,\ for purposes of provision of Small Business Act requiring a Government procurement officer to submit his or her determination of a bidder\rquote s nonresponsibility to the Small Business Administration (SBA) for review regarding whether a low bidder is a small business concern that is eligible for SBA\rquote s Certificate of Competency (COC) program. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': Post\u8211Award Bid Protest; Government Printing Office; Statutory Construction; Responsibility Determination; Small Business Administration Certificate of Competency Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': There is no evidence in the administrative record that Contracting Officer Hall referred or considered referring the responsibility determination for Colonial Press to the Small Business Administration (SBA) for review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': Upon receipt of the bid protest on February 28, 2013, the GAO requested input from the SBA, on the subject of whether the GPO was subject to the requirements of the SBA\rquote s Certificate of Competency (SBA/COC) program. Pursuant to the Small Business Act at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': (Supp. VI 2013), a \Government procurement officer\ is required to submit his or her determination of a bidder\rquote s nonresponsibility to the SBA for review regarding whether the contractor is eligible for the SBA/COC program in cases in which a low bidder is a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': On March 27, 2013, the GPO submitted an agency report to the GAO. In its agency report, the GPO argued that the bid protest should be denied because the GPO Contracting Officer was not unreasonable when she determined that Colonial Press was nonresponsible for the 199\u8211S contract. The agency report submitted to the GAO stated that, \the contracting officer had a reasonable basis to conclude that the Colonial past performance, especially the performance of Colonial in the last quarter of 2012, caused her to have doubt about the ability of Colonial to meet the stringent, constant, month-to-month demands of Program 199S [sic] for on time high volume production.\ With respect to the question of whether the GPO was subject to the SBA/COC program, the GPO report stated the \GPO has concluded that nothing in the comments from the SBA changes the well reasoned determination by GAO more than thirty years ago that procurements of GPO are not subject to the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': On May 6, 2013, the GAO issued a decision denying Colonial Press\rquote bid protests, B\u8211408031 (the Medicare publications), and B\u8211408055 (the Healthy Eating publications). The GAO found that the GPO Contracting Officer had a reasonable basis for her determination of Colonial Press\rquote nonresponsibility. In particular, the GAO found that, \[t]he record here supports the reasonableness of the contracting officer\rquote s determination, with respect to Colonial Press\rquote bid under each IFB, that the firm was not responsible because its recent performance on printing contracts had shown an inability to meet delivery requirements.\ In addition, the GAO found that, \our Office has consistently held that GPO, as a legislative branch agency, is not subject to the SBA/COC referral requirements of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': her nonresponsibility determination to the SBA, which Colonial Press alleges is in a violation of provisions of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': Colonial Press alleges that the GPO Contracting Officer was statutorily required to refer her nonresponsibility determination regarding Colonial Press for the 199\u8211S contract competition to the SBA for possible eligibility in SBA/COC program. The SBA/COC program was established by \An Act to amend the Small Business Act and the Small Business Investment Act of 1958,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': is apparent, and that the term encompasses all federal departments and agencies, including those in the legislative branch. According to Colonial Press, the term \Government\ on its face means the \Government of the United States,\ including the executive, legislative, and judicial branches. Colonial Press argues that this approach is further supported because \the lack of a definition of \u8216Government\u8217 in the Small Business Act is indicative that \u8216Government\u8217 is being used in its ordinary all-inclusive meaning of \u8216Government of the United States.\u8217 \ Colonial Press also argues that because Congress declined to insert the term \Federal agency\ in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': The defendant responds that, \[b]ecause GPO is not part of the executive branch, and not a \u8216Federal agency\u8217 as defined in the Small Business Act, GPO is not required to comply with any part of the Small Business Act, including Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': .\ The defendant also argues that the term \Government\ is not as clear as plaintiff suggests. The defendant looks to other sections of the Small Business Act for further guidance on how the term \Government\ should be construed. Defendant quotes Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': ). The defendant admits that Congress may make board use of the term \Government\ in the Declaration of Policy rationales at the start of the Small Business Act, for example when the Small Business Act states, \[i]t is the declared policy of the Congress that the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , within the context of the entire Small Business Act requires only executive agencies to refer nonresponsibility determinations to the SBA. The defendant also argues that the court should give due regard to the line of the GAO decisions starting after the 1978 Amendments, in which the GAO addressed the question of whether the GPO is subject to the Small Business Act, and rejected that notion. Finally, the government argues that the court should interpret Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': It shall also be the duty of the [Small Business] Administration and it is empowered, whenever it determines such action is necessary.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': and officers engaged in the sale and disposal of Federal property, with respect to all elements of responsibility, including, but not limited to, capability, competency, capacity, credit, integrity, perseverance, and tenacity, of any small business concern or group of such concerns to receive and perform a specific Government contract. A Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': or an officer engaged in the sale and disposal of Federal property may not, for any reason specified in the preceding sentence preclude any small business concern or group of such concerns from being awarded such contract without referring the matter for a final disposition to the Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': The SBA/COC program is designed \to assist small businesses to obtain a fair share of Federal Government contracts, subcontracts, and property sales,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': . A Certificate of Competency is issued by the SBA with a detailed rationale for its decision that the small business possesses the responsibility necessary to perform the specific government contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': (a)(1) The Certificate of Competency (COC) Program is authorized under section 8(b)(7) of the Small Business Act. A COC is a written instrument issued by SBA to a Government contracting officer, certifying that one or more named small business concerns possess the responsibility to perform a specific Government procurement (or sale) contract. The COC Program is applicable to all Government procurement actions.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , upon determining an apparent low small business offeror to be nonresponsible, refer that small business to SBA for a possible COC, even if the next low apparently responsible offeror is also a small business.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': (a)(3) A small business offeror referred to SBA as nonresponsible may apply to SBA for a COC. Where the applicant is a non-manufacturing offeror on a supply contract, the COC applies to the responsibility of the non-manufacturer, not to that of the manufacturer.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': (c)(1) A contracting officer who determines that an apparently successful offeror that has certified itself to be a small business with respect to a specific Government procurement lacks any element of responsibility (including competency, capability, capacity, credit, integrity or tenacity or perseverance) must refer the matter in writing to the SBA Government Contracting Area Office (Area Office) serving the area in which the headquarters of the offeror is located.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': If a small business concern is deemed nonresponsible by a contracting officer, then it may be eligible for the COC program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': a COC is conclusive as to responsibility. Where SBA issues a COC on behalf of a small business with respect to a particular contract, contracting officers are required to award the contract without requiring the firm to meet any other requirement with respect to responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , the SBA continues to monitor any small business concern that is awarded a contract due to its COC eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': (1) the term \Administrator\ means the Administrator of the Small Business Administration; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': first appear in the 1978 Amendments, by which Congress amended the Small Business Act in order to create additional procurement opportunities for socially and economically disadvantaged groups, \by providing the maximum practicable opportunity for the development of small business concerns owned by members of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': is ambiguous, and undefined throughout the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': to the 1978 Amendments, rather than to the entire Small Business Act. Therefore, it appears that Congress purposefully limited the scope of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': refers to an \officer thereof\ with reference to an \agency\ or \department\ of the \United States Government.\ The section also explains that the SBA may enter into contracts with a \department, agency, or officer thereof having procurement powers\ and provides that \any officer of the Government having procurement powers,\ who is later referred to as a \procurement officer,\ may contract with the Small Business Administration in his or her discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': [O]ur Office has consistently held that GPO, as a legislative branch agency, is not subject to the COC referral requirements of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , the GAO determined that, \[t]he legislative history of the Small Business Act indicates that Congress did not intend to include any legislative or judicial branch agency within the coverage of the Small Business Act. GPO, of course, is an agency within the legislative branch.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': As a result, the GAO concluded that a GPO contracting officer, who had found a small business concern to be nonresponsible, did not need to refer its determination to the Small Business Administration for review under its SBA/COC program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': and the SBA/COC program is creative, and may even reflect a positive policy argument and suggestion for the future, the court finds that the statutory text of the Small Business Act, as it has been uniformly interpreted by the GAO, and the GPO, these past many years, weighs in favor of not mandating application of the SBA/COC program found in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': Colonial Press alleges that it is a small business concern for the purposes of the SBA/COC program because it has less than 500 employees. According to the PPR, the maximum number of employees that a commercial printing business may employ and still qualify as a small business is 500. According to an affidavit in the record submitted by the Chief Executive Officer of Colonial Press, Mr. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , Colonial Press employs 131 full-time employees. Defendant does not challenge Colonial Press\rquote allegation that it is a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 034 - Colonial Press International Inc v United States.doc, Paragraph with 'The Rule of Two': , \[t]his chapter, referred to in text, was in the original \u8216this Act,\u8217 meaning the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': After post-trial judgment in contractor\rquote s favor in pre-award bid protest action to challenge Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) decision to decertify contractor as qualified service-disabled veteran-owned small business (SDVOSB) and to nullify successful offer to repair storm sewer at VA medical center, contractor moved for award of attorney fees and expenses under Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Government was not substantially justified in its determination that right-of-first-refusal agreement between contractor\rquote s shareholders violated regulation regarding certification as qualified service-disabled veteran-owned small business (SDVOSB), and thus government could not on those grounds avoid award of attorney fees and expenses, under Equal Access to Justice Act (EAJA), following judgment in contractor\rquote s favor in pre-award bid protest action to challenge decision of Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) to decertify contractor as SDVOSB; even in absence of prior reported decisions directly addressing scope of executory agreements in specific context of case, OSDBU should have, but did not, examine decisions extensively construing that language in bankruptcy context. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Government was not substantially justified in level of due process it provided to contractor in its pre-award bid protest to challenge decision of Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) to decertify contractor as qualified service-disabled veteran-owned small business (SDVOSB), and thus government could not on those grounds avoid award of attorney fees and expenses, under Equal Access to Justice Act (EAJA), following judgment in contractor\rquote s favor; contractor was entitled to notice that OSDBU was expanding proceeding to encompass ownership issues not raised by contractor in its protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': an action by the Department of Veterans Affairs (\VA\), Office of Small and Disadvantaged Business Utilization (\OSDBU\), decertifying Miles Construction, LLC (\Miles\) as a qualified service-disabled veteran-owned small business (\SDVOSB\) and nullifying an apparently successful offer Miles had made for a contract to repair a storm sewer at a VA medical center. That action had been taken by OSDBU in response to an agency protest by another offeror for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': , Tit. II, 94 Stat. 2325, in 1980 \u8216to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.\u8217 \ (quoting H.R.Rep. No. 96\u82111005, at 9 (1980))); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': . The SBA regulation applies to Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 040 - Sims v United States.doc, Paragraph with 'The Rule of Two': Bidder filed pro se pre-award bid protest complaint, challenging terms of solicitation issued by Bureau of Prisons (BOP) requesting bids for educational services to be provided to inmates at federal correctional institution (FCI), seeking permanent injunction and declaratory relief, and alleging statutory and regulatory violations and arbitrariness in connection with government\rquote s plan to award small business set-aside contract requiring contractor to obtain security clearances for educators prior to appropriation of funds or issuance of task orders. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 040 - Sims v United States.doc, Paragraph with 'The Rule of Two': at 86\u821187. The procurement is a 100% set-aside for small business concerns, and is described as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . Supplemental complaints were filed challenging the subsequent cancellation of the procurement and the solicitation of help desk services from a pool of contractors that did not include small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': through a small business set-aside competition among GSA Schedule 70 contract holders, which included MORI. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': No. 10\u8211298C (Fed.Cl., July 22, 2013), ECF No. 149\u82111. In October 2010, NIH issued a solicitation for the NIH Information Technology Acquisition and Assessment Center (\NITAAC\) CIO\u8211SP3 Small Business government-wide acquisition contract (\GWAC\). Compl. \u182 22. Awards of CIO\u8211SP3 contracts were made in May and July of 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': opinion, as the Court held that a small business set-aside decision was a \logically distinct step\ that was required prior to the selection of a procurement vehicle. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': was found to be required prior to the selection of a particular procurement vehicle, since whether the work must be set aside for small business must be known before an agency can select the means of fulfilling its needs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 041 - Mori Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . This is the situation presented by this case. Plaintiff is not protesting the selection of a particular brand of help desk services, which can be conceptually severed from the choice of the task order vehicle, or the use of already-issued task orders to perform these services. Nor was there a cancellation of a formal solicitation of proposals from the GSA Schedule 70 contractors. Instead, MORI protests the agency\rquote s decision to use the NITAAC CIO\u8211SP3 Small Business GWAC instead of GSA Schedule 70 to obtain help desk services. In choosing to solicit proposals from the CIO\u8211SP3 task order contract holders, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': Contractor brought action alleging breach of three cost plus fixed-fee military contracts awarded under Small Business Innovation (SBIR) Program for performance of research and development activities. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': Complaint alleged that contractor had suffered injury in fact which was concrete and particularized and which was traceable to failure of Department of the Army, Department of the Air Force, and Marine Corps to reimburse contractor for incurred costs related to its cost plus fixed-fee military contracts awarded under Small Business Innovation (SBIR) Program for performance of research and development activities, and that its alleged injury would be redressable by favorable decision in its action for breach of contracts, and therefore contractor had standing to pursue its claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': Cost plus fixed-fee military contracts awarded under Small Business Innovation (SBIR) Program for performance of research and development activities were to result in deliverable prototype, and therefore contracts were procurement contracts, such that contractor was required, under Contract Disputes Act (CDA), to obtain final decision by responsible contracting officer on its claims seeking reimbursement for various costs incurred for Court of Federal Claims to have jurisdiction over its action for breach of contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': Contract Disputes Act, 41 U.S.C. \u167\u167 601\u821113 (now codified at 41 U.S.C. \u167\u167 7101\u821109); Federal Acquisition Regulations 48 C.F.R. pt. 31 (Contract Cost Principals and Procedures); 48 C.F.R. subpt. 31.2 (Contracts with Commercial Organizations); 48 C.F.R. \u167 52.233\u82111 (Disputes); 48 C.F.R. \u167 52.216\u82117 (Allowable Cost and Payment); Jurisdiction (RCFC 12(b)(1)); 15 U.S.C. \u167 638(a)\u8211(e) (Small Business Innovation Research Program). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': Sperient Corporation (\Sperient\) seeks redress for the alleged breach of three cost plus fixed-fee military contracts awarded under Phase II of the Small Business Innovation Research (\SBIR\) Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 042 - Sperient Corporation Inc v United States.doc, Paragraph with 'The Rule of Two': The SBIR Program requires that federal agencies dedicate a portion of their research and development funding to small businesses using a three phase process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Government arbitrarily treated bid protester differently than other offerors for indefinite-delivery, indefinite-quantity contract under Department of Homeland Security (DHS) solicitation for information technology commodities and value-added reseller services in failing to consider protester\rquote s proposal in its final best value determination, based upon protester\rquote s failure to provide brand name and model information for one type of printer in its sample delivery order pricing matrix, where three offerors in same small business category received awards despite their unclear responses in brand/model cells of matrix that had same effect as protester\rquote s blank cell. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': AR 1, 194. The suite of contracts awarded in the FirstSource program facilitated streamlined purchase, delivery, and installation of IT commodity products and solutions, as well as contributed to the agency\rquote s small business and strategic sourcing programs. AR 184, 194. The original FirstSource IDIQ contracts were awarded in fiscal year 2007 to eleven small business contractors for a period of five years. The agency sought to further standardize commodities and procurement processes and reduce acquisition lead-times through FirstSourceII. AR 9, 194. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': The FirstSource II solicitation provided for multiple IDIQ contract awards to offerors in five small business categories: 8(a); Historically Underutilized Business Zone; SDVOSB; (4) Economically Disadvantaged, Women\u8211Owned Small Business; and (5) Small Business. AR 184, 264. The contracts would be \mandatory for consideration\ within DHS, meaning that contracting officers would have to consider the FirstSource II vehicle for any IT commodities order. AR 185. At the delivery order level, contracting officers would use the fair opportunity provisions of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': , select one of the five small business categories, and compete the order among firms in that category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': DHS planned to conduct separate source selections for each small business category; offerors could submit proposals in all categories for which they were eligible, and could be selected for award in any number of the categories. AR 258. Evaluation was based on a best value source selection, with award to the responsible offeror(s) \whose offer(s) conforming to the solicitation will be most advantageous to the Government, price and other factors considered\ and with a sufficient number of awards in each category to ensure adequate competition at the delivery order level. AR 265. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Archura timely submitted proposals in the SDVOSB and general small business categories; however it omitted the brand/model for one item listed on the Supplies portion of its Sample Delivery Order Pricing Matrix. For Item 5.4.6, a C4 Certificate Printer, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': By the time bidding closed in March 2012, DHS had received over 240 proposals from more than 140 bidders across the five small business categories, including 105 proposals in the small business category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Within each small business set aside category, numerous offerors were also disqualified for incomplete matrices on the grounds that their Sample Delivery Order Pricing Matrices did not conform to the solicitation\rquote s instructions. AR 965, 1101. Of the 105 companies that submitted proposals in the general small business category, 9 companies submitted pricing matrices that were so non-compliant that the government could not calculate a total evaluated price. AR 1101. Archura was removed from consideration along with 37 other companies failing to include brand/model and/or price information for each item listed in the pricing matrix. AR 965, 1101. These proposals were deemed to have \fundamental flaws\ and were eliminated from consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': After Archura was eliminated from further consideration, the CO prepared a best value recommendation document for each small business category for the Source Selection Authority (\SSA\) to use in making awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': On December 21, 2012 the SSA selected fourteen vendors for award in the general small business category. AR 1096. In the Source Selection Decision Document, the SSA noted that multiple offerors\rquote price proposals had been found to be \fundamentally flawed\ because the companies had failed to conform to the solicitation\rquote s requirements. AR 1100\u821101. Specifically, the SSA wrote: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': On January 22, 2013, Archura filed a GAO bid protest, challenging DHS\rquote s decision not to award it an IDIQ contract in the small business category. AR 540\u8211550. GAO dismissed the protest because another unsuccessful offeror in the FirstSource II procurement had already filed a bid protest in this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Archura argues that DHS\rquote s decision to eliminate it from consideration for award was arbitrary, capricious, an abuse of discretion and not in accordance with law because Archura\rquote s failure to provide brand name and model information was plainly a clerical error that DHS should have allowed Archura to correct. Archura relies on several FAR provisions to argue that the government was required to seek a clarification from Archura regarding missing brand name and model information on Archura\rquote s sample price matrix. Archura also points out that there were other offerors who were awarded IDIQ contracts, in spite of omitted brand and model numbers, where they provided only brand names, or simply listed the brand name as \Various.\ For example, * * * omitted brand and model information in two cells, stating \Various\ for tape supplies in item 3.4.3 and projectors in item 5.5.2. AR Tab 28(d). * * * left off model numbers in two categories, filling in \ * * * \ for item 3.4.3 and \ * * * \ for a USB memory device in item 5.3. AR 28(j). * * * also omitted model numbers, answering \ * * * \ for item 3.4.3 and \ * * * \ for the memory devices described in item 5.3. AR 29(g). All three of these offerors were awarded IDIQ contracts in the small business category. AR 1096. Archura maintains that the agency could not hold these offerors to specific models either, and therefore should not have rejected Archura\rquote s proposal for one blank cell, while overlooking a similar mistake on the part of three awardees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': The court recently reviewed these arguments with regard to the same solicitation (although different small business categories) in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': the court in this case is faced with a situation involving disparate treatment among offerors. In the small business category within which Archura was competing, three offerors received award despite their unclear responses in the brand/model cells. While Archura undisputedly left a brand/model cell blank, a blank cell has the same effect as a cell that contains the word \Various,\ which does nothing to bind the offeror to a specific item. Yet, two offerors that used the word \Various\ received awards. This leads the court to conclude that the government arbitrarily treated Archura differently when it failed to consider Archura\rquote s proposal in its final best value determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': In Archura\rquote s case, the government\rquote s graph illustrating the data points of the small business offerors being considered for award is especially illustrative of the similarities of the successful firms. The aberrant price spike that would represent Archura\rquote s price of * * * does not fit within the grouping of awardees. In fact, Archura\rquote s high price * * * the bounds of the chart itself: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Graph 1: Small Business Offerors Considered for Award (AR 976) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': Archura originally protested its exclusion from qualification in both the Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\) and general small business categories, but moved to withdraw its protest with regard to the SDVOSB category, which the court allowed on August 23, 2013. Order, ECF No. 66. Plaintiff\rquote s SDVOSB claims, as well as the defendant-intervenors, were dismissed from the proceeding, and this opinion focuses solely on Archura\rquote s protest of its exclusion from the general small business category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'The Rule of Two': With regard to the general small business category, 106 offerors submitted proposals. However, one offeror withdrew its bid prior to the source selection decision. AR 695. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'The Rule of Two': In November 2005, FEMA published a solicitation for a contract for the maintenance and deactivation of manufactured homes and travel trailers in Texas, Louisiana, Alabama and Mississippi. The solicitation noted that preference would be given to local firms within the disaster area. In a subsequent letter, FEMA stated that preference will be given to small business firms located in the State of Louisiana. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'The Rule of Two': In March, 2006 FEMA awarded CMC a contract for the maintenance and deactivation of approximately 6,700 manufactured homes and travel trailers in Louisiana. Williams asserts that the preference given to local contractors was a material factor in CMC being awarded the contract. Williams alleges that the MJ Defendants assisted CMC in misrepresenting its entitlement to be considered a local small business and that the MJI, an out of state company, concealed its relationship with CMC thereby unfairly obtaining a price preference in the award of such contract. Williams states that the MJ Defendants were aware of and facilitated this misrepresentation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'The Rule of Two': In May, 2006 FEMA put out a solicitation for a Group Site Grounds Maintenance Contract. The solicitation indicated that the intention was to award several contracts for the maintenance and inspection of group sites in Louisiana. The solicitation stated that it was a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOB\) set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'The Rule of Two': MJ Defendants aver that all of Relator\rquote s claims must be dismissed because they are jurisdictionally barred. MJ Defendants maintain that because there was public disclosure of all of Relator\rquote s claims prior to the filing of the instant matter this court does not have jurisdiction. Specifically, MJ Defendants contend that the allegedly fraudulent bid for the MD Contract (categorized as \price preference claim\ by MJ Defendants) is barred because these allegations were raised in (1) articles published in the Times\u8211Picayune in April, 2006; (2) a Congressional oversight hearing on May 19,2006; (3) an Inspector General\rquote s investigation and report released on March 30, 2007; and (4) a bid protested filed on April 28, 2006 by another contractor who submitted a bid for the MD Contract. MJ Defendants also contend that the allegedly fraudulent bid for the GM Contract (categorized as \service-disabled claim by MJ Defendants) is barred because these allegations were raised in a Small Business Administration (\SBA\) protest filed on May 17, 2007 alleging that CMC was not a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed post-award bid protest challenging Department of Homeland Security\rquote s (DHS) disqualification of bidder\rquote s proposal from consideration for award of follow-on indefinite delivery, indefinite quantity (IDIQ) contracts in small business set-aside categories to facilitate streamlined purchase, delivery, and installation of information technology (IT) commodities, solutions, and value-added reseller services to support DHS programs. Government moved to dismiss, and parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': Under the solicitation, offerors sought FirstSource II IDIQ contracts in one or more of the following small business set-aside categories: 8(a); Historically Underutilized Business Zone (\HUBZone\); Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\); (4) Economically Disadvantaged, Women\u8211Owned Small Business (\EDWOSB\); and (5) Small Business. AR 2. IDIQ awardees are guaranteed a minimum of $250 and, with certain exceptions, the fair opportunity to bid on subsequent delivery orders. AR 8, 31. Competition for each FirstSource II delivery order is to be limited, however, to only a single small business category. AR 31. For example, should DHS decide to limit a particular delivery order to the SDVOSB category, then only contractors who received a FirstSource II IDIQ contract in the SDVOSB category will be eligible to compete for that delivery order. AR 31. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': The FirstSource II solicitation stated that the IDIQ contracts would be awarded under FAR Part 12 (Acquisition of Commercial Items) using the procedures of FAR Part 15 (Contracting by Negotiation). DHS planned to award IDIQ contracts in a best value source selection to responsible offerors \whose offer(s) conforming to the solicitation [were found to] be most advantageous to the Government, price and other factors considered.\ AR 83. DHS planned to conduct separate source selections for each small business category, making a sufficient number of awards in each category to ensure adequate competition at the delivery order level. The non-price factors included (1) Corporate Experience, (2) Ability to Achieve Results, and (3) Past Performance. AR 83. Price, which was not to be assigned an adjectival rating, was less important than the combined non-price factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': ST Net timely submitted proposals for the general small business, EDWOSB, and 8(a) small business categories. AR 597, 754, 882. ST Net failed, however, to populate the Brand/Model, Unit Price, or Discount Rate information for two line items: * * * and * * *. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': By the time bidding closed in March 2012, DHS had received over 240 proposals from more than 140 bidders across the five small business categories. AR 781. Specifically, 47 companies submitted proposals for the 8(a) small business category, 37 companies submitted proposals in the EDWOSB small business category, and 105 companies submitted proposals in the general small business category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': Within each small business category, multiple proposals were removed from best value consideration because their pricing matrices did not conform to the solicitation\rquote s instructions. For example, of the 105 companies that submitted proposals in the general small business category, 9 companies submitted pricing matrices that were so inadequate that the government could not calculate a total evaluated price. AR 389. Although DHS conducted a price evaluation for the remaining proposals, the CO nevertheless removed an additional 39 companies from best value consideration because their pricing matrices failed to include brand/model and/or price information for each line item. AR 645\u821148. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': The CO prepared a best value recommendation document for each small business category for use by the Source Selection Authority (\SSA\) in making awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': AR 377, 668, 780. ST Net\rquote s Technical proposal was ranked * * * in the general small business category, * * * in the EDWOSB category, and * * * in the 8(a) category. AR 386, 676, 791. ST Net\rquote s evaluated total price of * * * was ranked * * * in the general small business category, * * * in the EDWOSB category, and * * * in the 8(a) category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': AR 597. Specifically, the CO wrote that ST Net\rquote s pricing matrix \did not provide Brand Names and Models, or quotes, for all of the supplies/items within their Sample Delivery Order Pricing Matrix as required by Attachment 5 of the solicitation. This is a fundamental flaw of the proposal.\ Id. As a consequence, ST Net was not recommended for an award in any of the small business categories. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': On September 28, 2012, the SSA selected eight vendors for awards in the 8(a) small business category. AR 915. On December 21, 2012 the SSA selected five vendors for award in the EDWOSB category, AR 924, and fourteen vendors for award in the general small business category. AR 932. In the Source Selection Decision Documents, the SSA noted that multiple offerors\rquote price proposals had been found to be \fundamentally flawed\ because the companies had failed to conform to the solicitation\rquote s requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': See Def.\rquote s Mot. Appx. A1\u8211A2. The protest challenged DHS\rquote s evaluation of ST Net\rquote s proposals in the 8(a), EDWOSB, and general small business categories. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': a temporary restraining order (\TRO\) and an injunction to prevent DHS from awarding any FirstSource II delivery orders within the 8(a), EDWOSB, or general small business categories until ST Net is awarded an IDIQ contract for those small business categories. Because the government agreed to forbear undertaking additional FirstSource II funding or procurement activity for those small business categories applicable to ST Net for four months, in April 2013 this court denied the plaintiff\rquote s application for a TRO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': But for these errors, the plaintiff concludes, ST Net would have had a \substantial chance\ of being awarded IDIQ contracts in each of the three small business categories in which it submitted proposals. Pl.\rquote s Mot. 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': Although the question is close, the court agrees with the plaintiff. Under the terms of the solicitation, DHS had discretion to reject proposals that \fail[ed] to provide all required information in the format requested,\ where \the Contracting Officer determine[d] that a significant revision or addendum to the Offeror\rquote s proposal would be required to permit further evaluation.\ AR 76\u821177. In this case, DHS first exercised that discretion when it eliminated 18 proposals (across the three relevant small business categories) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': As discussed below, this protest does not involve the award of any particular delivery order under the FirstSource II vehicle. Rather, the plaintiff challenges its non-award of a FirstSource II IDIQ contract. Without an IDIQ contract, ST Net cannot bid on any of the delivery orders that DHS intends to issue under FirstSource II. On April 3, 2013, the government agreed to forbear undertaking additional FirstSource II funding or procurement activity for those small business categories applicable to ST Net for four months. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': Although 106 offerors submitted proposals to the general small business category, one of the proposals was withdrawn prior to the source selection decision. AR 378, 950. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'The Rule of Two': On page 26 of the referenced solicitation documents, one vendor had asked: \Can [a] small business bid on a subset of the requirements? For example, we would like to compete for the server business?\ AR 228. In response, the government replied: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 056 - Croman Corp v US.doc, Paragraph with 'The Rule of Two': Eighteen small businesses, including Croman, submitted proposals in response to the 2011 Solicitation. In May 2011, discussions were held with the offerors and by June 2011, the discussions, including technical negotiations, were concluded. Croman was not recommended for an award. Successful and unsuccessful offerors were notified on December 16, 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed bid protest and request for preliminary injunction, challenging decision of Department of Labor (DOL) to set aside for small businesses the solicitation for operation of residential job training center, which precluded contractor from submitting proposal. Parties cross-moved for judgment on the administrative record, government moved to dismiss, and contractor moved to supplement the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': court had jurisdiction over claim arguing that DOL had to question whether set aside was necessary to achieve fair proportion of small business participation: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Workforce Investment Act (WIA) allowed small business set asides for contracts to operate job training centers; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL did not violate Small Business Act by setting aside solicitation for small businesses; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL had reasonable expectation that it would receive offers from two capable small businesses, as required for set aside; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': E-mails which were specific to small business set aside decision in procurement underlying incumbent contractor\rquote s bid protest, and which had already been disclosed to incumbent contractor, could be included in administrative record in bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': As incumbent contractor and prospective bidder, bid protester was \interested party\ whose direct economic interest would be affected by award of contract for operation of residential job training center, as required for standing to bring bid protest; protester\rquote s exclusion from competition, due to small business set aside, was non-trivial competitive injury that could be redressed by judicial relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction, in incumbent contractor\rquote s bid protest challenging decision of Department of Labor (DOL) to set aside, for small businesses, solicitation for contract to operate residential job training center, over contractor\rquote s claim arguing that DOL had to question whether set aside of individual contract or specifically identified class of contracts was necessary to achieve fair proportion of small business participation; contractor asserted that disputed analysis required consideration of total number and value of all procurements in industry, number of small businesses that performed work, and number and value of contracts already set aside, and refrained from challenging aspirational goals for small business participation or size-standard determination. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Workforce Investment Act (WIA), which required that selection of entities to operate residential job training centers be done \on a competitive basis,\ allowed Department of Labor (DOL) to set aside, for small businesses, procurements for operation of centers; \competition\ required only that at least two contestants vie for opportunity, rather than unrestricted competition, set asides were competitive, and WIA\rquote s plain language reflected no congressional intent to prohibit set asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL) did not violate Small Business Act by setting aside, for small businesses, solicitation for contract to operate residential job training center without first determining whether fair proportion of such contracts had been placed with small businesses. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims reviews contracting officer\rquote s \rule of two\ analysis, addressing whether procurement should be set aside for small businesses, to determine whether it was arbitrary or capricious, a standard requiring only that the action be supported by a rational basis; contracting officer\rquote s determination under \rule of two\ regulation concerns a matter of business judgment within contracting officer\rquote s discretion that will not be disturbed absent a showing that it was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \Rule of two\ regulation, addressing small business set asides for government contracts, does not mandate any particular method for assessing availability of small business bidders, and prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist are all approved bases for the decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \Rule of two\ regulation, addressing small business set asides for government contracts, only requires agency, in setting aside solicitation, to have a reasonable expectation that it will receive at least two offers from some responsible small businesses, not necessarily any two specific small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Analysis conducted by Department of Labor (DOL) under \rule of two\ regulation in determining that solicitation for operation of residential job training center would be set aside for small businesses was not arbitrary or capricious, despite incumbent contractor\rquote s contention that DOL had set aside a number of such contracts for small businesses, knowing that insufficient number of small businesses were capable of performing those contracts; \rule of two\ provided for set asides based on contracting officer\rquote s \reasonable expectation\ that offers would be obtained from small businesses, set aside could be rescinded if necessary, and incumbent contractor did not show that DOL would be incapable of awarding contract in dispute to small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Documents from administrative records in other cases in which bid protests were brought to challenge decisions of Department of Labor (DOL) to set aside, for small businesses, solicitations for contracts to operate residential job training centers were not necessary for effective judicial review of incumbent contractor\rquote s challenge to one set aside decision, and therefore supplementation of the administrative record with such documents in contractor\rquote s bid protest was not warranted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Unlike agency\rquote s decision to conduct an unrestricted procurement, agency need not document a small business set aside decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL) had reasonable expectation that it would receive offers from two capable small businesses in solicitation for contract to operate residential job training center, as required for DOL to set aside solicitation for small businesses pursuant to \rule of two\ regulation; fact that six small businesses responded to request for information (RFI) was sufficient, standing alone, to form reasonable expectation of offers from two responsible small businesses, and DOL also could have reasonably expected two responsible small businesses to submit offers based upon small business responses to previous solicitations for similar contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': It is consistent with small business regulations for Department of Labor (DOL) to award a set aside contract to a business that is likely to grow beyond small business standards during the life of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Department of Labor (DOL) had reasonable expectation that award of contract to operate residential job training center would be made at fair market price, as required for DOL to set aside solicitation for contract for small businesses, based on contracting officer\rquote s expectation of competitive bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Pre\u8211Award Bid Protest; Small Business Set Aside; Contract to Operate Dayton Job Corps Center; Workforce Investment Act of 1998; Selection of Operators \On a Competitive Basis\; 29 U.S.C. \u167 2887(a); \Rule of Two\; FAR 19.502\u82112(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff, Management & Training Corporation (\MTC\), filed this bid protest action (docket entry 1) on September 4, 2012, along with a request for a preliminary injunction (docket entry 2). Plaintiff challenges the decision of the United States Department of Labor (\DOL\) to set aside for small businesses the solicitation for operation of the Job Corps Center (\JCC\) in Dayton, Ohio. Because it is not a small business, MTC, the incumbent contractor, has therefore been precluded from submitting a proposal. The matter is now before the Court on the parties\rquote motions for judgment on the administrative record, in addition to defendant\rquote s motion to dismiss and plaintiff\rquote s motion to supplement the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Recently several large businesses that operate JCCs, including MTC, have protested DOL\rquote s small business set aside decisions. The first such protest was filed in this court (No. 11\u8211665) by Adams & Associates, Inc. (\Adams\) on October 13, 2011 and involved the JCC in Gadsden, Alabama. In response to that protest, DOL took corrective action by terminating the solicitation and reconducting market research for a new set aside decision. Order, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': On March 9, 2012, DOL once again determined that it would set aside the Gadsden JCC contract for small businesses. App. Ex. 21, at 2\u82116. On June 25, 2012, Adams filed another bid protest in this court (No. 12\u8211409) again challenging DOL\rquote s decision to set aside the Gadsden JCC contract. On March 27, 2013, Judge Williams denied Adams\rquote s protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': On April 6, 2012, DOL posted a Presoliciation Notice requesting proposals from small businesses interested in operating the Blue Ridge JCC in Marion, Virginia. App. Ex. 26. The set aside was supported by market research obtained through an RFI that requested responses to the same capability criteria as the second Gadsden RFI.App. Ex. 17, at 3. The large-business incumbent operator of the Blue Ridge center, Res\u8211Care, Inc. (\Res\u8211Care\), filed a protest in this court on April 18, 2012 (No. 12\u8211251). On November 2, 2012, Judge Bruggink denied ResCare\rquote s protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOL reviewed responses to the Five\u8211Center RFI and determined that two small businesses, [* * *] and [* * *], were capable of operating JCCs at fair market prices. App. Ex. 43, at 6\u82117. DOL also reviewed responses to the Seven\u8211Center RFI and determined four small businesses to be capable. App. Ex. 34, at 3. Three of these small businesses\u8212[* * *], [* * *], and [* * *]\u8212had already been awarded JCC contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff asserts that, at the time of the Dayton set aside decision, DOL had already decided to set aside a total of twelve JCC contracts for small businesses based on the capability of as few as three small businesses. Pl.\rquote s Mot. for J. AR (\Pl.\rquote s Mot.\) 13 (docket entry 61, Mar. 28, 2013). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The RFI requested responses to the same modified capability criteria as the previous RFIs. DOL received six responses from small businesses and one from a large business. AR Tab 10, at 72. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Of the seven respondents, DOL found two small businesses, [* * *] and [* * *] to be capable of operating the Dayton JCC. AR Tab 10, at 72. On August 20, 2012, the contracting officer, Jillian Matz, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': signed a determination memorandum setting aside the Dayton JCC contract for small businesses. AR Tab 10, at 71\u821173. The amended RFI and the spreadsheet analyzing each respondent\rquote s capability were attached to the memorandum. AR Tab 10, at 74\u821180. The memorandum appears to have been designed to document DOL\rquote s compliance with regulations known as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two sets forth conditions under which procurements should be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (1) Offers will be obtained from at least two responsible small business concerns ...; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (2) Award will be made at fair market prices. Total small business set-asides shall not be made unless such a reasonable expectation exists.... Although past acquisition history of an item or similar items is always important, it is not the only factor to be considered in determining whether a reasonable expectation exists. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Indeed, DOL\rquote s primary justification for its decision to set aside the Dayton JCC contract for small business concerns is based on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In accordance with FAR Subpart 19.502\u82112, total small business set-asides, as Contracting Officer (CO), I determine that this procurement should be conducted as a total small business set-aside. FAR Subpart 19.502\u82112(b) says that the CO shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that offers will be received from at least two responsible small business concerns and award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': On August 23, 2012, DOL posted a presolicitation notice on FedBizOpps announcing that the solicitation of proposals for the continued operation of the Dayton JCC would be conducted as a small business set aside. AR Tab 12, at 97\u821199. This notice also stated that DOL would issue a Request for Proposal (\RFP\) on September 6, 2012. AR Tab 12, at 97. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Pursuant to the Court\rquote s Order dated February 27, 2013, plaintiff filed a second motion for judgment on the AR. Plaintiff seeks a declaratory judgment and a permanent injunction prohibiting DOL from setting aside the Dayton JCC procurement for small businesses, or, in the alternative, a remand requiring DOL to reconduct its set aside analysis. On May 6, 2013, defendant filed its response to plaintiff\rquote s motion, along with a motion to dismiss pursuant to Rule 12(b)(1) of the Rules of the United States Court of Federal Claims (\RCFC\) and a cross-motion for judgment on the AR (docket entry 65). On May 21, 2013, plaintiff filed a combined opposition to defendant\rquote s motions to dismiss and for judgment on the AR and reply in support of plaintiff\rquote s motion for judgment on the AR (\Pl.\rquote s Opp\rquote n\) (docket entry 67). On June 11, 2013, defendant filed a reply in support of both of its motions (\Def.\rquote s Reply\) (docket entry 70). The Court heard oral argument on July 18, 2013, during which time the parties confirmed that DOL has extended MTC\rquote s contract to operate the Dayton JCC through October 2013. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that DOL\rquote s decision to set aside the Dayton JCC procurement was improper because (1) DOL is prohibited by statute from setting aside JCC procurements, (2) DOL did not determine the set aside to be in the interest of ensuring that a fair proportion of JCCs are operated by small businesses, and (3) DOL\rquote s determinations that it reasonably expected at least two responsible small businesses to submit proposals and that the award would be made at a fair market price were arbitrary and capricious. Defendant responds that plaintiff is incorrect on all three counts and that the Court does not have jurisdiction to consider plaintiff\rquote s \fair proportion\ argument. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Defendant argues that the Court is without jurisdiction to consider plaintiff\rquote s contention because it challenges a high-level policy decision. Def.\rquote s Mot. 8. In particular, defendant characterizes plaintiff\rquote s claim as a challenge to either the goals of DOL or the Small Business Administration (\SBA\) for small business participation or the SBA\rquote s determination of which size standard is applied to operation of JCCs, and defendant asserts that the Court does not have jurisdiction to review these decisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Defendant mischaracterizes plaintiff\rquote s claim. Plaintiff contends that DOL is required to question whether a set aside of \an individual contract or specifically-identified class of contracts\ is necessary to achieve a fair proportion of small business participation. Pl.\rquote s Mot. 34. Plaintiff asserts that this requires consideration of the total number and value of all procurements in the industry, the number of small businesses that perform the work, and the number and value of contracts already set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': at 42. Plaintiff explicitly refrains from challenging the SBA\rquote s or DOL\rquote s aspirational goals for small business participation or the SBA\rquote s size-standard determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': WIA Does Not Prohibit Small Business Set Asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': of this title using competitive procedures, but excluding other than small business concerns.\ \u167 3303(b). The parties dispute whether WIA also allows DOL to exclude \other than small business concerns\ from certain chosen JCC procurements or instead prohibits such set asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': This view precludes DOL from using small business set asides to select a JCC operator. Defendant, however, argues that WIA requires only \competition,\ which can be achieved with as few as two eligible entities. Def.\rquote s Mot. 22. Thus, defendant views selection on a competitive basis to be similar to what CICA calls \competitive procedures,\ which allow for small business set asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The plain language of WIA provides no evidence that Congress intended to prohibit set asides in JCC procurements. Indeed, nothing in WIA references Congress\rquote s policy of promoting contracting with small businesses. The definition of \competition\ does not require unrestricted competition, but merely that at least two contestants vie Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': 322 (9th ed. 2009) (defining \competition\ as \the effort or action of two or more commercial interests to obtain the same business from third parties\). Plaintiff does not dispute that set asides are competitive, Pl.\rquote s Opp\rquote n 7, but responds that Congress intended the phrase \competitive basis\ in WIA to mean something other than the usual definition of \competition.\ Pl.\rquote s Mot. 23 n.47. Specifically, plaintiff argues that, by allowing government agencies and vocational schools to operate JCCs, Congress demonstrated its intent that the phrase \competitive basis\ should have a meaning inconsistent with Congress\rquote s well-established policy of promoting small business participation in government contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (acknowledging the Small Business Administration\rquote s representation that \if and when bids [to produce interment flags] are resolicited ... they will be done so on a competitive basis among small businesses\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (describing a procurement set aside for socially or economically disadvantaged contractors under the Small Business Administration\rquote s \u167 8(a) program as \awarded on a competitive basis\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': As referenced above, plaintiff argues that DOL was required to determine whether a set aside would be \in the interest of assuring that a fair proportion\ of JCC contracts are placed with small businesses before it could set aside the Dayton contract. Pl.\rquote s Mot. 32\u821134. According to plaintiff, this requirement derives from the Small Business Act and FAR Part 19. The Small Business Act states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': [S]mall-business concerns ... shall receive any award or contract ... as to which it is determined by the [Small Business] Administration and the contracting procurement or disposal agency ... to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small-business concerns .... A contract may not be awarded under this subsection if the award of the contract would result in a cost to the awarding agency which exceeds a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to assure that a fair proportion of contracts are placed with small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside an individual acquisition ... for competition among small businesses when ... [a]ssuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Each provision, on its face, mandates that certain contracts be set aside for competition among only small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': mandates that small businesses \shall receive\ awards and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues, however, that Congress amended the Small Business Act in 1986 to reverse the holding of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . The Fifth Circuit then also upheld the interpretation of the Department of Defense that the \fair proportion\ requirement was a \floor\ encouraging set asides when small businesses were not receiving a fair proportion of contracts, but not a \ceiling\ prohibiting set asides when small businesses already received more than a fair proportion of contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . In its 1986 amendment to the Small Business Act, Congress reversed the former holding, but made no change to the latter. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The NDAA of 1987 made three relevant changes to the Small Business Act. First, as described above, Congress amended Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to prevent agencies from ignoring small business participation in certain industries. Specifically, Congress required agencies to consider whether small businesses were receiving a fair proportion of contracts in each individual industry. NDAA of 1987 \u167 921(a). Second, Congress added the requirement that agencies may only award set aside contracts at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \u167 921(b). Third, Congress required the Small Business Administration to adjust the small business size standard for industries in which small business set asides accounted for more than 30 percent of the dollar value of all contract awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': \u8212a fair proportion of small business contracts in each industry category be awarded to small businesses. The Committee on Armed Services stated that such an amendment \would require agencies to ensure that a fair proportion of contracts per industry category, rather than overall agency contracts, be awarded to small businesses.\ H.R.Rep. No. 99\u8211718, at 258. Neither the statute nor the committee report ever state that this would require that agencies Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': set aside any proportion of contracts. Rather, Congress hoped that requiring agencies to ensure that small businesses are awarded a fair proportion of contracts in industries in which small businesses had previously been underutilized would eliminate agencies\rquote motives for setting aside very large percentages of contracts in other industries. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to state that a \contract may not be awarded\ if the cost would exceed a \fair market price\); \u167 921(f)(2) (amending \u167 632 to require the Small Business Administration to adjust small business size standards to \reduce the number of contracts which may be set aside\ to approximately 30 percent of the value of contracts awarded in the industry category). In 1988, however, Congress repealed the provision calling for the Small Business Administration to adjust size standards to achieve 30 percent small business participation in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Thus, \u167 921(b), the fair-market-price requirement, is the only one of these 1986 amendments to the Small Business Act that still limits an agency\rquote s ability to set aside contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': At the set aside stage, the \Rule of Two\ regulations implement both the goal of awarding a fair proportion of contracts to small businesses and the requirement that the award be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\[T]he Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': ....\). The FAR also reflects Congress\rquote s intent that at least a fair proportion of contracts be placed with small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (stating that the contracting officer \shall set aside\ contracts in order to achieve a fair proportion of small business participation), but set asides should be limited to cases when the agency can award the contract to a small business at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\Award will be made at fair market prices. Total small business set-asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to set aside a contract without determining whether a fair proportion of contracts were placed with small businesses or whether the Rule of Two was satisfied. That outcome is consistent with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': by setting aside the Dayton JCC contract without determining whether a fair proportion of JCC contracts had been placed with small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two does not mandate any particular method for assessing the availability of small business bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . \[P]rior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist\ are all approved bases for the decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In particular, while in this case DOL\rquote s set aside memorandum identified two particular small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': responsible small businesses, not necessarily any two specific small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that the contracting officer incorrectly analyzed small businesses\rquote interests in operating the Dayton JCC without considering those same small businesses\rquote interests or obligations in operating other JCCs. Pl.\rquote s Mot. 47\u821148. More broadly, plaintiff argues that, over the course of six months ending with the Dayton set aside decision, DOL set aside twelve JCC contracts for small businesses and awarded two other contracts to small businesses, with knowledge that at most four small businesses were capable of operating JCCs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument is most properly directed not at DOL\rquote s set aside of the Dayton contract but at Congress\rquote s policy of promoting contracting with small businesses and the implementation of those policies in the FAR through the Rule of Two. Plaintiff\rquote s argument suggests that DOL will eventually be unable to award all of the contracts it has set aside to only the small businesses that have responded to its RFIs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': But the Rule of Two does not require that the eventual award be made to one of the RFI respondents. One could imagine a policy less favorable to small business in which contracts would not be set aside unless the contracting officer could be sure that at least two capable small businesses would definitely submit offers that would be no more expensive than offers from large businesses. But this is not the policy designed by Congress or implemented by the FAR. Instead, the FAR provides for set asides based on the contracting officer\rquote s \reasonable expectation,\ implicitly accepting the possibility that that expectation may ultimately prove incorrect. When DOL evaluates offers, if [* * *] and [* * *] are operating additional JCCs and are no longer capable of operating the Dayton JCC, the contracting officer can award the contract to another small business or rescind the set aside and solicit offers from large businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Moreover, plaintiff\rquote s argument is not specific to the decision at issue in this case. Plaintiff\rquote s argument is capable of demonstrating, at most, that DOL may not award all set aside contracts to small businesses. The evidence plaintiff provided from other protests does not, however, suggest that DOL will not be able to award Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': to a small business, much less that two responsible small businesses will not even submit offers. In fact, while plaintiff contends that [* * *] has responded to most of DOL\rquote s JCC RFIs, plaintiff has not alleged that [* * *] responded to any JCC RFIs other than Dayton. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also argues that DOL failed to consider relevant factors, including small businesses\rquote capability and capacity to operate the Dayton JCC, past performances operating other JCCs, and indirect cost rates. Pl.\rquote s Mot. 51. Plaintiff contends that these omissions infected DOL\rquote s determinations that two small businesses were capable of operating the Dayton JCC as well as that the award would be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': a. DOL Reasonably Expected to Receive Offers from At Least Two Capable Small Businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': In accordance with these policies, the contracting officer is not required to find that any two particular small businesses are responsible; she need only reasonably expect that two responsible small businesses will submit offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (upholding a decision not to set aside a procurement where the relevant market contained only one small business). Indeed, the GAO has stated that \it would be impractical to require contracting officers to make responsibility determinations or anything close thereto prior to setting aside procurements.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Therefore, the fact that six small businesses responded to the RFI, standing alone, could have been sufficient to form a reasonable expectation of offers from two responsible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\If four companies expressed interest in the project before the actual Solicitation was even issued, the contracting officer certainly could have reasonably expected that at least two of those companies would submit responsive bids.\). Alternatively, DOL could have reasonably expected two responsible small businesses to submit offers based upon small business responses to previous JCC solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\For example, we think the contracting officer properly could decide that, notwithstanding the differences between the Navy\rquote s procurement and this one, the two procurements were sufficiently similar such that the results in the Navy procurement were a reliable indication of the extent of small business participation that could be expected here.\). DOL\rquote s analysis of the capability of the six small businesses that responded exceeded the minimum Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': necessary to satisfy the Rule of Two. Accordingly, DOL\rquote s expectation of receiving offers from two capable small businesses was not arbitrary or capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that DOL failed to investigate whether [* * *] and [* * *] could operate the Dayton JCC without increasing their receipts above the SBA\rquote s small business size standard. Pl.\rquote s Mot. 59. In general, the size of a business is measured as an average of that business\rquote s annual receipts over the past three years. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Therefore, increased receipts from operation of additional JCCs would not eliminate a business from small business status until one to three years later. SBA measures the size of a business, however, at the time the business submits its initial offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Therefore, it is consistent with small business regulations for DOL to award a set aside contract to a business that is likely to grow beyond small business standards during the life of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': As described above, Congress passed the Small Business Act and its amendments intending to assist small businesses, particularly those that are not able to contract at the same low rates as large businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': . Plaintiff\rquote s arguments\u8212that small businesses, in general, are more expensive and less effective at operating JCCs\u8212ignore that Congress created its policy favoring small businesses with the understanding that some benefit of lower prices from large businesses would be lost. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': WIA does not prohibit set asides, and the Small Business Act\rquote s \fair proportion\ provision does not prohibit DOL from setting aside more than a fair proportion of JCC contracts. Therefore, DOL did not violate applicable laws or regulations by setting aside the Dayton contract. Additionally, DOL\rquote s Rule of Two analysis was not arbitrary, capricious, or an abuse of discretion. Consequently, the Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': DOLAR 2919.502 states, \Contracting officers will conduct market surveys specifically to determine whether procurements should be conducted ... as small business set-asides. If a reasonable expectation exists that at least two responsible small businesses may submit offers at fair market prices ..., then the procurement will be set aside for small business. Market surveys will be documented in all procurement actions not reserved for small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': Congress\rquote s policy favoring small business participation extends to industries in which small businesses have had difficulty competing with large businesses. Congress amended the Small Business Act in 1986 to require agencies to increase small business participation in industries in which small businesses had traditionally struggled to compete. National Defense Authorization Act for Fiscal Year 1987 (\NDAA of 1987\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': , 3926\u821127. While considering this 1986 amendment to the Small Business Act, the House Armed Services Committee \strongly urge[d] further emphasis and market research to assess the capabilities of small businesses to perform in industry sectors not traditionally dominated by small business and specific efforts to encourage such participation when appropriate.\ H.R.Rep. No. 99\u8211718, at 259 (1986). Indeed, Congress intended to assist businesses which, because of their size, could not offer the same low prices as large businesses and understood that this would result in the Government paying higher rates. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\We recognize that the policies of the Small Business Act are to some extent inconsistent with what might be perceived as the primary function of the DLA, to supply the procurement needs of the armed forces at minimum cost.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': (\The [Small Business] Act is based on the premise that [small businesses] are unable to compete effectively in the marketplace and therefore cannot secure government procurement contracts awarded through competitive bidding.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 058 - Management And Training Corporation v United States.doc, Paragraph with 'The Rule of Two': The Small Business Administration is now required to set size standards to \reflect the differing characteristics of the various industries.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 059 - Excel Manufacturing Ltd v United States.doc, Paragraph with 'The Rule of Two': (dismissing a bid protest for lack of standing because the plaintiff was not eligible to compete for the small business set-aside contract at issue in that case). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 059 - Excel Manufacturing Ltd v United States.doc, Paragraph with 'The Rule of Two': might be assumed to require a simple comparison of the labor costs of the prime contractor and the labor costs of all of its subcontractors, both the GAO and the Small Business Administration (SBA) have found that a more comprehensive formula is required to determine compliance with this regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 059 - Excel Manufacturing Ltd v United States.doc, Paragraph with 'The Rule of Two': As a general rule, an agency\rquote s judgment as to whether a small business offeror will comply with the subcontracting limitation is a matter of responsibility, and the contractor\rquote s actual compliance with the provision is a matter of contract administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Karen G. MILLS, Administrator U.S. Small Business Administration, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Construction company and general contractor brought action pursuant to the Administrative Procedure Act (APA), challenging decision of Small Business Administration (SBA) finding that company was not a small business. Plaintiffs moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': , J., held that SBA\rquote s determination that company was not a small business was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Determination by Small Business Administration (SBA) that construction company was not a small business, as required to be part of procurement contract program for \socially and economically disadvantaged small business,\ was arbitrary and capricious in violation of the Administrative Procedure Act (APA); SBA attorney made contrary assumptions among various financial worksheets, SBA did not contact anyone to verify information contained in worksheets, and attorney made mathematical error in calculating revenues. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': This matter is before the Court on Plaintiffs\rquote motion for summary judgment. The plaintiffs, Larry Grant Construction (\LGC\) and Ma\u8211Chis Lower Creek Indian Tribe Enterprises (\LCITE\), seek review of a decision of the Small Business Administration (\SBA\) that LGC is not a small business. Specifically, Plaintiffs claim the SBA acted arbitrarily and capriciously, in violation of the Administrative Procedure Act (APA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': , authorizes the SBA to enter into a procurement contract with the federal government and to subcontract its performance to a \socially and economically disadvantaged small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': at 2\u821127, 29, and must therefore maintain average annual receipts at or below $33.5 million in order to qualify as small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Without the joint venture revenue improperly attributed to it, LCITE argued, its average annual receipts, even combined with LGC\rquote s, fell below the $33.5 million threshold for being deemed a \small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': at 3\u821164. Because it found no error in the determination of affiliation or in the calculation of combined average annual receipts, the OHA issued a final decision affirming that LGC \is not a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': The Court also does not reach Plaintiffs\rquote fourth argument. Because the Court will vacate the SBA\rquote s determination that LGC is a not small business, the question of LCITE\rquote s standing to appeal that determination before the OHA is moot. Nor does the OHA\rquote s holding that LCITE lacked administrative standing call into question the Article III standing of the plaintiffs here, a jurisdictional question the Court must consider Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 061 - Larry Grant Const v Mills.doc, Paragraph with 'The Rule of Two': Properly calculated, Plaintiffs argue, their \combined three-year average of receipts does not exceed the small business size standard of $33.5 million.\ Pls\rquote Mem. at 12. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 066 - Rack And Ballauer Excavating Co Inc v City of Cincinnati.doc, Paragraph with 'The Rule of Two': ) The revised requirement that the bidder participate in an apprenticeship program is not applicable to registered small business enterprises for contracts under $250,000. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 067 - MVS USA Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that a service-disabled veteran-owned small business had standing to challenge its disqualification that resulted from agency-level protest proceedings after it had won an award); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': with the Small Business Administration (\SBA\) regarding Marine Construction\u8217s eligibility to bid on and be awarded the Valiant II Contract and the 270 Package Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The Service-Disabled Veteran Owned Small Business Concern Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The government, recognizing it had done too little to assist service-disabled veterans, began the SDVO SBC Program to promote business between the United States and service-disabled veterans who own small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': note, Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, Government Contracting Programs, 69 Fed. Reg. 25265 (May 5, 2004) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': (\The Veterans Act establishes the Procurement Program for Small Business Concerns Owned and Controlled by Service Disabled Veterans (SDVOSBC), which permits a contracting officer to award contracts on the basis of competition restricted to \u8216small business concerns owned and controlled by service-disabled veterans.\u8217 \ (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The regulations set forth important definitions for the Service-Disabled Veteran-Owned Small Business Concern Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': \u167 125.8(g). Rather than requiring the SBA to certify that a business qualifies as an SDVO SBC prior to bidding, the SBA requires small businesses to self-certify their SDVO SBC status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 69 Fed. Reg. 25265 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': In every contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant which is set aside, reserved, or otherwise classified as intended for award to small business concerns, there shall be a presumption of loss to the United States based on the total amount expended on the contract, subcontract, cooperative agreement, cooperative research and development agreement, or grant whenever it is established that a business concern other than a small business concern willfully sought and received the award by misrepresentation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The following actions shall be deemed affirmative, willful, and intentional certifications of small business size and status: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Submission of a bid or proposal for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement reserved, set aside, or otherwise classified as intended for award to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Submission of a bid or proposal for a Federal grant, contract, subcontract, cooperative agreement, or cooperative research and development agreement which in any way encourages a Federal agency to classify the bid or proposal, if awarded, as an award to a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Registration on any Federal electronic database for the purpose of being considered for award of a Federal grant, contract, subcontract, cooperative agreement, or cooperative research agreement, as a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Each solicitation, bid, or application for a Federal contract, subcontract, or grant shall contain a certification concerning the small business size and status of a business concern seeking the Federal contract, subcontract, or grant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': A certification that a business concern qualifies as a small business concern of the exact size and status claimed by the business concern for purposes of bidding on a Federal contract or subcontract, or applying for a Federal grant, shall contain the signature of an authorized official on the same page on which the certification is contained. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': First, this section was not added to the FCA by the FERA amendments. Instead, the Small Business Jobs Act of 2010 added this section to the end of \Section 3 of the Small Business Act.\ Small Business Jobs Act of 2010, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': As such, it is not immediately apparent that this amendment to the \Definitions\ section of the Small Business Act has any bearing whatsoever on Relator\u8217s causes of action brought under the FCA. Relatedly, the FCA specifically requires a relator to establish a defendant knowingly violated the statute, and includes a definition of knowingly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': other than a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': (emphasis added). This provision simply does not apply when a small business truthfully represents its small size, but misrepresents another aspect of its status. The \[d]eemed certifications\ provision supports this as certain submissions are deemed \certifications of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': small business size and status Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': (emphasis added), and focus on awards to \small business concern(s),\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 69 Fed. Reg. 25265 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': There is no allegation Marine Construction did not qualify as a small business under the applicable regulations. Thus, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 070 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Relator argues it has obtained new evidence\u8212namely, a May 11, 2011 letter from Marine Construction to the Small Business Administration (\SBA\) (the \May 11 Letter\) [ECF No. 173\u82111] stating Aaron Hendry is Hendry Corp.\u8217s indirect owner\u8212which necessitates reconsideration of the April 12 Order. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 073 - MilMar Century Corp v United States.doc, Paragraph with 'The Rule of Two': On March 20, 2012 the Agency issued Solicitation No. W56HZV\u821111\u8211R\u82110171 (the Solicitation or Request for Proposals (RFP)), a 100% small business set aside that sought proposals for a firm fixed-price, three-year Indefinite Delivery/Indefinite Quantity contract for the manufacture and supply of Hippos. Compl. \u182 16, 28. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder brought action against United States, challenging decision of Army Corps of Engineers to set aside a contract for construction of a barge moorage facility at a dam for competition among small business concerns and to award contract to a different bidder. Government moved to dismiss, and parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Corps conducted adequate market research before setting aside contract for small business competition; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder had standing to bring an action challenging decision of Army Corps of Engineers to set aside a contract for construction of a barge moorage facility at a dam for competition among small business concerns; bidder had significant experience in marine construction and had been awarded such work in past, and if it were to succeed on grounds set forth in its complaint, including that no small business firms were capable of meeting contract\rquote s responsibility requirements, it would be free to compete for contract in an open and unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder did not waive its pre-award challenge to decision of Army Corps of Engineers to set aside a contract for construction of a barge moorage facility at a dam for competition among small business concerns, where it filed a protest just one week after Corps issued contract and continued to pursue its position before Government Accountability Office (GAO). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers was not required to evaluate responsibility of small business firms before setting aside a contract for construction of a barge moorage facility at a dam for competition among such firms; Corps was merely required to possess a reasonable expectation that at least two eligible and responsible firms would submit offers and that an award to one of those firms could be made at a fair market price before setting aside contract for small business competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers conducted adequate market research before setting aside a contract for construction of a barge moorage facility at a dam for competition among small business concerns; Corps\rquote small business programs manager attended a number of small business conferences, he discussed possibility of setting aside contract with Small Business Administration (SBA) representatives, he met with 18 small business firms to discuss their marine construction capabilities, and he identified seven firms that would be able to complete a marine construction project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Army Corps of Engineers adequately documented its market research before setting aside a contract for construction of a barge moorage facility at a dam for competition among small business concerns; Corps\rquote small business programs manager corresponded with Small Business Administration (SBA) regarding capability of small firms to perform marine construction, and he e-mailed agency counsel describing steps leading to his decision to set aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Advanced American Construction, Inc. (AAC) filed its pre- and post-award bid protest complaint in this court on October 15, 2012. In its complaint, AAC challenges the decision of the United States Army Corps of Engineers (the Corps or agency) to set aside a contract under Solicitation No. W912EF\u821112\u8211B\u82110022 (the IFB) for competition among 8(a) small business concerns. AAC also challenges the award of that contract to TSS\u8211Garco Joint Venture (TSS\u8211Garco). The subject contract is for the construction of a new barge moorage facility on the north side of the Snake River at Lower Granite Dam near Pomeroy, Washington. Defendant has agreed to stay performance of the contract until the court resolves this protest on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 13. Because most of AAC\rquote s challenges to the procurement are based on the agency\rquote s decision to offer the contract to the Small Business Administration (SBA) as an 8(a) set-aside, the court\rquote s recitation of the facts in this case are focused primarily on events that occurred before the IFB was issued by the Corps. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': In 1978, Congress amended the Small Business Act to establish the 8(a) business development program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': which then subcontracts the requirements of that contract to small business concerns owned and controlled by socially and economically disadvantaged individuals, otherwise known as 8(a) firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Under the Small Business Act, the president is required to establish goals for the percentage of procurement contracts awarded to various types of small business concerns in each year. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Individual agencies are also required to establish their own contracting goals, which are to represent \the maximum practicable opportunity for small business concerns, small business concerns owned and controlled by service-disabled veterans [SDVOSBs], qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': competition among 8(a) firms began to take shape in April 2012. Initially, Scott Beckstrand, the small business programs manager for the Walla Walla District of the Corps, planned to set aside the project for SDVOSBs. AR at 860. Following a veterans\rquote business conference in April 2012, however, Mr. Beckstrand determined that there would not be sufficient competition among SDVOSBs to ensure price reasonableness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': For that reason, Mr. Beckstrand elected to pursue an 8(a) small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': On or about May 14, 2012, the contracting officer for this procurement e-mailed the statement of work for the proposed project to Mr. Beckstrand, who was then attending a conference with representatives from the SBA. AR at 940. During outreach meetings and in his office, Mr. Beckstrand met with no fewer than eighteen 8(a) firms and other small businesses to discuss their ability to perform complex marine construction projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': establish competitive prejudice, and therefore does not have standing in this case, for three different reasons. First, defendant asserts that even if the Corps had not offered the contract to the SBA for inclusion in the 8(a) program, it would have been required to set the contract aside for small businesses under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': [t]he contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ...; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': . Defendant argues that because the government had a reasonable expectation that two or more small businesses would submit bids on the contract if the agency were to remove the procurement from the 8(a) program, it had no discretion to allow large businesses, such as plaintiff, to compete for the contract in an unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Defendant notes that the SBA identified thirteen qualified 8(a) firms in connection with this procurement, and that the agency determined through its own independent research that at least seven such firms were capable of performing the work contemplated under the contract. Further, defendant notes that two small businesses submitted bids on the McNary Juvenile Fish Bypass Outfall Pipe Relocation Project (McNary Project), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Because its market research has identified at least two responsible small business concerns, defendant argues that the removal of the protested procurement from the 8(a) program would result in a competition among small businesses\u8212a competition for which plaintiff would be ineligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Further, if AAC were to succeed on all of the grounds set forth in its complaint, including plaintiff\rquote s contention that no 8(a) firms or other small businesses were capable of meeting the IFB\rquote s responsibility requirements, then plaintiff would be free to compete for the contract in an open and unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': ) (holding that a non\u82118(a) small business had standing to challenge the government\rquote s decision to set aside a contract for competition among 8(a) firms alone because it would be able to compete for the contract in any subsequent open or small-business competition). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': The court first notes that the Small Business Act \affords the SBA and contracting agencies broad discretion in selecting procurements for entry to the 8(a) program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Based on the responses to that notice, the agency determined that only one such firm was qualified and offered the contract to the SBA for award on a sole-source basis. The SBA subsequently provided the agency with the name of a second 8(a) firm and therefore, the agency elected to proceed with a competition restricted to 8(a) small businesses. The incumbent contractor, a non\u82118(a) small business, argued that neither the information requested in the \u8216sources sought notice,\u8217 nor the information received in response to that notice, was sufficient to determine whether there were two or more 8(a) firms capable of performing the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Here, Mr. Beckstrand attended a number of small business conferences; he discussed the possibility of setting aside the project for 8(a) participation with SBA representatives; he met with eighteen 8(a) firms and other small businesses to discuss their marine construction capabilities; he identified seven 8(a) firms that would be able to complete a marine construction project; he obtained the names of thirteen qualified 8(a) firms from SBA representatives in Seattle and Boise; and he performed further research on those firms. Plaintiff argues that the facts in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act defines socially disadvantaged individuals as \those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': There is a distinction between 8(a) small business concerns and small businesses. While all 8(a) firms are small businesses, not all small businesses are certified 8(a) firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'The Rule of Two': Def.\rquote s Reply at 11 (citing AR at 942, 977, 986). In addition, three non\u82118(a) small businesses attended site visits for one or both of those projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 081 - Chameleon Integrated Services Inc v United States.doc, Paragraph with 'The Rule of Two': Further, \STARS II is established under the authority of the Small Business Act,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 081 - Chameleon Integrated Services Inc v United States.doc, Paragraph with 'The Rule of Two': 15 U.S.C. \u167 637(a) (2006). STARS II is thus exclusive to \Small Business Administration (SBA) certified 8(a) prime contractors with competitive prices.\ STARS II Contract \u167 I.1.1. There are over 500 companies currently holding a STARS II contract with GSA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 082 - MG Altus Apache Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue certificate of competency after considering adverse past performance on prior contract occurring roughly five years prior to the decision, among other factors); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 082 - MG Altus Apache Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor with an unsatisfactory safety record, despite contractor\rquote s ongoing corrective action); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 082 - MG Altus Apache Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor based in part on contractor\rquote s \unsatisfactory performance record in the past on the same type of contract,\ despite contractor\rquote s attempts to increase capacity and hire new technical qualified personnel). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': Service Disabled Veteran Owned Small Business Network,..., 110 Fed.Cl. 664 (2013) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': SERVICE DISABLED VETERAN OWNED SMALL BUSINESS NETWORK, INC., Plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': Plaintiff, Service Disabled Veteran Owned Small Business Network, Inc. (\the Network\), is a non-profit organization aimed at \assisting veterans through the maze of paperwork, individuals, and agencies necessary for them to reach their goal of being a self-sufficient business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': . Am. Cmpl. at \u182 1. The Act mandates that the VA restrict competition \to small business concerns owned and controlled by veterans if the contracting officer has a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': that two or more small business concerns owned and controlled by veterans will submit offers ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'The Rule of Two': The GAO believed this research was necessary for the VA contracting officers to know if a reasonable expectation that two or more service-disabled veteran-owned small businesses would submit qualifying offers was appropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 090 - CS McCrossan Const Inc v Minnesota Dept of Transp.doc, Paragraph with 'The Rule of Two': A disadvantaged business enterprise or DBE is a \for-profit small business concern [t]hat is at least 51 percent owned by one or more individuals who are both socially and economically disadvantaged\ or \[w]hose management and daily business operations are controlled by one or more of the socially and economically disadvantaged individuals who own it.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed pre-award bid protest, challenging determination by Department of Veterans Affairs (VA) that bidder did not satisfy status requirements of veteran-owned small business (VOSB) under Veterans Benefits, Health Care, and Information Technology Act and seeking restoration of its eligibility for contract awards under veterans first contracting program that gave priority to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Preference given to qualified veteran-owned and -controlled small business concerns pursuant to Veterans Benefits, Health Care, and Information Technology Act applies only to procurements by Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Determination by Department of Veterans Affairs (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) disqualifying bidder as veteran-owned small business (VOSB) eligible to participate in veterans first contracting program was arbitrary and capricious, and not in accordance with VA\rquote s regulations; OSDBU improperly relied upon residence of bidder\rquote s majority shareholder as determinative factor of \control,\ even though residency was not identified as element by regulation, and did not address those factors identified as being relevant to control, or take into consideration methods of communication, such as telephone, e-mail, and other electronic means, by which majority shareholder maintained control, even while residing in another state. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Bidder that erroneously was found by Department of Veterans Affairs not to satisfy status requirements of veteran-owned small business (VOSB) under Veterans Benefits, Health Care, and Information Technology Act demonstrated prejudice sufficient to prevail in its bid protest, in that it was awarded task order as VOSB and, upon revocation of its status as VOSB, was disqualified from veterans first contracting program and lost opportunity to bid on other contracts and task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Permanent injunction requiring Department of Veterans Affairs (VA) to restore bidder to database as veteran-owned small business (VOSB) eligible for participation in veterans first contracting program was warranted; bidder succeeded on merits of its protest challenging VA\rquote s decision rendering it ineligible for contract awards as VOSB and demonstrated that revocation of its status as VOSB was irreparable harm, setting aside erroneous determination of bidder\rquote s eligibility would eliminate arbitrary and capricious precedent and serve purpose of veterans first set-aside program, and public\rquote s strong interest in fair and competitive procurement process was best served by ensuring that government complied with procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Pre-award bid protest; challenge to agency\rquote s disqualification of veteran-owned small business from participating in VA\rquote s Veterans First Contracting Program; application of \control\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': the administrative record and the government\rquote s cross-motion for judgment. On February 7, 2012, plaintiff, KWV, Inc. (\KWV\) was certified for inclusion on the list of qualified veteran-owned small businesses (\VOSBs\) eligible to participate in the Veteran\rquote s First Contracting Program. This program designates VOSBs and service-disabled veteran-owned small businesses (\SDVOSBs\) as priority bidders for certain contracting opportunities. After the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) qualified KWV for listing in 2012, KWV bid on and ostensibly won an award of a contract as a VOSB. Thereafter, a losing bidder lodged a protest against KWV\rquote s qualifications, which protest resulted in an evaluation by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\). OSDBU ultimately issued a decision in favor of the protestor, holding that KWV \d[id] not meet the status requirements of a SDVOSB [sic] concern,\ and that it was ineligible for the challenged award and future awards under the Veterans First Contracting Program. AR 570 (Letter from Thomas Leney to James Maron (Oct. 24, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': AR 508\u821109; AR 513. That Act requires the Secretary of Veterans Affairs to \give priority to a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': (governing VOSB status protests) and 38 C.F.R. Part 74 (VA\rquote s \Veterans Small Business Regulations\) amounts to a violation of its own procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed. Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'The Rule of Two': As to law, OSDBU cites a decision by the Small Business Administration\rquote s (\SBA\rquote s\) Office of Hearings and Appeals (\OHA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 093 - Quest Diagnostics Inc v United States.doc, Paragraph with 'The Rule of Two': For Past and Present Performance, Quest was rated as [redacted] and LabCorp as [redacted]. AR 2384. MEDCOM scored both offerors [redacted] for Small Business and Disadvantaged Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 096 - Insight Systems Corp v United States.doc, Paragraph with 'The Rule of Two': On June 8, 2012, USAID issued Request for Quotation (RFQ) No. SOL\u82110AA\u8211000068 \seeking quotes for services in support of [USAID\rquote s Bureau of] Global Health Support Services.\ The RFQ anticipated the award of a task order under the General Service Administration\rquote s Federal Supply Schedule to a company eligible under GSA\rquote s FSS 874 for Mission Oriented Business Integrated Systems (MOBIS). The procurement was also a total setaside for small businesses participating in the Small Business Administration\rquote s Section 8(a) Disadvantaged Business Development program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 098 - Norsat International [America] Inc v United States.doc, Paragraph with 'The Rule of Two': In the absence of contrary language in the solicitation for contract for continued development and maintenance of Defense Video and Imagery Distribution System (DVIDS), the decision of the United States Department of the Army not to credit offeror\rquote s intent to increase future small business participation, as part of its Small Business Participation evaluation, had no bearing on propriety of Army\rquote s technical evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 098 - Norsat International [America] Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation stated that award would be based on \the best overall (i.e. best value) proposal that is determined to be the most beneficial to the Government, with appropriate consideration given to four evaluation factors: (1) Technical, (2) Past Performance, (3) Price, and (4) Small Business Participation.\ AR 54. The Technical factor was to be the most significant evaluation factor, followed by Past Performance, Price, and Small Business Participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 098 - Norsat International [America] Inc v United States.doc, Paragraph with 'The Rule of Two': Both Norsat and Encompass received the same scores for their Past Performance (Substantial Confidence) and Small Business (Marginal) proposals. The SSA stated that she had reviewed multiple Past Performance questionnaires submitted for each proposal, as well as information in the government\rquote s Past Performance Information Referral System (\PPIRS\). The SSA noted that both Norsat and Encompass had \received a number of favorable comments from respondents ... and in the PPIRS. There was no indication in the past performance assessments that would bring into question an award to either offeror.\ AR 1356. The SSA concluded that, \[i]t is my position that there is substantial confidence that either offeror ... can successfully perform the requirements of the solicitation.\ AR 1356. In addition, both proposals received a \Marginal\ rating for the Small Business Participation factor because \their proposed small business participation percentages fell significantly below the 13% goal (8.1% for [Encompass]; and 6.7% for [Norsat] ).\ AR 1356. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 098 - Norsat International [America] Inc v United States.doc, Paragraph with 'The Rule of Two': Norsat does not challenge either the Small Business Participation or the Past Performance factors as part of this litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 098 - Norsat International [America] Inc v United States.doc, Paragraph with 'The Rule of Two': The court also rejects the plaintiff\rquote s argument that the government treated the offerors unequally when it accepted Encompass\rquote s proposal to hire help desk staff after award, but refused to give Norsat credit for its plan to increase small business participation after award. In the absence of contrary language in the solicitation, the Army\rquote s decision not to credit\u8211as part of the Small Business Participation evaluation\u8211an offeror\rquote s intent to increase future small business participation has no bearing on the propriety of the Army\rquote s Technical evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Paragraph with 'The Rule of Two': Association of general contractors lacked standing to bring \u167 1983 challenge to California Department of Transportation\rquote s (Caltrans\u8217) Disadvantaged Business Enterprise (DBE) program, as it could not show that its members would otherwise have standing to sue in their own right; it did not identify any affected members by name and had not submitted declarations by any of its members attesting to harm they had suffered or would suffer under Caltrans\rquote program. Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2(8), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 099 - Associated General Contractors of America San Diego Chapter Inc v Californ.doc, Paragraph with 'The Rule of Two': The regulations define \disadvantaged business enterprises\ as small businesses owned or controlled by \socially and economically disadvantaged\ individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': \u182 4). Two days later, the Coast Guard referred ETSC\u8217s Bid Protest to the Small Business Administration (\SBA\), and on October 26, 2010, the SBA dismissed the bid protest for lack of specificity under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 002 - State of North Carolina Business Enterprises Program v United States.doc, Paragraph with 'The Rule of Two': Solicitation\rquote s maximum quantity figures and minimum purchase guarantee applicable to initial one-year base ordering period for contract to provide full food services at military facility did not violate regulation requiring contracting officer to ensure that delivery schedules were established on realistic basis that would encourage small business participation; assuming that guarantee and maximum quantity figures were comprehended by term \delivery schedule,\ they were not intended to be estimates, so it made no sense to require them to be realistic for estimating Army\rquote s probable needs, and, instead, guarantee represented minimum amount that Army guaranteed would be paid, and maximum quantity figures represented maximum number of meals authorized to be purchased. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 002 - State of North Carolina Business Enterprises Program v United States.doc, Paragraph with 'The Rule of Two': On June 5, 2012, the Army issued Solicitation W91247\u821112\u8211R\u82110019 (the \Solicitation\) for full food services at Fort Bragg. The Solicitation was set aside for Historically Underutilized Business Zone (\HUBZone\) small business concerns with a priority afforded to plaintiffs pursuant to the Randolph\u8211Sheppard Act. The Solicitation contemplated the award of a contract for an initial one-year base period and four options for a total potential contract duration of five years. AR 207. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 002 - State of North Carolina Business Enterprises Program v United States.doc, Paragraph with 'The Rule of Two': Amend. Compl. \u182\u182 113\u821126; Pls.\rquote Mot. at 42\u821145, which provides that a contracting officer shall \[e]nsure that delivery schedules are established on a realistic basis that will encourage small business participation to the extent consistent with the actual requirements of the Government.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed pre-award bid protest seeking declaratory and injunctive relief preventing National Aeronautics and Space Administration (NASA) from issuing small business set-aside solicitation to obtain research facilities and engineering support services (RF & ESS) under any North American Industry Classification Series (NAICS) code except code governing research and development (R&D) and requiring Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) to reverse its decision rejecting that NAICS code and substituting another NAICS code for solicitation. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s (CO) initial designation of North American Industry Classification Series (NAICS) code for solicitation issued by National Aeronautics and Space Administration (NASA), and Small Business Administration\rquote s (SBA) Office of Hearings and Appeals\rquote (OHA) decision rejecting CO\rquote s code designation, were both in connection with proposed ongoing procurement, as required for Tucker Act jurisdiction over incumbent contractor\rquote s pre-award bid protest challenging OHA\rquote s decision that allegedly violated SBA\rquote s regulations governing OHA\rquote s standard of review for NAICS code appeals and selection of NAICS codes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor performing under predecessor contract awarded by National Aeronautics and Space Administration (NASA) and designated under North American Industry Classification Series (NAICS) code governing research and development (R&D) was interested party, under Tucker Act, as required for standing to pursue pre-award bid protest challenging Small Business Administration\rquote s (SBA) Office of Hearings and Appeals\rquote (OHA) decision rejecting that NAICS code for successor contract, since contractor was prospective bidder with direct economic interest in procurement, and was prejudiced by alleged procurement errors, as contractor had substantial chance of receiving award but for OHA\rquote s decision to reclassify NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In reviewing a determination by Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA), special deference is shown, because of the SBA\rquote s quasi-technical administrative expertise and familiarity with the situation acquired by long experience with the intricacies inherent in a comprehensive regulatory scheme; however, deference to OHA\rquote s decision is contingent upon an offering by the agency of a reasoned explanation for its decision which is in accord with material facts contained in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) Office of Hearings and Appeals\rquote (OHA) decision rejecting contracting officer\rquote s (CO) initial designation of North American Industry Classification Series (NAICS) code, governing research and development (R&D), was reasonable, for solicitation issued by National Aeronautics and Space Administration (NASA), since OHA determined that solicitation did not anticipate creation of new processes or products, which was essential element of R&D, and did not anticipate that contractor would perform work that was integral part of NASA\rquote s R&D or directly or independently perform R&D tasks, but rather, principal services required by solicitation were engineering, operations, and computer support services that were largely excluded from regulatory definition of R&D. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Even if the Court of Federal Claims would have reached a different procurement conclusion than the Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA), the court may not reverse; the court may not substitute its judgment for that of the OHA judge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) Office of Hearings and Appeals\rquote (OHA) decision to substitute North American Industry Classification Series (NAICS) code, governing computer facilities management services, upon rejecting contracting officer\rquote s (CO) initial designation of NAICS code governing research and development (R&D), was reasonable, for solicitation issued by National Aeronautics and Space Administration (NASA), since OHA concluded that services described by substituted NAICS code fit large portion of services required by solicitation, selected NAICS code did not need to be perfect fit to every facet of solicitation, and off-site work was only possibility with respect to limited tasks defined in solicitation that otherwise contemplated broad range of work to be performed onsite. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': On May 15, 2012, NASA issued Solicitation NND12374119R (the \Solicitation\). AR Tab 69 at 2358\u82113099. The Solicitation was designated as a 100% set-aside for small business under NAICS Code 541712, encompassing the Small Business Administration\rquote s (\SBA\) size standard designation under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': B. Proceedings Before The Small Business Administration\rquote s Office Of Hearings And Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 56 at 1799, 1805\u821107. After evaluating the received statements, the CO determined that \there is reasonable expectation that offers could be obtained from two or more small businesses at fair market prices.... Solicitation NND12374119R will remain a small business set aside under NAICS Code 541513.\ AR Tab 56 at 1803. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': On November 15, 2012, NASA announced plans to issue an amended RF & ESS Solicitation as a \total small business set-aside,\ pursuant to NAICS Code 541513, with a size standard of $25.5 million in annual revenue. AR Tab 7 at 248. NASA anticipated December 15, 2012 as the release date, with an offer due date on or about February 15, 2013. AR Tab 7 at 248. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR Tab 65 at 2384 (Arcata\rquote s Aug. 24, 2012 Capability Statement, acknowledging that \Arcata is not defined as a small business under NAICS code 541513\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . Instead, \deference is accorded to the Congressional policies underlying the Small Business Act, and [the OHA\rquote s] final determinations.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 005 - Arcata Associates Inc v United States.doc, Paragraph with 'The Rule of Two': \two or more businesses that would constitute small businesses under NAICS [C]ode 541513, that were capable, such that the [Solicitation] could remain as a small business set-aside.\ Gov\rquote t Mot. JAR at 33\u821134 (citing AR Tab 56 at 1803; AR Tab 7 at 248). Therefore, the Government asserts that the fact that such businesses, meeting the size standard in NAICS Code 541513 and also capable of performing the work described in the Solicitation, exist is \further proof that [OHA]\rquote s determination was reasonable.\ Gov\rquote t Mot. JAR at 34. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 013 - G4S TECHNOLOGY CW LLC v United States.doc, Paragraph with 'The Rule of Two': (\ILS\); Factor 3, Past Performance; Factor 4, Small Business Plan; and Factor 5, Price. AR 624. The solicitation provided that the first four factors are \significantly more important\ than the fifth factor, price. Id. It further noted that price will become more important as the factors \become more equal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 013 - G4S TECHNOLOGY CW LLC v United States.doc, Paragraph with 'The Rule of Two': The agency rated the Management, ILS, and Small Business Plan factors ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': . Portion 1 was solicited on an Unrestricted basis for 50% of the total annual estimated quantity. AR 65\u821166. Portion 2 was also solicited on an Unrestricted basis, and represented 30% of the quantity, and Portion 3 was solicited as a small business set-aside for the remaining 20% of the total quantity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': The Experience sub-factor asked offerors to describe the extent of their experience producing the same or similar item(s), including information such as contract and order numbers, dates, points of contact, total quantities, and quantities shipped per month. AR 102. The Quality of Items/Delivery Performance sub-factor required offerors to elaborate on the contracts identified in response to sub-factor (a), and provide a description of the quality of items delivered, an explanation for any quality issues that arose, whether items were delivered on time, and any explanation for late deliveries. AR 102\u821103. The final sub-factor, Compliance with Contractual Socioeconomic Subcontracting/Mentoring Goals, required a description of compliance with goals for subcontracting to various small business concerns, and compared planned performance and actual performance by business category. AR 103. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': The final and least important factor, Socioeconomic Support, was not evaluated with ratings, but the proposals were to be ranked on a comparative basis among other offerors. AR 110, 112. This factor favored offerors who proposed a higher percentage and variety of participation by small, small disadvantaged and women-owned small businesses. AR 110. The solicitation further noted that \[a]n overall comparative assessment w[ould] then be made taking into account all technical evaluation factors and price to determine the source that represents the best value to the Government.\ AR 112. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': In its revised Past Performance/Experience submission, Plasan included its Small Business Program Goals for 2012, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': (plaintiff was not an \interested party\ because it had no chance, much less a substantial chance, of award since it was not a small business on a small business set aside contract, and there remained a qualified bidder in competitive range). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': Plasan also extends its protest to the third sub-factor of Past Performance, Compliance with Contractual Socioeconomic Subcontracting/Mentoring Goals. Plaintiff argues that DLA improperly found BAE\rquote s compliance \[* * *]\ when in fact it did not meet its subcontracting goals for any of the three contracts under consideration. Pl.\rquote s MJAR 19. Plasan maintains that DLA failed to appropriately credit it with new information relating to its own small business contracting record, after it submitted additional contracts Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': with impressive small business contracting records. Pl.\rquote s MJAR 23; AR 312. The Government responds that both ratings were reasonable and consistent with the solicitation\rquote s [* * *] rating, in that both BAE and Plasan demonstrated compliance with this factor. Def.\rquote s MJAR 28\u821130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': The SSA determined that although BAE did not meet its goals on the past contracts evaluated, it came very close on one, contracted to HUBZone and Veteran Owned Small Businesses on another, and showed significant efforts on a third contract, on which work was just beginning. AR 289\u821190. It therefore rated BAE as [* * *]. AR 290. With regard to Plasan, the SSA found that [* * *] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': This sub-factor was a comparison, which examined planned performance alongside actual performance by business category. AR 103. Given the evidence of both companies\rquote experience subcontracting to small businesses, it was rational for the SSA to find BAE and Plasan each warranted [* * *] ratings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': The solicitation also included a Portion 4 to be awarded on an Unrestricted basis, in the event an award for Portion 3 could not be made to a small business concern. AR 71\u821172. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'The Rule of Two': Plasan only provided Small Business Program Goals for 2012 and the actual percentages subcontracted. AR 225\u821127. It did not include its goals for subcontracting during the period of the referenced contracts in its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 018 - NCL Logistics Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue certificate of competency after considering adverse past performance on prior contract occurring roughly five years prior to the decision, among other factors); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 018 - NCL Logistics Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor with an unsatisfactory safety record, despite contractor\rquote s ongoing corrective action); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 018 - NCL Logistics Company v United States.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor based in part on contractor\rquote s \unsatisfactory performance record in the past on the same type of contract,\ despite contractor\rquote s attempts to increase capacity and hire new technical qualified personnel). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor brought pre-solicitation bid protest, challenging decision of Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside, for which contractor, due to small business size limitations, could not compete. Parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': contract\rquote s designation as small business set-aside did not violate Workforce Investment Act (WIA); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': decision to set-aside contract was not arbitrary or capricious despite possibility of pattern of set-asides made in reliance on expressions of interest from relatively limited pool of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Pursuant to Tucker Act, Court of Federal Claims had subject matter jurisdiction over claims in which incumbent contractor challenged decision of Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside in follow-on procurement, in that agency\rquote s decision to designate contract as small business set-aside was made in connection with proposed procurement, and contractor alleged that decision was made in violation of applicable statutes and regulations and was arbitrary and capricious. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor, which was also prospective bidder, was interested party with standing to assert pre-solicitation bid protest challenging decision of Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside, which prevented contractor from competing for contract, such that contractor\rquote s direct economic interest would be affected by award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Procurements set aside for small businesses were competitive, even though competition was limited, and therefore decision by Department of Labor (DOL) to designate contract for operation of job training facility as small business set-aside did not violate provision of Workforce Investment Act (WIA) requiring that selection of contractors to operate such facilities be made on competitive basis, particularly given that statute\rquote s list of eligible entities was simply that, and did not dictate that every procurement be open to all types of entities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to provision of Small Business Act addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility, where contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Under \rule of two\ regulation, which requires contracting officer to set aside any acquisition over $150,000 for small business participation when there is reasonable expectation that offers will be obtained from at least two responsible small business concerns and award will be made at fair market price, particular companies that respond to request for information (RFI) need not actually be determined responsible; rather, test is simply whether it appears likely that, when solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Whether to set aside a solicitation for small businesses under \rule of two\ regulation is a matter of business judgment within the contracting officer\rquote s discretion, and the law does not require any particular method for making determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer need not make affirmative determinations of responsibility, but need only have a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns, and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': It is not required or practical for contracting officer to conduct full responsibility evaluation at stage of procurement process at which determination of whether solicitation should be set aside for small businesses is made; rather, contracting officer need only reasonably expect that likely offerors will be capable of surviving future responsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s decision to set-aside for small businesses contract for operation of job training facility was not arbitrary or capricious, notwithstanding possibility of pattern of set-asides made in reliance on expressions of interest from relatively limited pool of small businesses, given mechanisms available to address problems, including contracting officer\rquote s ability to withdraw set-aside and resolicit bids on unrestricted basis if there were no acceptable offers from responsible small businesses, contracting officer\rquote s discretion to withhold award if only one offer was received from responsible business in response to set-aside, and government\rquote s ability to negotiate fair price if proposals received did not initially reflect fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Job Corps Centers; Small Business Set\u8211Asides; Statutory Construction; Rule of Two; Fair Proportion Analysis; Workforce Investment Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': This is a pre-solicitation protest of the Department of Labor\rquote s (\DOL\) decision to designate the contract for operation of the Shriver Job Corps Center (\Shriver\) as a small business set-aside. Plaintiff, Adams and Associates, Inc., (\Adams\) is the incumbent contractor. Because of the small business size limitations placed on the follow-on procurement, Adams will be precluded from competing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': the issue has been complicated for three reasons. First, the decision to set aside the procurement for small businesses, although nominally ordered by Edmond Thomas Pendleton, the Contracting Officer for the Shriver center, was at a minimum done in close coordination with Jillian Matz, the Division Chief for the Division of Job Corps Procurement in the Office of Contracts Management (\OCM\), which is within the Education and Training Administration at the Department of Labor (\ETA DOL\). The initial record produced by the government was limited to what Mr. Pendleton had before him. Second, the decision to set aside the Shriver center arose from the sources sought notice (also known as a Request for Information or RFI) for five centers; i.e., not just the Shriver center. Third, plaintiff\rquote s challenge to the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': determination, which set aside operation of the Shriver center for small businesses only, includes the argument that it was irrational because the decision-makers (Ms. Matz at the headquarters level) knew two relevant things not reflected in the record: that there were dozens of other job center operation contracts around the country being solicited contemporaneously; and second, that there were no more than a handful of small businesses capable of performing the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In short, from plaintiff\rquote s perspective, the administrative record should include everything that Ms. Matz and others at the headquarters level knew about all Job Corps Center contracts being solicited and the numbers of small businesses either responding to RFI\rquote s or to solicitations, or awarded contracts. We declined to order that level of supplementation, although we did order defendant to furnish all of the material generated in connection with the RFI that included the Shriver center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Pendleton Decl. \u182 6. Plaintiff included the Outcome Measurement System data in its appendix because, it alleges, the data demonstrates the flawed record that small businesses have accumulated in operating Job Corps Centers. While all of this information was available to Mr. Pendleton and Mr. Daitoku, they did not consider it in making the set-aside decision for Shriver. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In other words, if plaintiff is correct, for example, that it is relevant that the Gadsden material shows both the same small businesses appearing in response to that solicitation and that different standards were used by the agency for applying the Rule of Two test, then we would have to consider ordering the agency to supplement the existing administrative record. If, on the other hand, it would make no difference whether expanding the administrative record showed that there is a small pool of interested small businesses or that the use of a different standard for evaluating small businesses was used for a different procurement, then the absence of the material in the administrative record is also irrelevant. We will rule on whether plaintiff\rquote s appended material should be properly part of the administrative record when we evaluate whether it would be outcome determinative to the Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Before issuing a formal solicitation for a new contract, the Department of Labor Employment and Training Administration, through its Office of Contracts Management, published a Sources Sought Notice for Request for Information DOL121RI20504 (\sources sought notice\) on April 26, 2012. AR 1. The purpose of a sources sought notice is to conduct market research regarding the businesses, specifically small businesses, that operate in a particular industry and that might be willing to compete for the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Using the already established NAICS codes, the Small Business Administration (\SBA\) then imposes its own limitation on size and revenue to determine which entities can be considered \small\ within any industry category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . Respondents to either a RFI or later to a solicitation indicate whether they should be considered small businesses in light of the particular dollar limits for the job category identified by the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': By selecting NAICS code 611519 (the only one applicable to Job Corps Centers) the agency dictated the small business revenue limit associated with that code, which was no more than $35.5 million in annual receipts. AR 3; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . Therefore, if the contract for the operation of Shriver were designated for small businesses only, any business with more than $35.5 million in annual receipts would be unable to qualify. Adams has receipts in excess of $35.5 million and thus would be ineligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': type with an incentive fee. AR 3. The services sought included \educational and career technical skills training,\ operating the residential facility, providing meals and supervision for the residents, job placement and development, health services, career transition support services, community outreach, recruitment, and center oversight and management. AR 4. Although the sources sought notice was not limited to small businesses, ETA encouraged \ALL QUALIFIED SMALL BUSINESSES INCLUDING 8(A) FIRMS ... TO PARTICIPATE.\ AR 3. The notice directed each interested business to submit a capability statement to Mr. Daitoku, Procurement Analyst with the Office of Contracts Management DOL, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 5\u82116. OCM reserved \the right to compete any acquisition resulting from this survey among small businesses or to make award to an 8(a) firm, based on the responses received.\ AR 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': OCM received capability statements from six businesses in response to the sources sought notice that included Shriver. AR 19. Not all of the businesses that responded were small. The number of small businesses currently operating Job Corps Centers is limited. As of September 18, 2012, there were four independent small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': and five subsidiary small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': 16 out of 125 Job Corps Centers. AR 812\u821117. There are two other companies, Education and Training Resources and Horizons Youth Services, that operate Job Corps Centers under contracts that were small business set-asides but have outgrown the small business designation. AR 814. The following chart shows the size classification of each business that responded and the Job Corps Centers in which it was interested: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 91, 186, 211. As the chart shows, there were four responses from small businesses expressing interest in Shriver. AR 91. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': After Mr. Daitoku received the responses, a determination memorandum addressing all five centers was generated in OCM. AR 91. Additionally, a DL1\u82112004 form was created for each center, which contained information about the originating agency (OCM), the contract value and period of performance, whether the procurement will be conducted as a set-aside, the NAICS code and small business size standard, past procurement history, and a section in which DOL\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) Representative may state whether he or she concurs with the chosen procurement method. AR 68. On June 1, 2012, Mr. Daitoku e-mailed this memo, an analysis chart, and a partially completed DL1\u82112004 form for each of the five Job Corps Centers to Ms. Matz, Division Chief for the Division of Job Corps Procurement, and Regional Contracting Officers Mr. Pendleton and Sheryl Algee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Based on the capability statements received pertaining to Shriver, Mr. Pendleton determined that [ ], [ ], and [ ] were unable to perform the contract. AR 72. According to Mr. Pendleton, [ ] did not possess adequate financial resources to operate a Job Corps Center with additional service components, like Shriver. AR 72. Mr. Pendleton did not find [ ] responsible because \it was unclear from the capability statement provided by [ ] whether the company possessed all 14 of the required capabilities.\ AR 72. Lastly, [ ] did not address all fourteen criteria in its response and Mr. Pendleton was thus unable to discern whether it was a responsible entity with sufficient financial resources to operate a center. AR 72. He did, however, deem the remaining small businesses, [ ] and [ ], potentially responsible to perform the contract under all fourteen capability requirements. AR 73. In his analysis, Mr. Pendleton noted that the two small businesses deemed responsible either currently operate or have recently operated a Job Corps Center, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': and he therefore \anticipated that similar small businesses will provide a competitive proposal that is based on fair market price.\ AR 73. Thus, Mr. Pendleton concluded that both requirements for setting aside the contract for a small business pursuant to FAR part 19.502\u82112 had been met. AR 73. On September 7, 2012, the DL1\u82112004 form was completed by signatures from the Contracting Officer, Mr. Pendleton, as well as by a representative from the OSDBU. Operation of the Shriver center was designated as a 100 percent small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 73. OCM issued a pre-solicitation notice on October 16, 2012, announcing to the public that it anticipated issuing the solicitation for Shriver on October 31, 2012, as a 100 percent small business set-aside. AR 92, 94. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff filed its complaint here on October 26, 2012. It sought a preliminary injunction to prevent the agency from issuing a solicitation for operation of the Shriver center, which we denied. The solicitation, DOL 12QA20003, went forward as a small business set-aside on December 14, 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': before a procurement may be set aside for small businesses, the procuring agency, in this case DOL acting through Mr. Pendleton, had to make a preliminary determination pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': \), that a \fair proportion\ of work in that industry category should be set aside for small businesses. Plaintiff contends that the set-aside is fatally flawed because that determination was not made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that the agency\rquote s small business set-aside decision, based on application of the Rule of Two determination called for by FAR part 19.502\u82112(b), constituted a violation of the Workforce Investment Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (\WIA\) (amending various sections codified throughout Title 29). It asserts that any set-aside for small business would violate the larger concerns for open competition mandated by WIA. Finally, plaintiff argues that, even if FAR part 19.502\u82112(b) is not incompatible with WIA, its application here was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . DOL ETA\rquote s decision to designate the contract as a small business set-aside is made \in connection with\ a proposed procurement, and plaintiff alleges that the decision was made in violation of applicable statute and regulations and was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': could rephrase the argument or perhaps add to it ourselves: if the fair proportion determination is purely one of \policy,\ then there are no judicially enforceable means to evaluate a \proper\ determination. We could not order a remedy that the court could meaningfully evaluate or enforce. These considerations admittedly provide support for defendant\rquote s argument that there is no judicially enforceable remedy. Nevertheless, determining whether this assumption is correct requires some examination of the broad framework that has evolved in the last sixty years for introducing small business preferences into the procurement apparatus for executive agencies. We have jurisdiction to conduct this examination and, therefore, we decline to dismiss plaintiff\rquote s fair proportion claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (2006 & Supp. V 2011). Plaintiff contends that the phrase \competitive basis\ means \full and open competition,\ i.e., open to large as well as small businesses. We recently rejected that argument in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . We concluded that, although setting aside a procurement only for a small businesses does limit competition, it is not a non-competitive process. We held that, \small business set asides are competitive.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (2006 & Supp. V 2011) is just that: a list of entities eligible to be chosen to operate a Job Corps Center. As defendant points out, there is nothing in the list which dictates that every procurement should be open to all types of entities. We note, moreover, that Congress specifically adopted preferential procurement programs for small businesses in order to promote competition: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': is found in Title 15 (Commerce), Chapter 14a (Aid to Small Business): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': awarded any contract for the sale of Government property, as to which it is determined by the Administration and the contracting procurement or disposal agency ... (3) to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small business concerns.... These determinations may be made for individual awards or contracts or for classes of awards or contracts.... For purposes of clause (3) of the first sentence of this subsection, an industry category is a discrete group of similar goods and services. Such groups shall be determined by the Administration in accordance with the definition of a \United States industry\ under the North American Industry Classification System [NAICS], as established by the Office of Management and Budget.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (a) The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (2) Assuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). Plaintiff envisions that prior to any procurement process in any executive agency, the contracting officer would consult with a representative from the OSDBU and consider the current level of small business participation within the industry category and the capacity of those small businesses to take on new contracts prior to determining whether setting aside a particular contract would be in the interest of assuring a fair proportion. Depending on the outcome, this analysis presumably could render application of the Rule of Two unnecessary. Plaintiff asserts that the \fair proportion\ analysis was not conducted in this case and that had it been conducted, then Shriver may not have been set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': is not made in the context of individual contracts, but is reflected in high level policy judgments made on an ongoing and iterative basis by the President and the heads of agencies. According to defendant, it should not be assumed that subsection (a) requires any particular form of a determination; Congress was not literally insisting that the contracting officer make a formal study of what impact a particular contract would have on the ratio of small to large businesses in a specific industry category. Instead, discretion was left to the Executive Branch to work out a means to accomplish an end. Defendant argues that FAR part 19.502\u82112, the Rule of Two, is the means by which the Executive Branch has chosen to satisfy the obligation to determine a fair proportion of contracts to be awarded to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . This notice explains that the Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': , quoted above, requiring that small businesses receive a \fair proportion of the total purchases and contracts for property and services for the Government.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': In addition, the notice advised that, in the view of OFPP, \the FAR language complies with current law and reflects the will of the Congress as expressed in the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Thus, while the Rule of Two is not specifically set out in the Small Business Act, it has been adopted as the FAR\rquote s implementation of the Act\rquote s requirements through notice and comment rulemaking. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': , for example, calls for the President to set government-wide goals, in percentage terms for small business participation in contracting: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': [t]he President shall annually establish Government-wide goals for procurement contracts awarded to small business concerns.... Notwithstanding the Government-wide goal, each agency shall have an annual goal that presents, for that agency, the maximum practicable opportunity for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . The purpose of these goals is to \make consistent efforts to annually expand participation by small business concerns from each industry category in procurement contracts of the agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . An enforcement mechanism of sorts exists in subsection (h), which calls for annual reports to Congress and the President as to the agencies\rquote level of success in meeting goals for small business contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': is the appointment within each agency of a Director of the Office of Small and Disadvantaged Business Utilization. The OSDBU monitors performance in meeting goals and encourages \unbundling\ contracts to make them more accessible to small businesses. In addition, one of the roles of the Director of OSDBU is to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The \fair proportion\ determination is also inextricably linked to the process by which the Office of Management and Budget creates NAICS industry codes and the SBA\rquote s subsequent assignment of size standards for each NAICS code. When the contracting officer selects \the appropriate NAICS code and related small business size standard and [includes it] in solicitations,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': , the effect is to incorporate a judgment made by the SBA as to what the appropriate small-business size standard is for a particular industry category. This standard can be adjusted, with the result that more or less companies are able to compete as small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act requires that a fair proportion of the total purchases and contracts for property and services needed by the Federal Government be placed with small business concerns. One procedure for accomplishing this objective is the small business set-aside program.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': .... The recommended provision allows the SBA flexibility to evaluate the existing size standards and craft size standards consistent with the objectives of the Act. The committee has been advised that, in some industries such as the military boot manufacturing industry, only manufacturers exist, all of whom are classified as small businesses. An inappropriate reduction in size could result in two or three companies being classified as small, leaving the one or two companies not deemed small at a significant disadvantage in bidding those contracts. In circumstances such as those, the size standard should be reduced to a sufficient degree that all potential offerors with similar capabilities are treated similarly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . It is worth highlighting that the rule does not require that the particular companies who respond to the RFI actually be determined responsible. Rather, the test is simply whether it appears likely that, when the solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': We begin with the reminder that whether to set aside a solicitation for small businesses \ \u8216is a matter of business judgment within the contracting officer\rquote s discretion.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the Rule of Two was satisfied when the contracting officer relied on market research and a history of successful procurements conducted as small business set-asides); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': (rejecting plaintiff\rquote s argument that inadequate past maintenance service by the incumbent small business invalidated the contracting officer\rquote s reasonable expectation in the Rule of Two analysis). Crucially, the contracting officer need not make affirmative determinations of responsibility, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . \The contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The small businesses responding to the RFI furnished the Contracting Officer with substantial narrative descriptions of their experience and prior history on related work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': AR 9\u821167. While it is true that the rationales offered for finding the entities potentially responsible, which were relied on to show a sufficient pool of available small businesses, consisted uniformly of \currently operates JCC,\ it is not irrational to assume that, \[s]ince these [two] respondents have been awarded [Job Corps Center] contracts it\rquote s anticipated that similar small businesses will provide a competitive proposal that is based on fair market price for the operation of the Shriver Job Corps Center.\ AR 73. While the Rule of Two analysis was not extensive, an extensive analysis was not required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': analysis to what was in front of Mr. Pendleton is to ignore the evidence in the record that suggests that OCM led the decision-making process and had before it all of the information regarding Job Corps Center set-asides occurring contemporaneously across the nation. While it may have been reasonable for Mr. Pendleton to conclude that the Rule of Two was satisfied when two small businesses with operations experience expressed interest in the Shriver center, plaintiff asserts that it was not reasonable when OCM \decided to set-aside 13 [Job Corps Centers] for competition amongst a maximum of three small businesses, which between them operated only four [Job Corps Centers].\ Pl.\rquote s Mot. J. AR 50. In support of its position, plaintiff cites material it included as an appendix to its motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The materials outside the record furnished initially by the government consist of notices posted on the Federal Business Opportunities website, including RFIs, Pre-solicitation Notices, Solicitations, and Award Notices for other Job Corps Centers, Outcome Measurement System data that is available on DOL\rquote s website, a Master Procurement Schedule for all Job Corps Centers, and set-aside memorandum and OCM internal emails obtained from the administrative records of other cases. If we admitted the material into the administrative record here, it would show, in substance, a pattern of set-asides made in reliance on expressions of interest from a relatively limited pool of small businesses. Plaintiff asks us to remand so that the Contracting Officer may take into consideration all of this material in his set-aside decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': past performance, capacity, and capability. If there are no acceptable offers from responsible small businesses in response to a set-aside, then FAR part 19.502\u82112(a) states that \the set-aside shall be withdrawn and ... be resolicited on an unrestricted basis.\ In addition, if only one offer is received from a responsible small business in response to a set-aside then the contracting officer has discretion to withhold an award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': . Even if only one offer is received, moreover, that bidder would have been under the impression that it was in competition with others at the time it priced its proposal. Additionally, if the proposals do not initially reflect a fair market price, then a fair price may be negotiated pursuant to FAR part 15, and \[e]xcept as authorized by law, a contract may not be awarded as a result of a small business set-aside if the cost to the awarding agency exceeds the fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. We conclude that, even if the materials related to other Job Corps Centers were in front of us, the result here would be the same. Therefore, we decline to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Those four small businesses are Career Opportunities, Inc., Education Management Corporation, Odle Management Group, LLC, and Serrato Corporation. AR 812\u821116. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states: \The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 019 - Adams and Associates Inc v United States.doc, Paragraph with 'The Rule of Two': Under FAR part 6.203, contracts may be set aside for small businesses to fulfill statutory policies relating to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor, which was precluded from competing in follow-on procurement for contract for operation of job training facility due to designation of contract as small business set-aside, filed pre-solicitation bid protest. Parties filed various motions, including government\rquote s partial motion to dismiss and cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': decision to designate contract as small business set-aside did not violate requirement, under Workforce Investment Act (WIA), that entities be selected to operate such centers on competitive basis; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': contracting officer did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': decision to set-aside contract was not arbitrary or capricious despite possibility of pattern of set-asides made in reliance on expressions of interest from relatively limited pool of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Government could not supplement the administrative record in pre-solicitation bid protest with results of solicitation that emerged following government\rquote s challenged decision to designate contract as small business set-aside, which was information that would not have been available to contracting officer at the time she made her decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Court would not take into the administrative record in incumbent contractor\rquote s pre-solicitation bid protest challenging designation of contract for operation of job training facility as small business set-aside a notice to the effect that budget constraints had resulted in suspension of enrollment of new students at all training facilities, which was irrelevant to any question before court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had subject matter jurisdiction over claims of incumbent contractor in pre-solicitation bid protest asserting that agency\rquote s decision to designate contract as small business set-aside, in proposed follow-on procurement, was made in violation of applicable statutes and regulations and was arbitrary and capricious. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Incumbent contractor was interested party with respect to its arguments addressing agency\rquote s application of \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices, and thus had standing to bring its pre-solicitation protest challenging decision to designate contract as small business set-aside in proposed follow-on procurement, since set-aside prevented incumbent contractor from competing for contract and its direct economic interest would be affected by award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Procurements set aside for small business were competitive, and therefore decision to designate contract for operation of job training facility as small business set-aside did not violate requirement, under Workforce Investment Act (WIA), that entities to operate such centers be selected on competitive basis, particularly given that statute\rquote s list of eligible entities was simply that, and did not dictate that every procurement be open to all types of entities. Small Business Act \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Secretary of Labor had broad statutory authority to direct application of typical procurement procedures, as outlined in Federal Acquisitions Regulations (FAR) and Department of Labor Acquisition Regulations (DOLAR), to procurements for operation of job training facilities, and therefore regulation directing agency to apply FAR to such procurements was enforceable, such that \rule of two\ addressing small business set-asides applied, even if regulation\rquote s promulgation was untimely under statute directing Secretary to promulgate final regulations transitioning to system adopted by Workforce Investment Act (WIA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Requirement that \fair proportion\ determination be made, pursuant to statute addressing appropriateness of set-asides to maintain fair proportion of small business participation in particular industry category, was satisfied for follow-on procurement for operation of job training facility when contracting officer applied appropriate size standard pursuant to North American Industry Classification System (NAICS), received endorsement of Department of Labor (DOL) Office of Small and Disadvantaged Business Utilization (OSDBU), and invoked \rule of two\ regulation addressing small business set-asides. Small Business Act \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Under \rule of two\ regulation, which requires contracting officer to set aside any acquisition over $150,000 for small business participation when there is reasonable expectation that offers will be obtained from at least two responsible small business concerns and award will be made at fair market price, particular companies that respond to request for information (RFI) need not actually be determined responsible; rather, test is simply whether it appears likely that, when solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Whether to set aside a solicitation for small businesses under \rule of two\ regulation is a matter of business judgment within the contracting officer\rquote s discretion, and the law does not require any particular method for making determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer need not make affirmative determinations of responsibility, but need only have a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns, and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In applying \rule of two\ regulation to determine whether to set aside solicitation for small businesses, contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': It is not required or practical at stage of procurement process at which determination of whether solicitation should be set aside for small businesses is made for contracting officer to conduct full responsibility evaluation; rather, contracting officer need only reasonably expect that likely offerors will be capable of surviving future responsibility determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer for follow-on procurement for operation of job training facility rationally could assume that since small businesses which responded to request for information (RFI) had previously been awarded such contracts, similar small businesses would provide competitive proposals based on fair market price for operation of facility that was subject of procurement, and thus did not act arbitrarily and capriciously in designating contract as small business set-aside pursuant to \rule of two\ regulation directing contracting officer to set aside acquisition over $150,000 for small business participation where there was reasonable expectation that offers would be obtained from at least two responsible small business concerns and award would be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s decision to set-aside for small businesses contract for operation of job training facility was not arbitrary or capricious, notwithstanding possibility of pattern of set-asides made in reliance on expressions of interest from relatively limited pool of small businesses, given mechanisms available to address problems, including contracting officer\rquote s ability to withdraw set-aside and resolicit bids on unrestricted basis if there were no acceptable offers from responsible small businesses, contracting officer\rquote s discretion to withhold award if only one offer was received from responsible business in response to set-aside, and government\rquote s ability to negotiate fair price if proposals received did not initially reflect fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Bid protest; Job Corps Centers; Small Business Set\u8211Asides; Statutory Construction; Rule of Two; Fair Proportion Analysis; Workforce Investment Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': designate the contract for operation of the Montgomery, Alabama Job Corps Center (\Montgomery center\) as a small business set-aside. Plaintiff, Dynamic Educational Systems, Inc. (\DESI\), is the incumbent contractor. Because of the small business size limitations the agency placed on the follow-on procurement, DESI will be precluded from competing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': One of the numerous sources of contention in this protest has been the question of what constitutes the administrative record (\AR\). That has not been a simple question to answer for at least three reasons. First, the decision to set aside the procurement for small businesses, although nominally ordered by Carol Andry, the Contracting Officer for the Montgomery center, was at a minimum done in close coordination with Jillian Matz, the Division Chief for the Division of Job Corps Procurement in the Office of Contracts Management (\OCM\), which is within the Education and Training Administration at the Department of Labor (\ETA DOL\). The initial record produced by the government was closely cabined around only what Ms. Andry had before her and was minimal. Second, the decision to set aside the Montgomery center arose from the sources sought notice (also known as a Request for Information or RFI) for seven centers; i.e., not just the Montgomery center. Third, plaintiff\rquote s challenge to the \Rule of Two\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': determination, which set aside operation of the Montgomery center for small businesses only, includes the argument that it was irrational because the decision-makers (Ms. Matz at the headquarters level) knew two relevant things not reflected in the record: that there were dozens of other job center operation contracts around the country being solicited contemporaneously; and second, that there were no more than a handful of small businesses capable of performing the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In short, from plaintiff\rquote s perspective, the administrative record should include everything that Ms. Matz and others at the headquarters level knew about all Job Corps Center contracts being solicited and the numbers of small businesses either responding to RFI\rquote s or to solicitations, or awarded contracts. We declined to order that level of supplementation, although we did order defendant to furnish all of the material generated in connection with the RFI that included the Montgomery center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . \u182 4. Finally, defendant offers the affidavit of Michael Bolden, Senior Contract Specialist at OCM, who explains that he created a draft set-aside memorandum for the Montgomery center and in doing so considered all the responses to the RFI, including Montgomery and six other centers, as well as a spreadsheet that analyzed the relevant experience of the interested small businesses, and the set-aside memorandum prepared by other Contracting Specialists \around the same time.\ Decl. of Michael Bolden \u182\u182 1, 3\u82114, Feb. 5, 2013. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Andry Decl. \u182 6; Bolden Decl. \u182 6. Plaintiff included the Outcome Measurement System data in its appendix because, it alleges, the data demonstrates the flawed record that small businesses have accumulated in operating Job Corps Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': offered another affidavit from Ms. Andry on a different matter. During a conference call, the court called attention to an email from Ms. Andry to Ms. Matz dated June 26, 2012. The gist of that email is the expression of Ms. Andry\rquote s concerns about adequate competition from small businesses when several solicitations or contract start dates run concurrently. There is a response email in the administrative record from Ms. Matz indicating interest in these concerns and suggesting a conference. There is no mention in the administrative record of such a meeting. Defendant therefore filed an affidavit on January 14, 2013, from Ms. Andry explaining that such a meeting took place and what was done in response. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': In other words, if plaintiff is correct, for example, that it is relevant that the Gadsden material shows both the same small businesses appearing in response to that solicitation and that different standards were used by the agency for applying the Rule of Two test, then we would have to consider ordering the agency to supplement the existing administrative record. If, on the other hand, it would make no difference whether expanding the administrative record showed that there is a small pool of interested small businesses or that the use of a different standard for evaluating small businesses was used for a different procurement, then the absence of the material in the administrative record is also irrelevant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': As to the two other attempts to add materials to the court\rquote s consideration, we can make clearer rulings. Defendant has offered to supplement the record with the results of the solicitation that emerged after the set-aside decision. Namely, seven putative small businesses actually submitted offers. Ex. 1. We view that material as not relevant to the bona fides of the prior set-aside decision, however. Plainly it was information not available to the Contracting Officer at the time she made her decision. While it might be relevant in the event the court were to consider a remedy, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': plaintiff has raised questions about whether the court can take at face value that all seven offerors would qualify as responsible small businesses. In any event, as we indicated at the outset, the court will not need to consider a remand because we reject plaintiff\rquote s protest on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Before issuing a formal solicitation for a new contract, the Department of Labor Employment and Training Administration, through its Office of Contracts Management (\OCM\), published a Sources Sought Notice for Request for Information DOL121RI20503 on April 26, 2012. AR 64. The purpose of a sources sought notice is to conduct market research regarding the businesses, specifically small businesses, that operate in a particular industry and that might be willing subsequently to compete for the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': System (\NAICS\) maintained by the Office of Management and Budget (\OMB\). Using the already-established NAICS codes, the Small Business Administration (\SBA\) then imposes its own limitation on size and revenue to determine which entities can be considered \small\ within any industry category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . Respondents to either a RFI or later to a solicitation indicate whether they should be considered small businesses in light of the particular dollar limits for the job category identified by the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': By selecting NAICS code 611519 (the only one applicable to Job Corps Centers) the agency dictated the small business revenue limit associated with that code, which was no more than $35.5 million in annual receipts. AR 64; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . Therefore, if the contract for the operation of Montgomery were designated for small businesses only, any business with more than $35.5 million in annual receipts would be unable to qualify. DESI has receipts in excess of $35.5 million and thus would be ineligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': RFI\u8211M explained that \Job Corps is a national residential training and employment program administered ... to address the multiple barriers to employment faced by at-risk youth throughout the United States.\ AR 64\u821165. The proposed contracts would be cost-reimbursement with an incentive fee. AR 3. The services sought included \educational and career technical skills training,\ operating the residential facility, providing meals and supervision for the residents, job placement, health services, and center oversight and management. AR 65. Although the sources sought notice was not limited to small businesses, ETA encouraged \ALL QUALIFIED SMALL BUSINESSES INCLUDING 8(A) FIRMS ... TO PARTICIPATE.\ AR 64. The notice directed each interested business to submit a capability statement to Mr. Daitoku, Procurement Analyst with the Office of Contracts Management, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 65\u821166. OCM reserved \the right to compete any acquisition resulting from this survey among small businesses or to make award to an 8(a) firm, based on the responses received.\ AR 64. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 19. As the chart shows, there were four responses from small businesses expressing an interest in Montgomery. AR 19. DESI did not respond to the sources sought notice, although it did not need to in order to respond to the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': After Mr. Daitoku received the responses, a determination memorandum (\memo\) addressing all seven centers was generated in OCM. AR 571. Additionally, a DL 1\u82112004 form was created for each center. This form contains information about the originating agency (OCM), the contract value and period of performance, whether the procurement will be conducted as a set-aside, the NAICS code and small business size standard, past procurement history, and includes a section in which DOL\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) Representative may state whether he or she concurs with the chosen procurement method. AR 1. On June 5, 2012, Mr. Daitoku e-mailed this memo, an analysis chart and a partially completed DL1\u82112004 form for each Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': of the seven Job Corps Centers to Ms. Matz, Division Chief for the Division of Job Corps Procurement, and Regional Contracting Officers Gail Thomsen and Ms. Andry. AR 571. The memo concludes that five of the Job Corps Centers should be set aside because the conditions of the FAR part 19.502\u82112(b) were met for all centers except Dr. Benjamin L. Hooks and Earle C. Clements. AR 571.2. FAR part 19.502\u82112(b), known as the Rule of Two, directs that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': According to Mr. Daitoku\rquote s memo, there was a reasonable expectation that two or more responsible small businesses would later respond to a solicitation because [redacted], [redacted], and [redacted] each had either a current or recent Job Corps Center prime contract. His assumption was that, because each had previously been awarded a contract, each therefore had been found responsible in the past and could be expected to continue competing for Job Corps Centers at fair market prices. AR 571.2. In addition, the management staff of another respondent, [redacted], had experience operating Job Corps Centers, and the company claimed to have the required financial resources. AR 571.2. According to the memo and analysis chart, because the Montgomery, Paul Simon, Detroit, Little Rock, and Joliet Job Corps Centers had each received interest from at least two small business entities that appeared to be responsible, the centers were to be set aside. AR 571.2\u821171.5. The conclusions of the determination memo were memorialized in the DL 1\u82112004 forms, with one form for each Job Corps Center. AR 571.6\u821171.12. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Assuming they each agreed to the contents of the memo, Mr. Daitoku asked Ms. Andry to sign the DL1\u82112004 forms for Montgomery and Dr. Benjamin L. Hooks, Ms. Thomsen to sign for the Earle C. Clements Center, and Ms. Matz to sign the remaining DL1\u82112004 forms and the memo for other centers. AR 571. Signing would result in setting aside the procurement for competition only from small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': I spoke with [Ms. Webster\u8211Lewis] and confirmed that the release date for the [solicitations] was not considered in making the set aside determinations. Four of these procurements (Detroit, Joliet, Montgomery and Little Rock) will run concurrently and have a contract start date of October 1, 2013. Paul Simon has a start date of August 1, 2013. The overlapping dates of these procurements will have an impact on adequate competition. The most recent small business set-aside procurements for center operations in the Atlanta Region were Turner and Bamberg. These procurements were scheduled 5 months apart. While adequate competition existed for these procurements, we had offers from two of the same companies for both [solicitations]. The number of small businesses currently operating Job Corps centers as prime contractors is limited. It is very likely that one small business will be the successful offeror on more than one of these procurements. Small businesses do not have the capability to respond to multiple [solicitations] that have the same closing date, as well as, perform transition activities for multiple contracts during the same month. The transition month for four of the contracts is September 2013. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 572. Her concern, in short, was that the combination of a limited pool of small businesses and overlapping dates to respond to solicitations would dampen competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Based on material in the administrative record, it is clear that Ms. Andry\rquote s concerns were factually grounded. As of September 18, 2012, there were only four independent small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': and five subsidiary small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Corps Centers. AR 498\u8211503. There are at least two other companies, Education and Training Resources and Horizons Youth Services, that operate Job Corps Centers under contracts that were small business set-asides, but each had outgrown the small business designation during contract performance. AR 500. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': To address the problem, Ms. Andry suggested some options: staggering the solicitation and contract start dates, reevaluating the set-aside determinations taking into account the limited number of small businesses and the difficulty they would have meeting the challenges of overlapping solicitations and contract start dates, or proceeding with the procurements as set-asides but reissuing them as unrestricted if there was inadequate competition. AR 572. In response, Ms. Matz agreed to schedule a meeting with Ms. Webster\u8211Lewis and others to discuss the issue. AR 572. Although the content of the meeting is undocumented, Ms. Andry states in her first affidavit that she \participated in a teleconference with Ms. Matz, Ms. Webster[-Lewis], contracting officer Edmond (Tom) Pendleton, and other participants, who I believe included contracting officer Gail Thomsen\ on July 18, 2012. Decl. of Carol Andry \u182 16, Jan. 14, 2013; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': \If, after submission of proposals in response to [solicitations], the same businesses were awarded multiple contracts, we could stagger the contract start dates so that the small businesses would not be transitioning at two [Job Corps Centers] at the same time.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': On August 7, 2012, Mr. Daitoku supplied Mr. Bolden, Senior Contract Specialist in the Office of Contracts Management, with three memoranda containing the results of the market research, analysis, and small business setaside determination for the operation of twelve Job Corps Centers and the provision of select services at an additional four Job Corps Centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 672\u821173. Rather than conclude that the potentially responsible entities will \continue to offer [ ] competitive proposal[s] that [are] based on fair market price,\ AR 673, Mr. Bolden also indicated his expectation that the Rule of Two was satisfied because \it\rquote s anticipated that similar small businesses will provide a competitive proposal that is based on fair market price.\ AR 585.3. Ms. Andry approved of the analysis. Andry Decl. \u182 18. The only change to the document was the author\rquote s name. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Based on the capability statements received pertaining to Montgomery, Ms. Andry, the Contracting Officer, determined that one of the small businesses, [redacted], was unable to perform the contract because it \failed to provide sufficient information to show that [it] had the capability to operate the Montgomery [Job Corps Center].\ AR 5. She also deemed the remaining three small businesses, [redacted], [redacted], and [redacted], potentially responsible to perform the contract under all twelve capability requirements. AR 5. In her analysis, Ms. Andry noted that the three small businesses deemed responsible either currently operate or have recently operated a Job Corps Center, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': and she therefore \anticipated that similar small businesses will provide a competitive proposal that is based on fair market price.\ AR 5. Thus, Ms. Andry concluded that both requirements for setting aside the contract for a small business pursuant to FAR part 19.502\u82112 had been met. AR 5. On September 17, 2012, the DL1\u82112004 form was completed by signatures from the Contracting Officer, Ms. Andry, as well as by a representative from the OSDBU. Operation of the Montgomery center was designated as a 100 percent small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 1. OCM issued a pre-solicitation notice on October 17, 2012, announcing to the public that it anticipated issuing the solicitation for Montgomery on October 31, 2012, as a 100 percent small business set-aside. AR 71. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff filed its complaint here on October 26, 2012. It sought a preliminary injunction to prevent the agency from issuing a solicitation for operation of the Montgomery center, which we denied. The solicitation, DOL13UA20002, went forward as a small business set-aside on November 27, 2012. AR 141. While the initial pre-proposal conference and walk-through for prospective bidders was cancelled, it was rescheduled and held on December 6, 2012. AR 73, 141, 484. Proposals were received until January 30, 2013. AR 141. As mentioned earlier, seven businesses responded, claiming they qualified as small businesses. Defendant did agree, however, that it would not award any contract arising from that solicitation until after the court rules. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff raises three challenges to the set-aside determination. Two are based on alleged violations of statutes. It contends that, before a procurement may be set aside for small businesses, the procuring agency, in this case DOL acting through Ms. Andry, had to make a preliminary determination pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': \), that a \fair proportion\ of work in that industry category should be set aside for small businesses. Plaintiff contends that the set-aside is fatally flawed because that determination was not made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that the agency\rquote s small business set-aside decision, based on application of the Rule of Two determination called for by FAR part 19.502\u82112(b), constituted a violation of the Workforce Investment Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (\WIA\), amending various sections codified throughout Title 29. It asserts that any set-aside for small business would violate the larger concerns for open competition mandated by the WIA. Finally, plaintiff argues that even if FAR part 19.502\u82112(b) is not incompatible with WIA, then its application here was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . DOL ETA\rquote s decision to designate the contract as a small business set-aside is made \in connection with\ a proposed procurement, and plaintiff alleges that the decision was made in violation of applicable statute and regulations and was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': fair proportion determination is fundamentally a policy judgment reflected in decisions of the Executive Branch that are not directly connected to particular procurements, then the court would be without jurisdiction. We could rephrase the argument, or perhaps add to it ourselves: if the fair proportion determination is purely one of \policy,\ then there are no judicially enforceable means to evaluate a \proper\ determination. We could not order a remedy that the court could meaningfully evaluate or enforce. Nevertheless, determining whether this assumption is correct requires some examination of the broad framework which has evolved in the last sixty years for introducing small business preferences into the procurement apparatus for executive agencies. Defendant argues that this apparatus includes the Rule of Two determination. Indeed, one of defendant\rquote s points in support of plaintiff\rquote s asserted lack of standing is that the fair proportion determination is implemented through the Rule of Two. Defendant thus contends that the fair proportion and Rule of Two determinations are interconnected, both in terms of statutes, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (2006 & Supp. V 2011). Plaintiff contends that the phrase \competitive basis\ means \full and open competition,\ i.e., open to large as well as small businesses. We recently rejected that argument in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . We concluded that, although setting aside a procurement only for small businesses does limit competition, it is not a non-competitive process. We held that, \small business set asides are competitive.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (2006 & Supp. V 2011) is just that: a list of entities that are eligible to be chosen to operate a Job Corps Center. As defendant points out, there is nothing in the list which dictates that every procurement should be open to all types of entities. We note, moreover, that Congress specifically adopted preferential procurement programs for small businesses in order to promote competition: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': is found in Title 15 (Commerce), Chapter 14a (Aid to Small Business): Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': To effectuate the purposes of this chapter, small-business concerns within the meaning of this chapter shall receive any award or contract or any part thereof, and be awarded any contract for the sale of Government property, as to which it is determined by the Administration and the contracting procurement or disposal agency ... (3) to be in the interest of assuring that a fair proportion of the total purchases and contracts for property and services for the Government in each industry category are placed with small business concerns.... These determinations may be made for individual awards or contracts or for classes of awards or contracts.... For purposes of clause (3) of the first sentence of this subsection, an industry category is a discrete group of similar goods and services. Such groups shall be determined by the Administration in accordance Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (a) The contracting officer shall set aside an individual acquisition or class of acquisitions for competition among small businesses when\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (2) Assuring that a fair proportion of Government contracts in each industry category is placed with small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). When asked by the court during oral argument how an individual contracting officer would be in a position to know whether or not it was necessary to move a particular award toward small businesses in order to maintain a fair proportion across the government within a specific job category, counsel responded that this is the role, within a particular agency, of the OSDBU. Plaintiff envisions that prior to any procurement process in any executive agency, the contracting officer would consult with a representative from the OSDBU and consider the current level of small business participation within the industry category and the capacity of those small businesses to take on new contracts prior to determining whether setting aside a particular contract would be in the interest of assuring a fair proportion. Depending on the outcome, this analysis presumably could render application of the Rule of Two unnecessary. Plaintiff asserts that the \fair proportion\ analysis was not conducted in this case and that had it been conducted, then Montgomery may not have been set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': is not made in the context of individual contracts, but is reflected in high level policy judgments made on an ongoing and iterative basis by the President and the heads of agencies. According to defendant, it should not be assumed that subsection (a) requires any particular form of a determination; Congress was not literally insisting that the contracting officer make a formal study of what impact a particular contract would have on the ratio of small to large businesses in a specific industry category. Instead, discretion was left to the Executive Branch to work out a means to accomplish an end. Defendant argues that FAR part 19.502\u82112, the Rule of Two, is the means by which the Executive Branch has chosen to satisfy the obligation to determine a fair proportion of contracts to be awarded to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . This notice explains that the Rule of Two is intended to implement the Small Business Act language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': , quoted above, requiring that small businesses receive a \fair proportion of the total purchases and contracts for property and services for the Government.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': that, in the view of OFPP, \the FAR language complies with current law and reflects the will of the Congress as expressed in the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Thus, while the Rule of Two is not specifically set out in the Small Business Act, it has been adopted as the FAR\rquote s implementation of the Act\rquote s requirements through notice and comment rulemaking. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': , for example, calls for the President to set government-wide goals, in percentage terms for small business participation in contracting: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': [t]he President shall annually establish Government-wide goals for procurement contracts awarded to small business concerns.... Notwithstanding the Government-wide goal, each agency shall have an annual goal that presents, for that agency, the maximum practicable opportunity for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . The purpose of these goals is to \make consistent efforts to annually expand participation by small business concerns from each industry category in procurement contracts of the agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': An enforcement mechanism of sorts exists in subsection (h), which calls for annual reports to Congress and the President as to the agencies\rquote level of success in meeting goals for small business contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': is the appointment within each agency of a Director of the Office of Small and Disadvantaged Business Utilization. The OSDBU monitors performance in meeting goals and encourages \unbundling\ contracts to make them more accessible to small businesses. In addition, one of the roles of the Director of OSDBU is to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The \fair proportion\ determination is also inextricably linked to the process by which the Office of Management and Budget creates NAICS industry codes and the Small Business Administration then assigns size standards for each NAICS code. When the contracting officer selects \the appropriate NAICS code and related small business size standard and [includes it] in solicitations,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': , the effect is to incorporate a judgment made by the Small Business Administration as to what the appropriate small-business size standard is for a particular industry category. This standard can be adjusted, with the result that more or less companies are able to compete as small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The Small Business Act requires that a fair proportion of the total purchases and contracts for property and services needed by the Federal Government be placed with small business concerns. One procedure for accomplishing this objective is the small business set-aside program.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': .... The recommended provision allows the SBA flexibility to evaluate the existing size standards and craft size standards consistent with the objectives of the Act. The committee has been advised that, in some industries such as the military boot manufacturing industry, only manufacturers exist, all of whom are classified as small businesses. An inappropriate reduction in size could result in two or three companies being classified as small, leaving the one or two companies not deemed small at a significant disadvantage in bidding those contracts. In circumstances such as those, the size standard should be reduced to a sufficient degree that all potential offerors with similar capabilities are treated similarly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two states that the \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . It is worth highlighting the point that the rule does not require that the particular companies who respond to the RFI actually be determined responsible. Rather, the test is simply whether it appears likely that, when the solicitation later moves forward, at least two responsible small businesses will appear. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': As to the first category, plaintiff contends that Ms. Andry\rquote s June 26 email evinces concerns about adequate competition that call into question the reasonable expectation required under the Rule of Two. However, Ms. Andry explains in her January 14 affidavit that her concerns were addressed during a teleconference held July 18, 2012. Each contracting officer would handle the set-aside determination for his or her own procurements and control\u8212and if necessary, adjust\u8212the contract start date to accommodate the possibility that a single small business contemporaneously was awarded more than one contract. Decl. Carol Andy \u182\u182 16, 17. Despite her initial reservations, Ms. Andry determined that a set-aside was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': We begin with the reminder that, whether to set aside a solicitation for small businesses \ \u8216is a matter of business judgment within the contracting officer\rquote s discretion.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the Rule of Two was satisfied when the contracting officer relied on market research and a history of successful procurements conducted as small business set-asides); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': (rejecting plaintiff\rquote s argument that inadequate past maintenance service by the incumbent small business invalidated the contracting officer\rquote s reasonable expectation in the Rule of Two analysis). Crucially, the contracting officer need not make affirmative determinations of responsibility, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': that: (1) Offers will be obtained from at least two responsible small business concerns ...; and (2) Award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . \The contracting officer may consider and base its decision on such factors as prior procurement history, the nature of the contract, market surveys, and/or advice of the agency\rquote s small business specialist.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The small businesses responding to the RFI furnished the Contracting Officer with substantial narrative descriptions of their experience and prior history on related work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': AR 21\u821163. While it is true that the rationales offered for finding the entities potentially responsible\u8212which were relied on to show a sufficient pool of available small businesses\u8212consisted uniformly of \currently operates JCC,\ it is not irrational to assume that, \[s]ince these three respondents have been awarded [Job Corps Center] contracts it\rquote s anticipated that similar small businesses will provide a competitive proposal that is based on fair market price for the operation of the Montgomery Job Corps Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff contends, however, that Ms. Andry\rquote s analysis was too narrow. It argues that to artificially limit the Rule of Two analysis to what was in front of Ms. Andry is to ignore the evidence in the record that suggests that OCM led the decision-making process and had before it all of the information regarding Job Corps Center set-asides occurring contemporaneously across the nation. While it may have been reasonable for Ms. Andry to conclude that the Rule of Two was satisfied when three small businesses with operations experience expressed interest in the Montgomery center, plaintiff asserts that it was not reasonable when OCM \decided to set-aside 13 [Job Corps Centers] for competition amongst a maximum of three small businesses, which between them operated only four [Job Corps Centers].\ Pl.\rquote s Mot. J. AR 50. In support of its position, plaintiff cites material it included as an appendix to its motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The materials outside the record furnished initially by the government consist of notices posted on the Federal Business Opportunities website, including RFIs, Pre-solicitation notices, Solicitations, and Award notices for other Job Corps Centers, Outcome Measurement System data that is available on DOL\rquote s website, a Master Procurement Schedule for all Job Corps Centers, and set-aside memorandum and OCM internal emails obtained from the administrative records of other cases. If we admitted the material into the administrative record, it would show, in substance, a pattern of set-asides made in reliance on expressions of interest from a relatively limited pool of small businesses. Plaintiff asks us to remand so that the Contracting Officer may take into consideration all of this material in her set-aside decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': While at first glance the pattern established by this material might seem problematic, we conclude that it is not the court\rquote s role to second guess the agency\rquote s decision to rely on the mechanisms it had available to address the problem. For example, after the solicitation, when the Contracting Officer reviews proposals, she will conduct a responsibility determination pursuant to FAR part 9.104\u82111, which takes into account all of the bidder\rquote s \existing commercial and governmental business commitments,\ past performance, capacity, and capability. If there are no acceptable offers from responsible small businesses in response to a set-aside, then FAR part 19.502\u82112(a) states that \the set-aside shall be withdrawn and ... be resolicited on an unrestricted basis.\ In addition, if only one offer is received from a responsible small business in response to a set-aside then the Contracting Officer has discretion to withhold an award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': . Even if only one offer is received, moreover, that bidder would have been under the impression that it was in competition with others at the time it priced its proposal. And if the proposals do not initially reflect a fair market price, then a fair price may be negotiated pursuant to FAR part 15, and \[e]xcept as authorized by law, a contract may not be awarded as a result of a small business set-aside if the cost to the awarding agency exceeds the fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Ms. Andry\rquote s largest concern with respect to the limited number of small businesses available was that entities either would not bid, or would be unable to prepare to commence performance on more than one contract at a time. As to the first concern, we think it was not irrational to rely on the mechanisms cited above to remedy problems with limited competition. As to the latter concern, we think it was not irrational to rely on making adjustments to the time of contract commencement. Any other outcome would require the court to speculate about at least four variables: the entities submitting bids, the dates of the solicitations announced Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': The Rule of Two is part of a larger framework in the FAR established to benefit small businesses. All that is required is a reasonable expectation. The threshold for meeting the criteria of the Rule of Two is purposefully low and is counterbalanced by FAR provisions that provide direction in the event of a failed set-aside. We conclude that, even if the materials related to other Job Corps Centers were in front of us, the result here would be the same. Therefore, we decline to include it in the administrative record because it is not necessary for effective judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Those four small businesses are Career Opportunities, Inc., Education Management Corporation, Odle Management Group, LLC, and Serrato Corporation. AR 498\u8211502. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Only one of the two capable entities expressed an interest in Sacramento. AR 677. Sacramento\rquote s \current contract awarded in 2008 was solicited as a 100% small business set-aside and seven offers were received.\ AR 677. Based on the procurement history for the center, the Contracting Officer determined that the Rule of Two was met. AR 677. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with 'The Rule of Two': Under FAR part 6.203, contracts may be set aside for small businesses to fulfill statutory policies relating to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder which had been determined to be \apparent awardee\ of task order for logical support services that was total set-aside for small business concerns filed bid protest, seeking to enjoin agency from awarding task order to another contractor before bidder\rquote s administrative appeal challenging determination of Small Business Administration (SBA) that bidder was not small business concern for purposes of procurement was decided. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Bidder, which had been determined to be \apparent awardee,\ established that its likelihood of success on the merits was at least sufficient to make it eligible for relief sought in moving for preliminary injunction to bar agency from awarding task order for logical support services until decision was issued on bidder\rquote s administrative challenge to determination by Small Business Administration (SBA) that bidder was not small business concern for purposes of procurement, given agency\rquote s stated policy of not requiring business size recertifications in response to task order solicitations, seeming ambiguity of language in task order request for quotations (TORFQ), and opaque reasoning of administrative decision under review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Under regulation, decision on administrative appeal by bidder challenging determination by Small Business Administration (SBA) that bidder was not small business concern for purposes of procurement could not be applied to procurement if received after award, and therefore bidder would suffer irreparable injury required for preliminary injunctive relief if agency was not enjoined from awarding task order until appeal was decided and task order was awarded to another offeror; even if it prevailed on appeal, absent preliminary injunction, bidder would lose award, valued at more than $13,000,000 annually, for which it had been selected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships favored bidder determined to be \apparent awardee\ of task order for logical support services that was total set-aside for small business concerns in seeking preliminary injunction barring agency from awarding task order to another contractor before bidder\rquote s administrative appeal challenging determination of Small Business Administration (SBA) that bidder was not small business concern for purposes of such procurement was decided; incumbent contractor was performing most of task order\rquote s work under bridge contract, although some training services would not be received until task order issued, and only purportedly severe hardship alleged by government concerned funding, any limitation on which was due to choices representing government policy, and was not hardship. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Given that bidder had been determined to be \apparent awardee\ of task order for logical support services that was total set-aside for small business concerns, public interest would be served by granting bidder\rquote s motion for preliminary injunction barring agency from awarding task order to another contractor before bidder\rquote s administrative appeal of determination that it was not small business concern was decided, so as to allow SBA\rquote s Office of Hearings and Appeals (OHA) to apply SBA\rquote s own regulations, interpret task order request for quotations (TORFQ), and determine whether award to bidder was consistent with SBA\rquote s small business policies, despite government\rquote s contention that assisting company that was no longer small to obtain small business task order did not serve public interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Preliminary injunction; pre-award bid protest; small business set-aside; GSA schedule contract task order; appeal of size determination pending before SBA\rquote s Office of Hearing and Appeals; explicitly required size status recertification, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Ex. H to Pl.\rquote s Mem. (\Pl.\rquote s Ex.\) at 1; App. to Def.\rquote s Opp\rquote n (\Def.\rquote s App.\) at A15. The task order was \a total set-aside for small business concerns,\ solicited from holders of U.S. Army \Expedited Professional Engineering Support Services\ (\EXPRESS\) Blanket Purchase Agreements (\BPAs\). Pl.\rquote s Ex. B at 1; Pl.\rquote s Ex. L at 1; Def.\rquote s App. at A2. In response to the agency\rquote s request for a formal size determination, on January 25, 2013, the Area II Office of Government Contracting (\Area Office\) of the U.S. Small Business Administration (\SBA\) issued a determination that the plaintiff was \not a small business concern for the subject procurement.\ Pl.\rquote s Ex. J at 11; Def.\rquote s App. at A30. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': But Metters cites the SBA regulation which provides that \[a] concern that qualified as a small business at the time it receives a contract is considered a small business throughout the life of that contract,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Although under a provision of the Federal Acquisition Regulation (\FAR\), \[o]rdering activities should rely on the small business representations made by schedule contractors at the contract level,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': Moreover, the Area Office decision also highlights the notice that the TORFQ was \a total set-aside for small business concerns,\ noting similar language in a solicitation concerning which \OHA had ascertained that the CO had required a certification as a small business.\ Pl.\rquote s Ex. J at 8\u82119; Def.\rquote s App. at A27\u821128. But the small business set-aside language was not the reason a certification request was found in that other matter, and the solicitation under consideration there expressly stated that offerors \shall Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': (emphasis added). The mere fact that a task order was set aside for small businesses does Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': nothing to answer the relevant question: As of what date must small business status be determined? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': . The government argues that the public interest is not served by assisting a company which is no longer small to obtain a small business task order. Def.\rquote s Opp\rquote n at 20\u821121. But taking into account that the plaintiff was the \apparent awardee\ selected by the agency, Pl.\rquote s Ex. H at 1; Def\rquote s App. at A15, the Court concludes that it would be in the public interest to allow OHA the opportunity to apply the SBA\rquote s own regulations, interpret the TORFQ, and determine if an award to Metters is consistent with its small business policies. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 022 - Metters Industries Inc v United States.doc, Paragraph with 'The Rule of Two': The phrase the Court elides from this quote\u8212\subject to the NAICS applicability defined in the BPA and the current associated size standards established by the Small Business Administration (SBA),\ Pl.\rquote s Ex. J at 8; Def.\rquote s App. at A27\u8212sheds no light on what is being confirmed, and instead merely references the relevant size standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff Red River Communications, Inc. (\plaintiff\), provided Base Telecommunications System (\BTS\) services at Tinker Air Force Base (\Tinker\) from June 2002 through September 2012. Compl. filed Oct. 26, 2012, \u182\u182 4\u82115; Pl.\rquote s Br. filed Dec. 11, 2012, at 8; Def.\rquote s Br. filed Dec. 31, 2012, at 13. Previously, the United States Air Force (the \Air Force\) had obtained those services through two small business set-aside procurements for which plaintiff was the successful offeror. Compl. \u182 5. On June 8, 2012, the Air Force issued Solicitation No. FA8101\u821112\u8211R\u82110037 (the \Solicitation\) for BTS services to be provided at Tinker from September 9, 2012, to September 30, 2012, with two one-year option periods thereafter, from October 1, 2012, to September 30, 2013, and October 1, 2013, to September 30, 2014. AR 25, 71\u8211255. Unlike the two previous contracts awarded to plaintiff, the Solicitation was issued as a task order to an umbrella contract known as \NETCENTS\u82111.\ Pl.\rquote s Br. filed Dec. 11, 2012, at 6, 9; Def.\rquote s Br. filed Dec. 31, 2012, at 10. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': Dec. 11, 2012, at 7; Def.\rquote s Br. filed Dec. 31, 2012, at 13. Because the Solicitation was issued under NETCENTS\u82111, it was advertised only through the NETCENTS\u82111 website beginning on June 8, 2012. Pl.\rquote s Br. filed Dec. 11, 2012, at 7; Def.\rquote s Br. filed Dec. 31, 2012, at 13. The Solicitation stated that the contract was a small business set-aside for NETCENTS\u82111 contract holders. AR 71; Pl.\rquote s Br. filed Dec. 11, 2012, at 7\u82118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': On June 27, 2012, another contractor, J.D. Broco, LLC (\J.D.Broco\), filed a North American Industry Classification System (\NAICS\) code appeal with the United States Small Business Administration (the \SBA\), arguing that the Solicitation was improperly assigned NAICS Code 517110, for \Wired Telecommunications Carriers.\ AR 926\u821128; Pl.\rquote s Suppl. App\rquote x filed Jan. 7, 2013, at A3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': Had NAICS Code 811213 been assigned, J.D. Broco alleged, the Air Force could not have maintained the procurement as a small business set-aside strictly for NETCENTS\u82111 contract holders, as there were not two NETCENTS\u82111 contract-holding small businesses meeting the size restrictions of NAICS Code 811213. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': at A4. J.D. Broco urged that, in order to procure the Tinker BTS services through a small business set-aside, the Air Force was required to use a different contractual vehicle and that J.D. Broco would compete for any such procurement of Tinker BTS services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': Def.\rquote s Br. filed Dec. 31, 2012, at 13. The SBA found that, even if the contract were not solicited through NETCENTS\u82111, J.D. Broco could not show that the Air Force would have procured through an open small business set-aside solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': On June 28, 2012, one day after J.D. Broco filed its NAICS code appeal, plaintiff sent a letter to the office of United States Senator John Cornyn raising concerns that the Solicitation should not have been issued under NETCENTS\u82111 and that the procurement should have proceeded as a stand-alone, small business set-aside. AR 924\u821125. Senator Cornyn\rquote s office forwarded plaintiff\rquote s letter to the Air Force\rquote s Office of Legislative Liaison on July 17, 2012, and requested a response to plaintiff\rquote s concerns. AR 922. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 028 - Red River Communications Inc v United States.doc, Paragraph with 'The Rule of Two': was not invited to submit a proposal in response to the Solicitation. Rather, plaintiff was excluded from submitting a proposal by the Solicitation\rquote s terms, as the Solicitation was reserved to small businesses holding NETCENTS\u82111 contracts. In the case of a contractor that is invited to submit a proposal, the contractor fairly may be charged with knowledge of the terms of a solicitation. In the instant matter, by contrast, the Solicitation was not publicly advertised, and plaintiff was not invited to submit a proposal. Without any further facts, plaintiff should not be charged with knowledge of the terms of the Solicitation, nor should such knowledge be imputed to plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor that was apparent lowest responsible bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) challenged decision of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) that it did not meet the status requirements for a SDVOSB concern and was therefore ineligible for the award. The contractor sought to be reinstated to the VA\rquote s Veterans First Contracting Program and to be awarded the underlying contract. Both parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Contractor that was apparent lowest responsible bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) had sufficient \direct economic interest\ in winning the contract to have standing to challenge decision of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) upholding bid protest on ground that contractor did not meet the status requirements for a SDVOSB concern and was therefore ineligible for the award; to hold that contractor\rquote s de-listing from roster of approved SDVOSB entities prevented it from having an interest would preclude any qualified concern from seeking a judicial remedy in response to an adverse decision from the OSDBU. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Operating agreement of limited liability corporation, which was apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB), did not restrict qualified veteran\rquote s ownership interest, so as to prevent corporation from satisfying regulatory \unconditional ownership\ qualification for SDVOSB status, to extent operating agreement afforded the corporation, or the remaining members of the corporation if the corporation declined, the first opportunity to purchase a member\rquote s shares, should a member decide to sell; such right of first refusal was not presently executory, was a standard provision used in normal commercial dealings, and did not burden the veteran\rquote s ownership interest unless he chose to sell some of his stake. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': In considering protest to apparent low bidder\rquote s status as qualified service-disabled veteran-owned small business (SDVOSB), the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) could consider grounds not specifically raised by the contracting officer or protester, and expand the protest to encompass low bidder\rquote s general compliance with verification requirements, provided the low bidder was afforded basic due process protections of notice of alleged defect and opportunity to respond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': The Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) contravened the minimal requirements for informal adjudication set forth in the Administrative Procedure Act (APA) when it terminated contractor\rquote s status as qualified service-disabled veteran-owned small business (SDVOSB), rendering contractor ineligible for SDVOSB solicitation set-aside, on grounds other than those raised by contracting officer or bid protester, without notifying contractor about its self-initiated \unconditional ownership\ examination or giving contractor opportunity to respond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) was prejudiced by errors of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) in interpreting unconditional ownership requirement for SDVOSB status and in interpreting procedural requirements for bid protests, as required to obtain relief from administrative decision upholding protest; but for OSDBU\rquote s errors, low bidder would have remained eligible and would have had a substantial chance of receiving the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) was entitled to injunctive relief requiring the Department of Veterans Affairs\rquote (VA) to restore low bidder to roster of approved SDVOSB entities and to consider its apparent low bid on solicitation, as remedy for errors by the Office of Small and Disadvantaged Business Utilization (OSDBU) in ruling in bid protest matter that low bidder was ineligible for SDVOSB status; low bidder would suffer irreparable harm to extent it could not bid on SDVOSB projects, VA would not be harmed in being required to consider the bid, and public had a strong interest in preserving the integrity of the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Pre-award bid protest; disparate intra-agency decisions regarding the unconditional nature of a service-disabled veteran\rquote s ownership of a small business; evidence of \ownership\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': This pre-award bid protest is before the court on plaintiff\rquote s motion for judgment upon the administrative record and the government\rquote s motion to dismiss, or in the alternative, cross-motion for judgment. On March 5, 2012, plaintiff, Miles Construction, LLC (\Miles\), had obtained a determination from the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) that it was a qualified service-disabled veteran-owned small business (\SDVOSB\) concern eligible to participate in VA\rquote s Veterans First Contracting Program, which accords priority to SDVOSBs and veteran-owned small businesses (\VOSBs\) for contracting opportunities. Nonetheless, after Miles was the apparent lowest responsive and responsible bidder for a solicitation set aside for SDVOSBs, an agency protest by the second-lowest bidder resulted in a decision by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) that Miles \d[id] not meet the status requirements of a SDVOSB concern\ and was therefore ineligible for awards under the Veterans First Contracting Program. AR 19\u8211267 (Letter from Thomas Leney to Morgan Slizofski (Aug. 27, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': (pertaining to \SDVOSB/VOSB Small Business Status Protests\) and 38 C.F.R. Part 74 (setting out VA\rquote s \Veterans Small Business Regulations\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': . Part 74 specify the standards for CVE\rquote s evaluation of applicants for VOSB status and the eligibility for inclusion in the Veterans First Contracting Program, and those standards are explicitly incorporated by reference in the VAAR provisions governing SDVOSB and VOSB small business status protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': ). This Act provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': 38 C.F.R. \u167\u167 74.3 (ownership), 74.4 (control). In answer to the question \Who does [CVE] consider to own a veteran-owned small business?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': (3) If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': 570 (6th Ed. 1990)). According to the government, a right of first refusal \is an executory agreement because it prevents an owner from acting upon his ownership interest in instances such as a sale [that depends] upon future approval by the other members of the company.\ Def.\rquote s Mot. at 27\u821128. The government cites to two decisions of the Small Business Administration (\SBA\) in support of its interpretation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': , which governs eligibility requirements for the SBA\rquote s Service\u8211Disabled\u8211Veteran\u8211Owned Small Business Concern program, because the operating agreement contained tag-along Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': by reviewing the veteran\rquote s unconditional ownership, a ground it contends was not raised by the Protest. Pl.\rquote s Mem. at 20. The regulation governing the protest process states that \the Executive Director ... [of OSDBU] shall decide all protests on service-disabled veteran-owned or veteran-owned small business status whether raised by the contracting officer or an offeror. Ownership and control shall be determined in accordance with 38 C[.]F[.]R[.] part 74.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': . The regulation further states that \[a]ll protests must be in writing and must state all specific grounds for the protest. Assertions that a protested concern is not a service-disabled veteran-owned or veteran-owned small business concern, without setting forth specific facts or allegations, are insufficient.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'The Rule of Two': assigns responsibility to the Executive Director of OSDBU to \decide all protests on service-disabled veteran-owned or veteran-owned small business status whether raised by the contracting officer or an offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with 'The Rule of Two': (\The primary purposes of the notice are to improve small business access to acquisition information and enhance competition by identifying contracting and subcontracting opportunities.\). These contract action synopses are required to include specified content. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 035 - Mitchell Enterprises Ltd v Bennie Consulting Engineers LLC.doc, Paragraph with 'The Rule of Two': The federal government\rquote s solicitation for the Baghouse Project classified the project as a \Total Small Business Set-Aside\ and set forth parameters that included restrictions on the size (both in terms of revenue and number of employees) of the businesses that were eligible to be awarded the job. Plaintiff desired to work on the project but was too large to meet the size parameters. Plaintiff sought to team with Defendant in hopes of securing a role in the project as a subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 035 - Mitchell Enterprises Ltd v Bennie Consulting Engineers LLC.doc, Paragraph with 'The Rule of Two': The project was initially awarded to another bidder, DUSTEX. Paul H. Sanderford drafted a letter for Warren Bennie\rquote s signature for submission to the government to protest DUSTEX\rquote s bid because DUSTEX exceeded the small business size parameters set forth in the government\rquote s solicitation for the project. On or about April 15, 2011, the RRAD awarded Defendant the contract for the Baghouse Project. Defendant, as contractor, and Plaintiff, as subcontractor, entered into a Standard Form Subcontract (the \Subcontract\) on or about June 2 or 3, 2011, but effective as of April 12, 2012. Under the Subcontract, Defendant was responsible for designing, engineering, and fabricating the equipment for the project, and Plaintiff was responsible for demolishing and/or removing the old equipment and installing the new equipment provided by Defendant, with a few limited exceptions outlined in the Subcontract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 035 - Mitchell Enterprises Ltd v Bennie Consulting Engineers LLC.doc, Paragraph with 'The Rule of Two': The evidence shows that in January 2011, Mr. Mitchell contacted Mr. Sanderford to discuss possibly assisting Mitchell with a bid protest related to a contract for a project in which Mitchell had an interest. Mr. Mitchell informed Mr. Sanderford that DUSTEX failed to meet the small business size requirement because it was too large. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 035 - Mitchell Enterprises Ltd v Bennie Consulting Engineers LLC.doc, Paragraph with 'The Rule of Two': The parties disagree as to who first initiated contact regarding the bid. Defendant asserts Plaintiff first approached Defendant. Plaintiff contends Defendant initiated contact with Plaintiff for an earlier bid when the government advertised a pollution control project at RRAD. Regarding the second government solicitation for a pollution control project at RRAD, Plaintiff does states Mr. Mitchell (a partner in Mitchell Enterprises) contacted Mr. Bennie (sole shareholder for Defendant) to discuss working together \since BCE met the solicitation\rquote s small business requirement [and] Mitchell possessed the capacity to guarantee the bonds and sufficient time existed for the parties to act prior to the bid deadline.\ Response at pgs. 2-3. For purposes of this Order, the Court need not decide who first initiated contact. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder filed pre-award bid protest, challenging Department of Veterans Affairs\rquote (VA) determination that bidder did not satisfy status requirements of service-disabled veteran-owned small business (SDVOSB), under Veterans Benefits, Health Care, and Information Technology Act, so was ineligible for contract awards under Veterans First Contracting Program that gave priority to veteran-owned small businesses (VOSBs) and SDVOSBs. Bidder moved for preliminary injunction setting aside VA\rquote s removal of bidder from program as VOSB and barring VA from awarding contracts on solicitations on which bidder had submitted proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': The priority contracting preferences for service-disabled veteran-owned small business (SDVOSBs) and veteran-owned small businesses (VOSBs), under Veterans Benefits, Health Care, and Information Technology Act, apply only to procurements by the Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Disappointed bidder\rquote s pre-award bid protest of decision of Department of Veterans\rquote Affairs (VA), disqualifying bidder from contract awards under Veterans First Program due to ineligibility as service-disabled veteran-owned small business (SDVOSB), was within Tucker Act jurisdiction, since bidder claimed that VA contravened its regulations governing veteran-owned small business (VOSB) eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans\rquote Affairs (VA) Office of Small and Disadvantaged Business Utilization\rquote s (OSDBU) determination that contractor could not meet regulatory requirements of control standard for eligibility as veteran-owned small business (VOSB), thereby disqualifying him from contract award under Veterans First Contracting Program as service-disabled veteran-owned small business (SDVOSB), was not reasonable, where contractor was physically present for nearly half year in Rhode Island in which his contracting business was located, he spent remainder of his time in Florida in same time zone as Rhode Island, he electronically kept track of day-to-day business in Rhode Island while he was in Florida, he typically performed one job at a time and mostly while he was in Rhode Island, he traveled from Florida to Rhode Island for any important business meeting, he had ample construction management experience, and he maintained no other jobs or positions so he could focus solely on his contracting business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Bidder would likely suffer irreparable harm from lost profits in absence of preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where VA\rquote s removal of bidder from program already caused loss of $1.5 million contract that bidder was previously awarded, loss of future work as VOSB would likely result in bidder\rquote s ultimate demise as viable business, and reverification as VOSB would take six months to one year during which time bidder would lose substantial business and income. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Balance of hardships favored preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where bidder would suffer irreparable harm from lost profits in absence of relief, and bidder had substantial likelihood of success on merits of claim that VA\rquote s disqualification decision was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Public interest supported preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where setting aside VA\rquote s disqualification decision would ensure bidder\rquote s opportunity to compete fairly in VOSB procurements and serve strong public interest in preserving integrity of procurement status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Pre-award bid protest; motion for preliminary injunction; disparate intra-agency decisions regarding the level of control exercised by a veteran owning a small business; evidence of \control\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': Pending before the court is plaintiff\rquote s motion for a preliminary injunction in this pre-award bid protest. On February 7, 2012, plaintiff, KWV, Inc. (\KWV\), had obtained a determination from the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) that it was a qualified veteran-owned small business (\VOSB\) concern eligible to participate in VA\rquote s Veterans First Contracting Program, which accords priority to VOSBs and service-disabled veteran-owned small businesses (\SDVOSBs\) for contracting opportunities. Nonetheless, after KWV had ostensibly won an award of a contract as a VOSB, an agency protest by a losing bidder resulted in a decision by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) that KWV \d[id] not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': AR 513. That Act, signed into law on December 22, 2006, directs the Secretary of Veterans Affairs in procurements using contracting preferences to \give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': (pertaining to \SDVOSB/VOSB Small Business Status Protests\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': and 38 C.F.R. Part 74 (setting out VA\rquote s \Veterans Small Business Regulations\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': . Part 74 specifies the standards for CVE\rquote s evaluation of applicants for VOSB status and the eligibility for inclusion in the Veterans First Contracting Program, and those standards are explicitly incorporated by reference in the VAAR provisions governing SDVOSB and VOSB small business status protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': The statutory predicate for the Veterans First Contracting Program is the Veterans Benefits Act, which provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': C.F.R. \u167\u167 74.3 (ownership), 74.4 (control). In answer to the question \Who does CVE consider to control a veteran-owned small business?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': (3) If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'The Rule of Two': in determining whether the [veteran] controls an applicant construction company.\ AR 570 (emphasis added). This statement is followed by a citation to a decision by the Small Business Administration\rquote s (\SBA\rquote s\) Office of Hearings and Appeals (\OHA\) and a summary of Alares\rquote bid protest allegations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 041 - Linc Government Services LLC v United States.doc, Paragraph with 'The Rule of Two': The Government responds that \the alleged betterments [Linc] cited merely met the criteria of the [S]olicitation and [do] not constitute betterments as defined by the [S]olicitation.\ Gov\rquote t Resp. to Pl. at 15 (citing AR Tab 3 at 251 (defining \betterments\ as \[a]ny portions of the accepted proposal which both conform to and exceed the provisions of the [S]olicitation\)). The Government concedes that \Linc correctly identifies a limited number of errors in the [Source Selection Evaluation Board\rquote s] report and evaluation,\ but these errors \did not significantly affect each offeror\rquote s ratings.\ Gov\rquote t Resp. to Pl. at 23. The Government discusses three such errors. Gov\rquote t Resp. to Pl. at 23\u821124. First, the Army described the Small Business Participation Plans of [redacted], [redacted], [redacted], and [redacted] as [redacted], but gave no similar recognition to Linc. Gov\rquote t Resp. to Pl. at 23. This error, however, did not prejudice Linc, because even if the Army recognized Linc\rquote s Small Business Plan as a [redacted] that alone would not have improved Linc\rquote s rating as to Factor 1. Gov\rquote t Resp. to Pl. at 23. Second, the Army credited [redacted] for the use of federally mandated low flow toilets. Gov\rquote t Resp. to Pl. at 24. This error, however, did not prejudice Linc, because \[t]he toilet item represented one of dozens of evaluation data points in the procurement and had a negligible impact on the selection of awardees.\ Gov\rquote t Resp. to Pl. at 24. Third, the Army\rquote s rating for Factor 1 erred in referring to weaknesses in [redacted] and [redacted]\rquote s proposals, although [redacted] and [redacted] had amended their proposals to remove those weaknesses. Gov\rquote t Resp. to Pl. at 24\u821125. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 041 - Linc Government Services LLC v United States.doc, Paragraph with 'The Rule of Two': Twentieth, although the Army credited Linc with a strength for \list[ing] numerous categories of small business they have done business with in the past and propose to use in the future and what type of work they can provide,\ Linc takes issue with the Army\rquote s decision to make \the exact same finding for this factor in the proposals of [[redacted], [redacted], [redacted], and [redacted],]\ and credit them with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 041 - Linc Government Services LLC v United States.doc, Paragraph with 'The Rule of Two': AR Tab 123 at [redacted] ( [redacted] ), [redacted] ( [redacted] ), [redacted] ( [redacted] ), [redacted] ( [redacted] ). Linc insists that it provided similar detail and a longer list of small businesses than the other offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 042 - Alamo Travel Group LP v United States.doc, Paragraph with 'The Rule of Two': App. to Def.\rquote s Opp\rquote n to Pl.\rquote s Mot. for Prelim. Inj. (\Def.\rquote s App.\) at 21, 39. The Travel Office is tasked with serving as the \single focal point for commercial travel\ for the United States Department of Defense, and provides various services to this end, including oversight, customer support, and management services. Def.\rquote s App. at 39. The Solicitation sought proposals for travel management services to be provided at a number of military installations, covering six travel areas. Def.\rquote s App. at 66; Compl. \u182 1. The Solicitation was a 100 percent small business set-aside on a competitive basis, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'The Rule of Two': Nevertheless, the Court finds it necessary to address the substance of Defendants\rquote arguments regarding whether Relator sufficiently alleges Defendants falsely represented concerns as SDVO SBCs. This is because it appears Relator may fundamentally misunderstand the October 1 Order. Relator continues to argue: (1) when Defendants represented certain concerns as SDVO SBCs, Defendants violated the FCA solely because they did not have documentation proving those concerns were eligible to be represented as SDVO SBCs; and (2) the Court must pay deference, in this FCA action, to the Small Business Administration\rquote s (\SBA[\rquote s]\) determination that Defendants were ineligible to represent certain concerns as SDVO SBCs. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'The Rule of Two': (\[The relator] alleges that defendant bidders falsely certified (or caused/conspired with others to falsely certify) that they were small or very small businesses, entitled to federal discounts.\). The defendants in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 048 - COMINT Systems Corp v US.doc, Paragraph with 'The Rule of Two': Comint advances a multitude of theories as to why the agency was wrong to ascribe many of these weaknesses to its proposal, although Comint does not challenge all eleven identified weaknesses. Comint argues that the agency was wrong to criticize its written proposal for a lack of detail while imposing a pagination limitation. Comint also argues that, by noting that Comint\rquote s proposal lacked any discussion of corporate resources, the agency improperly required it to \have its own in-house legal department.\ Appellant\rquote s Br. 44. Those objections are without merit. Additionally, Comint suggests that the agency should not have labeled its inexperience on large-scale contracts a weakness because the solicitation required offerors to qualify as small businesses. Other offerors, however, demonstrated appropriate experience with large contracts while still qualifying as small businesses. Comint\rquote s challenges to its Quality/Capability rating all involve the \minutiae of the procurement process in such matters as technical ratings ... which involve discretionary determinations of procurement officials that a court will not second guess.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 049 - American Apparel Inc v United States.doc, Paragraph with 'The Rule of Two': Regarding Socioeconomic Conditions, the Source Selection Authority determined that \[n]o adjectival rating exists for the Socioeconomic Conditions factor, the third and least important factor, because offerors were ranked in comparison to each other with respect to offeror efforts to develop additional opportunities for small, small disadvantaged and women-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 049 - American Apparel Inc v United States.doc, Paragraph with 'The Rule of Two': (ii) For solicitations involving bundling that offer a significant opportunity for subcontracting, the contracting officer must include a factor to evaluate past performance indicating the extent to which the offeror attained applicable goals for small business participation under contracts that required subcontracting plans ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': A service-disabled veteran-owned small business brought bid protest claim seeking injunctive relief compelling Department of Veterans Affairs (VA) to comply with Veterans Benefits, Health Care, and Information Technology Act of 2006, alleging that the VA conducted procurements in violation of Act by failing to set aside those procurements for veteran-owned small businesses or service-disabled veteran-owned small businesses. Cross-motions were filed for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': as a matter of first impression, VA\rquote s interpretation of Act as not requiring it to comply with Act\rquote s set-aside procedures for veteran-owned small businesses or service-disabled veteran-owned small businesses, and allowing it to retain discretion to procure goods and services from the FSS was reasonable and entitled to deference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Agency is exempt from small business set-aside programs under Federal Acquisition Regulations (FAR) when placing an order against Federal Supply Schedule (FSS) pursuant to which contractors agree to provide supplies and services at stated prices for given periods of time on the FSS, permitting federal agencies to buy supplies directly from the FSS, rather than holding a publicly-advertised full and open competition for every individual requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': analysis, to determine whether agency\rquote s interpretation of statute as allowing Department of Veterans Affairs (VA) to retain its discretion to procure goods and services from the FSS in light of set-aside procedures set forth in Act was entitled to deference; when construed in light of Act\rquote s goal-setting provisions, it was at best ambiguous as to whether Act mandated a preference for service-disabled veteran-owned small businesses and veteran-owned small businesses for all VA procurements, Act was silent as to relationship between its set-aside provision and the FSS, and legislative history of Act undermined bid protester\rquote s claim that Act was unambiguous. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) interpretation of Veterans Benefits, Health Care, and Information Technology Act as not requiring it to comply with Act\rquote s set-aside procedures for veteran-owned small businesses or service-disabled veteran-owned small businesses, and allowing it to retain discretion to procure goods and services from the Federal Supply Schedule (FSS), was reasonable and entitled to deference; VA\rquote s interpretation had remained consistent over time and reflected a uniform approach on agency\rquote s part, VA\rquote s interpretation was not directly in conflict with the Act or Veterans Affairs Acquisition Regulations (VAAR), and VA\rquote s interpretation was consistent with legislative history of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (VA) decision not to set aside a contract for an emergency notification service for VA medical centers and associated outpatient clinics the procurement for veteran-owned small businesses or service-disabled veteran-owned small businesses and instead procure the services from the Federal Supply Service was not arbitrary, capricious, or contrary to law; Veterans Benefits, Health Care, and Information Technology Act did not require the VA to comply with the Act\rquote s set-aside procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': ; Veteran\u8211Owned Small Business Set\u8211Asides; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff Kingdomware Technologies, Inc. (\plaintiff\), a service-disabled veteran-owned small business, brings this bid protest claim seeking injunctive relief compelling the Department of Veterans Affairs (\VA\) to comply with the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (\the 2006 Act\ or the \Act\). Plaintiff filed an amended complaint on July 18, 2012, alleging that VA conducted three procurements in violation of the 2006 Act by failing to set aside those procurements for veteran-owned small businesses (\VOSBs\) or service-disabled veteran-owned small businesses (\SDVOSBs\), such as plaintiff. For the purposes of the pending cross-motions for judgment on the administrative record, the parties have stipulated to the facts in regard to one of the three procurements at issue. The parties\rquote cross-motions focus only on the legal question of whether VA failed to comply with the 2006 Act in conducting this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (listing the order of priority when ordering supplies and services). FAR Part 19 includes provisions relating to contract set-asides for small businesses generally and for certain types of small businesses, such as women-owned small businesses or economically\u8211disadvantaged small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': FAR Part 19 mandates that small business set\u8211asides be used within or over certain contracting thresholds when the contracting officer reasonably expects to receive offers from two or more responsible businesses and the award will be competitive or awarded at fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': addition, contracting officers conducting acquisitions over certain contracting thresholds must preference several specialized small business set-aside programs, including that for SDVOSBs, before using a general small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . Small business set-asides have priority over acquisitions using full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': ) (\Federal procurement entities have \u8216broad discretion to determine what particular method of procurement will be in the best interests of the United States in a particular situation.\u8217 \). Importantly for this case, it is well-settled that when placing an order against the FSS, the agency is exempt from the small business set-aside programs under FAR Part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (\[T]he Small Business Program rules in FAR Part 19 do not apply to orders placed against and fully within the scope of existing FSS contracts.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': The FSS has therefore been historically utilized as a procurement method separate and apart from traditional procurement methods and set-aside provisions found elsewhere in the FAR. The parties\rquote dispute in this case centers on whether the language of the 2006 Act alters the traditional relationship between the FSS and small business set-asides by mandating that VA first determine whether it can set aside all of its procurement activities for restricted competition among SDVOSBs and VOSBs before deciding to meet its requirements through the FSS. The court now turns to the 2006 Act and its implementing regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': The goal for a fiscal year for participation under paragraph (1)(B) shall be not less than the Government-wide goal for that fiscal year for participation by small business concerns owned and controlled by veterans with service-connected disabilities under section 15(g)(1) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212For purposes of meeting the goals under subsection (a), and in accordance with this section, in entering into a contract with a small business concern owned and controlled by veterans for an amount less than the simplified acquisition threshold (as defined in section 134 of title 41[currently, $100,000), a contracting officer of the Department may use procedures other than competitive procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212For purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department may award a contract to a small business concern owned and controlled by veterans using procedures other than competitive procedures if\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': stating that a contracting officer must have \a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price\ is often referred to as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . The \Rule of Two\ is common among small business set-aside procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . A contracting officer conducts market research, such as by searching through a database of small businesses, to determine whether the \Rule of Two\ is satisfied. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': over other small business contracting preferences, such as those outlined in FAR Part 19, that VA may use: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212Preferences for awarding contracts to small business concerns shall be applied in the following order of priority: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service\u8211connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (A) section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Contracts awarded pursuant to any other small business contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': \u8212In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': ), created an acquisition program for small business concerns owned and controlled by service-disabled veterans and those owned and controlled by veterans for VA.\ VAAR Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Section 8(a) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Pursuant to any other small business contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': We disagree with the commenter and reject the suggestion because this rule does not apply to FSS task or delivery orders. VA does not believe a change to the regulation is needed, and 48 CFR part 8 procedures in the FAR will continue to apply to VA FSS task/delivery orders. Further, VA will continue to follow GSA guidance regarding applicability of 48 CFR part 19 of the FAR, Small Business Programs, which states that set-asides do not apply to FAR part 8 FSS acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,624 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': analysis, the court must first determine whether Congress has spoken directly to the issue of whether VA must first determine if the \Rule of Two\ is satisfied\u8211that is, whether the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States\u8211before ordering against the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': contracts on the basis of competition restricted to small business concerns owned and controlled by veterans ....\ (emphasis added). Plaintiff argues that the use of the phrase \shall award\ in this instance\u8211in contrast to the use of \may award\ in subsections (b) and (c) of \u167 8127\u8211unequivocally establishes a mandatory set-aside. Pl.\rquote s Mot. at 12 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff argues that its view is supported by a line of cases concerning the HUBZone set-aside, a small business set-aside authorized by the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . The HUBZone cases involved the issue of whether the Small Business Act granted priority to the HUBZone program over another small business set-aside program called the Section 8(a) program, which assists small businesses owned and controlled by socially and economically disadvantaged individuals. The application of the FSS was not at issue in these cases. Rather, courts were called on to decide whether Congress, by stating that \notwithstanding any other provision of law,\ agencies \shall award\ to qualified HUBZone businesses, intended to create a super priority for HUBZone businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the Small Business Act grants priority to the HUBZone program); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (holding that the HUBZone program takes priority over other small business programs). Plaintiff argues that the 2006 Act is like the HUBZone provision of the Small Business Act because it also uses the phrase \shall award\ in directing the agency to award contracts based on the \Rule of Two.\ Plaintiff concludes that the 2006 Act therefore created a mandatory set-aside for SDVOSBs and VOSBs without any exceptions or exclusions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VA would be allowed to award non-competitive contracts to small businesses owned and controlled by veterans when the amount of the contract is below the simplified acquisition threshold as defined in section 4 of the Office of Federal Procurement Policy Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': ). Further, contracting officers would be allowed, but not required, to award sole source contracts to small businesses owned and controlled by veterans to meet the annual goal set by the Secretary for contracts above the simplified acquisition threshold but below $5,000,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Contracting officers would retain the option to restrict competition to small businesses owned and controlled by veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Second, the 2006 Act is silent as to the relationship between its set-aside provision and the FSS and thus the specific issue in this case is not answered by the plain words of the statute. In this connection, the court notes that, generally, the FSS is exempted from small business set-aside requirements under the FAR. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': ). Thus, in enacting the 2006 Act, the court must presume that Congress was aware of the historic exception of the FSS from small business set-asides and cannot presume, as plaintiff urges, that Congress intended to extinguish the exception by its silence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Further, the legislative history of the Act undermines plaintiff\rquote s interpretation of the 2006 Act. The Joint Explanatory Statement accompanying the 2006 Act states that VA contracting officers \would retain the option to restrict competition to small businesses owned and controlled by veterans\ if the \Rule of Two\ is met, and that the Act was meant to give VA the \tools\ to meet its SDVOSB and VOSB set-aside goals, but not to the detriment of other set-aside goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Finally, the court finds that plaintiff\rquote s reliance on the HUBZone cases is misplaced. As an initial matter, as noted above, the HUBZone cases dealt with conflicting set-aside preferences under the Small Business Act, not the relationship between set-asides and procurement vehicles, such as the FSS. Moreover, the courts, in determining that the HUBZone set-aside program took priority over other set-aside programs in the Small Business Act, relied on the \shall be awarded\ language in that statute as used in conjunction with the phrase \notwithstanding any other provision of law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VA will continue to follow GSA guidance regarding applicability of 48 CFR part 19 of the FAR, Small Business Programs, which states that set-asides do not apply to FAR part 8 FSS acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled VeteranOwned Small Businesses, 74 Fed.Reg. 64,619, 64,624 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . Second, VA\rquote s interpretation is not directly in conflict with the Act or the VAAR, which are silent on the role of the FSS in meeting the goals set by the Secretary. VA\rquote s interpretation of its abilities under the Act is also consistent with the legislative history of the Act, which expresses the intent that VA retain \options\ to award contracts to SDVOSBs and VOSBs, and that VA would \exercise reasonable judgment\ in meeting the Act\rquote s set-aside goals alongside VA\rquote s other small business goal obligations. Third, while VA\rquote s explanation of its interpretation of the Act, found in the preamble, is brief, it made clear the basis of VA\rquote s position\u8212the traditional exemption of the FSS from set-aside programs\u8212and was promulgated in the context of a notice-and-comment rulemaking procedure. Finally, VA\rquote s interpretation is consistent with the traditional relationship between set-asides and the FSS found in the FAR\u8211namely, that agencies are not required to implement set-aside programs before or while using the FSS. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (\It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': veteran-owned small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.\) (emphasis added), although no separate VOSB program like the set-aside program for SDVOSBs is found in FAR Part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': In accordance with this section, a contracting officer may award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the contracting officer has a reasonable expectation that not less than 2 small business concerns owned and controlled by service-disabled veterans will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . Rather, the GAO found that, at least with regard to small business set aside priorities, the VA Act \anticipates the operation of other statutory preferences.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': . The purpose of the HUBZone program is to \provide Federal contracting assistance for qualified small business concerns located in historically underutilized business zones....\ FAR \u167 19.1301(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': The statutory language of the Small Business Act relied on by the courts in the HUBZone cases has since been removed by an 2010 amendment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': where the GAO held that because FAR Part 19\rquote s SDVOSB set-aside provision was created as a government-wide program by the Veterans Benefit Act of 2003, \the exception in the FAR that permits agencies to award task and delivery orders under the FSS without regard to government-wide small business programs ... does not govern, or apply to, the SDVOSB set-aside program created by the Veterans Benefits, Health Care, and Information Technology Act of 2006.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': reasonably concluded that, based on the traditional exemption of the FSS from small business set-asides, it would not apply the 2006 Act\rquote s terms to FSS orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Legislation has since been proposed in the House of Representatives to \clarify the contracting goals and preferences of the Department of Veterans Affairs with respect to small business concerns owned and controlled by veterans.\ H.R. 4048, 112th Cong. \u167 2 (2012). That bill proposes to amend Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': , Follow-up on the U.S. Department of Veterans Affairs Service\u8211Disabled Veteran\u8211Owned Small Business Certification Process: Hearing Before the Subcomm. on Oversight and Investigations and Subcomm. on Economic Opportunity of the H. Comm. on Veterans\rquote Affairs, 1 12th Cong. 19 (Nov. 30, 2011) (question of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': VA Acquisition Regulation: Supporting Veteran\u8211Owned and ServiceDisabled Veteran\u8211Owned Small Businesses, 73 Fed.Reg. 49,141, 49,144 (Aug. 20, 2008) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 051 - Systems Application And Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': SA\u8211TECH would be permanently injured if an injunction is not issued. It has successfully performed the contract for seven years. The contract represents a significant portion of SA\u8211TECH\rquote s revenues. AR 2503. Plaintiff began as a Small Business Section 8A minority and disabled-owned contractor. This is the first unrestricted contract that SA\u8211TECH has won as a graduate of Section 8A and is key to marketing the company. AR 2501 (\If we lose this contract then we lose the longest unrestricted contract [we have] and the key points [of] our marketing for the company.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': stated goal of the Department of Homeland Security, Transportation Security Administration (TSA), in connection with award of screening contract, that there be 40% small business participation, was not converted into an allegedly unachievable mandatory condition by provision of submission requirements; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Stated goal of the Department of Homeland Security, Transportation Security Administration (TSA), in connection with award of contract to provide passenger and baggage security screening services at international airport, that there be 40% small business participation, was not converted into an allegedly unachievable mandatory condition by provision of submission requirements stating that, \[i]f the apparently successful offeror fails to negotiate a subcontracting plan acceptable to the contracting officer before contract award, the offeror will be ineligible for award\; this provision of submission requirements did not speak in terms of failing to meet any bright-line threshold and fell far short of indicating that any proposal falling short of this 40 percent goal could be rejected as nonresponsive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Stated goal of the Department of Homeland Security, Transportation Security Administration (TSA), in connection with award of contract to provide passenger and baggage security screening services at international airport, that there be 40% small business participation, as measured by total contract price, was not unlawful, even though Federal Acquisition Regulation (FAR) spoke of small business goals in terms of percentages of total subcontracting dollars as opposed to total contract dollars; nothing in regulations prohibited procuring agency from setting a small business goal expressed as percentage of total contract price, and because offerors knew total contract dollars that they intended to subcontract, their small business goals could be readily expressed in terms of both total contracting dollars and subcontracting dollars. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Procuring agency did not have to affirmatively ascertain whether sufficient qualified small businesses existed prior to establishing small business subcontracting goals for project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Stated goal of the Department of Homeland Security, Transportation Security Administration (TSA), in connection with award of contract to provide passenger and baggage security screening services at international airport, that there be 40% small business participation, did not violate provision of the Competition in Contracting Act (CICA) requiring that agencies \solicit bids or proposals in a manner designed to achieve full and open competition for the procurement,\ given that this level of small business participation was merely a goal, and not requirement for responsive bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Stated goal of the Department of Homeland Security, Transportation Security Administration (TSA), in connection with award of contract to provide passenger and baggage security screening services at international airport, that there be 40% small business participation, as measured by total contract price, was rational expression of government\rquote s policy of affording small business concerns the maximum practicable opportunity to participate as subcontractors in government contracts, though 40% goal could have effect on total cost of contract, and though the TSA had not affirmatively ascertained whether sufficient qualified small businesses existed prior to establishing this goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Even assuming that the Department of Homeland Security, Transportation Security Administration (TSA), in soliciting bids to provide passenger and baggage security screening services at international airport, had acted either unlawfully or irrationally in establishing goal of 40% small business participation, as measured by total contract price, bid protester, the entity that currently held expiring contract to provide such screening services at airport, failed to show that it was prejudiced, where all offerors had equal opportunity to locate potential small business partners in area of airport, and protester did not explain how this 40% goal would cause it to suffer some redressable, competitive harm as compared to other potential offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': FirstLine raised multiple challenges to the new solicitation in its September 14, 2012 complaint, but now has narrowed its protest essentially to two arguments: (1) that TSA\rquote s establishment of a 40 percent small business participation goal is unlawful and irrational; and (2) that TSA failed to provide sufficient information about the required services in the solicitation that would permit offerors to compete intelligently and on relatively equal terms. The parties have filed cross-motions for judgment on the administrative record, as well as response and reply briefs, and the Court heard oral argument on November 5, 2012. At an initial Temporary Restraining Order (\TRO\) hearing on September 18, 2012, Defendant voluntarily agreed to postpone the closing date for receipt of proposals until the Court decided this protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': TSA\rquote s 40 percent goal for small business participation is calculated as a percentage of the offeror\rquote s total contract price, not as a percentage of the offeror\rquote s proposed subcontracting plan. FirstLine strenuously objects to such a goal, arguing that a calculation based upon the contract price is not in accord with Part 19 of the Federal Acquisition Regulation (\FAR\), and that it is not aware of the existence of qualified small businesses who could even approach the performance of 40 percent of the contract work. For reasons that will be explained, if the Court were in the shoes of the agency, it would not structure the small business objectives for this procurement as the agency has done. However, after careful consideration, the Court cannot say that the agency\rquote s approach is clearly unlawful, or that the approach lacks a rational basis. As Defendant\rquote s counsel has emphasized, the 40 percent small business objective is merely a solicitation goal, not a requirement. The agency will be free to negotiate the best small business arrangement it can prior to contract award. This is a case where the Court must stay its hand and refrain from interfering with the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': As relevant to this bid protest, Section L.6 of the solicitation states that the \Government anticipates an overall Small Business goal of 40 percent,\ and that \[w]ithin that goal, the government anticipates further small business goals of: [ (1) ] Small, Disadvantaged business[:] 14.5 percent; [ (2) ] Woman Owned[:] 5 percent; [ (3) ] HUBZone[:] 3 percent; [ (4) ] Service Disabled, Veteran Owned[:] 3 percent.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': In its application for a TRO as well as in its opening brief on the merits, FirstLine challenged the terms of the solicitation on four grounds: (1) the allegedly improper establishment of a small business subcontracting goal of 40 percent of the total contract value, with certain additional sub-goals for subcontracting to specific categories of small businesses; (2) an alleged failure to provide information in the RFP adequate to enable potential offerors to prepare accurate and responsive proposals; (3) an alleged failure to correct the price evaluation scheme found irrational in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': The two grounds of FirstLine\rquote s challenge to the solicitation are: (1) the establishment of a small business subcontracting goal of 40 percent of the total contract value, with certain additional sub-goals for subcontracting to specific types of small businesses; and (2) an alleged failure to provide information in the RFP adequate to enable potential offerors to prepare accurate and responsive proposals. The Court will address each of these grounds below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': percent small business subcontracting goal. The relevant section of the solicitation, L.6 (Proposal Submission Requirements), states that the \Government anticipates an overall Small Business goal of 40 percent,\ and that \[w]ithin that goal, the government anticipates further small business goals of: [ (1) ] Small, Disadvantaged business[:] 14.5%; [ (2) ] Woman Owned [:] 5 percent; [ (3) ] HUBZone[:] 3 percent; [ (4) ] Service Disabled, Veteran Owned[:] 3 percent.\ AR at Tab 4, p. 175\u821176. Further: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Offerors will be required to demonstrate the extent of their Small Business participation through the submission of a small business subcontracting plan in accordance with the criteria set forth in FAR Part 19.704 \u8216Subcontracting Plan Requirements.\u8217 Thus any offeror that is not a Small Business must submit a Sub\u8211Contracting Plan in accordance with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': at Tab 6. In response to a question related to the measurement of the 40 percent small business goal, TSA stated that the \goal represents 40% of the total contract value.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': at p. 307 (Question 189). TSA also answered affirmatively the question \[i]s it the TSA\rquote s intent that all large businesses [be] mandated to have, as a minimum, 40% small business participation ... as part of their overall bid?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': On September 27, 2012, after Plaintiff initiated this bid protest, TSA amended its responses to several of these questions. Id. at Tab 16, p. 710. Specifically, in response to Question 190, which asked whether 40 percent small business participation, as a percent of total contract value, was \mandatory,\ TSA amended its answer to state: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Failure to meet the stated 40% small business participation goal would not necessarily render a proposal ineligible for award. However, the U.S. Small Business Administration (SBA) is responsible for ensuring that the government-wide goal for participation of small business concerns is established annually at the statutory levels, and the reporting agencies\rquote (to include the Department of Homeland Security, of which TSA is a component) achievements are relative to the goals. Consistent with these goals, TSA fully supports participation of small businesses in all full and open competitions, such as the current solicitation, to the greatest extent possible. Offerors for this solicitation are therefore strongly encouraged to aggressively support the small business participation goals stated in the solicitation. In the context of these goals and the locality for which an offeror develops its individual subcontracting plan, the TSA Contracting Officer will review any proposed subcontracting plan to ensure that the offeror has demonstrated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': FirstLine originally challenged the 40 percent small business participation standard on the understanding that it constituted a bright-line requirement, not a goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': First, Plaintiff contends that the 40 percent small business goal violates the plain meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': and FAR Subpart 19.7, both of which reference small business goals in terms of a percentage of total Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Third, FirstLine contends that the small business goal is unlawful because it \improperly uses the FAR\rquote s subcontracting provisions to impose, in effect, a partial set-aside of 40 percent of the contract without complying with the set-aside requirements set forth in FAR[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': , which provides that a contracting officer \shall\ set aside a portion of the work to be performed under a contract for \exclusive small business participation\ when (among other conditions) \the requirement is severable into two or more economic production runs or reasonable lots,\ and \[o]ne or more small business concerns are expected to have the technical competence and productive capacity to satisfy the set-aside portion of the requirement at a fair market price[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': With respect to the first of these arguments, FirstLine posits that relevant provisions of the FAR \obligate\ TSA to conduct market research that specifically identifies sufficient qualified small businesses prior to establishing any small business participation goals. Pl. Reply at 16. In support of this argument, Plaintiff cites, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': (respectively, in reviewing subcontracting plans, the contracting officer \shall consider ... [the] [p]revious involvement of small business concerns as prime contractors or subcontractors in similar acquisitions,\ and \[in] negotiated acquisitions ... [s]ubcontracting goals should be set at a level that the parties reasonably expect can result from the offeror expending good faith efforts to use small businesses\). Pl. Reply at 15\u821116. In essence, Plaintiff contends that \[t]aken together,\ these provisions impose an affirmative obligation on TSA to \ascertain whether sufficient qualified small businesses exist prior to establishing the [small business subcontracting] \u8216goals.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Finally, FirstLine argues that the contents of the market research report demonstrate that the 40 percent goal is irrational. One part of this argument flows directly from FirstLine\rquote s assertion that TSA was required to specifically identify sufficient qualified small business concerns before establishing the subcontracting goal. In Plaintiff\rquote s words, \[i]mposing small business participation requirements for specific types of small businesses without identifying whether any of the specific types of small businesses even exist is the epitome of arbitrary agency action.\ Pl. Mem. at 15. In a more general sense, however, FirstLine also argues that the dearth of evidence showing whether TSA conducted Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': inquiry into small business participation in screening services establishes that this goal is irrational. Thus, Plaintiff posits that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': If TSA had thought about how its approach would impact performance and price, and determined that any negative impact to performance and price is outweighed by the benefit of promoting small business participation, that decision would be afforded appropriate deference. But the administrative record shows that TSA undertook no analysis of any kind, and an agency that fails to apply its expertise through reasoned decision-making is not due any deference from a reviewing court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Defendant counters that the 40 percent small business goal is lawful, rational, and an appropriate application of the express \policy of the Government to provide maximum practicable opportunities in its acquisitions to small business [concerns].\ Gov\rquote t Mem. at 11 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': and Subpart 19.7 speak of small business goals in terms of a percentage of total subcontracting dollars (as opposed to total contract dollars), it argues Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': an agency from setting a small business goal expressed as a percentage of total contract price. Thus, Defendant argues that FirstLine does not, and cannot, identify a single affirmative bar to such a practice, and cites Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, as Defendant points out, \[b]ecause an offeror knows (and must identify) the total contract dollars that it intends to subcontract, an offeror\rquote s small business goals can be readily expressed in terms of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': ) (emphasis in original). Thus, the agency argues that there is nothing inconsistent between the language employed by the FAR and TSA\rquote s establishment of a small business goal expressed as a percentage of total contract value\u8212and, as evidence of such, points to the fact that several agencies have engaged in such practices without challenge. See Gov\rquote t Reply at 3 n.1 (collecting solicitations). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Emphasizing that the 40 percent standard is a \goal,\ not a requirement, Defendant also rejects Plaintiff\rquote s contention that this term constitutes a \set-aside,\ and argues that \[i]f anything, the FAR\rquote s provisions permitting an agency to set-aside an entire contract, or portion of a contract, for exclusive small business participation bolsters an agency\rquote s discretion to set small business subcontracting goals as it deems appropriate.\ Gov\rquote t Mem. at 10. Similarly, Defendant contends that properly understood as a goal, the 40 percent standard does nothing to restrict \full and open competition,\ and therefore cannot be in contravention of CICA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. Such concerns must also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by an executive agency, consistent with efficient contract performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': ). Defendant also states that FirstLine\rquote s irrationality argument is based on the faulty and baseless assumption that \utilizing small business subcontractors will negatively affect the quality of security screening services at MCI.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': at 6. Lastly, although Defendant concedes that the 40 percent goal \could have an effect on the total cost of its contracts generally and on this contract specifically,\ it states that the agency places a greater priority on maximizing small business participation than it does on achieving the lowest possible cost for this procurement. Gov\rquote t Reply at 7. In sum, Defendant argues that its \experience with small businesses who [sic] have successfully performed security screening services, along with the Government\rquote s policy of maximizing opportunities to small business concerns, provides ample justification\ for its decision to establish the 40 percent goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': If the Court were issuing this solicitation instead of this agency, it may well have based the rather aggressive small business goals on more robust market research, and it likely would have stated the goals as a percentage of subcontracting dollars, as FAR Part 19 authorizes. In this way, the prime contract offerors would have had the discretion to determine on their own how much of the work they were prepared to subcontract, and the desired level of subcontracting would not have been dictated by the federal agency. Nonetheless, the Court finds that under the applicable standards of review, it does not particularly matter that the Court might have conducted this procurement differently. What matters is the difficult burden of proof that a protester must meet in order to prevail. FirstLine has fallen short of establishing its entitlement to judicial relief, for the following reasons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': First, the Court is satisfied that TSA\rquote s September 27, 2012 amendment adequately addresses FirstLine\rquote s concern that the 40 percent standard will operate as a bright-line requirement or \set-aside.\ That amendment clearly states that \[f]ailure to meet the stated 40% small business participation goal would not necessarily render a proposal ineligible for award,\ and also expresses the agency\rquote s expectation that prospective offerors \aggressively support ... small business participation\ by \demonstrat[ing] due diligence in [their] effort[s] to meet the stated goals.\ AR at Tab 16, p. 710 (Revised Question 190). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': the \u8216small business goals\rquote will be \u8216ineligible for award.\u8217 \ Pl. Mem. at 23\u821124 (emphasis added). By its plain terms, Section L.6 is simply not that draconian: it does not speak in terms of failing to meet a bright-line threshold, but rather in terms of \fail[ing] to negotiate a subcontracting plan acceptable to the contracting officer before contract award[.]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': lists a number of factors that a contracting officer must take into consideration in evaluating (and negotiating) an offeror\rquote s proposed subcontracting plan. As FirstLine pointed out at oral argument, many of these considerations run, in essence, to both the reasonableness and feasibility of subcontracting at given levels within a given procurement. They include, for example, the \[p]revious involvement of small business concerns as prime contractors or subcontractors in similar acquisitions,\ and \[p]roven methods of involving small business concerns as subcontractors in similar acquisitions.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': And, under subsection (5), when evaluating subcontracting potential, the contracting officer must also take into account \the known availability of small business, veteran owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in the geographical area where the work will be performed, and the potential contractor\rquote s long-standing contractual relationship with its suppliers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': The Court agrees with Plaintiff that the placement of this language under the heading of \Compliance/Responsiveness\ is in tension with TSA\rquote s otherwise abundantly clear assertion that the 40 percent small business participation standard constitutes a goal, not a requirement. As TSA has made its position clear on this point throughout the course of this litigation, the Court assumes that TSA\rquote s failure to amend this language as part of its corrective action was an oversight. The Court would expect TSA to remove this lingering ambiguity in the terms of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': and Subpart 19.7 speak of small business goals in terms of a percentage of total subcontracting dollars (as opposed to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': implicitly precludes an agency from \adding\ such a requirement. However, as Defendant points out, subsection (a)(2) of that provision does require that such plans contain \[a] statement of the total dollars planned to be subcontracted and a statement of the total dollars planned to be subcontracted to small business,\ including specific types of small businesses such as HUBZone and women-owned small businesses. Although the question perhaps is debatable, the Court agrees with TSA that there is nothing inconsistent with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': in this manner stretches the provision too far. As explained below, the Court finds that an agency may rationally establish aspirational small business subcontracting goals for prospective offerors, even without specifically identifying small businesses that would be qualified to perform the subcontracted work. To the extent that such goals may overestimate the size and abilities of a given small business community, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': also stops well short of requiring, as Plaintiff claims, that an agency affirmatively \ascertain whether sufficient qualified small businesses exist prior to establishing\ the small business subcontracting goals. Pl. Reply at 16. To be sure, FirstLine\rquote s argument is not that this provision, standing alone, imparts such a duty, but rather that it should be read in combination with various other FAR provisions as collectively doing so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': provides a \back end\ set of standards according to which a contracting officer must evaluate proposed subcontracting plans does not necessarily compel the conclusion that an agency must affirmatively research these considerations at the \front end\ of a solicitation. Rather, as explained below, the Court finds that one reasonable way for an agency to further its policy of maximizing small business participation is to establish a goal and then allow offerors to compete in finding innovative ways to meet or approximate that goal. Nothing in the FAR prohibits such a practice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': compete, to some degree, on their ability to locate and partner with certain types of small businesses. The Court sees nothing anti-competitive in such terms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': In reaching the above conclusions, the Court notes that several of the issues raised in this case present questions of first impression. It also acknowledges that some of these issues at least arguably present fairly close questions of interpretation. For example, in the Court\rquote s experience, FirstLine is correct that the usual practice is for \the offeror, not the agency, [to] propose[ ] specific percentages [of small business participation] based on its total subcontracting effort.\ Pl. Mem. at 23 (emphasis removed). In the same vein, the applicable regulations might reasonably be read as at least primarily contemplating such a practice, to the implied exclusion of TSA\rquote s actions here. However, because nothing in the FAR expressly prohibits TSA from establishing the 40 percent small business participation goal, the Court finds that FirstLine has, at best, established that the agency is working within a regulatory gray area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Thus, in summary, the Court holds that the 40 percent small business participation goal is lawful. In the alternative, it finds that any claimed violation of the relevant regulations is colorable at best, but far from \clear.\ In the absence of a \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': The Court heeds this rule, and the limits of its authority, well in this instance, as it likely would have structured the challenged solicitation differently had it done so as an original proposition. However, the Court finds that the 40 percent goal is a rational expression of the Government\rquote s policy of affording small business concerns\u8212and in particular certain types of small businesses, such as veteran- or women-owned\u8212\the maximum practicable opportunity to participate as subcontractors in the contracts awarded by an executive agency, consistent with efficient contract performance.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': The Government concedes that the goal \could have an effect on the total cost of its contracts generally and on this contract specifically,\ but states that TSA currently places a greater priority on expanding small business opportunities than on achieving the lowest possible cost for this procurement. Gov\rquote t Reply at 7. It also rejects, as contrary to its experiences in similar procurements, FirstLine\rquote s opinion that the expansion of small business participation will come at an unacceptable cost to the quality of important security services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': The Court agrees with the Government that its decision to structure the solicitation in this manner is within its discretion. As discussed above, nothing in the FAR either prohibits such an approach or affirmatively requires an agency to specifically identify particular small business concerns capable of performing subcontracted services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Consequently, one rational method by which the Government may attempt to maximize small business participation is to establish a rough subcontracting goal for a given contract, and then allow potential contractors to compete in designing innovative ways to structure and maximize small business subcontracting within their proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': establishes a governmental policy in favor of maximizing small business subcontracting \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': \ (emphasis added). These provisions suggest an outer limit to the Government\rquote s discretion to accept higher costs and inefficiency in exchange for greater small business participation. While the Court cannot say what that limit might be in these circumstances, it agrees that, at this point, it must presume that TSA officials will act in good faith in reviewing offerors\rquote subcontracting proposals, and that any challenge to their evaluation process is at this point premature. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': standard. Essentially, FirstLine\rquote s first argument is that meeting or approximating the 40 percent small business participation goal [* * *]. However, even assuming this to be true, FirstLine fails to offer any explanation as to why such a state of affairs would cause it to suffer a redressable, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': harm as compared to other potential offerors. All such entities will confront the same small business community, as it currently exists in the greater Kansas City area. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': offerors. Nonetheless, under the terms of the solicitation, TSA would be permitted to favor the offeror who came closest to meeting the aspirational goal. In other words, all offerors have an equal opportunity to locate potential small business partners in or near Kansas City, to the extent they exist. That FirstLine might [* * *] is not, however, a redressable competitive injury. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': For the reasons stated above, the Court GRANTS the Government\rquote s motion for judgment on the administrative record, and DENIES Plaintiff\rquote s cross-motion for the same, as well as its separate motion for injunctive relief. Accordingly, the Court directs the Clerk of Court to enter judgment for the Government. However, the Court suggests that the agency amend Section M.4 of the solicitation to remove the ambiguity regarding the 40 percent small business participation goal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Defendant also notes that a proposed rule currently under consideration by the Small Business Administration (\SBA\) would amend that agency\rquote s regulations to expressly permit the setting of subcontracting goals in terms of total contract value. Although the revised regulation would require agencies to establish their subcontracting goals \in terms of the total dollars subcontracted and as a percentage of total subcontract dollars,\ it would Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Subcontracting, 76 Fed. Reg. 61,626 (October 5, 2011) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'The Rule of Two': (proposing implementations of various provisions of the Small Business Jobs Act of 2010). While the Court does not assign any weight to the terms of a regulation that has yet to be enacted, it acknowledges that in the preamble to the proposed rule, the SBA cited the fact that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 053 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': The Source Selection Plan (SSP) authorized the Source Selection Evaluation Board (SSEB) to review and rate each proposal individually, assign adjectival ratings and document its process, rationale and conclusions. (AR 1566, 1570.) The SSEB had four evaluation panels: Management and Technical, Past Performance, Small Business and Cost/Price, corresponding to the respective evaluation factors. (AR 1565, 1570, 1572.) Although there were different evaluation panels, the panels were the same for each offeror. The SSEB\rquote s reports were reviewed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 053 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': small business participation, and cost/price standpoint.\ (AR 721, \u182 6.) SAIC was on notice that initial clarity was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 053 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': (referencing AR 1240, \u167 2.1) (\ \u8216We have exclusive teaming agreements with all [redacted] of our teammates, of which [redacted] small businesses.\u8217 \).) SAIC cites its careful selection of subcontractor \teams\ which included [redacted] (AR 1092.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 053 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': The Management and Technical and Past Performance Evaluation Panels each had four members; there was one member on the Small Business Evaluation Panel; the Cost/Price Evaluation Panel had five members; and the Source Selection Advisor Council (SSAC) had six members. (AR 1580\u821181.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': The RFP indicated that only small businesses eligible under the 8(a) program of the Small Business Administration (SBA) could compete for the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': the services that SMRC is performing under the contract. The deadline for responses was July 23, 2012. Five contractors, two of whom were 8(a) certified, responded to the RFI; Reema did not respond. On or about August 23, 2012, ECBC and the SBA decided that the contract would be resolicited as a small business set aside rather than as an 8(a) set aside. On September 12, 2012, ECBC issued a services acquisition strategy document regarding the resolicitation of the contract at issue here as a small business set aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': Retrospectively, it claims that it is entitled to bid preparation and proposal costs relating to the procurement which led to the contract that ECBC is terminating. Prospectively speaking, plaintiff seeks an injunction requiring ECBC to reprocure the services in question. It acknowledges, however, that ECBC has already decided to do this, albeit not with the certainty plaintiff might prefer. Both requests for relief have evolved over the course of this case, in reaction to actions undertaken by ECBC. Initially, plaintiff was concerned that its status as an 8(a) contractor would terminate before it could submit a proposal on what it expected would be an 8(a) reprocurement. ECBC, however, has decided that the reprocurement will not be an 8(a) procurement, but rather a procurement limited to small businesses\u8212for which plaintiff believes it is eligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': In its motion for judgment on the administrative record, plaintiff argues that the court should prevent ECBC from continuing with performance of the 8(a) contract at issue because that award was made to a company that the SBA has held is ineligible for award. As further basis for setting aside this award, Reema argues that ECBC did not fairly review its proposal consistent with the criteria used to evaluate other offers. ECBC, however, has agreed to terminate the existing contract as of late February 2013, when several pending task orders expire. And, with the approval of the SBA, ECBC also has agreed to reprocure the services in question not as an 8(a) procurement, but rather as a small business procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff makes two claims in this regard. First, it asserts that ECBC acted contrary to the relevant regulations in awarding the contract to an offeror that did not qualify as a small business within the NAICS code involved. Second, it contends that ECBC applied the evaluation criteria in the RFP inconsistently, in rating Reema\rquote s and SMRC\rquote s proposals differently. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, under the regulations, the offeror must represent \that it is a small business concern in connection with a specific solicitation,\ which representation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': it may make \if it meets the definition of a small business concern applicable to the solicitation and has not been determined by the Small Business Administration (SBA) to be other than a small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': (discussing representations and certifications). Under the Federal Acquisition Regulation (FAR), the contracting officer \shall accept an offeror\rquote s representation ... that it is a small business unless (1) another offeror or interested party challenges the concern\rquote s small business representation or (2) the contracting officer has a reason to question the representation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': . On December 29, 2011, the SBA issued a size determination concluding that SMRC was not small for the procurement at issue and was, therefore, ineligible for the award. The regulations provide that if a contracting officer receives a determination that the awardee is not an eligible small business for the procurement in question, and \no OHA appeal has been filed, the contracting officer shall terminate the award.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 056 - Reema Consulting Services Inc v US.doc, Paragraph with 'The Rule of Two': . There is no indication that the system was also to be used in examining proposals. Indeed, the regulations did not require small businesses to register before making an offer, but only required them to do so immediately prior to receiving an award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent contractor filed pre-solicitation bid protest of Department of Labor\rquote s decision to designate a contract for operation of a job training facility as a small business set-aside, seeking declaratory and injunctive relief. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': small business set-aside designation was proper, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': declaration of plaintiff\rquote s officer was not relevant to issue of whether small business set-aside designation was proper. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Despite incumbent\rquote s contention that Department of Labor had by-passed requisite competitive bidding process by designating proposed contract for operation of job training facility as a small business set-aside, designation was proper; two small businesses had been identified as capable under all of the capability areas identified in agency\rquote s sources sought notice, there was a reasonable expectation that award would be made at fair market prices based on past offers, and awards made under small business set-asides were, by definition, competitive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Declaration of incumbent contractor\rquote s executive vice president of operations, outlining fact that contractor had done a good job operating job training facility under present government contract, and that small businesses as a group generally had not, was not relevant to issue of whether Department of Labor\rquote s decision to designate proposed contract for the continued operation of the facility as a small business set-aside was proper, and thus, declaration would not be admitted to supplement administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': This is a pre-solicitation protest of the Department of Labor\rquote s decision to designate the contract for operation of the Blue Ridge Job Corps Center (\Blue Ridge\) as a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff, Res\u8211Care Inc., is the incumbent contractor. Because of the small business size limitations placed on this contract, Res\u8211Care is precluded from qualifying for the award. Currently before the court are the parties\rquote cross-motions for judgment on the administrative record, plaintiff\rquote s motion for leave to supplement the administrative record with the second declarationof its executive vice-president, and defendant\rquote s motion to strike those portions of plaintiff\rquote s memorandum in support of its motion for judgment on the administrative record that rely on extra-record evidence. The motions are fully briefed, and we heard oral argument Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Although the sources sought notice was not limited to small businesses, DOL \encourage[d] firms that qualify under the Small Business Programs mentioned in Federal Acquisition Subpart 19, including 8(a), HUBZone and Service Disable Veteran Owned Small Business to respond,\ AR 1, with a \capabilities statement.\ AR 4. Potential contractors were asked to include in the capabilities statement their prior experiences running comparable facilities, providing similar services, and operating with comparable financial resources. AR 2\u82113. DOL also asked potential bidders to indicate on the cover letter of the capabilities statement whether they participate with a small business program. AR 1. DOL reserved \the right to compete any acquisition resulting from this survey among small businesses based on the responses received.\ AR 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': DOL received five capabilities statements in response to its sources sought notice. Four of the five responses were from small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Res\u8211Care did not respond to the sources sought notice. Based on the capabilities statements received from the five companies, DOL determined that two of the small businesses were unable to perform the contract because they lacked experience or failed to demonstrate sufficient financial wherewithal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': AR 52, 56. The large business and two of the small businesses were deemed potentially capable of performing the contract. AR 52. That conclusion was based on a review of eleven areas of experience related to the work and an assessment of whether the businesses had access to financial resources to begin doing the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': On March 9, 2012, DOL designated the contract for the operation of Blue Ridge as a 100% small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': a small business pursuant to Federal Acquisition Regulation (\FAR\) part 19.502\u82112 had been met. Specifically, she concluded that two small businesses were \capable under all of the capability areas identified\ in the sources sought notice and that \there is a reasonable expectation that award[s] will be made at fair market prices\ based on past offers made by the companies that were found to be capable of performing this contract. AR 56. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': DOL issued a pre-solicitation notice, DOL121RP20489, on April 6, 2012, regarding the operation of the Blue Ridge Job Corps Center. The request was revised on April 25, 2012, to state that \[t]he solicitation for this requirement will be issued on or about May 4, 2012,\ and that the contract will be solicited as a \100% Set\u8211Aside for Small Business.\ AR 78\u821179. Performance of the contract will begin on April 1, 2013. AR 78. The solicitation was subsequently issued on September 11, 2012, and modified on October 17, 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Res\u8211Care is not classified as a small business under the applicable regulations because its annual receipts exceed the limits set by the North American Industry Classification System (\NAICS\). AR 53. NAICS codes are promulgated by the Office of Management and Budget and are used to classify an economic activity or industry for many purposes. Using the already-established NAICS codes, the Small Business Administration then imposes its own limitations on size and revenue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, when the contracting officer designated a NAICS code for small business set-aside, the effect was to both target the type of institutions solicited and simultaneously to impose size and revenue limitations on those bidders. The revenue limit associated with NAICS code 611519, which is the code for the operation of Blue Ridge, caps awards to firms with no more than $35.5 million in annual receipts. AR 2, 54; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Therefore, if the contract for operation of Blue Ridge were designated for small businesses, any business with more than $35.5 million in annual receipts would be prohibited from competing. Res\u8211Care would not qualify. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': On April 18, 2012, prior to DOL issuing a formal solicitation, Res\u8211Care filed its complaint before this court seeking injunctive and declaratory relief. Defendant filed the Administrative Record on May 14, 2012. Plaintiff sought to supplement the Administrative Record with a declaration of its Executive Vice\u8211President of Operations, Richard Myers, and with a report (\Rell & Doran Report\) entitled \Analysis of Small Business Contracting in Job Corps,\ written by Peter Rell, the former National Director of Job Corps, and Vince Doran, the former President of Res\u8211Care. The court granted in part and denied in part plaintiff\rquote s request. With respect to the Rell & Doran Report, the court denied plaintiff\rquote s motion to supplement the record. As for Mr. Myers\rquote declaration, the court admitted it for the sole purpose of evaluating whether an injunction should issue in the event that plaintiff were to be successful on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff again seeks to supplement the administrative record with an additional declaration from its vice-president. Mr. Myers offers information concerning (1) Res\u8211Care\rquote s effectiveness in operating Job Corps centers, (2) the harm that Res\u8211Care will experience if it is excluded from the procurement process, (3) the poor performance record of small businesses in this field, and (4) his own qualifications to comment on the above-mentioned subjects. Data is included in the declaration showing Res\u8211Care\rquote s performance record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (Supp. IV 1998)). DOL\rquote s decision to designate the contract as a small business set-aside is made \in connection with\ a proposed procurement and plaintiff alleges that the decision was made in violation of applicable statutes. We therefore have jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': We begin with the procedural questions raised by plaintiff\rquote s motion to supplement the administrative record with the second declaration of Mr. Myers, and defendant\rquote s motion to strike references in plaintiff\rquote s briefing to the Rell & Doran Report and to either of Mr. Myers\rquote declarations. We admitted the first Myers declaration for the limited purpose of supporting plaintiff\rquote s claim of injury, in the event the court reached the question of injunctive relief. Defendant is correct, however, that plaintiff makes liberal reference to the balance of the declaration as well as the Rell & Doran Report in its briefing. The substance of the declaration and the report is that plaintiff has done an excellent job for several years as the incumbent contractor and that small businesses have not done as well as large businesses in running Job Corps centers. We agree with defendant that those extra-record references, particularly to the report, cannot be considered with respect to any issue in this bid protest other than potential injury to plaintiff. The purpose of our review is to ensure that the agency complied with the applicable rules in deciding to move to a small business set-aside. The fact that plaintiff has done a good job, and that small businesses as a group have not, is not relevant to any inquiry open to the court. The evidence would only inform a judgment made at the policy level. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': \). The critical language, to plaintiff, is the portion highlighted above. Plaintiff argues that it precludes small business set asides, which are not specifically within the itemized exceptions to selection \on a competitive basis.\ As we explain below, however, this assertion is based on an assumption we do not share, that small business set-asides are not conducted on a competitive basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Instead, in initiating the sources sought notice and the subsequent small business set aside, the agency utilized the procedures authorized by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': , \Exclusion of ... solicitation to small business concerns.\ Paragraph (b) permits the agency to procure services \using competitive procedures, but excluding other than small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': concluded that there was a \reasonable expectation\ that \[o]ffers will be obtained from at least two responsible small business concerns\ offering the services sought. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s principal argument is that the agency violated WIA by utilizing the small business set-aside procedures of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . The critical assumption behind its argument is that small business set asides are not a form of competition. Plaintiff construes the language of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': , the Secretary shall select on a competitive basis\\u8212to preclude small business set asides under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': from its requirement that a selection be made on a \competitive basis.\ The structural argument it makes is that, by not listing small business set asides as one of the specific exceptions, Congress meant to exclude it as a procurement vehicle for WIA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s argument only succeeds if small business set asides are noncompetitive. If in fact they are a type of competitive procurement, there is no tension at all between WIA and the use of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': permits the \[e]xclusion of other than small business concerns,\ as well as exclusion of a particular source. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Paragraph (b), dealing with small business set-asides, specifically requires Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (authorizing an agency to procure goods and services \using competitive procedures but excluding other than small business concerns\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': , which bears the title \Use of Noncompetitive Procedures.\ We think a fair reading of that caption is that other procedures, such as small business set asides are, by definition, not \noncompetitive.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . In other words, \full and open competition,\ at one extreme, and \noncompetitive procedures\ at the other extreme, do not necessarily constitute the entire universe of possible procurement mechanisms. The most natural reading of these five provisions is that, while small business set asides are not a type of \full and open competition\ referred within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': It would be helpful if the term \competitive basis\ were defined within WIA. It is not. Nor is it defined within CICA. Defendant points out, however, that CICA defines a similar phrase, \competitive procedures,\ to include procurements that are set-aside to promote small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': (4) procurements conducted in furtherance of section 15 of the Small Business Act ... as long as all responsible business concerns that are entitled to submit offers for those procurements are permitted to compete.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . CICA thus specifically treats small business set asides as requiring competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': small businesses. In the ordinary sense, then, small business set asides are competitive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . Small business set asides are not precluded. Even if the statute were unclear, however, we agree with defendant that, as the agency charged with implementing the statute, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . The agency has adopted regulations specifically authorizing use of small business set asides in contracting for Job Corps training centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff\rquote s alternative argument is that the contracting officer violated the \rule of two,\ which requires the contracting officer to have a reasonable belief that there are at least two responsible small businesses that can satisfy the contract requirements at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': . While plaintiff does not specifically challenge the contracting officer\rquote s finding that the two small businesses involved here meet that test, it contends that there was substantial evidence available to show that small businesses, in general, have a record of poor past performance in operating Job Corps centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': It bears repeating here that the only evidence supporting plaintiff\rquote s argument has been struck by the court: the Myers\rquote declaration and the Rell & Doran Report. These materials are plainly \extra-record.\ They were either not available to the contracting officer (the Myers declaration), or, even if generally available as background on the Job Corps program (the Rell & Doran Report), are not appropriate for court consideration on the narrow question of whether the contracting officer was arbitrary or capricious in concluding that at least two responsible small businesses were capable of bidding the contract work at a fair price. What plaintiff urges the court to do is determine that it was arbitrary or capricious for the agency to assume the presence of two such small firms because, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': small businesses have underperformed in the past. Such guilt by association may have been an exercise in common sense, but it would only have informed a policy judgment. It does not draw into question the particular determination made here. The contracting officer had before her information on which to base the determination that, based on the types of experience viewed as relevant, the two surviving small businesses could compete. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': [ ] is a small business. AR 10. [ ] is a disadvantaged small 8(a) corporation. AR 20\u821121. [ ] is a woman-owned 8(a) small business. AR 40. [ ] is a small business under section 8(a). AR 51.1. [ ] is a large business. AR 30. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': Under Federal Acquisition Regulation part 6.203, contracts may be set aside for small businesses to fulfill statutory policies relating to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'The Rule of Two': This provision of the FAR governs the appropriate use of small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 058 - Sierra Nevada Corp v US.doc, Paragraph with 'The Rule of Two': e. The contractual requirement for a Small Business Participation Plan has been deleted. Sections L and M and the Model Contract have been revised accordingly. The requirement to submit a Small Business Subcontracting Plan remains and will be considered in the determination of responsibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The government, recognizing that it had done too little to assist service-disabled veterans, began the Service\u8211Disabled Veteran\u8211Owned Small Business Concern (\SDVO SBC\) Program to promote business between the United States and service-disabled veterans who own small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': note, Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': The SDVO SBC contracting program is administered by the Small Business Administration (\SBA\), which has enacted regulations regarding the requirements for bidding on such contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations; Government Contracting Programs, 69 Fed. Reg. 25265 (May 5, 2004) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': (\The Veterans Act establishes the Procurement Program for Small Business Concerns Owned and Controlled by Service Disabled Veterans (SDVOSBC), which permits a contracting officer to award contracts on the basis of competition restricted to \u8216small business concerns owned and controlled by service-disabled veterans.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': ). Rather than requiring the SBA to certify that a business qualifies as an SDVO SBC prior to bidding, the SBA requires small businesses to self-certify their SDVO SBC status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 69 Fed. Reg. 25265 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Regulations set forth important definitions for the Service\u8211Disabled Veteran\u8211Owned Small Business Concern Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': . Under the SBA\u8217s regulations as applied to this case, a small business concern is an SDVO SBC if it is owned and controlled by a veteran who has a disability that was incurred or aggravated in the line of active duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'The Rule of Two': Resp. 13\u821114 (\[T]he SBA is granted the sole authority to decide small business and eligibility issues[,] not FCA actions.\)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 079 - Ettefaq-Meliat-Hai-Afghan Consulting Inc v US.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor with an unsatisfactory safety record, despite contractor\rquote s ongoing corrective action); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 079 - Ettefaq-Meliat-Hai-Afghan Consulting Inc v US.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue a certificate of competency to contractor with an unsatisfactory record on a contract identical to that at issue, despite contractor\rquote s attempts to increase capacity and improve quality assurance). Although EMA instituted corrective action in response to the Army\rquote s concerns\u8212and although the Army approved of that action for purposes of allowing EMA to continue performing the HNT contract\u8212the fact remains, as EMA concedes, that EMA had significant lapses in required performance. The Army\rquote s continuing use of EMA for the HNT contract\u8212an emergency wartime contract\u8212did not hamstring its ability to make a different business judgment when evaluating EMA\rquote s responsibility for a second, independent award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 079 - Ettefaq-Meliat-Hai-Afghan Consulting Inc v US.doc, Paragraph with 'The Rule of Two': (upholding Small Business Administration\rquote s refusal to issue certificate of competency after considering adverse past performance occurring roughly five years prior); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 080 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': Plaintiff Kingdomware Technologies, Inc. (\plaintiff\), a service disabled veteran owned small business, filed an amended complaint in this bid protest case on July 18, 2012, alleging that the Department of Veterans Affairs (\VA\) conducted three procurements, in which plaintiff was involved, in violation of the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 080 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'The Rule of Two': (\the 2006 Act\) by failing to set aside those procurements for service disabled veteran owned small businesses. Plaintiff also seeks declaratory and injunctive relief compelling the VA to conduct all future procurements in compliance with the 2006 Act. Plaintiff has agreed to dismiss plaintiff\rquote s additional claim for bid protest costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 081 - Croman Corp v US.doc, Paragraph with 'The Rule of Two': Eighteen small businesses, including plaintiff, submitted proposals in response to the solicitation, proposing a total of 58 helicopters for the 34 CLINs. AR Tab 29, at 13393; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 081 - Croman Corp v US.doc, Paragraph with 'The Rule of Two': During the evaluation process, in addition to the two helicopters proposed by Erickson that were eliminated from consideration based on price, nine helicopters were withdrawn by four offerors. AR Tab 29, at 13398, 13408. When withdrawing their helicopters, two offerors withdrew their entire proposals. Ultimately, 47 helicopters from 16 small businesses were available for awards of 30 CLINs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 082 - Navarro Research and Engineering Inc v US.doc, Paragraph with 'The Rule of Two': Administrative Record (AR) Tab 13. The ECO contract is an indefinite-delivery, indefinite-quantity (IDIQ) contract that entails both cost-plus-fixed-fee (CPFF) and firm-fixed-price (FFP) requirements to be issued as task orders. AR 927. Under the RFP, competition for the contract was to be limited to small businesses. AR 913. The contract was to be for an initial base term of two years, plus four one-year options. AR 913. The contract had a not-to-exceed value of $80 million, and a guaranteed minimum value of $100,000. AR 932. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small business, which designed and manufactured aircraft, submarine, ship and other simulators and training equipment, brought action against Department of Defense (DOD), Department of the Navy, and Small Business Administration (SBA), challenging constitutionality of section of Small Business Act which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses. Parties cross-moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': defendants failed to demonstrate compelling interest in applying section of Act to small business; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act (SBA), which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, was enacted, in accordance with equal protection, based on government\rquote s compelling interest in seeking to remediate either public discrimination or private discrimination in which government had previously been a passive participant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Structure of Small Business Act (SBA) program, which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, convincingly confirmed government\rquote s remedial purpose in enacting SBA provision to remediate either public discrimination or private discrimination in which government had previously been a passive participant. Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Government could provide both direct and circumstantial evidence, including post-enactment evidence, to determine whether provision of Small Business Act (SBA), which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, survived facial constitutional challenge based on purported violation of equal protection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Government met its initial burden of presenting strong basis in evidence that remedial action was and remained necessary to remedy nationwide discrimination in construction industry, at least, and likely in other industries as well, as required to overcome facial equal protection constitutional challenge to provision of Small Business Act (SBA) which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses; Congress had spent decades compiling evidence of race discrimination in a variety of industries, including but not limited to construction, there was extensive statistical and anecdotal evidence of specific discriminatory barriers to market entry and fair competition, and there was substantial quantitative evidence of broad gaps between minority and non-minority contract awards in both public and private sector contracting. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small business failed to show why evidence relied on by government failed to demonstrate compelling government interest in remedial action that was and remained necessary to remedy nationwide discrimination in construction industry, at least, and likely in other industries as well, as was required to overcome facial equal protection constitutional challenge to provision of Small Business Act (SBA) which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses; legislative history supported finding of compelling government interest supporting the adoption of provision, government identified discriminatory disparities in government contracting, any flaws identified in evidence were not credible or particularized, any prior fraud in program was not sufficient to invalidate provision, and government was not required to find that each of 42 preferred groups had suffered discrimination, but rather, it was sufficient that evidence among each of broad groups existed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Department of Defense (DOD) and Small Business Administration failed to demonstrate compelling interest in applying provision of Small Business Act, which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, and finding it necessary or appropriate to set aside procurement contracts in military simulation and training industry to remedy discrimination, to small business, as required for small business\rquote s as-applied equal protection constitutional challenge to Act; DOD and Administration did not have any evidence of discrimination in military simulation and training industry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act (SBA) which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, was narrowly tailored to meet compelling government interest in remedial action that was and remained necessary to remedy nationwide discrimination in construction industry, at least, and likely in other industries as well, as required to overcome facial equal protection challenge to SBA provision; Congress attempted to use race-neutral measures to foster and assist minority owned business for at least 25 years prior to incorporating a race-conscious component in Act, and minority business developments remain hampered by same kinds of discriminatory barriers that prompted enactment of program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act (SBA), which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, was sufficiently flexible in granting race-conscious relief, as required to overcome facial equal protection challenge to SBA provision; program contained no quotas, provided for aspirational goals, and imposed no penalties for failing to meet them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Provision of Small Business Act (SBA), which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, was sufficiently definite in its temporal limits, as required to overcome facial equal protection challenge to SBA provision; program participation is limited by statute and regulation to a maximum term of nine years, once business or disadvantaged individual had participated in program, neither business nor individual would be eligible again, and program participant\rquote s eligibility was continually reassessed and would be maintained throughout its program term. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': It was appropriate to issue permanent injunction prohibiting Department of Defense (DOD) and Small Business Administration from awarding contracts for military simulators based on race of contractors; small business succeeded on merits of its claim that provision of Small Business Act (SBA), which permitted federal government to limit issuance of certain contracts to socially and economically disadvantaged businesses, violated business\rquote s right to equal protection, such violation constituted irreparable injury, DOD and Administration could continue to award contracts for military simulators under all other federal programs, and issuance of injunction served public\rquote s interest in maintaining system of laws free of unconstitutional racial classifications. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Plaintiff, the DynaLantic Corporation (\DynaLantic\), is a small business that designs and manufactures aircraft, submarine, ship, and other simulators and training equipment. Plaintiff has brought this suit against Defendants\u8212the Department of Defense (\DoD\), the Department of the Navy (\the Navy\), and the Small Business Administration (\SBA\)\u8212to challenge the constitutionality of Section 8(a) of the Small Business Act (the \Section 8(a) program\), which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses. DynaLantic claims the Section 8(a) program is unconstitutional both on its face and as applied by Defendants in DynaLantic\rquote s industry, the military simulation and training industry. Plaintiff claims that DoD\rquote s use of the Section 8(a) program, which is reserved for \socially and economically disadvantaged individuals,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Section 8(a) program is a business development program for small businesses owned by individuals who are both socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Small businesses owned and controlled by such individuals may apply to the SBA and, if admitted into the program, are eligible to receive technological, financial, and practical assistance, as well as support through preferential awards of government contracts. The parties agree that DoD presently participates in the Section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . A small business is \disadvantaged\ if at least fifty one percent of the firm is unconditionally owned and controlled by one or more individuals who are both socially and economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': small businesses, service disabled veterans, socially and economically disadvantaged individuals, and women. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': SBA regulations prescribe circumstances under which SBA will not accept a procurement for award as an 8(a) contract. One such circumstance arises where SBA has made a written determination that acceptance of the procurement would have an adverse impact on other small businesses. This adverse impact concept is designed to protect small businesses which are performing government contracts located outside the Section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Program participants are eligible to receive management and technical assistance provided through SBA\rquote s private sector service providers, including (i) counseling and training in the operation of small business and business development; (ii) assistance in developing comprehensive business plans; and (iii) assistance obtaining equity and debt financing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Act requires the President to submit an annual report to Congress on both the performance of small businesses generally and of small businesses owned by socially and economically disadvantaged individuals in particular. The report must include a discussion of the current role of small businesses in the economy on an industry-by-industry basis and include recommendations for revising the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': DynaLantic, a small business as defined by the SBA, bids on, competes for, operates in, and performs contracts and subcontracts in the simulation and training industry. The simulation and training industry is composed of those organizations that develop, manufacture, and acquire equipment used to train personnel in any activity where there is a human-machine interface. Pl.\rquote s MSJ at 4. Firms that manufacture simulation and training equipment and that operate in the simulation and training industry must have specialized skills, qualifications, and knowledge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': \u182 5. Plaintiff typically bids on, or competes for, contracts and subcontracts of up to $15 million, with most of those contracts and subcontracts being under $5 million in value. Pl.\rquote s MSJ at 4. Generally speaking, Plaintiff\rquote s main competitors are not large businesses but rather are other small businesses, including SDBs such as Section 8(a) firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': did not moot this case in its entirety \because DoD continues to participate in [the 8(a) ] program under the statutory authority of the Small Business Act, independent of [the DoD Program]. Therefore, this case continues to present a live controversy about DoD\rquote s use of the Section 8(a) program.\ Defs.\rquote Status Report at 2, Doc. No. 235; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Act of 1953 created the Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': at \u167 8(a). The SBA can also enter into subcontracts with small businesses for the performance of such contracts. The Section 8(a) authority was dormant for a decade after the Small Business Act was enacted. The Section 8(a) program as it operates today evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Kerner Commission investigated incidents of civil disorder in the inner cities following urban unrest in 1967. Having found that disadvantaged individuals enjoyed no appreciable ownership of small businesses and did not share in the community redevelopment process, the Kerner Commission recommended that steps be taken to increase the level of business ownership by minorities so that they would have a better opportunity to materially share in the competitive free enterprise system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Following the Kerner Commission\rquote s report, President Johnson ordered the SBA to use its Section 8(a) authority to direct contracts to businesses located in distressed urban communities in order to create jobs. Later, in 1969, pursuant to President Nixon\rquote s order, the SBA changed the emphasis of the Section 8(a) program from hiring the unemployed in the inner city to developing successful small businesses owned by disadvantaged persons. As a result of the Executive Orders, the SBA\rquote s Section 8(a) authority was used, by administrative regulation, to channel federal purchase requirements to socially or economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': S. Rep. 29, at 4 (1987); H.R.Rep. No. 460, at 19 (1987); H.R.Rep. No. 956, at 2 (1982); H.R.Rep. No. 949, at 3 (1978). In 1972, however, the House Select Committee on Small Business issued a report that included a lengthy description of the problems confronting minority entrepreneurs. The report recognized that although minority and non-minority small business owners had much in common, racial and ethnic prejudice posed a \unique dilemma\ for minority business owners which \presented almost insurmountable obstacles to business development.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Similar statistical disparities were cited in a 1975 report on hearings conducted by the Subcommittee on Small Business Administration Oversight and Minority Enterprise of the House Committee on Small Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': In 1977, the House Committee on Small Business issued a report (the \1977 Report\) summarizing its activities during the preceding two years, one chapter of which summarized the 1975 Report. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The House report on that bill described the Section 8(a) program as \the Federal government\rquote s most significant effort to redress the effects of discrimination on entrepreneurial endeavors,\ and stated that the program is intended to \help a broad class of socially and economically disadvantaged individuals to compete in the mainstream of the American economy.\ H.R.Rep. No. 460, at 16 (1987). In addition, the report stated that \[t]he purpose of 8(a) ... is to create on-going small businesses that can compete on their own once they leave the program.... The 8(a) program is designed to promote the development of firms so that set-asides will not be necessary in the future.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': [M]inorities are still less likely to own a small business. Some 1.8% of the minority population owned a business in 1982 compared with 6.4% of all business owners. Moreover, minority-owned firms are smaller than nonminority businesses with lower sales and fewer employees.... These hearings and the Chairman\rquote s legislative proposal ... are an effort to get the 8(a) program to focus on its original statutory objective. That objective is simple enough\u8212to boost minority ownership of small businesses that can compete in a competitive market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Minority Business Development Program Reform Act of 1987, Hearings Before the Senate Comm. on Small Business, 100th Cong., 16\u821118 (1988) (Statement of Senator Sasser). The House report noted: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . Post-enactment evidence is particularly relevant when, as here, the statute is over thirty years old and the evidence used to justify Section 8(a) is stale for purposes of determining a compelling interest in the present. Moreover, the Small Business Act requires that both the President and the SBA report annually to Congress on the status of small disadvantaged businesses generally and the Section 8(a) program in particular; thus, the statute itself contemplates that Congress will review the 8(a) program on a continuing basis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s 8(a) Minority Business Development Program, Hearing Before the Senate Comm. on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': See Business Start\u8211Up Hurdles in Underserved Communities: Access to Venture Capital and Entrepreneurship Training, Hearing Before the Senate Comm. on Small Business and Entrepreneurship, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': See, e.g., Encouraging the Growth of Minority\u8211Owned Small Businesses and Minority Entrepreneurship, Hearing Before the House Comm. on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Availability of Credit to Minority\u8211Owned Small Businesses, Hearing Before the Subcomm. on Financial Institutions Supervision, Regulation, and Deposit Insurance of the House Comm. on Banking, Finance, and Urban Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Problems Facing Minority and Women\u8211Owned Small Businesses in Procuring U.S. Government Contracts, Hearing Before the Subcomm. on Commerce, Consumer, and Monetary Affairs of the House Comm. on Government Operations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Federal Minority Business Programs, Hearing Before the House Committee on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Development, Hearing Before the Subcomm. on Procurement, Tourism, and Rural Development of the House Comm. on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Summary of Activities: A Report by the House Comm. on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Availability of Capital and Federal Procurement Opportunities to Minority-owned Small Businesses, Hearing before the House Small Business Committee, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': See, e.g., Problems Facing Minority and Women\u8211Owned Small Businesses in Procuring U.S. Government Contracts, Hearing Before the Subcomm. on Commerce, Consumer, and Monetary Affairs of the House Comm. on Government Operations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Minority Entrepreneurship: Assessing the Effectiveness of SBA\rquote s Programs for the Minority Business Community, Hearing Before the Senate Comm. on Small Business and Entrepreneurship, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': See City of Richmond v. J.A. Croson: Impact and Response, Hearing Before the Subcomm. on Urban and Minority\u8211Owned Business Development of the Senate Committee on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': See, e.g., Encouraging the Growth of Minority\u8211Owned Small Businesses and Minority Entrepreneurship, Hearing Before the House Comm. on Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s 8(a) Minority Business Development Program, Hearing Before the Senate Comm. on Small Business Administration\rquote s 8(a) Minority Business Development Program, Hearing Before the Senate Comm. On Small Business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Problems Facing Minority and Women\u8211Owned Small Businesses in Procuring U.S. Government Contracts, Hearing Before the Subcomm. on Commerce, Consumer, and Monetary Affairs of the House Comm. on Gov\rquote t Operations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (\Minority subcontracting enterprises in the construction industry find themselves unable to compete with non-minority firms on an equal playing field due to racial discrimination by bonding companies.\). In its 1994 report about the problems facing minority and women-owned small businesses, the House Committee on Government Operations found that an \[i]nability to obtain bonding is one of the top three reasons that new minority small businesses have difficulty procuring U.S. Government contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The text of the Section 8(a) statute does not mandate set-asides in all government contracting. Rather, it provides \[i]t shall be the duty of the [Small Business] Administration and it is hereby empowered, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': challenges facing minority small businesses (as distinguished from the challenges facing all small businesses), and examination of the race-neutral measures that had been enacted by previous Congresses but had failed to reach minority owned firms. This evidence was described in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': (\In rebuttal, [plaintiffs] presented evidence that the data was susceptible to multiple interpretations, but they failed to present affirmative evidence that no remedial action was necessary because minority-owned small businesses enjoy non-discriminatory access to and participation in highway contracts. Thus, they failed to meet their ultimate burden to prove that the DBE program is unconstitutional on this ground.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': to incorporating a race-conscious component in Section 8(a), and these race-neutral measures failed to remedy the effects of discrimination on minority small business owners. Beginning with the Small Business Act of 1953, Congress authorized various programs to \aid, counsel, assist, and protect ... the interests of small-business concerns\ and to \insure that a fair proportion of the total purchases and contracts for supplies and services for the government be placed with small-business enterprises....\ Pub.L. No. 83\u8211163, \u167 202, 67 Stat. 232 (1953). The race-neutral measures employed by Congress between 1953 and 1978 included creation of a surety bond guarantee program, creation of a new class of small business investment companies to provide debt and equity capital, improvement of disaster assistance, loans to small businesses, small business development centers, and, notably, race-neutral small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': U.S. Small Business Administration Management of the 8(a) Program: Narrow Tailoring Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': SBA will not accept a procurement for award as an 8(a) contract if it determines that acceptance of the procurement would have an adverse impact on small businesses operating outside the Section 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': Specifically, it is limited to small businesses whose owners have a personal net worth of less than $250,000. Any person may present \credible evidence\ challenging an individual\rquote s status as socially or economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': First, the Small Business Act establishes government-wide aspirational goals for procurement contracts awarded to, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': small businesses, small business concerns owned by women, and small business concerns controlled by socially and economically disadvantaged individuals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': . The government-wide goal for small businesses owned by socially and economically disadvantaged individuals is five percent of the value of all prime and subcontract awards annually. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': contract if it makes a determination that the award would have an adverse impact on an individual small business, a group of small businesses located in a specific geographical location, or other small business programs. This adverse-impact concept is designed to protect small businesses which are performing non-Section 8(a) contracts, and this feature helps narrowly tailor the program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': The Small Business Administration and the Department of Defense are hereby enjoined from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so. Plaintiff\rquote s remaining requests for declaratory and injunctive relief are Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'The Rule of Two': that the Small Business Administration and the Department of Defense are hereby enjoined from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so; it is further Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 087 - Miller v Clinton.doc, Paragraph with 'The Rule of Two': . A significant number of American workers are employed at such small businesses\u8212something like 20 million American workers according to the latest statistics. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': in which it alleged that the Air Force violated the Small Business Act by not giving requisite priority to HUBZone small business concerns in a procurement for housing maintenance, inspection, and repair services at an Air Force base. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': United States was substantially justified in defending decision of Air Force at agency level to place 8(a) program that assisted small businesses owned and controlled by socially and economically disadvantaged individuals and HUBZone Program that assisted small businesses that were located in historically underutilized business zones, on equal footing during procurement of military housing maintenance, inspection, and repair services, since governing regulations required it to do so. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Government was justified during subsequent litigation in defending prior decision of Air Force to place 8(a) program that assisted small businesses owned and controlled by socially and economically disadvantaged individuals, and HUBZone Program that assisted small businesses that were located in historically underutilized business zones, on equal footing during procurement of military housing maintenance, inspection, and repair services, since genuine dispute existed among all three branches of government over whether Small Business Act prioritized HUBZone program over 8(a) program. Small Business Act, \u167 2[2], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act (\the Act\) establishes various programs that assist qualifying small businesses in obtaining Federal contracts, and sets forth the requirements incident thereto. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Two of the programs are involved in this case: the so-called Section 8(a) Program (\u167 637(a)(1)(B)), which assists small businesses owned and controlled by socially and economically disadvantaged individuals, and the HUBZone Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Program (\u167 657a), which assists small businesses that are located in historically underutilized business zones. Among its requirements, the Act mandates that each Government agency establish annual contracting goals for the various small business programs created by the Act, including these two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration (\SBA\) is charged with carrying out the requirements of the Act and issuing such rules and regulations as it deems necessary. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR however requested that the Air Force instead set aside the contract for qualified HUBZone small business concerns rather than for 8(a) program participants. In support of its position, DGR cited a decision from the Government Accountability Office (\GAO\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , which concluded that the Small Business Act gave priority to the HUBZone program over the 8(a) program. (The GAO is an administrative arm of the Congress assigned various missions, including a role in the bid protest process.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': by amending the Small Business Act to clarify that the HUBZone program does not take priority over the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The next question then is whether the United States was substantially justified in defending in court the Air Force\rquote s decision to comply with those regulations. As earlier noted, the Government presented both a jurisdictional argument and a merits-based argument during the litigation phase of this case. We first address the Government\rquote s main argument on the merits of whether the Small Business Act gives priority to the HUBZone program over the 8(a) program, and then turn to the Government\rquote s subsidiary jurisdictional argument. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In the underlying bid protest, the Government argued that the Small Business Act and the SBA\rquote s implementing regulations did not require the Air Force to give priority to HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court of Federal Claims rejected the Government\rquote s position because in the court\rquote s view the Government\rquote s interpretation of the Act \contradicted the plain meaning of the Small Business Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': (alteration in original) (citation omitted). At the time DGR initiated the underlying bid protest, presumptively reasonable people in all three branches of the Government had reached differing conclusions as to whether the Small Business Act permitted participating agencies to place the HUBZone and 8(a) programs on an equal footing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Of the various Government agencies to opine on the matter, the Small Business Administration, the Department of Justice, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': decision, the Senate proposed amending the Act to clarify that when a contract could be awarded pursuant to more than one small business program, Federal agencies have discretion as to which program to apply. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': One and a half months later, the Senate receded, noting \that the Department of Justice has concluded that no change to the Small Business Act is required to ensure that contracting officers ... have discretion whether or not to award contracts pursuant to the HUBZone program,\ and \direct[ing] the Secretary of Defense to continue to administer the HUBZone program in a manner consistent with the Department of Justice opinion.\ H.R.Rep. No. 111\u8211288, at 789 (2009), 2009 U.S.C.C.A.N. 742, 861. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': In view of this clear statement from Congress affirming the SBA regulations at issue, it is difficult for us to conclude that the Government was not substantially justified in believing that the Small Business Act permitted participating agencies to place the HUBZone and 8(a) programs on an equal footing. We conclude, therefore, that the Court of Federal Claims made a clear error of judgment in weighing the factors relevant to the question of whether the Government\rquote s merits-based argument was substantially justified. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': regarding the SBA\rquote s parity regulations is difficult to reconcile with the court\rquote s ultimate conclusion that the Small Business Act \mandat[es] that participating agencies set aside contract opportunities to qualified HUBZone small business concerns when the statutory criteria are met.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder who was a service-disabled veteran-owned small business (SDVOSB), filed post-award bid protest challenging Department of Veterans Affairs (DVA) award of software and internet technology (IT) contracts. After the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff is a privately held, Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) that \provid[es] telecommunications integration, support services and financial systems support exclusively\ to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': (alteration in original) (quoting AR Tab 3, at 163) (internal quotation marks omitted). The Solicitation guaranteed that at least four contracts would be awarded to SDVOSBs, like plaintiff, and at least three to Veteran\u8211Owned Small Businesses (\VOSB\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation set forth five factors that would be used in evaluating an offeror\rquote s proposal: (1) technical, (2) past performance, (3) veterans involvement, (4) small business participation commitment, and (5) price. The technical factor was considered the most important factor, and \criteria one through four were viewed as \u8216significantly more important\u8217 than criterion five, price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 092 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': , because plaintiff failed to submit timely challenges to DOL\rquote s actions that occurred before October 26, 2011, the date DOL decided to take corrective action and reevaluate the proposals. Specifically, defendant-intervenor states that plaintiff failed to timely raise its contentions that \(1) the original [RFI] was copied verbatim from Compusearch\rquote s website; (2) DOL switched the procurement to a GSA schedule solicitation in order to circumvent small business set aside requirements; and (3) DOL undertook procurement revisions and corrective actions in order to steer the award to Compusearch.\ Def.-Intervenor\rquote s Cross\u8211Mot. for J. on Administrative R. 8 (citations omitted). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': The conferees recognize that a reasonable time period should be established in which a servicemember\rquote s claim should be resolved before the services exercise their prerogative to make deductions from the amount owed to the carrier by the United States. The conferees support adoption of industry recommendations wherever feasible, and expect the Department to adopt a reasonable time period to resolve claims, ideally no less than sixty days, as part of its implementation of full value replacement. The conferees urge the Department to continue working closely with industry representatives to resolve open issues prior to implementation and intend to monitor both the implementation of \full replacement value\ and the \Families First\ Program and assess the overall costs of the program and the impact of these initiatives on small businesses and quality of life of military members and their families. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': , addressing the delay in implementing FRV liability, states that \[m]ilitary personnel and their families have waited long enough for realization of the ... promise of full replacement value for household goods lost and damaged by movers in connection with permanent changes of station.\ The conference report addressing the FRV mandate, however, also expresses concern for small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': [T]he conferees are concerned about potential adverse effects on capable, service-oriented small business movers resulting from the implementation of the full replacement value standard for recovery due to higher costs involved in obtaining liability insurance. The conferees direct the Secretary of Defense to analyze the potential effects of implementing full replacement value on small businesses and, no later than April 1, 2008, to provide a report to the congressional defense committees on these effects and the Secretary\rquote s recommendations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': for improving small business\rquote s ability to compete for Department of Defense-related moves. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs, as small businesses, allege that they are particularly harmed by the impacts of the freight refund terms and FRV liability. In their complaint, plaintiffs allege several competitive injuries that arise from the inclusion of the freight refund terms and general offset provisions in the challenged solicitations. These injuries relate to the negative economic impact on plaintiffs\rquote costs, revenues, and profit margins, which plaintiffs argue may force them to decline to bid on certain contracts, submit increased rates which would put them at a competitive disadvantage to larger TSPs, or exit the DOD personal property transportation market completely. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 001 - BINL Inc v US.doc, Paragraph with 'The Rule of Two': plaintiffs offer specific examples of how, as small businesses, they are disparately impacted by the inclusion of the freight refund terms alongside FRV liability. Plaintiffs contend that because they are small businesses, they are more \economically vulnerable than other TSP bidders\ to the increased costs and risks associated with the freight refund terms, and that the freight refund terms \threaten[ ] the very survival of smaller companies.\ Pls.\rquote Opp. to Def.\rquote s Mot. to Dismiss at 14; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'The Rule of Two': at 764\u821166, 778. Factor 3 was the Socio\u8211Economic\u8212Small Business Participation Plan, and was to be combined with Factor 3 from Phase I, Past Performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'The Rule of Two': The small business participation plan in Factor 3 was \approximately equal in importance\ to Factor 3 from Phase I, and when combined they were \less important\ than Factor 2 in Phase II. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'The Rule of Two': The RFP instructed offerors to submit their proposals in four volumes. AR, Tab 4 at 757. Volume I was to contain the offeror\rquote s technical proposal; Volume II would contain the offeror\rquote s small business participation plan; Volume III would contain price information and pro forma requirements; and Volume IV was to be submitted as an attachment containing supporting documentation that would serve as an appendix to Volumes I and III. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'The Rule of Two': In the Socio\u8211Economic and Small Business Participation plan factor, all five offerors received an overall rating of \Outstanding.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': For the third factor, Socioeconomic Goals, plaintiff was ranked second. Considered in that ranking were the facts that plaintiff was itself a small business, subcontracts to five different categories of small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': and \designated 70% overall to small business.\ AR 361. The agency noted, however, that plaintiff\rquote s proposal did not detail who would manage the socioeconomic plan nor did it contain \steps for gaining additional small business categories\ in its socioeconomic plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': AR 393. For the second technical factor, Past Performance, Sterling was rated \Excellent\ with \Moderate\ confidence overall. AR 394. It was rated as \Excellent\ for the Quality and Delivery subfactors and \Fair\ for the Socioeconomic subfactor. For the third technical factor, Socioeconomic Goals, Sterling was rated first among all five offerors, owing to its 51 percent small business contracting percentage, \subcontracting to six different small business concerns, and for submitting a clear plan to gain additional small business concerns.\ AR 395. Sterling\rquote s Surge and Sustainment, Product Protection, and Integrated Pest Management plans were all found to be acceptable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': We turn first to those allegations over which we have no jurisdiction. As part of plaintiff\rquote s disagreement with the agency\rquote s handling of the procurement, she alleges that the agency violated the Sherman Antitrust Act by colluding with Sterling Foods and possibly a third offeror to exclude small businesses from participating and to create too large a market-share for Sterling Food. Putting aside that these allegations are purely conjecture and lack any support in the record, jurisdiction over claims of violation of the Antitrust Act lie exclusively in the district courts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': A number of plaintiff\rquote s arguments are untimely and thus waived. Plaintiff disagrees with the agency\rquote s decision not to set aside the procurement for small businesses. Plaintiff cannot, however, avail herself of the opportunity to participate in a procurement and then later challenge an aspect of the procurement that was readily apparent at the time she chose to bid. Such arguments are waived. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': . There is no question that, on the face of the solicitation, the procurement was not set-aside for small businesses. Accordingly, this allegation must be dismissed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': of [SDBs] ... in the contract.\ AR 168 (emphasis added). We agree with intervenor that the solicitation implemented that promise. Factor 3, Socioeconomic Goals, evaluated \the offeror\rquote s Socioeconomic plan to ensure that to the maximum extent practicable, Small Business (SB), Woman Owned Small Business (WOSB) and Small Disadvantaged Business (SDB) ... concerns are used as both suppliers and subcontractors.\ AR 147. The agency stated that it would evaluate \the percentage of dollars subcontracted to SB, WOSB, SDB ... concerns\ and persons \designated for handling this part of the contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': Plaintiff does not allege that the agency failed to do any of these things. Plaintiff was rated second for the Socioeconomic factor for its 71 percent small business utilization, including SDBs, and was given credit for work performed itself as a SDB. Plott was also awarded credit under the past performance subfactor 2.3, Socioeconomic Goals, for being a SDB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'The Rule of Two': Those categories are: veteran-owned, HUB Zone, woman-owned, other small business, and Ability One. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': Under the terms of the solicitation, the evaluation of offers was to be carried out by a team of technically qualified individuals, referred to as the source selection evaluation board (\SSEB\), with the final award decision to be made by a single individual, the source selection authority (\SSA\). The solicitation indicated that the SSA would award the contract to the offeror whose proposal was judged to represent the best value to the government based on three evaluation criteria: technical, price, and small business participation, with the technical factor being the most important of the three and price being significantly more important than small business participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': Following these discussions, TACOM\rquote s source selection evaluation board gave Terex and Kalmar equal ratings with respect to risk and merit on the two non-price factors (technical and small business participation), with Kalmar\rquote s proposed price exceeding plaintiff\rquote s by almost $6.3 million (a difference of approximately 4 percent). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': The SSA went on to note that although the ratings assigned to Terex and Kalmar for the technical and small business factors were identical, there were \meaningful distinctions between Kalmar and Terex in the Technical Factor,\ and \[t]he most meaningful distinction [was] based on the fact ... that Kalmar built a forklift specifically for the [purchase description] contained in the [request for proposal] and was therefore able to provide the most credible substantiating data based on that configuration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': Indeed, the SSA repeatedly emphasized that although Terex and Kalmar had received equal ratings for the technical and small business factors, he believed that Kalmar\rquote s approach was more advantageous because Kalmar\rquote s substantiating data was based on the actual configuration of its proposed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': Similarly, under the technical subfactor pallet handling operations, the SSA observed that while both Kalmar and Terex received a rating of \Excellent,\ Kalmar provided a load chart that was \verified using the actual proposed LCRTF configuration\ and that \[c]lear and precise substantiating data was provided.\ Under the small business participation factor, the SSA likewise noted that \[t]hroughout the proposal, Kalmar provides the most credible substantiating data on the proposed configuration while Terex provides analogous data and equivalency testing based on their commercial forklift.\ Finally, under the price factor, the SSA explained that \when considering a best value selection as the SSA, I have determined that Kalmar provides a more advantageous forklift primarily because the proposed forklift is supported by credible test data on the actual forklift that is proposed.\ Accordingly, even if TACOM had identified a higher level of risk in Kalmar\rquote s longitudinal gradeability test data, the evidence indicates that the agency nevertheless would have concluded that Kalmar\rquote s overall approach presented less risk to the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 014 - Terex Corp v US.doc, Paragraph with 'The Rule of Two': Terex and Kalmar ultimately received the same technical and risk ratings from the SSEB at both the factor and subfactor levels: a rating of \Excellent\ for Factor 1 (Technical), a rating of \Good\ for Factor 3 (Small Business Participation), a rating of \Good/Low Risk\ for Subfactor 1 (Beach Operations), a rating of \Excellent/Very Low Risk\ for Subfactor 2 (Helicopter Lift), and a rating of \Excellent/Very Low Risk\ for Subfactor 3 (Pallet Handling Operations). These determinations were later adopted by the SSA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff STR, L.L.C. (STR) is a small business that sells COTS software products including for grants management. STR has supplied software to other federal agencies and is a schedule 70 Federal Supply Schedule contractor. STR responded to RFI# 1 on July 8, 2005, offering its COTS grants management software, eGrantsPlus\u174. (Compl. Ex. 2, AR 390\u8211518.) STR also made a presentation to agency representatives. (Compl. \u182 12.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff Distributed Solutions, Inc. (DSI), also a small business, responded to RFI# 1 on July 8, 2005, offering its COTS Pro\u8211Doc version 5 acquisition assistance software. (Compl. Ex. 3.) DSI was the incumbent provider of USAID\rquote s then-existing acquisition assistance software. (Compl. \u182\u182 10\u821111, 24.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs, both small businesses, complained that the agencies combined two separate proposed direct software procurements and tasked them to SRA without rationale (or at least defendant does not point to any rationale for that part of the procurement path). (Pls.\rquote Mem. Supp. Mot. J. AR 6, ECF No. 78.) \Moreover, STR\rquote s grants management software and DSI\rquote s acquisition assistance software could have been provided by each vendor separately, with each vendor providing their own integration services.\ (Compl. \u182 24.) Plaintiffs comment that \the Government has consistently issued an RFQ to procure software after receiving input from its lead system integrator, which would avoid this very problem.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': as to scope of existing contract vehicles, it was not so excessive as to fall outside agency discretion, nor render the decision arbitrary or capricious. Asserted Small Business Act and CICA violations were considered to be premature as the Blanket Purchase Agreements\u8212the alternative contract vehicle\u8212had not then been utilized. The Federal Circuit affirmed per curiam. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': , the solicitation was originally a small business set-aside (another exception to full and open competition) because there were two small businesses that manufactured a particular knife to be procured. Subsequently, one of those providers went out of business, leaving only one source. The original solicitation was cancelled and a new unrestricted competitive solicitation issued. The decision to cancel the original solicitation was concluded not to be arbitrary or capricious, and did not violate small business, bundling, statutory or regulatory restrictions. The rationale for the small business set aside, two or more qualified small business potential offerors no longer in play, the change in procurement method was not only rational and adequately supported by the record, it was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': it is argued that inquiry is over and plaintiffs\rquote protest fails on the merits. Claims that competition was not considered does not change that conclusion because to do so would have competitive requirements precede or trump other rational agency decision-making, defendant concludes. While there are circumscribed exceptions to CICA such as sole-source, small business set-aside and the like, no authority is cited that would sanction failure to comply with the requirement for fair and open competition for direct procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': c. Small Business Requirements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Act (SBA) discourages combining procurements and requires, with limited exceptions, consideration of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': In complying with the statement of congressional policy expressed in subsection (a) of this section, relating to fostering the participation of small business concerns in the contracting opportunities of the Government, each Federal agency, to the maximum extent practicable, shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': (1) comply with congressional intent to foster the participation of small business concerns as prime contractors, subcontractors, and suppliers; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': (2) structure its contracting requirements to facilitate competition by and among small business concerns, taking all reasonable steps to eliminate obstacles to their participation; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': (3) avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiffs assert that the agencies\rquote deviation from direct procurement violated laws protective of small businesses in two ways: (1) by combining (bundling) grants management and acquisition assistance software which lessens the likelihood that small businesses (not as likely to have the capability of providing both) could successfully participate; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': and (2) by failing to consider whether there were two or more small businesses that could provide either, or both of the packages at a reasonable price in contravention of the \Rule of Two\\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': small businesses that focus on one or the other type of software solutions; however, when two types of software products are bundled they inevitably favor large providers. Plaintiffs argue that the use of SRA to procure both software packages removed two direct, federal procurement opportunities from competition. Moreover, regardless of whether there was a bundling violation, it is asserted that the government\rquote s failure to engage in a bundling analysis, once it decided to procure two software packages through a single procurement process, violated the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Defendant counters that plaintiffs fail to cite any statute or precedent that would require SRA, a private entity, to comply with the Small Business Act; and regardless, the bundling prohibition cited lacks merit because the \subject procurement\ was not a bundled contract. Rather, \ \u8216bundling of contract requirements\rquote \ is defined as \consolidating 2 or more procurement requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation ... for a single contract that is likely to be unsuitable for award to a small-business concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': . This was a new collaborative endeavor; whether plaintiffs provided the software products and/or integration to another agency, is not the standard. Neither the determination following RFI# 1 that a prime integrator was required, nor the finding that no one vendor could provide both acquisition and assistance software that optimally met the needs of the agencies, are assailed, rendering inapt plaintiffs\rquote citation to the Rule of Two in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Again, the precise point on this procurement continuum is not SRA\rquote s RFI # 2 and the two subcontract awards. Thus defendant\rquote s point that SRA was not constrained by small business concerns, while accurate, lacks relevance. \Rather, [the protestors] are contesting the government\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 016 - Distributed Solutions Inc v US.doc, Paragraph with 'The Rule of Two': By combining the separate, stand-alone software package for grants management with the separate stand-alone software package for acquisition assistance into one purchase by SRA, the Agencies have improperly bundled the procurement in violation of CICA, the Small Business Act, and applicable federal regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Contractor filed pre-award bid protest, seeking declaratory and injunctive relief invalidating Department of State\rquote s cancellation of solicitation to provide security protection management services and initiation of transition activities in furtherance of proposed issuance of task order to small business contractor, under its existing indefinite delivery/indefinite quantity (ID/IQ) contract, to provide continuity of services from incumbent contractor that no longer qualified as small business, until issuance of proposed new small business set-aside solicitation and follow-on contract. Government moved to dismiss and for judgment on administrative record, and contractor cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Contractor had standing to pursue pre-award bid protest of State Department\rquote s cancellation of solicitation for security protection management services and subsequent transition actions in furtherance of issuing proposed task order to small business entity to provide continuity of services until issuance of new solicitation and follow-on contract, where contractor was actual bidder on initial solicitation and prospective bidder on new solicitation and follow-on contract, contractor suffered or would suffer non-trivial competitive injury from cancellation of initial solicitation and initiation of transition activities that lessened contractor\rquote s competitive advantages, and contractor\rquote s injury could be redressed at least in part by tailoring requested injunctive and declaratory relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to State Department\rquote s proposed issuance of task order, to small business contractor to provide security protection management services, that allegedly exceeded scope of contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, fell within enumerated exception to statutory task order protest ban, as required for jurisdiction of Court of Federal Claims over protestor\rquote s scope challenge to proposed task order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': State Department\rquote s proposed task order to small business contractor to provide security protection management services did not exceed scope of contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract; proposed task order did not materially depart from scope of ID/IQ contract as to type of work and positions to be filled by small business contractor, bidders for ID/IQ contract would have reasonably anticipated that services currently provided by incumbent contractor could be ordered through ID/IQ contract, as both contracts required contractor to provide employees with knowledge of overseas security issues affecting State Department personnel and to provide administrative personnel with financial management skills, and employee positions identified in ID/IQ contract were reasonably analogous to positions identified in proposed task order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s argument that State Department\rquote s proposed issuance of task order to small business contractor to provide security protection management services under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract violated small business size regulation was protest ground \in connection with\ proposed issuance of task order, within meaning of statutory task order protest ban depriving Court of Federal Claims of jurisdiction to review protestor\rquote s argument, since violation of regulation was not within statute\rquote s enumerated exceptions to jurisdictional ban. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Even if protest ground was not banned as to State Department\rquote s alleged violation of small business size regulation by proposed issuance of task order to contractor to provide security protection management services under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, proposed task order\rquote s dollar amount did not violate regulation, which only applied to acquisitions valued above competitive acquisition threshold of $4 million, where proposed task order\rquote s dollar amount fell below $4 million threshold. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Even if protest ground was not banned as to State Department\rquote s alleged failure to treat bidders fairly and impartially during proposed issuance of task order to small business contractor to provide security protection management services under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, protestor did not cite any binding precedent authorizing general fairness statements in procurement regulations as support for protest alleging violation of regulations, protestor and small business contractor were not similarly situated, proposed transition of contract services to small business contractor from incumbent contractor that had no permanent right to its incumbency after becoming ineligible for small business set-aside program was not unfair, and there was no evidence that Department acted in bad faith. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to State Department\rquote s cancellation of solicitation to provide security protection management services prior to proposed issuance of task order to small business contractor under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract was protest ground not \in connection with\ proposed issuance of task order, within meaning of statutory task order protest ban that would have deprived Court of Federal Claims of jurisdiction to review challenge, even though both solicitation and proposed issuance of task order were intertwined, where cancellation of solicitation was discrete procurement decision that could have been subject of separate protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': To extent that fairness regulations applied, State Department\rquote s cancellation of solicitation to provide security protection management services rather than reevaluation of bids was fair, prior to proposed issuance of task order to small business contractor under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, since cancellation was not based on disparate treatment, unfairness, or inequitable treatment of bidders, cancellation did not offend Court of Federal Claims\rquote injunction of contract award or disregard court\rquote s legal conclusions, Department\rquote s justifications for cancellation were not falsehoods, and cancellation did not result in undue delay that was unfair to bid protestor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': State Department\rquote s cancellation of solicitation to provide security protection management services was reasonable, prior to proposed issuance of task order to small business contractor under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, since solicitation contained flaws that might have again led to flawed evaluation of proposals for proposed follow-on contract, and amendment of flawed solicitation was not necessarily more efficient than issuance of new updated solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': State Department\rquote s cancellation of solicitation to provide security protection management services was not based on bad faith, prior to proposed issuance of task order to small business contractor under contractor\rquote s existing indefinite delivery/indefinite quantity (ID/IQ) contract, since there was no evidence of pretext, bad faith, specific intent to injure bid protestor, or specific intent to injure team consisting of bid protestor and incumbent contractor as subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Contract work similar to the contract work at issue in this protest was awarded to Harding Security Associates, Inc. (Harding) in 2006, pursuant to a five-year contract (one base year and four option years). That contract was set aside for 8(a) small business concerns. In 2009, however, Harding was purchased by a large business and lost its 8(a) small business status. AR at 1. At that point, the Agency sought a waiver from the Small Business Administration so that Harding could continue as the incumbent contractor on the contract, even though it had lost its 8(a) certification, but the waiver was denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': The Agency then issued a solicitation in 2010 (Solicitation) which sought to replace Harding with a small business contractor. BayFirst submitted a proposal in response to the Solicitation, and included Harding as its subcontractor for that bid. The Agency awarded to another offeror, and BayFirst protested that award at the Government Accountability Office (GAO). After losing at GAO, BayFirst filed a complaint in this court on August 15, 2011. Meanwhile, the Agency kept issuing short extensions of a bridge contract awarded to Harding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 76 Fed.Reg. 8222, 8260 (Feb. 11, 2011) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Nonetheless, if jurisdiction for this challenge existed, and the court were to apply the fairness standards in the FAR cited by plaintiff, the court finds nothing unfair in the Agency\rquote s proposed transition of contract services from Harding to Alutiiq. Plaintiff suggests that \[t]he Agency seeks to foreclose the possibility that BayFirst will be able to compete on a level playing field by transitioning the BayFirst team employees to Alutiiq prior to the issuance and award of the new contract.\ Pl.\rquote s Mot. at 7. Yet, incumbent contractors such as Harding have no permanent right to their incumbency, especially, as in this case, if they are no longer eligible for the small business set-aside program that provided the legal basis for their contractual relationship with the government. BayFirst seeks, it appears, to benefit from the continuation of Harding\rquote s incumbency after May 20, 2012, a date after which Harding has no legitimate right to provide the contested contract services to the State Department. BayFirst has not established that the Agency\rquote s treatment of the BayFirst team (BayFirst and Harding) has violated the principles of fairness set forth in the FAR. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 017 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': Small Business Size Regulations, 76 Fed.Reg. 8222, 8260 (Feb. 11, 2011) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 021 - 360Trainingcom Inc v US.doc, Paragraph with 'The Rule of Two': (per curiam with no opinion). In that case the plaintiff argued that grants issued by the Army pursuant to the Small Business Innovation Research (\SBIR\) program constituted a procurement because the government was procuring research and development services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 021 - 360Trainingcom Inc v US.doc, Paragraph with 'The Rule of Two': , were not part of a procurement process. The purpose of the SBIR was \to stimulate technological development\ via small businesses and to \foster and encourage participation by minority and disadvantaged persons.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': contractor waived its right to challenge solicitation requirement that offerors appear on the Small Business Administration\rquote s (SBA) list of qualified HUBZone (historically underutilized business zone) SBCs (small business concerns) at time of submission of offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Offeror waived its right to challenge solicitation requirement that offerors appear on the Small Business Administration\rquote s (SBA) list of qualified HUBZone (historically underutilized business zone) SBCs (small business concerns) at time of submission of offers; offeror had an obligation, prior to submitting its proposal, to challenge the propriety of the solicitation requirement that offerors appear on the SBA\rquote s list prior to submission of their proposals where such requirement was clear on the face of the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': small business concerns (SBCs) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': with a small business size standard of $35.5 million. AR 1 (Acquisition Docs.); AR 89 (Commerce Bus. Daily Docs.); Compl. \u182 13; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR 250\u821152 (Solicitation), both of which require offerors to represent whether, \on the date of this representation,\ the offeror is listed on the list of qualified HUBZone SBCs (List) established and maintained by the Small Business Administration (SBA) \and no material changes in ownership and control, principal office, or HUBZone employee percentage have occurred since it was certified in accordance with 13 CFR Part 126,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR 9 (Acquisition Docs.) (identifying CSI as the current contractor for logistics support services at Fort Riley). CSI\rquote s Proposal stated that CSI was certified as a Service Disabled Veteran Owned Small Business Concern (SDVOSBC), AR 1166 (Proposal), and that its corporate headquarters\u8212Junction City, Kansas\u8212was located in a HUBZone, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The enabling statute referred to by CSI is the Small Business Reauthorization Act of 1997 (HUBZone Act), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': at the time of offer is contrary to the requirement in the Small Business Act that HUBZone SBCs be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': at the time of offer. AR 1568.2 (Pl.\rquote s GAO Resp.). According to CSI, the Small Business Act \allows CSI to compete on solicitations set aside for qualified HUBZone SBCs so long as it was qualified as a HUBZone [SBC], and that it had certified to SBA at that time that it was, in fact, qualified as a HUBZone SBC.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': CSI also argued that the Small Business Act law does not require SBCs, which are otherwise qualified as HUBZone SBCs, to first obtain admittance to the SBA\rquote s List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': CSI contends that, but for the Army\rquote s alleged violation of the Small Business Act\u8212which, plaintiff contends, does not require offerors to appear on the SBA\rquote s List of qualified bidders at the time of submission of proposals\u8212CSI had a substantial chance of receiving the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Defendant argues that, \[b]y claiming that the [SBA regulations] conflict with the Small Business Act,\ CSI is \us[ing] the regulations as a proxy to attack the [S]olicitation\rquote s requirement[s].\ Def.\rquote s Mot. 12. As defendant contends, plaintiff simply ignores the Solicitation\rquote s inclusion of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Although plaintiff claims that it is challenging the Army\rquote s evaluation of proposals, which\u8212plaintiff contends\u8212was in violation of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': A business is considered a small business concern (SBC) if it is \independently owned and operated[,] ... is not dominant in its field of operation\ and meets certain size standards as determined by the Administrator of the Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': (setting forth the SBA\rquote s small business size regulations). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The relevant parties to the e-mails include the following: the President and CEO of CSI, Lloyd Parker (Mr. Parker); SBA\rquote s Deputy Director of the HUBZone Program, Mariana Pardo (Ms. Pardo); the Chief Financial Officer of CSI, George Rogers (Mr. Rogers); the Director of the Army\rquote s Office of Small Business Programs, Tracey Pinson (Ms. Pinson); the Assistant to the Director of the Army\rquote s Office of Small Business Programs, James Lloyd (Mr. Lloyd); the Contracting Officer, Christopher M. Toste (Mr. Toste); the Contract Specialist, Edward Sido (Mr. Sido); and Constituent Services Representative to Congressman Tim Huelskamp, Lynn Ballinger (Ms. Ballinger). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': . \Should the SBA issue the Certificate of Competency, the small business is conclusively deemed responsible for the purposes of the procurement in question.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 027 - HP Enterprise Services LLC v US.doc, Paragraph with 'The Rule of Two': The court has compared this ambiguity to others noted in this court\rquote s caselaw and in GAO decisions and concludes that the ambiguity here is latent. In a recent GAO decision, a protestor asserted that an eligibility requirement in a solicitation could be read to include business entities not yet certified as eligible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with 'The Rule of Two': Contractor would suffer irreparable harm in absence of permanent injunction requiring Defense Intelligence Agency (DIA) to consider contractor\rquote s proposal to provide intelligence analysis support for DIA missions as timely submitted, since contractor would be irreparably injured by denial of opportunity to compete for contract with 5\u8211year lifespan and up to $5.6 billion in revenue, as recoupment of bid preparation costs while denying contractor chance to compete was not adequate remedy given substantial size of contract and business-expanding opportunity it represented for small business like contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with 'The Rule of Two': The main difference between the emailed proposal and the paper proposal is that, in the emailed proposal, EOR corrected some typographical errors, made some small adjustments to the formatting, rearranged a few pages, and added in a few pages of information. For example, extra words were removed from headings, AR 762\u821163, 1558\u821159 (in a section about subcontractor USGC, the paper copy heading was \USGC Participation\ and the emailed copy heading was \Small Business Participation\), paragraph headings were added, AR 754\u821155, 1570\u821171, missing contact information was added, AR 639, 1441\u821142, \168,000,000,000\ was changed to \168,000,000\, AR 763, 1559, and \$5.600,000,000\ was changed to \$5.6 Billion\ in several places, AR 747, 1547, AR 750, 1550, AR 762\u821163, 1558\u821159. The most significant change appears to be that several pages that appear in the emailed proposal were left out of the paper proposal (emailed proposal is 773 pages, hard copy is 763). These additional pages do not change the terms of the proposal, but rather add a few pieces of information to several larger sections. Compare AR 1434\u821190 (paper proposal lists description of past performance under 8 different contracts) with AR 688\u821192 (emailed proposal adds past performance for a 9th contract); compare AR 1541\u821165 (paper proposal describes 5 of 6 subcontractors as small businesses) with AR 756 (emailed proposal describes all a 6 as small businesses); compare AR 1566\u821179 (at the end of the small business section, paper proposal contains profiles for 7 team members) with AR 752\u821177 (emailed proposal has profiles for 5 team members and profiles appear scattered throughout the section). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with 'The Rule of Two': The Court finds that the evidence weighs in favor of granting the injunction. The first factor is irreparable harm. As this is a pre-award protest, the extent of EOR\rquote s direct economic harm will be less than in the post-award context because DIA has not yet evaluated the proposals. Moreover, the RFP is for an IDIQ contract, so the exact value of the contract is not known. The Court therefore concludes that a determination of irreparable harm cannot be made on EOR\rquote s economic loss alone. The real harm suffered by EOR is the denial of the opportunity to compete for a contract with a 5\u8211year lifespan and up to $5.6 billion in revenue. AR 339. Absent injunctive relief, EOR will never have the opportunity to compete for the award. Given the substantial size of the contract and the business-expanding opportunity it represents for a small business like EOR, recoupment of bid preparation costs while denying EOR the chance to compete, is not an adequate remedy. The Court agrees with other CFC judges that have considered the issue that the denial of the opportunity to compete for a contract can constitute irreparable harm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Court could not decide how small was too small, with regard to small business in selection of NAICS code. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': A decision by the Small Business Administration (SBA) Office of Hearings and Appeals (OHA) is \in connection with\ a proposed procurement, as required for a federal district court to have jurisdiction to review it under the Tucker Act as a bid protest action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Court could not decide how small was too small, with regard to contracting officer\rquote s selection of North American Industry Classification System (NAICS) code that favored small business in solicitation by United States Army to procure physicians across various specialties and to have them work in existing government facilities, since Competition in Contracting Act (CICA) expressly allowed government to favor small businesses to further policies of Small Business Act and contracting officer\rquote s code designation did not otherwise violate applicable statutes or regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167\u167 2[9], 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Because of the small business size limitations placed on this contract, plaintiff, InGenesis, Inc., is precluded from qualifying for the award. Currently before the court are the parties\rquote cross-motions for judgment on the administrative record and plaintiff\rquote s motion for leave to file the declaration of its corporate president. The motions are fully briefed, and we heard oral argument on March 7, 2012. As we announced at the conclusion of oral argument, and for the reasons explained below, we deny plaintiff\rquote s motion to file the declaration and its motion for judgment on the administrative record, and we grant defendant\rquote s cross-motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation indicated that the procurement had been set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Because of the small business set aside, the Small Business Administration regulations contained in 13 C.F.R. part 121, subpart A apply. Under these regulations, the contracting officer is to choose the North American Industry Classification System (\NAICS\) code that best describes the principal purpose of the product or services being acquired. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': . NAICS codes are promulgated by the Office of Management and Budget and are used to classify an economic activity or industry for many purposes. Using the already-established NAICS codes, the Small Business Administration then imposes its own limitations on size and revenue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, when the contracting officer designates a NAICS code for a small business set aside solicitation, the effect is both to target the type of institutions solicited and simultaneously to impose size and revenue limitations on those bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': In order to give himself some assurance that there were a sufficient number of small businesses capable of and interested in bidding on the various medical services being sought, the contracting officer conducted a widely-advertised \Industry Day.\ Potential bidders were invited and briefed on what the Army was planning. Attendees were notified of the codes being contemplated and the respective revenue limitations: Physician services\u8211621111 ($10,000,000); Nursing services\u8211621399 ($7,000,000); and Ancillary services\u8211622110 ($34,500,000). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': II. Plaintiff\rquote s protest at the Small Business Administration Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Bid proposals were due by November 10, 2011. On September 26, 2011, however, plaintiff filed an appeal before the Small Business Administration (\SBA\) Office of Hearings and Appeals (\OHA\), contesting the contracting officer\rquote s choice of NAICS code 621111. In its appeal, InGenesis argued that the proper NAICS code designation should have been code 622110, not 621111. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Edwards is experienced in providing medical staffing, and she makes the following points. The instant solicitation is a \follow-on\ contract to a prior solicitation for physician services, W81K04\u821108\u8211R\u82110022. Decl. \u182 4. The prior solicitation was classified with NAICS Code 621111 giving it a small business revenue limit, as amended, of $10 million. Decl. \u182 5. InGenesis Arora Staffing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': LLC, a joint venture in which plaintiff is a partner, no longer qualifies under the 621111 small business set aside limit, but it does qualify under the set aside allowed by 622110. Decl. \u182\u182 7\u82118, 13\u821114. With regard to the prior solicitation, Ms. Edwards asserts that the \task orders issued by defendant have been primarily for the services of Psychiatrists.\ Decl. \u182 15. Specifically, she notes that \[o]ut of a total full time employees (FTE) of thirty-five, twenty [approximately 57%] have been Psychiatrists.\ Decl. \u182 15. In terms of dollar value provided, she notes that mental health services account for sixty-four percent of the total. Decl. \u182 15. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': The fact that there does not exist one code that perfectly captures all elements of the work statement is unfortunate but simply a fact of life in small business contracting. It is understood that the role of the contracting officer is simply to \select the NAICS code which best describes the principal purpose of the product or service being acquired.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that the contracting officer overlooked a more logical NAICS code, 621110, which was used in the companion \Ancillary Services\ solicitation. This code has two virtues, at least from plaintiff\rquote s perspective. The most salient is that it has a much higher small business threshold, $34,500,000, under which plaintiff fits. The second is that, as the government concedes, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': . Specifically, plaintiff argues that, due to the size limitations, competition is unduly restricted because plaintiff cannot submit a proposal. These arguments are unconvincing. CICA expressly allows the government to favor small businesses to further the policies of the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': . Indeed, \[n]o separate justification or determination and findings is required under this part to set aside a contract action for small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': , contracts may be set aside for small businesses to fulfill statutory policies relating to small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 036 - InGenesis Inc v US.doc, Paragraph with 'The Rule of Two': We note additionally that the contracting officer did address the concern of whether small businesses under NAICS code 621111, i.e., entities under $10 million in revenue, would be able to provide the contemplated services. The contracting officer composed a market research report based, in part, on an \industry day,\ that invited small businesses to address any staffing concerns for proposed medical solicitations, including this one. AR 3\u821181. In that report, the contracting officer concluded, \Market research indicates that there are numerous large and small businesses that are capable of performance of this acquisition effort and satisfy the agency\rquote s requirements that exist for staffing Health Care Providers in Military Treatment Facilities.\ AR 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 043 - Solute Consulting v US.doc, Paragraph with 'The Rule of Two': at 35\u821136, 141\u821143. The solicitation was set aside for small businesses and would result in a cost-plus-fixed-fee task order with an initial term of one year and four additional option years. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 043 - Solute Consulting v US.doc, Paragraph with 'The Rule of Two': , Limitations of Subcontracting (Dec. 1996), AR 113, 1034, which provides: \By submission of an offer and execution of a contract, the Offeror/Contractor agrees that in performance of the contract in the case of a contract for\ services, \[a]t least 50 percent of the cost of contract performance incurred for personnel shall be expended for employees of the concern.\ The underlying SeaPort-e contract further provides: \To be eligible as a Small Business, ... the Offeror must have had that status at the time of proposal submission that resulted in the award of the SeaPort Enhanced IDIQ contract award, or for orders solicited under this contract after the close of the base period must properly hold that status at the beginning of each award term period and must propose to perform at least 51% of the work under the solicited task order (See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Following government contractor\rquote s successful bid protest of award of contract to provide Department of Army with information technology (IT) support services pursuant to Small Business Administration\rquote s business development program, under Small Business Act (SBA), at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Government contractor had standing to bring action against United States Department of Army to enforce court\rquote s injunction imposed against Army in contractor\rquote s previous bid protest; contractor suffered an injury in fact based on Army\rquote s alleged violation of court\rquote s injunction ordering it to award contract in manner that was compliant with Small Business Act (SBA), and contractor\rquote s injury was both concrete and particularized and actual or imminent, given Army\rquote s allegedly unauthorized award to another bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ; Small Business Jobs Act of 2010, \u167 1347(b, c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': United States Department of Army did not violate a court order when it awarded contract for information technology (IT) services following government contractor\rquote s successful bid protest, as required for court to hold Army in civil contempt; injunction issued in bid protest against Army, which ordered Army to award IT contract in a manner that was compliant with Small Business Act (SBA), applied only to the procurement contract at issue, not to Army\rquote s future award decisions, and since Army\rquote s award involved different award amount, different start date, different duration, different number and type of personnel required, and different location than challenged bid, the procurements represented two different acquisitions. Small Business Jobs Act of 2010, \u167 1347(b, c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Even if the United States Department of Army violated injunction issued in government contractor\rquote s bid protest against Army, by awarding information technology (IT) contract in a manner that was not compliant with Small Business Act (SBA), violation was result of a good faith and reasonable interpretation of the order; Army\rquote s contracting officer consulted with legal counsel before making award decision, counsel reasonably interpreted injunction to apply only to procurement at issue in bid protest, not Army\rquote s future awards, the SBA had been amended after issuance of injunction which allowed Army to modify its award parameters, and Army reasonably considered procurement to be different acquisition than that addressed in bid protest. Small Business Jobs Act of 2010, \u167 1347(b, c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': On February 26, 2010 the court decided this bid protest case brought by plaintiff Mission Critical Solutions (plaintiff or MCS), holding that \[t]he Army\rquote s award of the [information technology (IT) ] support services contract on a sole-source basis without first determining whether it should set aside the contract for restricted competition among qualified HUBZone small business concerns was not in accordance with law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': are met, such that the contract opportunity at issue in this case must be awarded on the basis of competition among qualified HUBZone small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The court also \enjoin[ed] the United States from awarding the IT support services contract at issue in a manner that is not in compliance with the Small Business Act as the court here interprets it.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Plaintiff filed its initial Complaint in this case on December 15, 2009 alleging that the United States Army (Army or defendant) improperly made an 8(a) sole source contract award without first making a determination under the HUBZone statute as to whether a set aside for HUBZone small business concerns was required, thereby depriving MCS of the opportunity to compete for the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': At the time it filed its Complaint, MCS was \both an 8(a) program participant and a qualified Historically Underutilized Business Zone (HUBZone) small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (Supp.2010). The court concluded that the portions of the statute which read, \Notwithstanding any other provision of law\ and \shall be awarded,\ when read together, indicated that \the statutory language is mandatory and that the plain meaning of the HUBZone statute requires a contract opportunity to be competed among qualified HUBZone small business concerns whenever the specified criteria are met, notwithstanding other provisions of law\u8212including those found within the Small Business Act itself.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': are met, such that the contract opportunity at issue in this case must be awarded on the basis of competition among qualified HUBZone small business concerns,\ and \enjoin[ed] the United States from awarding the IT support services contract at issue in a manner that is not in compliance with the Small Business Act as the court here interprets it.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant appealed this court\rquote s Order of February 26, 2010, Def.\rquote s Resp. 9, but subsequently withdrew the appeal on November 15, 2011 after the passage and signing of the Small Business Jobs Act of 2010 (the Act), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Small Business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': A contract opportunity may be awarded pursuant to this section on the basis of competition restricted to qualified HUBZone small business concerns if the contracting officer has a reasonable expectation that not less than 2 qualified HUBZone small business concerns will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': 124 Stat. at 2547. The United States Small Business Administration (SBA) issued amended regulations on October 7, 2010 (which went into effect in February 2011) in part to address amendments made by the Act. Def.\rquote s Resp. 10; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Women\u8211Owned Small Business Federal Contract Program, 75 Fed.Reg. 62,258 (Oct. 7, 2010) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': with a performance period of August 7, 2010 to August 20, 2010, and a small business set-aside contract, No. W91WAW\u821110\u8211C\u82110072, which was set to expire on January 5, 2011, Pl.\rquote s Mem. 2, Ex. A (August 20, 2010 Bridge Contract), but was modified on January 5, 2011 to extend through July 4, 2011, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': \On October 29, 2010 the SBA notified MCS that it had been de-certified and removed from the list of qualified HUBZone [small business concerns] because it does not meet and has not met the requirement that at least 35% of its employees reside in a HUBZone.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': are met, such that the contract opportunity at issue should be awarded on the basis of competition among qualified HUBZone small businesses.\ Pl.\rquote s Mem. 3. Plaintiff argues that a subsequent change to the statute that the court interpreted in its February 26, 2010 Order, \which removes the requirement for the determination of whether a HUBZone set-aside is appropriate ... does not affect the injunction issued by the Court in its decision\ because the new statute does not have retroactive effect upon the contract for procurement of IT services which was the subject of the court\rquote s injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': at 17. Defendant further argues that the court lacks jurisdiction to consider plaintiff\rquote s Motion because plaintiff is no longer a qualified HUBZone small business concern and therefore lacks standing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': at 19, and because plaintiff\rquote s Motion is moot insofar as \the Small Business Act has been amended, [and] the Army cannot repeat the same violation of law that the Court held to have been committed in this case,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant argues that plaintiff lacks standing to bring a motion to enforce the court\rquote s injunction because plaintiff is no longer a qualified HUBZone small business concern. Def.\rquote s Resp. 19. Defendant argues that because more stringent standing requirements apply to bid protests, plaintiff, even if it seeks to enforce this court\rquote s order, must meet the stringent bid protest standing requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': River is a different document from the 2009 draft contract numbered W91WAW\u821109\u8211C\u82110021. Defendant points to the fact that the \2009 and 2011 procurements, representing two different acquisitions, have two separate small business coordination records,\ which resulted from the agency\rquote s notification to the SBA \of its plans to place an 8(a) contract with SBA for specific quantities or items of work.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Defendant also argues that it was reasonable to read the court\rquote s order, which \focused upon the \u8216contract at issue,\u8217 not subsequent contracts, and only analyzed the prior version of the Small Business Act,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': In addition, the court enjoined only the award of the contract \in a manner that is not in compliance with the Small Business Act as the court here interprets it.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Resp. 17, to conclude that the court\rquote s analysis and injunction applied only with respect to the version of the Small Business Act in effect at the time of the initial procurement. A party could, in good faith, view the injunction as inapplicable to the 2011 contract in light of amendments to the Small Business Act, which removed the mandatory language that the court previously relied on to find defendant in violation of the law and to enjoin future violations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': ). Defendant argues that the case is moot because, in the future, defendant could not repeat the violation of the Small Business Act that was at issue in this bid protest because of the amendments to the Small Business Act. Def.\rquote s Resp. 20. However, whether or not defendant could repeat the violation in the future has no bearing on whether defendant violated the court\rquote s injunction in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (2) A statement by the Army\rquote s Assistant Associate Director in the Office of Small Business Programs to the Small Business Administration (SBA) that \[t]he previous contractor for this action was MCS of Tampa, Inc., an 8(a) firm.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 044 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (4) A statement that appears in the SBA Business Coordination Record in reference to the 2011 contract that \[t]his requirement was awarded to the below 8(a) small business but the award was protested. The protest has now been overruled and we have received legal concurrence that this requirement can be awarded.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Company brought action against Department of Veteran Affairs (VA), alleging that denial by VA of company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program violated Administrative Procedure Act (APA) and Due Process Clause, and that VA was without statutory authority to issue regulations at issue. Company moved for summary judgment and VA moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': VA acted within its powers by enacting regulations to enforce statutory command to verify that each small business was owned and controlled by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Department of Veteran Affairs (VA) did not provide satisfactory contemporaneous explanation for its decision to deny company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program on basis that veteran did not exercise sufficient control over company, as required to avoid finding that such action was arbitrary and capricious, in violation of Administrative Procedure Act (APA); it was not clear from VA\rquote s final decision whether it intended to retain, abandon, or modify grounds for denying application that were articulated in its initial determination, grounds cited by VA as basis for denying application were described in generalized and ambiguous terms, VA offered new explanations for its grounds for denying application that were not articulated at administrative level, and VA did not explain why it was reasonable to conclude that company\rquote s attempts to speak to agency\rquote s concerns within 12 days of ineligibility determination evinced intent solely to bring company within letter of regulation as opposed to having real meaning or purpose. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Company failed to allege that it had cognizable property interest in being designated as business eligible to participate in Department of Veteran Affairs\rquote (VA) veteran-owned small business program, as required to state claim against VA for violation of due process under Fifth Amendment, where company\rquote s complaint was devoid of any allegation that company was ever licensed or certified as business eligible to participate in program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Company was afforded all process it was due under Fifth Amendment in applying to be included in Department of Veteran Affairs\rquote (VA) online database of businesses eligible to participate in veteran-owned small business program, where VA afforded company opportunity to engage with VA representative face-to-face during onsite examination, company was advised of basis for initial determination by VA in written decision, company was afforded opportunity to request reconsideration and to submit additional materials in support of that request, company was advised of basis for final decision by VA in written decision, and VA provided written explanation for its final decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Department of Veteran Affairs\rquote (VA) decisions denying company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program did not deprive company of property or liberty to enjoy rights which it would otherwise enjoy, as would support claim for violation of due process under Fifth Amendment, despite company\rquote s contention that decisions contained inflammatory language which constituted such a deprivation; VA decisions did not actually contain any inflammatory language. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Department of Veteran Affairs (VA) acted well within its powers by enacting regulations seeking to enforce statutory command to, in course of creating and maintaining database of veteran-owned businesses, verify that each small business was owned and controlled by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Plaintiff CS\u8211360, LLC (\CS360\) brings this action against the U.S. Department of Veteran Affairs (the \VA\), asserting three claims that, in one way or another, all challenge the VA\rquote s decision to deny CS360\rquote s application to be included in an online database of businesses eligible to participate in a veteran-owned small business program managed by the VA. Count I of the [1] Complaint alleges that the VA violated the Administrative Procedure Act because its denial of CS360\rquote s application was arbitrary and capricious. Count II alleges that the VA violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution by failing to permit applicants to appeal application decisions to an independent decision-maker and by using \inflammatory language\ in the decision to deny CS360\rquote s application. Count III alleges that the VA is without statutory authority to issue the regulations at issue in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': A. Service\u8211Disabled Veteran\u8211Owned Small Businesses and the VA\rquote s VetBiz Vendor Information Pages Database Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': ), to increase contracting opportunities for small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': . To this end, Congress conferred upon the VA the authority to set aside certain government contracts for service-disabled veteran-owned small businesses (\SDVOSBs\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': As part of this design, Congress required the Secretary of the VA to maintain a database of eligible small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Responding to this statutory command, the VA maintains the VetBiz Vendor Information Pages (\VIP\) database, an online \database of businesses eligible to participate in [the] VA\rquote s Veteran-owned Small Business Program,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': By statute, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the small business concern are listed in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': The Center for Veterans Enterprise (the \CVE\), a subdivision of the VA\rquote s Office of Small and Disadvantaged Business Utilization (the \OSDBU\), is charged with evaluating applications by small businesses seeking to be included in the VetBiz VIP database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': . To qualify for inclusion, a small business \must be unconditionally owned and controlled by one or more eligible veterans, service-disabled veterans or surviving spouses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': In addition to requesting materials from CS360, the OSDBU engaged an outside contractor to conduct an onsite examination of CS360. The contractor conducted the examination on April 26, 2010 and submitted its written report to the OSDBU on April 29, 2010. VA00371\u821100382. According to the written report, the contractor reviewed documentation and interviewed four individuals in connection with the examination. VA00372, VA00380\u821100382. Based upon its review, the contractor concluded that CS360 had failed to establish that Davis and Blanco unconditionally owned and controlled the company. VA00372. In terms of ownership, the contractor found that (1) the equity section of CS360\rquote s balance sheet identified six individuals who provided capital contributions to CS360, and Davis and Blanco were not included on this list; (2) there was no goodwill recorded on CS360\rquote s books and records to identify Davis and Blanco\rquote s alleged investment in the company; (3) Blanco was the owner of another entity that was also applying for inclusion in the VetBiz VIP database, contrary to regulations permitting only one company to be verified; (4) Blanco\rquote s separate entity was also certified by the Small Business Administration (\SBA\) in a program that required him to be involved full-time in the day-to-day management of that entity, preventing him from being involved in the day-to-day operations of CS360. VA00372\u821100374. In terms of control, the contractor took into account that (1) CS360\rquote s Operating Agreement was silent as to management percentages; (2) the Operating Agreement stated that the Executive Committee was not required to devote any particular amount of time to the performance of their duties and were able to delegate their duties to others; (3) Blanco was paid as a consultant; (4) while Davis performed the \vast amount of functions\ for CS360, it was unclear whether he \fully managed the majority of the day to day operations\; and (5) a review of four contracts revealed that Davis and Blanco only had oversight and signing authority over one contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': Third, turning to the results of the onsite examination, the CVE found that \deeper organizational structural flaws [were] fatal to the application.\ VA00533. Although it is not entirely clear from the face of the Initial Determination, it appears that the \structural flaws\ the CVE had in mind relate to the extent of CS360\rquote s economic dependence on B & R. By regulation, the CVE may conclude that a small business fails to comply with the control requirement when \[b]usiness relationships exist with non-veterans or entities which cause such dependence that the applicant cannot exercise independent business judgment without great economic risk.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': CS360 asserts three claims in this action, each of which challenges, in one way or another, the VA\rquote s decision to deny CS360\rquote s application to be included in the VetBiz VIP database identifying businesses eligible to participate in the veteran-owned small business program managed by the VA. Count I of the [1] Complaint alleges that the VA violated the Administrative Procedure Act because the CVE\rquote s denial of CS360\rquote s application was arbitrary and capricious. Count II alleges that the VA violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Count III alleges that the VA is without statutory authority to issue the regulations at issue in this case. On Count I, the Court finds that the VA has failed to provide a satisfactory contemporaneous explanation for its decision to deny CS360\rquote s application and concludes that the best course is to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': By Congressional design, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the small business concern are listed in the [VetBiz VIP] database.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': , requires only that ... the VA simply verify that each small business concern listed in the database is owned and controlled by veterans\ and \[t]here is nothing in the statute that requires or authorizes the VA to be the entity that actually certifies the SDVOSBs.\ Compl. \u182 53. To the contrary, when Congress authorized the VA to set aside contracts for eligible veteran-owned small businesses, it was clear that the VA\rquote s authority could be exercised \only if the small business concern and the veteran owner of the small business concern are listed in [a] database of veteran-owned businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': . Congress also made it clear that it expected the VA, in the course of creating and maintaining the VetBiz VIP database, to \verif[y] that ... the small business concern is owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': CS360 next argues in broad terms that the regulations issued by the VA are ultra vires because the authority to certify SDVOSBs \has already been granted exclusively to the U.S. Small Business Administration (SBA) pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': by reference). However, through a separate and subsequent enactment, Congress independently authorized the VA to set aside contracts for veteran-owned small businesses and provided that the VA may award such contracts \only if the small business concern and the veteran owner of the small business concern are listed in [a] database of veteran-owned businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': . To this end, Congress expressly and unambiguously required the VA to \maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'The Rule of Two': . In so doing, Congress made it absolutely clear that it expected the VA to \verif[y] that ... the small business concern is owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 054 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': that the MCSC intended to take corrective action by requesting a size determination from the Small Business Administration (the \SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 054 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': ] another viable small business manufacturer. [ ] was simply listed as they are the only previous supplier of the [ ] that we listed in our proposal. We would only use [ ] as a technical reference point if questions arose during our assembly of the item. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 054 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': at 1987. Additionally, the SBA found that one proposed component part actually was manufactured in Canada and that one proposed supplier was a non-profit organization, which the SBA noted does \not qualify as [a] small business[ ].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 054 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration\u8212Area I finds JGB to be a small business which qualifies as a kit-assembler for the contract in question, and as a nonmanufacturer for orders in which it is supplying components made in the United States by a small business. JGB is an other than small business for all orders for which it is a nonmanufacturer and the component required is manufactured by a large business or not in the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 054 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': ] another viable small business manufacturer. [ ] was simply listed as they are the only previous supplier of the [ ] that we listed in our proposal. We would only use [ ] as a technical reference point if questions arose during our assembly of the item. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': Intervenor, which was awarded contract by Marine Corps Systems Command (MCSC), made a material misrepresentation in its proposal by listing particular company as a supplier to be used in the completion of the procurement; listing of company as a supplier in the proposal was a misrepresentation of the role that company was to play in performance should intervenor win the award, given that intervenor explicitly stated to the Small Business Administration (SBA) that it was never intervenor\rquote s intent to use company as a supplier of the parts for which it listed past performance, and MCSC, which placed great emphasis on the fact that company\rquote s involvement was delineated in intervenor\rquote s proposal, relied on the misrepresentation in evaluating intervenor\rquote s past performance, which was prejudicial to offeror. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': Order entered Sept. 21, 2011, at 2. On October 13, 2011, defendant filed notice that the MCSC intended to take corrective action by requesting a size determination by the Small Business Administration (the \SBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': ] another viable small business manufacturer. [redacted] was simply listed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': In the course of its investigation, however, the SBA discovered that intervenor had proposed to acquire certain component parts from businesses that were classified as other than small. While examining the sources of the 524 components that were listed in the Solicitation CLINs, the SBA determined that intervenor had proposed to acquire \potentially [redacted] ... from a large business.\ AR 1987. Additionally, the SBA found that one proposed component part actually was manufactured in Canada and that one proposed supplier was actually a non-profit organization, which the SBA noted does \not qualify as [a] small business[ ].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': The Small Business Administration\u8211Area I finds JGB to be a small business which qualifies as a kit-assembler for the contract in question, and as a nonmanufacturer for orders in which it is supplying components made in the United States by a small business. JGB is an other than small business for all orders for which it is a nonmanufacturer and the component required is manufactured by a large business or not in the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 058 - GTA Containers Inc v US.doc, Paragraph with 'The Rule of Two': ] another viable small business manufacturer. [redacted] was simply listed as they are the only previous supplier [redacted] that we listed in our proposal. We would only use [redacted] as a technical reference point if questions arose during our assembly of the item. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 059 - Glenn Defense Marine (Asia) PTE v US.doc, Paragraph with 'The Rule of Two': dismissed the appeal of a contractor seeking review of a decision dismissing its bid protest regarding a small business set aside procurement. There, an appeal to enjoin the award of the contract to another party was mooted after the contractor on appeal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 059 - Glenn Defense Marine (Asia) PTE v US.doc, Paragraph with 'The Rule of Two': was recertified as a small business concern and awarded the contract it sought to enjoin. Similarly here, Glenn Defense seeks to enjoin a contract for performance of services that it has now been awarded. Thus, as in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': 20.9% lower than the Engineer\rquote s Estimate. AR 312\u821178, 492. VIP certified that it was a Small Business Concern in its August 24, 2011 bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': specifically that the company was [redacted] that could be evidence of a mistake in bid.\ Gov\rquote t Resp. at 5. Finally, even if the CO made a responsibility determination, by rejecting VIP\rquote s bid, it would be permissible, because \not all decisions involving the ability of a small business to perform are appropriate for determination by the SBA.\ Gov\rquote t. Br. at 10. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': (requiring that \[a] contracting officer shall, upon determining an apparent successful small business offeror to be nonresponsible, refer that small business to the SBA for a possible [Certificate of Competency], even if the next acceptable offer is also from a small business\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': (\Upon making a determination of nonresponsibility with regard to a small business concern, the contracting officer shall refer the matter to the Small Business Administration, which will decide whether to issue a Certificate of Competency ....\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': The Government states that \it is unclear whether VIP is in fact a small business\ because in its Online Representations and Certifications Application (\ORCA\) VIP states that it is not a small business. Government\rquote s Cross Motion For Judgment On The Administrative Record at 11 n. 4 (citing AR 467). ORCA certifications \may be supplemented by information submitted to the Government in response to a specific solicitation\ (AR 448), as occurred here. For this reason, presumably, the FHWA during the procurement appears to have assumed that VIP was a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': AR 547 (internal FHWA email discussing VIP as a small business). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': Any determination that VIP was not a responsible bidder, must be made by the Small Business Administration (\SBA\), not by FHWA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': (\Upon determining that a small business is non-responsible, the contracting officer must notify the SBA of its determination.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': the United States Court of Appeals for the Federal Circuit held that it was not a responsibility determination for a CO to determine from the bid that a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with 'The Rule of Two': to comply with the requirements of the contract, as opposed to determining that the small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 073 - NASCENT Group JV ex rel Native American Services Corp Inc v US.doc, Paragraph with 'The Rule of Two': NASCENT is a joint venture between Native American Services Corporation (\NASCO\), a disadvantaged minority business, and Shaw\u8211Beneco, Inc. (\Shaw\u8211Beneco\), a business that volunteered with the Small Business Administration to be a mentor under the \mentor-protege\ program Jt. Stip. No. 2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 074 - Ceradyne Inc v US.doc, Paragraph with 'The Rule of Two': On September 9, 2010, the solicitation was amended to require large business offerors to submit a subcontracting plan that addressed the offerors\rquote small business goals and incorporated questions and answers from the prospective offerors. AR 139\u821141. On September 20, 2010, the contracting officer waived the requirement for subcontracting plans for the solicitation based upon the offerors\rquote inability to subcontract out the requirements. AR 195. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 078 - BayFirst Solutions LLC v US.doc, Paragraph with 'The Rule of Two': The work requirement for the solicited contract, which is set aside for \Competitive 8(a)\ contractors, AR at 150, is currently being performed by the incumbent contractor, Harding Security Associates (HSA). Indeed, the record shows that the solicitation was issued after HSA was acquired by another business entity and no longer qualified as a small business to continue its performance on a contract set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 083 - ACC Const Co v US.doc, Paragraph with 'The Rule of Two': violated by the failure to discuss plaintiff\rquote s small business subcontracting plan, as no deficiency or significant weakness (or, indeed, any weakness) was identified for that factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 084 - CRAssociates Inc v US.doc, Paragraph with 'The Rule of Two': The subcontracting plan was not to be rated as part of the technical proposal, but was to be rated by the CO and approved by the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 084 - CRAssociates Inc v US.doc, Paragraph with 'The Rule of Two': (plaintiff waived objection to portion of solicitation designating the procurement as a small business set aside by failing to object prior to the contract award); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 085 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': On December 2, 2010, INSCOM issued a Request for Proposal (\RFP\) (No. W911W4\u821111\u8211R\u82110003) for the provision of worldwide linguistic support for military operations and exercises for the Department of Defense Language Interpretation and Translation Enterprise. (AR 1\u8211180.) In addition to \Train and Sustain\ contracts set-aside for small businesses, the Agency anticipated awarding multiple \Force Projection,\ IDIQ contracts for the \support of forces engaged in humanitarian, peacekeeping, contingency and combat operations without a well defined timeframe or quantity for delivery.\ (AR 26, 721\u821122.) After award, Task Orders with a cumulative value of up to $7.76 billion would then be competed among the selected IDIQ contractors. (AR 3, 736.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 085 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': Paragraph 6 of the RFP\rquote s Executive Summary advised that \[a]wards may be made from the initial offers without discussions. Therefore, initial proposals should contain the offeror\rquote s best terms from a management, technical, past performance, small business participation, and cost/price standpoint.\ (AR 721.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 085 - Science Applications Intern Corp v US.doc, Paragraph with 'The Rule of Two': In this regard the validity of the \unacceptable\ rating applied to SAIC\rquote s proposal is a merits-based determination, with mixed questions of law or fact coupled with deference to the Agency discretion. This is unlike finding whether an entity qualifies as a small business\u8212an objective analysis\u8212or other clearly disqualifying factor such as failure to submit a price proposal, failing to submit a proposal at all or filing late. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Prior to the submission deadline of June 8, 2011, GSA issued two amendments to the Solicitation, Amendment 001 and Amendment 002. AR Tab 3B (Amendment 001); AR Tab 3C (Amendment 002). Amendment 001 added \small business status\ to the proposal evaluation factors and changed the description of how the non-price factors are to be weighted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 3B (Amendment 001) 215. The amended description stated, \Proposals will be evaluated on Price, Technical Capabilities, Small Business Status, and Past Performance. Small Business Status is equal in weighting to Past Performance. Technical Capabilities is weighted approximately twice as important as either Small Business Status or Past Performance. Non-price factors, when combined, are more important than price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Amendment 002 incorporated a question-and-answer exchange with offerors. AR Tab 3C (Amendment 002) 218 (\Contract Questions and Answers ... is incorporated into the solicitation\). The questions and answers included an exchange regarding joint ventures. AR Tab 3C (Amendment 002) 230. Question 87, reflecting an inquiry by Urban and Meridian about submitting a proposal as a joint venture, AR Tab 28 (May 17, 2011 email exchange between Tannis Taylor and Cheryl Ansaldi) 1484, asked, \Can a large business schedule holder form a joint venture with a small business schedule holder and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': receive small business evaluation credit?\, AR Tab 3C (Amendment 002) 230. The answer stated, \A joint venture would have to be considered a separate legal entity. Even if both parties were on Schedule, the joint venture itself, would not be considered a Schedule holder.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The answer noted, however, that \a large business schedule holder may form a Contractor Teaming Agreement [ (CTA or Teaming Agreement) ] with a qualified small business schedule holder and receive the small business evaluation credit.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Status, and Past Performance. Small Business Status is equal in weighting to Past Performance. Technical Capabilities is weighted approximately twice as important as either Small Business Status or Past Performance. Non-price factors, when combined, are more important than price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff did not receive Small Business Status evaluation credit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 22 (CO\rquote s Proposal Analysis) 1348. Intervenors also received a \good\ past performance rating and Small Business Status evaluation credit (based on their CTA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 23 (CO\rquote s Notes) 1352. [Offeror X], a third offeror that becomes relevant when assessing plaintiff\rquote s standing for this bid protest, received two \marginal\ and three \good\ ratings in the five technical subcategories. AR Tab 22 (CO\rquote s Proposal Analysis) 1348. [Offeror X] received an \adequate\ rating for its past performance, and it, too, received Small Business Status evaluation credit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': at 1343. The contracting officer\rquote s proposal analysis states, \Evaluation credit was given for Small Businesses and Large Businesses operating with a Small Business partner under a [CTA]\ and \Prices were checked for clerical accuracy and compared against the Government Estimate/Opinion of Probabl[e] Cost for realism.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': That inquiry was incorporated into Amendment 002 in the following question, \Can a large business schedule holder form a joint venture with a small business schedule holder and receive small business evaluation credit?\ AR Tab 3C (Amendment 002) 230. The agency\rquote s response stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': However, a large business schedule holder may form a Contractor Teaming Agreement with a qualified small business schedule holder and receive the small business evaluation credit. (See gsa.gov/cta) To be considered, a copy of the Teaming Agreement must be submitted along with the proposal, and the Teaming Agreement must clearly show that the small business is taking a lead position (performing the majority of the work). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation identified only two prerequisites in order for \a large business schedule holder [to] form a Contractor Teaming Agreement with a qualified small business schedule holder and receive the small business evaluation credit.\ AR Tab 3C (Amendment 002) 230. First, the team must submit a copy of its teaming agreement along with its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': Second, the \Teaming Agreement must clearly show that the small business is taking a lead position (performing the majority of the work).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 3E (executed CTA). Both the draft and the executed copy of the Teaming Agreement make it immediately clear that Urban\u8212the small business\u8212would be taking the lead, that is, \performing the majority of the work\ as required by the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The contracting officer conducted the initial review of the proposals and \checked for responsiveness.\ AR Tab 23 (CO\rquote s Notes) 1351. Her review included a determination of which offerors would receive small business evaluation credit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': at 1352. She noted that \[Urban and Meridian\rquote s] proposal included a Contractor Teaming Agreement that conformed to the requirements provided via website link and Q & A verbiage in amendment 002,\ and stated that she instructed the TEB to give Urban and Meridian small business evaluation credit. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': \u8211l(a). However, the AR, in particular, the contracting officer\rquote s proposal analysis, shows that although Brooks Range was rated higher than [Offeror X] in three of the five technical sub-categories, [Offeror X] rated higher than Brooks Range in one of the five technical sub-categories, received Small Business Status evaluation credit and had the lowest price. AR Tab 22 (CO\rquote s Proposal Analysis) 1348; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 087 - Brooks Range Contract Services Inc v US.doc, Paragraph with 'The Rule of Two': The email from Meridian to the contracting officer asked, \Can you comment on how an Urban/Meridian Joint Venture proposal would be evaluated under your Amendment 1 evaluation criteria? Urban is a small business and a minority-owned business. The joint venture would be structured with Urban as the majority partner.\ AR Tab 28 (May 17, 2011 email exchange between Tannis Taylor and Cheryl Ansaldi) 1484. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Incumbent small business contractor, as disappointed bidder for information technology (IT) services procurement by Department of Health and Human Services (HHS), National Institutes of Health (NIH), National Institute of Diabetes and Digestive and Kidney Diseases (NIDDK), filed pre-award bid protest challenging NIDDK\rquote s proposed corrective action, procurement actions, cancellation of procurement, and issuance of new solicitation without prior determination of whether portion of IT services from cancelled procurement were required to be set aside for small businesses, pursuant to Small Business Act (SBA). Contractor moved for judgment on administrative record and for injunctive relief, and government moved to dismiss for lack of jurisdiction and for failure to state claim, and cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': jurisdiction was not barred for small business set-aside challenge to new solicitation; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Unlike the treatment of General Services Administration (GSA) federal supply schedule (FSS) orders, nothing in the procurement regulations pertaining to task orders, or in Federal Acquisition Streamlining Act (FASA), exempts those purchases from the procurement regulation\rquote s Rule of Two, assuring small businesses\rquote fair proportion, pursuant to the Small Business Act. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The procurement regulation\rquote s Rule of Two analysis to assure small businesses\rquote fair proportion, pursuant to the SBA, is required by an agency before competing a task order among the general pool of indefinite delivery/indefinite quantity (ID/IQ) contract holders, as a reasonable expectation that at least two responsible small businesses will submit offers allowing an award at a fair market price and thus requiring the award to be set aside for small businesses. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Any agency decision to set aside an acquisition exclusively for small businesses, pursuant to the SBA, must be made prior to the stage when a source is selected and a contract is awarded. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': There is nothing in the procurement regulations to suggest that the Rule of Two set-aside decision, assuring small businesses\rquote fair proportion, pursuant to the SBA, must be made at the time an indefinite solicitation, such as those for multiple award indefinite delivery/indefinite quantity (ID/IQ) contracts, is written and issued. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': An actual \acquisition\ begins when an agency\rquote s needs are established, and the set-aside decision, under the procurement regulation\rquote s Rule of Two, assuring small businesses\rquote fair proportion, pursuant to SBA, must occur prior to the selection of the vehicle to be used to satisfy these needs, since certain vehicles may exclude small businesses; contracting officers cannot reasonably expect small businesses to submit offers if the officers do not allow the small businesses to do so. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Bid protestor\rquote s challenge to government agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement, allegedly in violation of Rule of Two due to agency\rquote s failure to conduct SBA small business set-aside determination before selecting procurement vehicle, was not prohibited protest \in connection with the issuance or proposed issuance of a task or delivery order,\ within meaning of Federal Acquisition Streamlining Act (FASA), since procurement that protest concerned was stage of process of acquiring services that fell after establishment of particular agency needs but before selecting vehicle to satisfy those needs, and was logically distinct step from issuance or proposed issuance of task orders that presupposed selection of multiple award task order contract vehicle. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Even if bid protestor\rquote s challenge to agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement was considered protest of terms of task order contract solicitation, protestor\rquote s right to challenge those terms was not waived, under timeliness rule, as to agency\rquote s alleged violation of Rule of Two regulation by failing to conduct SBA small business set-aside determination before selecting procurement vehicle, since at time that solicitation for task order contracts was still open and timely protest of patent errors could have been made, protestor was not put on notice that work was to be transferred to task order contracts. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Even if bid protestor\rquote s challenge to agency\rquote s new solicitation to acquire by task order some information technology (IT) services previously sought in cancelled procurement was considered to be protest of task orders, which allegedly violated Rule of Two regulation by failing to conduct SBA small business set aside determination, jurisdiction over protest was not barred, under Federal Acquisition Streamlining Act (FASA), prohibiting protests in connection with issuance or proposed issuance of task order, since FASA subsection limiting protests of task orders had expired pursuant to amendments containing sunset clause that applied to entire subsection, rather than merely to portion of subsection governing Government Accountability Office\rquote s (GAO) expanded protest authority. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder would suffer irreparable harm absent permanent injunction rescinding government agency\rquote s cancellation of solicitation for information technology (IT) services, since bidder was incumbent contractor that had performed many services required by solicitation, was one of three small businesses submitting final proposal revisions, lost opportunity to compete for work under solicitation, and lost corresponding profits that could have been earned from successful bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder seeking preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation had reasonable likelihood of success on merits of claim that procurement regulation\rquote s Rule of Two required new solicitation to be set aside for award to small business, pursuant to SBA, since solicitation sought services that three small businesses were competing to provide under another contract vehicle and that disappointed bidder had provided as incumbent small business contractor and had offered services at discount. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Balance of hardships favored preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation, since disappointed bidder\rquote s harm from lost opportunity to compete and corresponding lost profits outweighed government\rquote s alleged harm from allegedly excessive judicial infringement upon agency\rquote s discretion, as agency had no discretion to ignore procurement regulation\rquote s Rule of Two that likely required new solicitation to be set aside for award to small business, pursuant to SBA. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Public interest supported grant of preliminary injunction preventing government agency from issuing new solicitation as vehicle for obtaining information technology (IT) services previously sought in cancelled solicitation, without determining whether procurement regulation\rquote s Rule of Two required new solicitation to be set aside for award to small business, pursuant to SBA, since public interest was served by enforcing policy choice of Congress, as implemented in procurement regulations, to have small business participation in acquisitions. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': This matter originally came before the Court as plaintiff MORI Associates\rquote protest of procurement actions taken by an agency of the United States Department of Health and Human Services. Plaintiff was challenging corrective action proposed by the government in response to a series of protests MORI brought before the Government Accountability Office, and challenging actions taken in the course of the procurement\u8212including prior evaluations, the immediately preceding award determination, and alleged attempts to improperly assist one offeror and injure plaintiff. While a motion to dismiss the case was pending, the procurement was cancelled, resulting in a supplemental complaint challenging the cancellation. In the middle of the briefing schedule for dispositive motions concerning the cancellation, the government agency issued a request for quotations seeking to acquire by task order some of the services previously sought in the cancelled procurement. This led to a second supplemental complaint challenging the government\rquote s failure to determine whether the services should be set aside for a small business award, and to a motion for a preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': to follow the small business set-aside regulation. The Court has further determined that the cancellation of the initial procurement was arbitrary, and that plaintiff is entitled to a permanent injunction against that decision and a preliminary injunction preventing the agency from proceeding under the second solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 170. Plaintiff alleges that neither it nor any other small business held a CIO\u8211SP2i contract. Compl. \u182 171. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 175, 201\u821104. Under the Rule of Two, contracting officers are required to \set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that ... offers will be obtained from at least two responsible small business concerns\ and that the \award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . MORI alleges that the Help Desk Solicitation requirements (for one manager and ten support specialists) are \materially the same\ as a portion of the cancelled procurement (concerning nine Help Desk positions), for which three small businesses (including plaintiff) had been competing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 169, 174. Since the work is valued at over $150,000, MORI maintains that the Rule of Two requires it be set aside for small businesses. Compl. \u182\u182 170, 201. Plaintiff argues that the Rule of Two regulation was clearly violated by the issuance of the Help Desk Solicitation, which it alleges was done arbitrarily, as a pretext and in bad faith. Pl.\rquote s Help Desk Br. at 21\u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': when it decided to issue the Help Desk Solicitation without conducting the Rule of Two analysis to determine if a small business set-aside was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182\u182 200\u821105. MORI explains that it is not challenging the issuance of a task order, but rather the failure of the agency to take the preliminary step of conducting the Rule of Two analysis before selecting a procurement vehicle that cannot reserve the award for a small business. Pl.\rquote s Resp. Gov\rquote t Mot. Dismiss (July 21, 2011) (\Pl.\rquote s Help Desk Reply\) at 6. Plaintiff notes that the GAO considers such challenges to be against the underlying solicitation for the ID/IQ contracts to which an agency seeks to transfer work in lieu of a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . This argument requires an understanding of the nature of the regulatory obligation that the agency allegedly ignored. The relevant FAR provision implements the Small Business Act requirement that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': To assure small business\rquote s fair proportion, under the so-called Rule of Two a \contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns ... and (2) award will be made at fair market prices.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Thus, if the Rule of Two were relevant only at that point in the procurement process, use of that contract vehicle would allow agencies to avoid following the policies of the Small Business Act. MORI contends, however, that the obligation to apply the Rule of Two falls upon contracting officers Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': the ordering stage of the process, as they must know whether a contract must be set aside for small businesses before they can choose the appropriate procurement vehicle. MORI explains that procurements that should be set aside for small businesses may be conducted through the FSS where, as in the IT services procurement, the solicitation includes small business status as a primary evaluation factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': \). Thus, the GAO has concluded that the Rule of Two must be applied when an agency is competing a task order using a pool of multiple-award ID/IQ contract holders which includes small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': This is therefore the most meaningful stage for a Rule of Two analysis, in which the contracting officer needs to judge the likelihood of receiving at least two fair-market priced submissions from small businesses for the services or supplies being acquired under a specific solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Since, in the GAO\rquote s view, task orders could be set aside for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Rule of Two analysis is required by an agency before it competes a task order among the general pool of ID/IQ contract holders\u8212as a reasonable expectation that at least two responsible small businesses will submit offers allowing an award at a fair market price requires the award to be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Obviously, any decision to set aside an acquisition exclusively for small businesses must be made prior to the stage when a source is selected and a contract is awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': If an agency seeks to acquire services from a pool of offerors that has already been restricted\u8212by being limited to multiple award task order contract holders, for instance\u8212and this pool has no small businesses, the selection of the vehicle has made the Rule of Two analysis an empty gesture. One cannot reasonably expect small business offers when small businesses are not allowed to submit offers. Thus, as MORI points out, Pl.\rquote s Help Desk Reply at 9, the Small Business Administration has taken the position that \the FAR requires an agency to consider the suitability of an upcoming requirement for performance by small business first, while conducting acquisition planning,\ and believed that \[i]f such planning reveals that the requirement should be set aside for small businesses ... the procuring agency must then select a procurement vehicle consistent with the requirement for a set-aside.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court looks to the opinions of the GAO, which can be persuasive, for guidance on this point. The GAO, however, has taken multiple approaches to the issue of when the Rule of Two analysis should be conducted. As noted above, in the context of a protest from a small business holding an ID/IQ contract (and when a protest connected to the issuance of a task order posed no jurisdictional difficulties), it thought \the most meaningful stage for a Rule of Two analysis\ was when competition for a task order was to occur. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . Under this approach, before placing required work among the possible topics of task orders described in a solicitation leading to the award of multiple ID/IQ contracts, an agency must first determine if the work must be set aside for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Protests involving solicitations in the former category are timely, and those concerning the latter are not. The GAO considers, among other things, whether the particular work had been set aside for small businesses prior to the issuance of the ID/IQ contract solicitation; whether the agencies involved gave the impression that they did not anticipate this work to be ordered under the resulting ID/IQ contracts when the solicitation issued; and whether \specific projects at particular locations were identified.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': In our view, it is unreasonable to require a small business that believes that one specific acquisition should continue to be set aside for small businesses to identify the possibility, at the time proposals for ID/IQ contracts to perform a broad and undefined scope of work are solicited, that the specific, and relatively small, acquisition it is interested in may ultimately be transferred to the ID/IQ contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': It is not inappropriate to focus, as the GAO has, on the burden that would be placed on small businesses if they had to protest any solicitation which might be interpreted to encompass the work they have been performing under contract. But the consideration of two other burdens make it clear to the Court that this type of protest\u8212based on the failure to conduct Rule of Two analysis before committing an acquisition to a vehicle that excludes small businesses\u8212is not a challenge to the terms of that vehicle\rquote s solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': First, even when work performed for an agency by a small business fits neatly (but not with specificity) within the scope of multiple award task order contracts issued by that agency, the burden on these businesses to challenge the terms of the solicitation for those contracts would still be unreasonable. By issuing the solicitation, an agency is not committing itself to any purchases other than the minimum amounts identified (unless a sample task order used as an evaluation factor is also awarded). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': be ordered through that vehicle, even though the agency had not yet considered the circumstances of that specific need and definitively decided to use the ID/IQ vehicle. This would result in numerous unnecessary protests concerning contract work performed by small businesses that never would have been transferred to the ID/IQ contracts. Delaying the awards of the ID/IQ contracts while agencies are bogged down in such unnecessary protests would be inefficient, costly to the small business protesters, and discourage agencies from making these vehicles available. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': A second consideration is the burden that is implicitly placed on agencies if these protests are viewed as challenges to the terms of the ID/IQ solicitations. Within any category of work, whether two small businesses are available to perform a particular requirement at a market price will depend on a variety of factors concerning that requirement, such as the size of the work, its location and timing, and the combination of functions needed. Take, for example, the work performed by a \Help Desk Specialist,\ which is described in the CIO\u8211SP2i contract as \[p]rovid[ing] phone and in-person support to users in the areas of e-mail, directories, standard Windows desktop applications, and applications developed under\ that or predecessor contracts, and \[s]erv[ing] as the initial point of contact for troubleshooting hardware/software PC and printer problems.\ App. to Def.\rquote s Help Desk Br. at 24. It seems inconceivable that no two small businesses could perform such services at a market price to meet Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': When soliciting proposals for such contracts, then, an agency would have to either determine that no particular need of that agency could be filled at a market price by as many as two responsible small businesses before placing the work\rquote s category in the solicitation\u8212or it would be violating Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': One additional consideration militates against considering these types of protests to be challenges to ID/IQ solicitations\rquote terms. History shows that hundreds of thousands of small businesses performing high technology services are opened each year, and one-third of new businesses survive at least ten years. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': hardly serve the purpose of setting aside government contracts for small businesses if the existence of responsible small businesses capable of providing required services at market prices was to be ignored, merely because the businesses were not alive when multiple ID/IQ contracts were awarded a decade earlier and thus failed to protest the terms of the solicitation for those contracts. But this would be the result if Rule of Two protests such as this one are considered to be challenges to the terms of such solicitations\u8212the realities of the current marketplace are disregarded in favor of the fiction that an agency conducted Rule of Two analyses for needs it may not have even contemplated at the distant time multiple-award ID/IQ contracts were solicited. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': When an agency skips past the step of conducting Rule of Two analysis and proceeds with the plan of obtaining services through task order contracts, this does not, however, mean that a protest in response by an interested small business is one \in connection with the issuance or proposed issuance of a task or delivery order.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': , and the set-aside decision, to be meaningful, must occur prior to the selection of the vehicle to be used to satisfy these needs, since certain vehicles may exclude small businesses. As explained above, contracting officers cannot reasonably expect small businesses to submit offers if they do not allow them to do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': (2010) (describing the consideration of prospective sources, including small businesses, in written acquisition plans). This is a logically distinct step from the issuance or proposed issuance of task orders, which presupposes the selection of a multiple award task Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': App. to Def.\rquote s Help Desk Br. at 20\u821124, compiled for multiple award ID/IQ contracts available for use by the NIH generally as well as other agencies, did not put small businesses on notice that the NIDDK help desk work was to be transferred to the CIO\u8211SP2i contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Given the broad scope of work involved, in the absence of descriptions of \specific projects at particular locations,\ small businesses could not know that the work they were performing would be brought under this vehicle. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, it is clear that NIH had not considered assigning the NIDDK help desk work to the CIO\u8211SP2i contracts when the solicitation for those contracts was still open, as the NIDDK subsequently awarded small business contracts to MORI that included this work, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': In this case, plaintiff has performed the incumbent contract containing many of the services required by the IT Services Solicitation, and was one of three small businesses submitting final proposal revisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': , required the work in the Help Desk Solicitation to be set aside for award to a small business, and contends that the agency clearly violated the Rule of Two by not setting this work aside. Pl.\rquote s Help Desk Br. at 17, 24. It also argues that the agency acted in bad faith, using the Help Desk Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': requires the contracting officer to \set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation\ of obtaining offers from at least two responsible small businesses at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': App. to Def.\rquote s Help Desk Br. at 8, will exceed $150,000. Plaintiff alleges that three small businesses, including itself and ATC, were competing to provide the agency\rquote s required Help Desk services as part of the IT Services Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 174. This, too, does not appear to be in dispute. Nor does the government argue that the agency had made the determination that the small businesses competing for a contract under the IT Services Solicitation could not provide the Help Desk services at fair market prices. On this point, evidence in the administrative record of the IT Services Solicitation cancellation shows that MORI had proposed to perform the Help Desk work at discounted rates relative to its GSA FSS contract prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': The government\rquote s opposition to plaintiff\rquote s motion did not argue that the Help Desk work was unsuitable for a small business set-aside. Instead, it first maintained that the agency\rquote s choice of an ID/IQ contract vehicle that uses task orders placed enforcement of the Rule of Two beyond the jurisdiction of courts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': at 10\u821114, 17\u8212an argument which the Court has also rejected in part II.B.2 of this opinion. Since it appears that the Help Desk Solicitation involved an acquisition exceeding $150,000 in value; that the solicitation sought services that three small businesses were competing to provide under another contract vehicle; that these services are currently provided by MORI, which is a small business; and that at least one small business (MORI) was offering to provide these services at a discount from its GSA FSS contract rates, the Court concludes it is likely that, under the Rule of Two, the acquisition must be set aside for a small business award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': . No harm to third parties is involved, as no task order has issued. Clearly, the balance of hardships favors plaintiff. And finally, the public interest is served by enforcing the policy choice of Congress, implemented in the FAR, to have small business participation in certain acquisitions. Accordingly, MORI has demonstrated that all four factors point in its favor, and it is entitled to a preliminary injunction preventing the agency\rquote s use of the Help Desk Solicitation. The agency cannot use such a vehicle, precluding any small business participation, without first determining under the Rule of Two whether the acquisition should be set aside. It is highly likely that the application of the Rule of Two will show that the acquisition of Help Desk services should, indeed, be Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': set aside for a small business award. Plaintiff\rquote s motion for a preliminary injunction is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff has proven its entitlement to a permanent injunction rescinding the November 29, 2010 cancellation of solicitation NIH\u8211NIDDK\u821108\u821101. Plaintiff has also proven its entitlement to a preliminary injunction preventing NIH and NIDDK from proceeding with an acquisition under RFQ No. NLM\u821111\u8211105/KDM, as it is highly likely that the services sought should be set aside for a small business award under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': This passage from the Small Business Act ends with the qualification: \A contract may not be awarded under this subsection if the award of the contract would result in a cost to the awarding agency which exceeds a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': opinion amended the Small Business Act to clarify that agencies could \set aside orders placed against multiple award contracts for small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': At that stage a non-exclusive \cascading\ procurement procedure can be used, in which small businesses are given first consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': According to information available at the Small Business Administration\rquote s website, from 2005 through 2009 the number of new businesses opening in the United States exceeded on average 600,000 annually; one-third of businesses last at least ten years; and small businesses employ forty-three percent of our country\rquote s high technology workers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': No suggestion has been made that the Rule of Two for setting aside contracts for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 088 - MORI Associates Inc v US.doc, Paragraph with 'The Rule of Two': , is not intended to further the interests of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': at 6 (indicating that the WHS sought \seamless, reliable, and responsive enterprise solutions for IT services ... that improve existing services resulting in a stable and secure enterprise IT network\). The WHS considered five different methods by which to achieve these objectives and ultimately selected a multiple award, indefinite delivery/indefinite quantity (\ID/IQ\) contract vehicle for small businesses with a size standard of $25 million. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': no response to this notice [wa]s required unless a basis exist[ed] to challenge the small business size status of the apparent successful offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': Any challenge must contain the basis for the challenge and detailed evidence supporting the claim that the proposed contractor(s) for award [wa]s not a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': changes to the solicitation; (2) the WHS unlawfully prohibited offerors from submitting revised proposals; (3) the WHS\rquote s evaluation of proposals was based upon work and pricing from the original solicitation, rather than upon the work and prices related to changed requirements; (4) the WHS arbitrarily determined that Comint was ineligible for a contract award by unilaterally deciding that Comint would make extra, unstated charges under sample Task Order 1; and (5) the WHS improperly and unlawfully awarded contracts to offerors that were not small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': at 13740 (concluding that Amendment 5 did not constitute a material change to the solicitation because it did not change requirements, terms and conditions, and the WHS\rquote s evaluation scheme), 13744\u821145 (determining that the WHS properly decided not to clarify Comint\rquote s proposal through discussions or revisions because the WHS had no obligation to seek clarifications from or conduct discussions with offerors), 13742\u821143 (determining that the WHS properly deemed Comint ineligible for a contract award because Comint \incorrectly assumed that ... [...]\ and that assumption \effectively took exception to the solicitation\rquote s fixed price task order requirements\ by predicating its price \on conditions that were not stated\ in the solicitation), 13745\u821146 (concluding that the WHS did not act in bad faith, properly evaluated Comint\rquote s technical proposal, and properly awarded contracts to small businesses). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': NetServices, on March 8, 2011, submitted to Mr. Price a protest challenging any award to NetCentrics. AR 13297\u8211367. According to NetServices, NetCentrics was not a small business for purposes of the NIEITS acquisition because it had to \unduly rely\ on large subcontractors to perform the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': at 13297\u8211301. Mr. Price submitted NetServices\rquote protest to the United States Small Business Administration (\SBA\) on March 10, 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 090 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': at 13370. The SBA, on April 5, 2011, issued a formal size determination, concluding that NetCentrics was a small business for purposes of the NIEITS acquisition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'The Rule of Two': at 132. The competition, which remains ongoing, is set aside for small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'The Rule of Two': the solicitation required bidders to be included in a database of service-disabled veteran-owned small businesses prior to award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Resp. 8 (\This action, by the same agency, the same group of procurement officers and same agency counsel, strongly suggests retaliation for filing this bid protest.\), 9 (\Defendant ... opens the door for exploring the prospect of retaliation.... Plaintiff has retained other counsel to pursue a protest and may elect to bring those claims before this judicial body.... It is the same agency, the same procurement officers, the same agency counsel and same parties ... in this lawsuit. Consolidating those claims with the instant case will reveal what is really going on with this group of procurement officials and their questionable conduct.\), 14 (\It appears that ... there was a group of agency procurement officials searching for a variety of ways to exclude Orion.\). Specifically, plaintiff suggests that it was eliminated from the competition at issue here because it had received another, similar contract. It bases this allegation on a footnote in defendant\rquote s cross-motion for judgment on the administrative record that mentions the Small Business Administration\rquote s decision not to issue a certificate of competency to plaintiff in that other procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'The Rule of Two': Is the agency punishing success? Did the agency feel it could manipulate the \system\ to distribute wealth, notwithstanding the facts and the law? Did the agency believe \it could get away with it\, since this was a small minority business, already suffering cash-flow problems, already drained on legal fees and unable to fight the presumptions and burdens in favor of the federal government? Did the agency think that a small, minority owned, 8(a) business could fight the power of the Department of Justice in league with a big DC law firm? When a small business challenges the authority and discretion of a group of procurement officials and their counsel, is it worth it to face retaliation in other procurement opportunities? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff further contends that the federal procurement process is designed to prevent small businesses from succeeding, despite this procurement being completely set aside for small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': Bidder that had been placed on Excluded Parties List System (EPLS) lacked standing to file bid protest action concerning Department of Veterans Affairs\rquote (VA) multiple-award contract to provide information technology (IT) services to the VA and other federal agencies; bidder who was barred from all federal contracting could not demonstrate that it was an interested party with a direct economic interest in the outcome of the protested procurement, was not an actual or potential awardee inasmuch as it did not possess the necessary contract, and had not been injured or harmed by the government\rquote s decision to set the task order competition aside for service-disabled veteran-owned small business concerns (SDVOSBs) under the required contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims lacked subject matter jurisdiction to address, during bid protest, excluded bidder\rquote s suspension by Small Business Administration (SBA) from contracting with federal government, or its placement on excluded parties list system; excluded bidder never submitted a bid that might have created an implied-in-fact contract with the government, and suspension was not imposed \in connection with\ the protested procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': Performance Work Statement Number TAC\u821112\u821103198 (PWS), under the Transformation Twenty\u8211One Total Technology (T4) Multiple\u8211Award Contract by the United States Department of Veterans Affairs (VA). MED Trends argues that the procurement of these requirements under the T4 Multiple\u8211Award Contract, and the alleged failure of the VA to limit the competition for these requirements to service-disabled veteran-owned small business concerns (SDVOSBs), violate applicable statutes and regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': at AR414. However, the solicitation also stated that some of the task orders under the master contracts might be set aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': On October 28, 2011\u8212one day after the commencement of this suit\u8212the United States Small Business Administration (SBA) informed MED Trends that it was being suspended from all contracting with the federal government. Def.\rquote s Mot. Ex. 3. In its notice to plaintiff, the SBA explained that MED Trends would be excluded from all contracting with the federal government, and that its name would be placed on the Excluded Parties List System (EPLS). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': The court held an initial telephonic status conference with counsel for the parties on October 28, 2011. During the teleconference, counsel for defendant stated that the VA had issued requests for information (RFIs) to all T4 contractors in an effort to determine whether the competition for the work contemplated under the PWS might be limited to SDVOSBs or to veteran-owned small business concerns (VOSBs). Upon being informed of the foregoing, counsel for plaintiff stated that \depending on what the [government\rquote s] decision is this coming Friday, the 4th of November, if they decide to go forward Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': \u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': further provides that bids or offers submitted by small business concerns are to be treated in the following order of priority: (1) SDVOSBs; (2) VOSBs; and (3) other small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': In addition, defendant further contends that the alleged violations referenced by plaintiff would have been apparent on the face of the solicitation for the T4 master contracts and should have been challenged before bids for those contracts were due. In that regard, defendant first argues that the solicitation for the T4 contracts was clear in stating that not all of those contracts would be set aside for SDVOSBs. Defendant also argues that the T4 contract solicitation stated that the competition for task orders under the contracts might be set aside for small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': In this case, as noted by defendant, the government\rquote s decision to set aside the protested procurement for small business concerns owned by veterans with service-connected disabilities under the T4 contract resulted in no harm to plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation for the T4 contracts did not state that the competition for those contracts would be limited to SDVOSBs. In fact, the solicitation expressly noted that up to eight of the fifteen contracts might be awarded to non-SDVOSBs. Def.\rquote s Mot. Ex. 1 at AR414 (\The Government intends to award up to 15 contracts, which will include awards of at least four contracts to Service\u8211Disabled Veteran\u8211Owned Small Businesses (SDVOSB) and at least three contracts to Veteran\u8211Owned Small Businesses (VOSB). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': The solicitation for the T4 contracts stated that \[f]or the purposes of meeting agency goals, the CO shall limit task order competition to small business concerns if the CO has a reasonable expectation that two or more such concerns will submit offers and that the award can be made at a fair and reasonable price and offers the best value to the Government.\ Def.\rquote s Mot. Ex. 1 at AR367. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': purpose of certifying plaintiff as an SDVOSB and as a Historically Underutilized Business Zone (HUBZone) small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': Defendant argues that plaintiff lacks standing for the additional reason that it is not listed as an SDVOSB on the public list of such small business concerns maintained by the Secretary of Veterans Affairs pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder who was a service-disabled veteran-owned small business (SDVOSB), filed post-award bid protest challenging Department of Veterans Affairs (DVA) award of software and internet technology (IT) contracts. After intervention by three awardees, plaintiff, DVA, and one awardee moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': By failing to raise issue before close of bidding process, disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) waived its challenge that solicitation violated Veterans First Program (VFP), which required procuring entity to give service-disabled veteran-owned small business (SDVOSB) concerns priority over Veteran-Owned Small Business (VOSB) concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Even if disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) had not waived its challenge that solicitation violated Veterans First Program (VFP), DVA properly gave disappointed bidder priority under the program, as a service-disabled veteran-owned small business (SDVOSB), over another bidder which was a Veteran-Owned Small Business (VOSB); disappointed bidder was awarded \full credit\ for veterans involvement factor in solicitation, while other bidder was awarded only \partial credit\ as a VOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (DVA) assessment of disappointed bidder\rquote s small business participation commitment (SBPC) in proposal for software and internet technology (IT) contract, which indicated that factor presented a \moderate to high degree of risk\ to bidder\rquote s ability to meet goals of solicitation, was not tantamount to a finding of \significant weakness\ as would trigger federal acquisition regulation (FAR) requirement to conduct discussion with bidder concerning the weakness; in awarding factor, DVA analyzed proposal as having one significant strength, four strengths, and no weaknesses, significant weaknesses, or deficiencies, so nothing indicated that SBPC factor contained a flaw that appreciably increased risk of unsuccessful contract performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs\rquote (DVA) rating of disappointed bidder\rquote s small business participation commitment (SBPC) in proposal for software and internet technology (IT) contract, as \acceptable\ was not arbitrary or capricious; DVA determined that proposal provided a minimal level of detail, was minimally feasible, presented a moderate to high degree of risk, demonstrated a minimal commitment to small business participation, and DVA had consistently rated other offerors as acceptable under same conditions, so disappointed bidder\rquote s mere disagreement with rating was alone not sufficient to establish impropriety. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Administrative R. (\AR\) Tab 23, at 33310. It is a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) that \provid[es] telecommunications integration, support services and financial systems support exclusively to the U.S. Government.\ AR Tab 23, at 33422. In August 2010, plaintiff submitted a proposal in response to DVA\rquote s Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity, Multiple Award Task Order contract with a five-year period of performance (\the T4 contract\). AR Tab 3, at 164. The RFP provided for a maximum selection of fifteen awardees, with at least four contracts being awarded to SDVOSBs and at least three being awarded to Veteran\u8211Owned Small Businesses (\VOSB\). AR Tab 3, at 250. The ceiling value of the T4 Program is $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation explained that \[a]ny awards to be made will be based on the best overall (i.e., best value) proposals that are determined to be the most beneficial to the Government.\ AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five criteria: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each criterion, the Solicitation provided that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': If this did not occur, DVA would continue its evaluation in step two, for which \large businesses and non-SDVOSB/VOSB small business offerors [were] eliminated from further consideration.\ AR Tab 3, at 251. DVA disclaimed that, \[i]f none of the proposals remaining in the competitive range are from SDVOSB or VOSB offerors, the Government reserves the right to make no further awards.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': To be considered for an award, the Solicitation provided that an offeror\rquote s proposal was required to receive a rating of \acceptable\ for the SBPC factor. AR Tab 3, at 250. In determining this rating, offerors were to be evaluated based \on the level of small business commitment that they demonstrate[d] ... and their prior level of commitment to utilizing small businesses in performance of prior contracts.\ AR Tab 3, at 253. Specifically, in its analysis the agency assessed, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Additionally, the agency considered \[t]he extent to which the offeror [met] or exceed[ed] the Government\rquote s subcontracting goals.\ AR Tab 3, at 254. These goals included assigning five percent of the total contract value to Small Disadvantaged Businesses, three percent to Historically Underutilized Business Zone (\HUB Zone\) Small Businesses, and five percent to Women\u8211Owned Small Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': the duration of the validity of plaintiff\rquote s proposal, AR Tab 154, at 41956, the level of detail in its proposal regarding cost control, AR Tab 154, at 41960, and the inability to verify a subcontractor\rquote s status as a HUB Zone small business. AR Tab 154, at 41962. Plaintiff replied to the IFNs on February 24, 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Here, DVA awarded plaintiff an \acceptable\ rating for its SBPC proposal, meaning that its proposal \demonstrate[d] a minimal commitment to small business participation, contain[ed] minimal detail, and [was] at least minimally feasible.\ AR Tab 284, at 83229\u821131. Under its assessment of risk, DVA found that plaintiff\rquote s proposal represented a \moderate\ risk of meeting the goals of the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff takes issue with the fact that it was only awarded a rating of \acceptable\ with regard to its SBPC proposal despite having a number of strengths and no weaknesses. In awarding this rating, DVA found that the proposal provided a minimal level of detail, was minimally feasible, presented a moderate to high degree of risk, and demonstrated a minimal commitment to small business participation. AR Tab 284, at 83229\u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': DVA properly evaluated disappointed bidder\rquote s proposed small business participation commitment (SBPC); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (DVA) properly evaluated bidder\rquote s proposed small business participation commitment (SBPC) in its proposal for government contract for software and internet technology (IT); disappointed bidder\rquote s mere disagreement with DVA\rquote s evaluation as to whether its rating should have been \significant strength\ rather than \strength\ was not a sufficient basis to overturn DVA\rquote s rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (DVA) did not introduce a new evaluation factor for small business participation commitment (SBPC) when rating proposals for software and internet technology (IT) contract, which had not been set forth in original solicitation, as would result in an arbitrary or capricious bid award; solicitation provided that DVA would consider \extent of commitment to use\ small business firms, and that \enforceable commitments will be weighted more heavily than non-enforceable ones Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': so solicitation permitted DVA to rate bidders based on whether teaming agreements with small businesses were unilateral or bilateral. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) waived its challenge to terms of solicitation by failing to object until after contract had been awarded; although bidder took issue with fact that solicitation did not define bilateral or unilateral contracts within context of small business participation commitment (SBPC), or better explain how DVA would take into consideration the type of teaming agreement bidders had with small businesses in determining bidders\rquote level of commitment to small business participation, it failed to raise issue at time of bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (DVA) did not conduct disparate evaluation of disappointed bidder\rquote s proposal for software and internet technology (IT) contract, with regard to bidder\rquote s small business participation commitment (SBPC) and coordination, and thus award was not arbitrary or capricious, since bidder had failed to include information addressing the SBPC criteria in the correct portion of its proposal; DVA was not required to search entire proposal for additional information to assist bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Department of Veterans Affairs (DVA) properly evaluated disappointed bidder\rquote s veterans involvement in its proposal for software and internet technology (IT) contract, despite bidder\rquote s claim that it should have received more than \minor credit\ for the factor; solicitation explained that, while Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) and Veteran\u8211Owned Small Business (VOSB) firms could receive \full credit\ or \partial credit,\ respectively, for veterans involvement, non-SDVOSB and non-VOSB firms, like bidder, could only receive \some consideration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Source selection authority\rquote s (SSA) best\u8211value determinations conducted in rating proposals to Department of Veterans Affairs (DVA) solicitation for software and internet technology (IT) contract did not give undue weight to price, as would support disappointed bidder\rquote s claim that award was arbitrary or capricious, instead, SSA compared bidders\rquote small business participation commitment (SBPC), past performance, and veterans involvement and assigned ratings in accord with their relative importance as listed in solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity (\IDIQ\), Multiple Award Task Order contract with a five-year period of performance. AR Tab 3, at 164. The RFP provided for a maximum selection of 15 awardees, with at least 4 contracts being awarded to Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) firms and at least 3 being awarded to Veteran\u8211Owned Small Business (\VOSB\) firms. AR Tab 3, at 250. The ceiling value of the T4 Program was $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five factors: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each factor, the Solicitation provided that \[t]he [t]echnical factor is significantly more important than the [p]ast [p]erformance factor, which is slightly more important than the [v]eterans [i]nvolvement factor, which is of equal importance to the SBPC factor, which is slightly more important than the [p]rice factor.\ AR Tab 3, at 250. Additionally, when combined, factors one through four were viewed as \significantly more important\ than factor five. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Section M stated that \[a]ll offerors (both large and small businesses) will be evaluated on the level of small business commitment that they demonstrate for the proposed acquisition, and their prior level of commitment to utilizing small businesses in performance of prior contracts.\ AR Tab 3, at 253. Specifically, the agency assessed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (a) the extent to which small business firms, as defined in FAR Part 19, were \specifically\ identified in proposals; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (c) \[t]he complexity and variety of the work\ small business firms were to perform; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (d) the \realism\ of the commitment to small business participation; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': , Utilization of Small Business Concerns, and, for all large business offerors, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': , Small Business Subcontracting Plan\; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (f) the extent of participation of small business firms in the value of the total acquisition; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (g) whether the offeror \me[t] the ... overall subcontracting requirement for this procurement\\u8212namely, that small business firms receive 35 percent of the total contract value\u8212which was required in order to be found \acceptable\ under the SBPC factor; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (h) the extent to which the offeror met or exceeded specific subcontracting goals, namely, that SDVOSB firms receive 10 percent of the total contract value, VOSB firms receive 12 percent of the total contract value, Small Disadvantaged Business (\SDB\) firms receive 5 percent of the total contract value, Women\u8211Owned Small Business (\WOSB\) firms receive 5 percent of the total contract value, and Historically Underutilized Business Zone (\HUB Zone\) small business firms receive 3 percent of the total contract value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Section L.7 contained proposal submission instructions. AR Tab 3, at 237. The proposal was required to be submitted in six separate volumes. Volume IV of the proposal was titled \Small Business Participation Commitment Files\ and included a file for \Small Business Participation Commitment\ and a file for \Small Business Subcontracting Plan.\ AR Tab 3, at 239. The latter was only required from large business offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': With respect to the file for \Small Business Participation Commitment,\ Section L.7 explained how to address criteria (a) through (e) of the SBPC factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Part I.B.4. For example, with respect to criterion (b), which stated that DVA would consider the extent of commitment to use small business firms and weigh enforceable teaming agreements more heavily, an offeror was instructed: \To demonstrate this element, list any small business subcontractors with which you have teaming agreements for this solicitation and indicate whether they are bilateral, unilateral, long term relationships or mentor prot\u233g\u233 arrangements.\ AR Tab 3, at 243. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': IBM\rquote s proposal indicated that it would subcontract approximately [* * *] percent of the contract value to small business firms, exceeding DVA\rquote s 35\u8211percent requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': AR Tab 18, at 24257. IBM\rquote s proposal also indicated that it would exceed DVA\rquote s subcontracting goals with regard to specific types of small business firms: SDB ( [* * *] percent proposed versus 5 percent goal), WOSB ( [* * *] percent proposed versus 5 percent goal), HUB Zone ( [* * *] percent proposed versus 3 percent goal), VOSB ( [* * *] percent proposed versus 12 percent goal), and SDVOSB ( [* * *] percent proposed versus 10 percent goal). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': The SBPC factor was evaluated for commitment to small business participation, detail, and feasibility, the latter of which included risk. AR Tab 2, at 132. A proposal could receive an adjectival rating of \outstanding,\ \good,\ \acceptable,\ or \unacceptable.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': \Outstanding\ meant \[a] proposal that demonstrates a strong level of commitment to small business participation, contains extensive detail, and is highly feasible (low risk).\ AR Tab 2, at 132. \Good\ was defined as \[a] proposal that demonstrates an adequate level of commitment to small business participation, contains adequate detail, and is at least feasible (low to moderate risk).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': \Acceptable\ meant \[a] proposal that demonstrates a minimal commitment to small business participation, contains minimal detail, and is at least feasible (moderate to high risk).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Here, DVA rated IBM\rquote s proposed SBPC as \[* * *],\ explaining: \Offeror 047 provides a proposal that demonstrates a strong level of commitment to small business participation, contains adequate detail, and is at least feasible with low risk.\ AR Tab 270, at 82661. DVA found five strengths because IBM\rquote s proposal exceeded DVA\rquote s subcontracting goals with respect to SDB, WOSB, HUB Zone small business, VOSB, and SDVOSB firms; a strength for the bilateral teaming agreements with 4 of the 24 proposed small business subcontractors; a strength for the mentor-prot\u233g\u233 agreement with a proposed small business subcontractor; a strength for the complexity and variety of the work to be performed by small business subcontractors; and a strength for IBM\rquote s extensive lists and supplier databases to ensure small business goals were met. AR Tab 270, at 82660\u821161. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': receive a strength for its 20 unilateral teaming agreements with small business subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': receive a strength for its \dedicated IDIQ center of excellence that manages several IDIQ vehicles, including small business participation.\ AR Tab 18, at 24255. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': As required of large business offerors, IBM\rquote s proposal included a \Small Business Subcontracting Plan\ file in Volume IV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': AR Tab 18, at 24260. In this file, IBM\rquote s proposal identified small business awards and an employee dedicated to small business subcontracting coordination, but IBM\rquote s proposal did not receive strengths for these aspects of its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': DVA Did Not Introduce a New Factor by Affording Greater Weight to Bilateral Teaming Agreements with Small Business Subcontractors, as Opposed to Unilateral Teaming Agreements Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': IBM proposed 4 bilateral teaming agreements with small business subcontractors and 20 unilateral teaming agreements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': of their teaming agreements with small business subcontractors were bilateral. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': ).\ AR Tab 3, at 253 (emphasis added). Section L explained: \To demonstrate this element, list any small business subcontractors with which you have teaming agreements for this solicitation and indicate whether they are Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': or better explain how DVA would take into consideration the type of teaming agreement in determining an offeror\rquote s level of commitment to small business participation. To the extent IBM challenges the terms of the Solicitation, IBM waived this challenge by not raising it earlier. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': . IBM argues that DVA engaged in disparate treatment by failing to award it significant strengths for its (1) \dedicated IDIQ center of excellence that manages several IDIQ vehicles, including small business participation,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (2) small business awards, and (3) employee dedicated to small business coordination. Pl.\rquote s Mot. 18\u821120. IBM claims disparate treatment based on DVA\rquote s awarding significant strengths to, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': offeror 8 (Booz Allen) for an employee dedicated to small business coordination and small business awards and to offeror 41 (Harris) for a supplier diversity program responsible for soliciting small businesses and small business awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Def.\rquote s Opp\rquote n 9 n. 2. IBM is correct that other offerors received credit for employees dedicated to small business participation and small business awards. Nonetheless, IBM failed to include this information in the correct portion of its proposal, and DVA was not required to search for additional information to assist IBM. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': (\[W]e do not think the agency was required to search the other volumes of Hi\u8211Tec\rquote s proposal for information bearing on the identified weaknesses.\). IBM included the information at issue in its \Small Business Subcontracting Plan,\ the second file in Volume IV, which the Solicitation did not indicate would be evaluated for purposes of an award of a contract and which small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': AR Tab 3, at 252 (section M.2.C.4); AR Tab 3, at 237, 242\u821147 (section L.7.2.c and section L.7.2.c(iv)). If IBM wanted the information to be considered, IBM should have included it in the first file of Volume IV, titled \Small Business Participation Commitment,\ as other offerors did. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': IBM\rquote s argument that it deserved a rating of \outstanding\ for SBPC is primarily based on its argument that it deserved significant strengths or additional strengths or that DVA introduced a new factor, arguments the Court has rejected above. Moreover, the rating for SBPC was based only in part on the level of commitment to small business participation. AR Tab 2, at 132. The SBPC evaluation also considered the level of detail and feasibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': The Final Evaluation Report for IBM\rquote s proposal stated that IBM \provides a proposal that demonstrates a strong level of commitment to small business participation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': exceeded DVA\rquote s requirement for work to be performed by small business firms and goals for work to be performed by SDB, WOSB, HUB Zone small business, VOSB, and SDVOSB firms by a greater percentage than did these seven offerors\rquote proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Notwithstanding these differences in terms of the extent by which IBM\rquote s proposal exceeded DVA\rquote s requirement with respect to small business firms generally and goals with respect to specific types of small business firms in particular, the Court cannot conclude that the SSA acted irrationally in finding the other proposals were technically superior or equal to plaintiff\rquote s proposal. As illustrated by the color-coded table cited in the SSA\rquote s decision, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': The Court also rejects IBM\rquote s argument that the SSA \normalized\ or \leveled\ the past performance factor. IBM has not demonstrated that its proposal was in fact superior to the proposals from offerors 8 (Booz Allen) and 41 (Harris) under the past performance factor. The Court also rejects IBM\rquote s argument that the SSA failed to take into account the number of enforceable agreements that IBM had with small business subcontractors and the significant strengths that IBM shared with these two offerors. The Court previously rejected these arguments when it rejected IBM\rquote s claim of a disparate evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': While IBM is correct that the SSA did not compare the difference in percentages with respect to work to be performed by small business firms generally and specific types of small business firms in particular, IBM has not demonstrated that it was prejudiced by the SSA\rquote s failure to do so. For example, offeror 8\rquote s (Booz Allen) proposal would have still been far superior to IBM\rquote s proposal under the technical factor. Offeror 8\rquote s (Booz Allen) proposal received an \outstanding\ for the overall technical factor, with \outstanding\ ratings for the sample tasks and management sub-factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': The Court recognizes that DVA considered offeror 15\rquote s (CCSI) \Small Business Subcontracting Plan\ when evaluating its \Small Business Participation Commitment.\ However, as acknowledged by IBM, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Reply 11, offeror 15 (CCSI) expressly incorporated the \Small Business Subcontracting Plan\ file when addressing three of the criteria that the Solicitation stated would be considered in evaluating SBPC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': AR Tab 11, at 11784 (\Element F is provided in the Small Business Subcontracting Plan document entitled, Creative Computing Solutions, Inc. (CCSi)_SBSP.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'The Rule of Two': IBM concedes that offeror 90 (Systems Made Simple), which was an SDVOSB firm, may have proposed greater small business and veterans involvement than did IBM. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 100 - Gonzales-McCaulley Inv Group Inc v US.doc, Paragraph with 'The Rule of Two': GMIG is a government contractor incorporated under the laws of California and maintains its principal place of business there. Compl. \u182 1, May 9, 2011. GMIG is a service disabled veteran-owned, minority-owned business, and is certified by the Small Business Administration as a Section 8(a) Program Participant and a Small Disadvantaged Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 02 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': Small business filed action protesting the award by the United States Marine Corps (USMC) of a fixed-price \lowest price technically acceptable\ contract to defendant-intervenor to provide underwater egress training and maintenance support related to a variety of training devices at four USMC bases. Protestor and intervenor filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 02 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': This is a bid protest brought by Survival Systems, USA, Inc. (SSI or plaintiff), a small business that protests the award by the United States Marine Corps (USMC, defendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 02 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation was initially issued as a best-value, small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity, Multiple Award Task Order contract with a five-year period of performance. AR Tab 3, at 164. The RFP provided for a maximum selection of fifteen awardees, with at least four contracts being awarded to Service\u8211Disabled Veteran\u8211Owned Small Businesses (\SDVOSB\) and at least three being awarded to Veteran\u8211Owned Small Businesses (\VOSB\). AR Tab 3, at 250. The ceiling value of the T4 Program was $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation explained that \[a]ny awards to be made will be based on the best overall (i.e., best value) proposals that are determined to be the most beneficial to the Government.\ AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five criteria: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each criterion, the Solicitation provided that \[t]he Technical factor is significantly more important than the Past Performance factor, which is slightly more Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 3, at 250. In determining this rating, offerors were to be evaluated based \on the level of small business commitment that they demonstrate[d] ... and their prior level of commitment to utilizing small businesses in performance of prior contracts.\ AR Tab 3, at 253. Specifically, in its analysis the agency assessed, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Additionally, the agency considered \[t]he extent to which the offeror [met] or exceed[ed] the Government\rquote s subcontracting goals.\ AR Tab 3, at 254. These goals included assigning five percent of the total contract value to Small Disadvantaged Businesses, three percent to Historically Underutilized Business Zone (\HUB Zone\) Small Businesses, and five percent to Women\u8211Owned Small Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 1. The labor categories were created \based on a review of the full PWS.\ AR Tab 1, at 2. Labor rates used in the IGCE were said to have been developed using \the simple average of a random sampling of 10 contractors\rquote GSA Schedule 70 Government Site rates, which were discounted by 20% to simulate competition.\ AR Tab 1, at 2\u82113. Of the ten selected contractors, seven were large businesses and three were small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 234. It found that (1) DVA\rquote s conclusion that plaintiff\rquote s labor rates were unrealistic was reasonable; (2) DVA\rquote s decision to \use small business prices for 30 percent of the prices used to calculate its average hourly rates\ was appropriate given its procurement goals; (3) plaintiff did not adequately challenge the randomness of the contractor selection used to create the model labor rates; (4) DVA\rquote s evaluation of plaintiff\rquote s proposal, specifically with regard to the management sub-factor of the technical criterion, was consistent with the terms of the Solicitation; and (5) DVA properly considered plaintiff\rquote s explanation of its management proposal proffered during the discussion phase of the evaluation. AR Tab 234, at 82203. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The sample included seven large business contractors and three small business contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': The assumptions stated that the IGCE did not develop separate labor rates for specific types of small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also argues that there is a flaw in the IGCE because DVA did not develop separate rates for evaluating specific types of businesses, such as small businesses. The IGCE also did not account for the geographic locations of the prime contractor and subcontractors. However, the ten contractors included three small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'The Rule of Two': Approximately [* * *] subcontractors were classified as small businesses, [* * *] as small disadvantaged businesses, [* * *] as women-owned small businesses, and [* * *] as HUB Zone small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 07 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': This is a bid protest brought by Survival Systems, USA, Inc. (SSI or plaintiff), a small business that protests the award by the United States Marine Corps (USMC or agency) of a \lowest price technically acceptable\ contract to defendant-intervenor, ProActive Technologies, LLC (ProActive). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 07 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': The USMC issued Solicitation No. M67854\u821109\u8211R\u82118005 (Solicitation or Request for Proposal (RFP)) on July 2, 2009, seeking to obtain Modular Amphibious Egress Training (MAET) for four USMC bases. AR Tab 1. The Solicitation as initially issued was a best-value, small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 07 - Survival Systems USA Inc v US.doc, Paragraph with 'The Rule of Two': AR Tab 36 at 4852, in which it was argued that DMS had proposed staffing too low to provide satisfactory performance. AR Tab 49 at 4993. Plaintiff and ProActive both also filed size protests with the Contracting Officer for forwarding to United States Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 08 - US Foodservice Inc v US.doc, Paragraph with 'The Rule of Two': (\As seen, through the use of IDIQ MATOCs, the Corps expects to (1) obtain qualified contractors; (2) reduce procurement time; (3) realize savings in administrative costs; (4) reduce or eliminate the need for emergency procurements; (5) allow for greater coordination between the districts in the South Atlantic Division; (6) facilitate the use of small businesses; and (7) be able to address national security needs through more timely execution of dredging near military bases.\). Weeks argued that the Corps did not meet its burden to show that the IDIQ MATOCs were necessary to achieve the Corps\rquote s stated objectives and that the solicitation and Acquisition Plan did not provide sufficient empirical evidence linking the Corps\rquote s needs to the new procurement scheme. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 09 - Outdoor Venture Corp v Mills.doc, Paragraph with 'The Rule of Two': Karen G. MILLS, Administrator of the Small Business Administration United States Of America, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 09 - Outdoor Venture Corp v Mills.doc, Paragraph with 'The Rule of Two': Outdoor Venture Corporation (Outdoor Venture) wants to manufacture tents for the Defense Logistics Agency. In fact, it thought it had a contract to do just that until the Small Business Administration (SBA) determined that an affiliation with another company made it too large for the contract. Now, Outdoor Venture has filed a Motion for Preliminary Injunction [R. 8.] seeking to prevent the SBA from applying its size determination to the contract already awarded to Outdoor Venture. The Government contends, among other things, that this Court is not the place to decide this dispute and consequently the case should be dismissed. [R. 19.] The Court agrees. For the reasons set forth below, Outdoor Ventures Motion for Preliminary Injunction will be denied and the Government\rquote s Motion to dismiss will be granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 09 - Outdoor Venture Corp v Mills.doc, Paragraph with 'The Rule of Two': ] The competitor alleged that Outdoor Venture was not a small business because of its affiliation with another company and was therefore violating certain federal regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 09 - Outdoor Venture Corp v Mills.doc, Paragraph with 'The Rule of Two': According to Outdoor Venture, \The [s]olicitation was for a Total Small Business Set\u8211Aside, incorporating the clause at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 11 - Metropolitan Van and Storage Inc v US.doc, Paragraph with 'The Rule of Two': , Tit. II, 94 Stat. 2325, in 1980 \u8216to eliminate the barriers that prohibit small businesses and individuals from securing vindication of their rights in civil actions and administrative proceedings brought by or against the Federal Government.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 11 - Metropolitan Van and Storage Inc v US.doc, Paragraph with 'The Rule of Two': 1980 U.S.C.C.A.N. 4984, 4984 (1980)) (Congress recognized that the American Rule deterred individuals and small businesses \from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Blackmon pleaded guilty to the charge of making false statements to the United States Small Business Administration so that Patriot Services, Inc. could qualify under Section 8(a) of the Small Business Act as a business owned and operated by socially and economically disadvantaged persons. (AR 3251\u821157.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 16 - Mori Associates Inc v US.doc, Paragraph with 'The Rule of Two': The Court has determined that the plaintiff will suffer irreparable injury if the procurement is not enjoined; that the harm suffered by the plaintiff, if the procurement is not enjoined, will outweigh the harm to the defendant and third parties; and that granting injunctive relief serves the public interest. The Court has also determined that plaintiff has made a sufficient showing of likelihood of success on the merits of its claim to warrant the extraordinary remedy of injunctive relief, taking into account the other factors, above. The Court has not been made aware of any evidence that the Contracting Officer had performed the \Rule of Two\ analysis before deciding to use a procurement method that did not set aside the acquisition for small businesses, and it appears that at least two responsible small business concerns had been offering these services under solicitation NIH\u8211NIDDK\u821108\u821101. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Service-disabled veteran-owned small business (SDVOSB) filed complaints seeking, inter alia, a declaration that General Services Administration (GSA) and Defense Logistics Agency (DLA) unlawfully bundled procurement contracts without the requisite notice and market research and failed to include any mechanism to encourage participation by small business concern (SBCs) and SDVOSBs. Government filed motion to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Because offeror had to be certified as a service-disabled veteran-owned small business (SDVOSB) to be eligible for a Department of Veterans Affairs (VA) procurement like that in challenged solicitation, offeror\rquote s failure to obtain such certification rendered moot its contention that procuring agency improperly included a VA procurement in a contract bundle that did not comply with the procedures required for VA procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Because offeror was not a verified service-disabled veteran-owned small business (SDVOSB), and thus was not eligible for a solicitation containing a Department of Veterans Affairs (VA) procurement, offeror was ineligible to bid for the contract, and consequently, its suit challenging procuring agency\rquote s alleged failure to encourage participation by SDVOSBs was moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Service-disabled owner did not control the \day-to-day management and long-term decisionmaking\ of offeror, and thus offeror did not satisfy requirements for self-certifying itself as a service-disabled veteran-owned small business (SDVOSB) for purposes of federal agency\rquote s procurement process; additionally, because service-disabled veteran did not directly own offeror, but rather, owned offeror\rquote s parent corporation, which indirectly owned offeror through one of its wholly-owned subsidiaries, requirement that the service-disabled veteran directly own the small business concern was also not satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Offeror did not satisfy the \control\ requirement for self-certifying itself as a service-disabled veteran-owned small business (SDVOSB) for purposes of federal agency\rquote s procurement process because offeror\rquote s board of directors could take decisive action in the absence of the service-disabled veteran, and therefore was not controlled by the service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Although the parties briefed the issue whether plaintiff\rquote s failure to submit complete proposals deprived plaintiff of standing, mootness came into play when plaintiff\rquote s eligibility to propose as a service-disabled veteran-owned small business was withdrawn by the United States Department of Veterans Affairs (the \VA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': BlueStar Energy Services, Inc. (\plaintiff\), alleges that it is a service-disabled veteran-owned small business (\SDVOSB\) in the electricity-supply industry. Plaintiff protests the General Services Administration\rquote s (\GSA\) Request for Proposal (the \RFP\) designated Solicitation No. GS\u821100P\u821111\u8211BSD\u82110822 that sought proposals for electric power supply to federal and non-federal accounts in Maryland (\PEPCO MD\) and the District of Columbia (\PEPCO DC\). PEPCO MD is a bundle of thirty-four federal accounts, and PEPCO DC is a bundle of 153 federal accounts. The Washington, DC VA Medical Center account is contained in the PEPCO DC bundle. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff protests the Defense Logistics Agency\rquote s (\DLA\) RFP designated Solicitation No. SP0600\u821111\u8211R\u82110401 that sought proposals for electric power supply to Department of Defense and federal civilian installations in Maryland, New Jersey, and the District of Columbia. Shortly after DLA requested bids, plaintiff objected to the RFP, arguing that it failed to include SDVOSB and small business concern (\SBC\) set-asides. In response to plaintiff\rquote s objections, DLA issued \Amendment 1,\ which established SDVOSB and SBC set-asides. Amendment 1 required, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also sought from the Small Business Administration (the \SBA\) a class waiver from the NMR requirement. The SBA denied the request after finding that SBCs currently participate in the federal marketplace in the electricity-supply industry, citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': , which provides that \[a] waiver for a class of products (class waiver) will be granted when there are no small business manufacturers or processors available to participate in the Federal market for that class of products.\ The SBA further noted that SBCs in the utility sector are classified as participating in a service industry and that the NMR does not apply to service contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': According to plaintiff, GSA did not comply with the procedures required to engage in bundling, which \refers to the consolidation of two or more procurement requirements for goods or services previously provided or performed under separate smaller contracts into a solicitation of offers for a single contract that is likely to be unsuitable to award to a small business concern,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': . This general policy also aims to \avoid unnecessary and unjustified bundling of contract requirements that precludes small business participation in procurements as prime contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': \), the 709th Armament System Squadron (the \ARSS\), an agency of the United States Air Force (the \Air Force\), had awarded a services contract (the \ARSS contract\) to the plaintiff, a small business, pursuant to a small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': that, because the Air Force found \that no reasonable expectation existed that the Air Force would receive offers from at least two responsible small businesses,\ it complied with federal acquisition regulations pertaining to small-business set-asides, thereby mooting plaintiff\rquote s claim that the Air Force violated small-business procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, the plaintiff\rquote s failure to bid resulted from the Air Force\rquote s earlier determination that small businesses\u8212like the plaintiff\u8212were unable to satisfy the contract\rquote s requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': was emphasizing that it already had addressed standing when the action was initially filed and, in doing so, had answered the question in the affirmative, finding that plaintiff\rquote s suit was properly before the court. Because the Air Force had prejudged small businesses, like the plaintiff, to be \incapable of satisfying its requirements,\ the plaintiff did not submit an offer, believing itself precluded from consideration on account of its status as a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Declaration of Jon Casadont, Aug. 16, 2011, \u182\u182 4\u82115. At oral argument plaintiff\rquote s counsel represented that, historically, DLA had found that SBC and SDVOSB contractors were incapable of meeting contract requirements. Mr. Casadont, plaintiff\rquote s Chief Legal Officer, declared that in meetings with DLA it was suggested that small businesses, like plaintiff, were not able to perform the work that was the subject of the RFP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': more\ was the fact that the Air Force had prejudged the plaintiff\rquote s ability to satisfy the contract\rquote s requirements and concluded that the plaintiff and similar small businesses were unable to do so. In the cases at bar, plaintiff has advanced only its own subjective determination that submitting price proposals would have been futile due to the significant costs that it would have incurred. Mr. Casadont\rquote s Declaration does not provide any justification for plaintiff\rquote s conclusion that it was futile to submit a bid, nor does it indicate that either GSA or DLA prejudged plaintiff as incapable of performing the contract. The two factors relied on by this court in distinguishing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': ), was enacted to increase contracting opportunities for SDVOSBs and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': (\[T]he Secretary shall maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': ( \A small business concern may be awarded a contract under this section only if the small business concern and the veteran owner of the small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': (\Prior to January 1, 2012, all ... SDVOSBs must be listed in the VIP database, available at http:// www.vetbiz.gov, and also must be registered in the Central Contractor Registration (CCR) (see 48 CAR subpart 4.11) to receive contract awards under VA\rquote s Veteran-owned Small Business prime contracting and subcontracting opportunities program.\). Also until December 31, 2011, an applicant can self-represent its status as a SDVOSB in the VIP database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': (\In maintaining the database, the Secretary shall carry out at least the following two verification functions: (A) Verification that each small business concern listed in the database is owned and controlled by veterans. (B) In the case of a veteran who indicates a service-connected disability, verification of the service-disabled status of such veteran.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': , in turn, lists \the eligibility requirements for VIP verification.\ VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': , which set minimum goals for participation by small businesses in procurement contracts. Additionally, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': (requiring small business concern and veteran owner to be listed in database in order to be eligible for award of VA procurement); 38 C.F.R. pt. 74 (establishing verification procedures for SDVOSBs). Because plaintiff did not qualify for inclusion in the VIP, it was not eligible Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff contends that it can salvage these claims by self-certifying itself as a SDVOSB. Self-certification, it argues, is acceptable because the DLA Solicitation does not contain a VA procurement and thus does not require that an offeror be listed as a verified SDVOSB in any database. Although self-certification may be acceptable, it is not available in this case. To be considered a SDVOSB, a small business concern \must be at least 51 percent unconditionally and directly owned by one or more veterans or service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'The Rule of Two': . As explained in the CVE letter, the service-disabled veteran does not directly own plaintiff; rather, the service-disabled veteran owns BlueStar Energy Holdings, Inc., which indirectly owns plaintiff through one of its wholly-owned subsidiaries. This does not satisfy the requirement that the service-disabled veteran directly own the small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 19 - MED Trends Inc v US.doc, Paragraph with 'The Rule of Two': MED Trends challenges a procurement made pursuant to the Veterans Technology Services Government\u8211Wide Acquisition Contract (\VETS GWAC\). The VETS GWAC is a government-wide contract between the General Services Administration (\GSA\) and a pool of pre-qualified contractors, all of which are small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 29 - Systems Application And Technologies Inc v US.doc, Paragraph with 'The Rule of Two': at 2007, 2009. And, in her comments on the Participation by Small, Minority, and Disadvantaged Businesses element, she summarized the findings of the Office of Small Business Programs and assigned \satisfactory\ ratings to both proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 29 - Systems Application And Technologies Inc v US.doc, Paragraph with 'The Rule of Two': the decision to reopen a size determination was in the sole discretion of the Small Business Administration (\SBA\)); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 29 - Systems Application And Technologies Inc v US.doc, Paragraph with 'The Rule of Two': a contract awardee sought an injunction preventing the procuring agency from terminating the contract it had been awarded before the SBA determined that it was other than a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 29 - Systems Application And Technologies Inc v US.doc, Paragraph with 'The Rule of Two': That determination rendered the awardee ineligible to compete for the contract, which was set aside for a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 30 - Nilson Van And Storage Inc v US.doc, Paragraph with 'The Rule of Two': Awardee\rquote s bid for contract for preparation, shipment, and storage of property belonging to Army personnel did not lack responsiveness due to alleged deficiency in registration with online representations and certifications application (ORCA) database, certifying that awardee was recognized by North American Industry Classification System (NAICS) as \other business finishing contractor\ code, even though solicitation identified NAICS code for packing and crating as appropriate code for bid, since solicitation listed NAICS code to specify required small business status of bidders, not to specify services that bidder required with respect to past experience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 30 - Nilson Van And Storage Inc v US.doc, Paragraph with 'The Rule of Two': The Solicitation\rquote s identification of NAICS 488991 must be understood in context. Under box 10 of the Corps\rquote bid solicitation form, the award was to be set aside for small businesses. AR 3\u821117. That section of the form also indicated a \size standard\ capped at $25.5 million in annual revenue, and a \NAICS\ classification of \488991.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 30 - Nilson Van And Storage Inc v US.doc, Paragraph with 'The Rule of Two': By referencing NAICS 418899 under box 10, which concerned bidders\rquote size and ownership, the solicitation form indicates that the NAICS code was listed to specify the required small business status of bidders, not to specify the services a bidder must have had past experience providing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 30 - Nilson Van And Storage Inc v US.doc, Paragraph with 'The Rule of Two': Nilson does not dispute Ken Krause\rquote s small business status. Hr\rquote g Tr. 12:9\u821115 (July 20, 2011); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': because decision not to reopen size determination was committed to Small Business Administration\rquote s (SBA) discretion, it was not subject to judicial review; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Because decision not to reopen size determination was committed to Small Business Administration\rquote s (SBA) discretion, it was not subject to judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Because contract awardee filed its request that Small Business Administration (SBA) reopen its size determination after the close of the appeal period, SBA did not violate the applicable regulation when it denied awardee\rquote s request as untimely. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Amended Small Business Administration (SBA) regulation was not applied retroactively to SBA\rquote s determination not to reopen its size determination; because the regulation was already in effect and had been for a month on the date contract awardee could first file its request for reconsideration, regulation\rquote s effect on awardee\rquote s case was prospective, and did not attach new legal consequences to events completed before their effective date even though the size protest was pending when the new regulation went into effect. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': of the Rules of the United States Court of Federal Claims (RCFC). Def.\rquote s Mot. 1. Defendant contends that OVC\rquote s Complaint should be dismissed for five reasons: (1) OVC lacks standing to bring this bid protest because \OVC was the winning bidder on the solicitation at issue, and, therefore, cannot demonstrate prejudice;\ (2) OVC has \failed to exhaust its administrative remedies;\ (3) \OVC\rquote s claim is not justiciable because the applicable regulation provides that the Small Business Administration (\u8216SBA\u8217) has \u8216sole discretion\u8217 to determine whether to reopen a claim;\ (4) OVC has \failed to state a claim because, under the applicable regulation, SBA was required to deny OVC\rquote s request to reopen SBA\rquote s size determination as untimely;\ and (5) \the [c]ourt does not possess jurisdiction to grant OVC\rquote s request that the [c]ourt enjoin the agency from terminating the contract for convenience.\ Def.\rquote s Mot. 1. For the reasons discussed below, defendant\rquote s Motion to Dismiss is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': On June 7, 2009 DLA issued Solicitation SPM1C1\u821109\u8211R\u82110141. Compl. \u182 4. The Solicitation requested offers on an Indefinite Delivery, Indefinite Quantity contract for the manufacture and delivery of two-man combat tents. Compl. \u182 5. The Solicitation was a Total Small Business Set\u8211Aside. Compl. \u182 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': On December 2, 2010 OVC was awarded a contract under the Solicitation. Compl. \u182 16. Following the award to OVC, Diamond Brand Products (Diamond), one of the unsuccessful offerors on the contract, filed a protest with the Government Accountability Office (GAO), in which it challenged the award to OVC on a number of grounds. Compl. \u182 17. One of the grounds for protest was that OVC should not be classified as a small business because \the end items OVC would be supplying would, in fact, be produced by a large business\ and because \OVC would be subcontracting more than 50% of its work [to a large business].\ Compl. \u182 17. When Diamond filed its protest at GAO, OVC\rquote s contract was automatically suspended. June 16, 2011 Oral Argument (Oral Argument), Argument of Mr. Marc Lamer at 2:14:18\u821148; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Because Diamond had failed to file a timely size protest with SBA, GAO suggested that DLA refer the small business issues in the protest to SBA. Compl. \u182\u182 17, 18. DLA did so, and Diamond withdrew those portions of its GAO protest relating to OVC\rquote s classification as a small business. Compl. \u182 18. Diamond\rquote s protest was dismissed by GAO on March 24, 2011. Compl. \u182 24. Plaintiff\rquote s counsel stated at oral argument that, \[w]hen that protest was denied by GAO, the ... statutory stop work order ... was no longer there, but the agency ... never lifted the stay, so performance is still suspended,\ Oral Argument, Argument of Mr. Marc Lamer at 2:14:34\u821148, a statement that was not contradicted, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': On March 2, 2011 OVC received a notification letter from SBA that OVC\rquote s \status as a small business concern has been protested in connection with the [Solicitation].\ Compl. \u182\u182 19, 20. The SBA letter requested information Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Compl. \u182 12 (stating that \[i]n its proposal, OVC identified [JOG] as a subcontractor, pursuant to a Teaming Agreement\). On April 4, 2011 OVC replied to SBA, \explaining that JOG is a publicly held large business,\ Compl. \u182 28, but \reiterat[ing] that [OVC], a small business, would be the manufacturer of the end-item,\ Compl. \u182 29. On April 6, 2011 SBA \found OVC to be other than small for the particular procurement\ at issue. Compl. \u182 30. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 34 - Outdoor Venture Corp v US.doc, Paragraph with 'The Rule of Two': Plaintiff does not state expressly the date on which it received the size determination from the Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 35 - Joint Venture of Comint Systems Corp v US.doc, Paragraph with 'The Rule of Two': On August 2, 2010, the WHS issued a solicitation for a multiple award, indefinite delivery/indefinite quantity contract to small businesses for the provision of IT solutions Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Small business contractor sought a permanent injunction to prevent the Defense Logistics Agency (DLA) from proceeding with any award or performance on certain requests for quotations (RFQs) by any business other than itself, a declaration that the cancellation of original RFQ was illegal, a declaration that a dissolution of the small business set aside (SBSA) for the RFQs was illegal and a permanent injunction to prevent DLA from dissolving the SBSA status for the RFQs. Parties filed cross-motions for judgment upon the administrative record, and government also moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Regulations did not compel procuring agency to make an award of contract to supply shifter forks to small business contractor offering approved product after request for quotations (RFQ) was cancelled on grounds that it should not have been issued as small business set aside (SBSA), and that the contract was awarded to a large business concern offering an unapproved technically unacceptable product. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Contracting officer\rquote s decision to cancel original request for quotations (RFQ), which erroneously had been designated as a small business set aside (SBSA), and issue a new RFQ on an unrestricted basis was reasonable, rationally based on sufficient facts and not in violation of law; relying on market research and the procurement history, procuring agency rationally determined that it did not have a reasonable expectation of obtaining offers from two or more responsible small business concerns that were competitive in terms of market prices, quality and delivery that would offer the approved part, and that the new procurement should be issued as unrestricted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff (Gear Wizzard or GWI) is a small business concern and seeks a permanent injunction to prevent the U.S. Defense Logistics Agency (DLA), Defense Supply Center (DSCC), from proceeding with any award or performance on certain Requests for Quotations (the RFQs) by any business other than GWI, a declaration that the cancellation of Solicitation SPM7L3\u821111\u8211Q\u82110043 (RFQ\u82110043 or the Original RFQ) was illegal, a declaration that a dissolution of the Small Business Set Aside (SBSA) for the RFQs was illegal and a permanent injunction to prevent DLA from dissolving the SBSA status for the RFQs. Pl.\rquote s Mot. for J., Docket Number (Dkt. No.) 46, at 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': On October 12, 2010 defendant issued RFQ\u82110043 for the procurement of 533 shifter forks. AR 9\u821111 (RFQ\u82110043). Shifter forks were listed as \a critical application item\ and are part of the shifting mechanism in M939 series five-ton trucks. AR 11 (RFQ\u82110043); AR 254 (Apr. 1, 2011 Contracting Officer Memorandum for Record (CO Memo)). The Original RFQ was issued as a small business set-aside, AR 9 (RFQ\u82110043); the estimated value of the Original RFQ was $73,551, AR 99 (DLA memo). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': (defining \simplified acquisition threshold\). The purpose of FAR Part 13 \is to prescribe simplified acquisition procedures in order to\u8212(a) Reduce administrative costs; (b) Improve opportunities for ... small business concerns to obtain a fair proportion of Government contracts; (c) Promote efficiency and economy in contracting; and (d) Avoid unnecessary burdens for agencies and contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Each acquisition of supplies ... exceeding $3,000 ... but not over $150,000 ... is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.... If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': , which is referred to within both the FAR and the DAG as the \nonmanufacturer rule,\ provides, in relevant part: \For small business set-asides other than for construction or services, any concern proposing to furnish a product that it did not itself manufacture must furnish the product of a small business manufacturer....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': DAG 19.000\u8211101(b) (\Generally to be eligible for award under a total small business set-aside, a concern must offer only end items manufactured or produced by small business concerns in the United States or its outlying areas.\). \In these cases, set-asides are allowed when offers are expected from at least two small business concerns offering the product of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': small business concern (for example a small manufacturer and one of its dealers or two small dealers offering the product of the same small manufacturer).\ DAG 19.502\u82112(b)(ii)(a) (emphasis in original); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': The Original RFQ specified that only two manufacturers offered approved shifter forks: GWI, a small business concern, and Meritor Heavy Vehicle Systems, LLC (Meritor), a large business concern. AR 11 (RFQ\u82110043); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': AR 254 (CO Memo) (stating that GWI is a small business concern and that Meritor is a large business concern); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': AR 260 (Attachment to DD Form 2579, History of NSN\u82118717 (Procurement History) (stating that GWI became an approved source on July 13, 2009)). Defendant received nineteen quotes in response to the Original RFQ; two quotes were from large business concerns and seventeen quotes were from small business concerns. AR 254 (CO Memo). The quotes ranged in price from [* * *]. AR 131 (Abstract of Quotes); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': On November 29, 2010, nearly five weeks after the October 26, 2010 closing date for offers, AR 9 (RFQ\u82110043), the DLA buyer of shifter forks, Elizabeth Hanlon, prepared a \Memo for file\ that sought the dissolution of the SBSA associated with the Original RFQ, AR 99 (Hanlon Memo); AR 254\u821155 (CO Memo). Ms. Hanlon \reviewed the procurement and made a determination that the solicitation should not have been set-aside to begin with.\ AR 254 (CO Memo). Citing DAG 19.502\u82112(b)(ii)(a), Ms. Hanlon reasoned that there was not a \reasonable expectation that two or [more] small business concerns were going to offer the product of [a] small business manufacturer.\ AR 255 (CO Memo); AR 99 (Hanlon Memo); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': On January 22, 2011 GWI emailed the Acting Associate Director of DLA\rquote s Small Business Programs Office, Vikki Hawthorne, to \protest any dissolution of the Small Business Set Aside status for ... any ... Shifter Fork procurement.\ AR 269\u821170 (Jan. 22, 2011 GWI email). GWI claimed that \at least two or more small businesses are ready, willing and able to submit offers to supply Shifter Forks manufactured by GWI,\ and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': at 270. In response, Ms. Hawthorne requested a list of these small business concerns, AR 269 (undated DLA email), \so that the contracting officer could conduct market research and confirm the [ ] ability [of the small business concerns] to supply the Gear Wizzard part,\ AR 262 (Procurement History). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': At least 18 small businesses submitted offers on DSCC\rquote s last aborted acquisition of the subject Shifter Forks, NSN 2520\u821101\u8211136\u82118717. Since then, even though DSCC has rapidly and repeatedly canceled at least 4 Shifter Fork acquisition solicitations so fast that offeror interest was almost prevented, many small businesses have sought quotes from GWI to supply the Shifter Forks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': AR 268 (Feb. 5, 2011 GWI email). GWI then listed the names of twenty-seven small businesses that could be \reasonably expected\ to offer GWI\rquote s shifter fork. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Hawthorne dismissed the usefulness of this list, noting that until this list \can be validated, the contracting officer has no basis to set-aside the requirement for small business concerns.\ AR 267 (undated DLA email). Ms. Hawthorne repeated her request for a list of \small businesses that are ready, willing and able to submit offers to supply the Shifter Forks manufactured by GWI.\ AR 267 (undated DLA email). GWI subsequently provided defendant with the names and addresses of three small business concerns: Pioneer Ind., Inc. (Pioneer), JGILS, LLC (JGILS) and Kampi Components Co., Inc. (Kampi). AR 267 (Feb. 12, 2011 GWI email). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Hanlon emailed the three small business concerns and requested answers to the following questions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': 1.) If [shifter forks are] set-aside for small business concerns are you able to quote the Gear Wizzard part number GWI\u8211C0107? Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Defendant also prepared a small business set-aside history and a \contract and solicitation history\ for the shifter forks (collectively, the Procurement History). AR 260\u821163 (Procurement History). According to the Procurement History, only three solicitations were posted between July 13, 2009, when GWI became an approved source of shifter forks, and October 12, 2010, when DLA posted RFQ\u82110043. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': at 260\u821161. All three solicitations were posted as total small business set-asides under FAR Part 13. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': note 3 (discussing the exception to the nonmanufacturer rule for solicitations valued below $25,000), and DLA awarded a small business concern offering the product of a large business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': concern, AR 261 (discussing RFQ\u82110233). For all solicitations up to and including RFQ\u82110043 for which GWI was listed as an approved source, GWI was only the small business concern to offer the product of a small business manufacturer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Based on its market research and the Procurement History, defendant determined that it did not \have a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality and delivery that will offer the approved part manufactured by Gear Wizzard.\ AR 263 (Procurement History). Defendant concluded that \the procurement should be solicited on an unrestricted basis,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': and a new DD Form 2579 \Small Business Coordination Record\ was prepared for the issuance of an unrestricted solicitation, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Defendant shared its market research and Procurement History with the United States Small Business Administration (SBA). AR 258\u821179 (DD Form 2579 and Attachment). A representative of SBA concurred in defendant\rquote s recommendation that the procurement be solicited on an unrestricted basis. AR 258 (DD Form 2579). On April 1, 2011 defendant issued an unrestricted Request for Quotations SPM7L3\u821111\u8211Q\u82110780 (RFQ\u82110780, Fifth RFQ or New RFQ) for the procurement of 335 shifter forks (NSN\u82118717), with a closing date for offers on May 31, 2011, AR 280\u821182 (RFQ\u82110780), with an estimated value of $37,114.65, AR 257 (CO Memo). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': , Am. Compl. \u182 44, which states that \[i]f the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm,\ when defendant failed to award the Original RFQ to GWI, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': ) (internal quotation marks omitted). Plaintiff maintains that the award of the Original RFQ to SAIC \was admittedly an illegal procurement from a large business dealer on a small business set-aside for an unapproved Shifter Fork.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Defendant admits that GWI was the lowest priced responsive and responsible small business offeror on RFQ\u82110043 for actually approved Shifter Forks and, therefore, was and at all time[s] has been entitled to and required to be issued the award, inasmuch as GWI\rquote s quote was the only acceptable offer from a responsible small business concern to supply a small business manufactured part and quotes from Meritor\rquote s specified vendor network for Government sales all exceed GWI\rquote s quote on RFQ\u82110043. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': In Count II of plaintiff\rquote s Amended Complaint, containing plaintiff\rquote s pre-award protest, plaintiff argues that dissolution of the SBSA for shifter forks violates the mandate that SBSAs are required for procurements \value[d] between $25,000 and $150,000, where at least two small businesses are expected to make offers to supply [ ] Shifter Forks manufactured by a small business (GWI).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': because \at least two small businesses are reasonably Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': If, before award of a contract involving a small business set-aside, the contracting officer considers that award would be detrimental to the public interest (e.g., payment of more than a fair market price), the contracting officer may withdraw the small business set-aside determination.... The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': contracting officer shall initiate a withdrawal of an individual small business set-aside by giving written notice to the agency small business specialist and the SBA procurement center representative ... stating the reasons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': also requires the contracting officer to \prepare a written statement supporting any withdrawal or modification of a small business set-aside and include it in the contract file.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': On November 29, 2010 Ms. Hanlon, the buyer, prepared a memorandum seeking the dissolution of the SBSA associated with the Original RFQ. AR 99 (Hanlon Memo). Ms. Hanlon\rquote s memorandum explained that the Original RFQ should not have been solicited as an SBSA because \there was not a reasonable expectation that two or [more] small business concerns were going to offer the product of [a] small business manufacturer.\ AR 255 (CO Memo); AR 99 (Hanlon Memo); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': . Although Ms. Hanlon explained the rationale for withdrawing the set aside in her memorandum, the contracting officer neither signed the memorandum nor gave \written notice to the agency small business specialist and the SBA procurement center representative ... stating the reasons.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': argues, however, that \GWI was the lowest priced responsible small business offeror to supply [an] approved small business manufactured product on RFQ\u82110043, a perfectly viable and legal small business set-aside to which GWI was therefore entitled to the award under the law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Pl.\rquote s Mem. 15 (\[T]here was nothing improper or illegal about RFQ\u82110043.\). Plaintiff also argues that it \had an absolute right to the award\ of the Original RFQ. Pl.\rquote s Mem. 15. \[A]s the lowest priced authorized small business manufacturer or dealer offeror of an approved Shifter Fork,\ plaintiff claims that GWI was entitled to the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': , Pl.\rquote s Mem. 15; Pl.\rquote s Resp. 2\u82113, which provides, in part: \If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': . Plaintiff also cites Mr. Matz\rquote s memorandum dated April 1, 2011, which indicates that GWI was \the only quoter eligible for award [of the Original RFQ] because GWI was a small business concern offering as the manufacturer of its approved part.\ AR 254 (CO Memo). According to plaintiff, this provision applies when, as was the case with RFQ\u82110043, offers to a solicitation are received. EDR 3:23:40\u821124:09 (Mr. Raley). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': EDR 3:31:39\u821133:45 (colloquy between the court and Mr. Raley, in which Mr. Raley argues that, although not necessarily supported in the record, Mr. Raley can see no explanation for DLA\rquote s cancellation of RFQ\u82110043 and solicitation of the New RFQ other than DLA\rquote s desire to bypass small business and accept SAIC\rquote s \lowball\ offer); EDR 4:00:00\u821100:05 (Mr. Edelschick, arguing that the contracting officer was \motivated solely by a good faith effort to follow the law\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': The administrative record shows that the award of the Original RFQ to SAIC contained at least two significant errors. First, although the Original RFQ was issued as a small business set aside, defendant nevertheless awarded the contract to a large business concern. Second, the awardee was offering an unapproved product manufactured by AxleTech. The administrative record indicates that it was the second defect that prompted the contracting officer to cancel the Original RFQ. On December 30, 2010 Mr. Matz received an email from DLA\rquote s Senior Counsel, which states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Each acquisition of supplies ... is automatically reserved exclusively for small business concerns and shall be set aside for small business unless the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality, and delivery.... If the contracting officer receives only one acceptable offer from a responsible small business concern in response to a set-aside, the contracting officer should make an award to that firm. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': \ relied upon by plaintiff does not apply if \ \u8216the contracting officer determines there is not a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive.\u8217 \ Def.\rquote s Reply 4 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': have a reasonable expectation of receiving two or more quotes from small businesses offering the product manufactured by a small business and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': sets aside the procurement for small business, but for whatever reason, the agency only receives one such quote from a responsible firm. Under those circumstances, not present here, the agency normally would place an order with the firm that submitted the quote. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': have a reasonable expectation of receiving two or more quotes from small businesses offering the product manufactured by a small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': set aside for small business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff requests that the court declare that the dissolution of SBSA status for the \subject procurements is unlawful, arbitrary, capricious, and erroneous,\ and permanently enjoin the dissolution of SBSA status for shifter fork procurements. Pl.\rquote s Mem. 2. Plaintiff maintains that GWI received ten requests for quotation from small businesses to supply shifter forks for the cancelled Second RFQ. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': at 11. Plaintiff further argues that DLA\rquote s sudden cancellation of the Third RFQ \again left [GWI] with no opportunity to provide quotes in response to the Requests for Quotations from other small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': contracting officer\rquote s decision that no reasonable expectation existed that at least two small businesses would submit offers \was based upon a detailed analysis of the procurement history and the results of recent market research documented in the [AR].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': ), defendant argues that GWI\rquote s claim that DLA is required to set aside the subject RFQ for small business \is tantamount to requiring a sole source contract without meaningful competition\u8212gaming the system\u8212in clear derogation of Federal law,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Defendant also disputes GWI\rquote s speculation that \as many as ten or more small business firms might compete in the future with offers of Gear Wizzard\rquote s shifter forks,\ noting that, \to date, none of them have done so.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': According to the Procurement History, three previous procurements of shifter forks had been set aside for small business. AR 261 (Procurement History) (referring to RFQ\u82110326, RFQ\u82110409 and RFQ\u82110233). The first procurement issued as a SBSA followed GWI\rquote s approval as a source of shifter forks, so it was reasonable for DLA \to expect that two or more of the many small business concerns that had previously supplied the Meritor part would likely offer the newly approved Gear Wizzard part.\ AR 261 (discussing RFQ\u82110326). The Procurement History states that the second procurement should have been \solicitated as unrestricted, because the estimated value of the procurement was in excess of $25,000 ... and the prior acquisition ... demonstrated that there was no reasonable expectation that two or more small business concerns were going to offer the product of [a] small business manufacturer.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': (discussing RFQ\u82110409). Finally, because the value of the third procurement was estimated to be below $25,000, it fell within the exception to the nonmanufacturer rule and was awarded to a small business concern that offered Meritor\rquote s part. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Based on the Procurement History, which includes the fact that DLA has never received two or more quotes from small businesses offering shifter forks manufactured by a small business concern, DLA concluded that the Original RFQ should have been solicited as unrestricted. AR 262 (discussing RFQ\u82110043). The court agrees that DLA \had a rational basis for its finding that the Original RFQ erroneously had been designated as a set aside.\ Def.\rquote s Reply 3 (citing AR 262 (Procurement History)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Moreover, the contracting officer\rquote s market research indicates that it was difficult for other small businesses to compete with GWI\rquote s price on its own product. In response to GWI\rquote s January 22, 2011 email protesting the dissolution of the SBSA \for ... any ... Shifter Fork procurement,\ AR 269\u821170 (Jan. 22, 2011 GWI email), the Acting Associate Director of DLA\rquote s Small Business Programs Office, Ms. Hawthorne, requested a list of these small business concerns, AR 269 (undated DLA email), \so that the contracting officer could conduct market research and confirm their ability to supply the Gear Wizzard part,\ AR 262 (Procurement History). In an email dated February 5, 2011, GWI provided Ms. Hawthorne with the names of twenty-seven small businesses that could be \reasonably expected\ to offer GWI\rquote s part. AR 268 (Feb. 5, 2011 GWI email). GWI also noted that \[a]t least 18 small businesses submitted offers on [DLA\rquote s] last aborted acquisition\ of shifter forks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Apparently dissatisfied with this list of businesses, Ms. Hawthorne repeated her request for a list of \small businesses that are ready, willing and able to submit offers to supply the Shifter Forks manufactured by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': GWI.\ AR 267 (undated DLA email). GWI ultimately provided Ms. Hawthorne with the names and addresses of three small businesses: Pioneer Ind., Inc. (Pioneer), JGILS, LLC (JGILS) and Kampi Components Co., Inc. (Kampi). AR 267 (Feb. 12, 2011 GWI email). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Ms. Hanlon contacted each of these three businesses and inquired: \If [shifter forks are] set-aside for small business concerns are you able to quote the Gear Wizzard part number GWI\u8211C0107?\ AR 278\u821179 (Feb. 15, 2011 Hanlon email to Pioneer); AR 275 (Feb. 15, 2011 Hanlon email to JGILS); AR 273 (Feb. 17, 2011 Hanlon email to Kampi). Pioneer stated that it doubted GWI would be \willing provide pricing as an estimate at this time.\ AR 277 (Feb. 17, 2011 Pioneer email). JGILS simply responded: \We cannot quote this guy.\ AR 275 (Feb. 15, 2011 JGILS email). Kampi\rquote s response was more detailed, explaining that GWI quotes \direct on this item,\ and that, therefore, GWI\rquote s quote would \more than likely[ ] be more competitive\ than Kampi\rquote s. AR 272 (Feb. 17, 2011 Kampi email). The representative requested that the government refrain from soliciting Kampi for items that the government \intend[s] to award to the manufacturer anyway.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Relying on this market research and the Procurement History, DLA determined that it did not \have a reasonable expectation of obtaining offers from two or more responsible small business concerns that are competitive in terms of market prices, quality and delivery that will offer the approved part manufactured by Gear Wizzard,\ and that the new procurement should be issued as unrestricted. AR 263 (Procurement History). Accordingly, DLA prepared a new DD Form 2579 \Small Business Coordination Record\ recommending that the procurement be solicited on an unrestricted basis. AR 258\u821159 (DD Form 2579). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': \The decision not to set aside a solicitation for small business concerns is a matter of business judgment within the contracting officer\rquote s discretion and, as such, must be upheld unless the Court finds the decision to be arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': . \While the use of any particular method of assessing the availability of small businesses is not required, and measures such as prior procurement history, market surveys, and/or advice from the agency\rquote s small business specialist and technical personnel may all constitute adequate grounds for a contracting officer\rquote s decision not to set aside a procurement, the assessment must be based on sufficient facts so as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': The United States Small Business Administration (SBA) may grant either a waiver or an exception to the nonmanufacturer rule, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': SBA grants waivers to the nonmanufacturer rule if it \finds that there are no small business manufacturers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': ; DLA Land and Maritime Acquisition Guide (DAG) 19.102\u8211101(b)(2). Because Gear Wizzard, Inc. (GWI) is a small business manufacturer of shifter forks, waiver of the nonmanufacturer rule is inapplicable here. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Proper withdrawal of a small business set-aside determination requires two actions by the contracting officer. The contracting officer must \give[ ] written notice to the agency small business specialist and the SBA procurement center representative ... stating the reasons\ for the withdrawal, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': , and must \prepare a written statement supporting any withdrawal or modification of a small business set-aside and include it in the contract file,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also contends that any SBSA dissolution would violate the Competition in Contracting Act and Small Business Act, which \requires the Government to maintain full and open competition by aiding, counseling, protecting and preserving small business in competitive procurements.\ Corrected Second Am. Compl.\u8212Bid Protest [for Declaratory and Injunctive Relief], Dkt. No. 42, \u182 52. Because plaintiff failed to offer any support for these contentions, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 49 - Gear Wizzard Inc v US.doc, Paragraph with 'The Rule of Two': Plaintiff also alleges that the Second, Third and Fourth RFQs \were issued and quickly cancelled with no explanation other than the apparent need to avoid a small business award to GWI.\ Pl.\rquote s Mem. 14. Defendant counters that plaintiff fails to \advance any meaningful arguments concerning\ these RFQs. Def.\rquote s Mot. 15. The court agrees that plaintiff\rquote s contention is without support in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 51 - Allied Technology Group Inc v US.doc, Paragraph with 'The Rule of Two': ) (\[A]s a general matter, an agency\rquote s judgment as to whether a small business offeror will comply with the subcontracting limitation is a matter of responsibility, and the contractor\rquote s actual compliance with the provision is a matter of contract administration.\). \However, where a proposal, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': The Court of Appeals held that bid protest action became moot when principal of small business contractor died. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': Bid protest action became moot not simply because principal of small business contractor died, but because of the effect that death had on the eligibility of contractor to seek relief on the merits of its claim; because principal\rquote s death deprived contractor of its status as a qualifying small business, contractor could no longer benefit from a judicial decree limiting the bidding to qualifying small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': These consolidated appeals are taken from orders of the Court of Federal Claims in a bid protest case. Plaintiff Totolo/King Joint Venture, a general contractor that was registered as a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\), responded to a \sources sought notice\ relating to a construction contract for the Department of Veterans Affairs (\DVA\). Although the solicitation was initially designed to be restricted to qualifying small businesses, the contracting officer made a determination that there were not enough qualifying small businesses to warrant restricting the solicitation and therefore issued a presolicitation notice announcing that the DVA planned to procure the construction services through an unrestricted bidding process that would be open to all offerors. Totolo/King then filed this action in the Court of Federal Claims, claiming that the contract should have been set aside for limited competition. The Court of Federal Claims denied relief and dismissed a subsequent motion for relief from judgment as moot. Totolo/King has appealed both orders to this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': While the appeal from the bid protest action was pending, William Totolo died. Mr. Totolo was the disabled veteran who provided the Totolo/King Joint Venture with its status as a SDVOSB. The government argues that, based on Mr. Totolo\rquote s death, the Totolo/King Joint Venture now lacks standing to contest the DVA\rquote s failure to set the procurement aside for qualifying small businesses. Totolo/King resists the suggestion of mootness. Although it acknowledges that it has lost its status as a SDVOSB, it contends that the action is not moot because (1) it is entitled to an award of attorney fees and costs; (2) it is entitled to unspecified damages; and (3) the action should continue for the benefit of other SDVOSBs that might be subject to similar treatment in the future. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'The Rule of Two': The action in this case became moot not simply because a principal of one of the parties died, but because of the effect that Mr. Totolo\rquote s death had on the eligibility of Totolo/King to seek relief on the merits of its claim. Because Mr. Totolo\rquote s death deprived Totolo/King of its status as a qualifying small business, Totolo/King can no longer benefit from a judicial decree limiting the bidding to qualifying small businesses. For that reason, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 60 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': Disappointed bidder, as incumbent contractor, filed post-award bid protest challenging Coast Guard\rquote s award of contract to perform fitting, tailoring, and garment-pressing services as allegedly violating Competition in Contracting Act (CICA) and Procurement Integrity Act (PIA) and also allegedly breaching implied-in-fact contract to fairly consider all bidders\rquote proposals for small business set-aside indefinite-delivery/indefinite-quantity (IDIQ) type contract. Parties cross-moved for judgment on agency record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 60 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': In the five-page Staffing Plan section of its proposal, plaintiff explained how, though a small business, it \effectively utilize[d] formal systems one might expect only from a larger business,\ AR at 325; described its management team and corporate structure, AR at 325\u821126; detailed corporate oversight of the tailoring shop operations, AR at 327; described the jobs of Project Manager, Tailors, and Sewing Machine Operators, AR at 327\u821128; and provided about one page of text on its recruitment plan, which included the idea of hiring incumbent and temporary workers and listed the normal steps of the hiring process. AR at 328\u821129. During the second round of discussions, the SSA told plaintiff that its proposal contained this weakness: \No staffing plan is provided for organization that will do work on-site. List should show quantity and type of positions.\ AR at 605. Plaintiff responded with an e-mail identifying the number of personnel proposed (seven in total), by category, and explaining the \positions are part-time and fluctuate based on the weekly requirements and recruit levels.\ AR at 371. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 60 - Tech Systems Inc v US.doc, Paragraph with 'The Rule of Two': AR at 282, 293. In any event, neither inexperience with government contracting nor having a small staff are in the same league as the criminal convictions of an associate, and the Court concludes the former do not raise the type of serious questions justifying an inquiry into the rationality of a responsibility determination. To find otherwise would impose a particular burden on the agencies that work with small businesses. As plaintiff has not made a threshold showing to rebut the presumption of regularity, the Court will not substitute its judgment for that of the Contracting Officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 62 - National RR Passenger Corp v Veolia Transp Services Inc.doc, Paragraph with 'The Rule of Two': The successful bidder subsequently completed the contract before it was discovered that it was not a small business, which if known earlier would have disqualified the company from bidding on the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 67 - Patriot Taxiway Industries Inc v US.doc, Paragraph with 'The Rule of Two': The Air Force issued the RFP on March 2, 2010, as a small business set-aside. AR 9, 12. Amendments to the RFP were issued throughout March and April of 2010. The solicitation contemplated the design and production of a portable airfield lighting system known as Expeditionary Airfield Lighting Systems II (\EALS II\), which provides visual cues necessary for incoming aircraft to approach, land, and maneuver at night or in low-visibility conditions. The Air Force anticipated the award of a firm fixed-price, indefinite-delivery, requirements-type contract for a two-year base term and four one-year options. AR 14, 414\u821115. The Air Force estimated the total contract value to be $44.1 million and envisioned that 24,428 airfield light fixtures would be delivered under the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Awardee filed post-award bid protest complaint, challenging the decision by the United States Small Business Administration (SBA) decertifying it from the Historically Underutilized Business Zone (HUBZone) program, after which the Army cancelled award of contract for custodial services. Successful offeror intervened. Defendant filed motion to dismiss for lack of jurisdiction, and parties filed cross motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had subject matter jurisdiction over a bid protest challenging a decision by Small Business Administration (SBA) to decertify awardee from the Historically Underutilized Business Zone (HUBZone) program, which resulted in Army\rquote s cancellation of its contract award; cancellation of awardee\rquote s contract was not the focus of the protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Adverse inference drawn by Small Business Administration (SBA), that awardee\rquote s principal office was not located in a Historically Underutilized Business Zone (HUBZone), and thus that awardee should be decertified under HUBZone program, was not warranted by awardee\rquote s failure to provide work location information for each of its employees where SBA\rquote s requests for information were vague, varying and confusing, and were ill-tailored to the goal of getting pertinent information from awardee in a short time-frame; awardee received several SBA requests for employee work location information, expressed differently in different communications, and was given twenty-four hours to comply with all of those requests, SBA never provided awardee with a list identifying the employees for whom it required such information, and SBA\rquote s requests for work location data failed to suggest a particular format that would satisfy SBA\rquote s need for documentation. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) decertification of awardee from the Historically Underutilized Business Zone (HUBZone) program was reasonable; awardee did not provide work location information for each of its employees, and therefore the SBA did not have sufficient information to perform its analysis of the location of the awardee\rquote s principal office. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': , United States Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': RCD Cleaning Service, Inc. (RCD) filed its post-award bid protest complaint on January 6, 2011. In its complaint, RCD challenges the decision by the United States Small Business Administration (SBA) decertifying RCD from the Historically Underutilized Business Zone (HUBZone) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': SBA does not have unlimited time to decide HUBZone status protests. The regulation, in pertinent part, contains two statements regarding the time allowed for processing a HUBZone status protest: (1) \SBA will determine the HUBZone status of the protested HUBZone SBC [Small Business Concern] within 15 business days after receipt of the protest\; (2) \If SBA does not contact the contracting officer within 15 business days, the contracting officer may award the contract, unless the contracting officer has granted SBA an extension.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 71 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': \The purpose of the HUBZone program is to provide federal contracting assistance for qualified [small business concerns] located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Apparent successful offeror filed pre-award bid protest complaint, challenging the decision by the United States Small Business Administration (SBA) decertifying it from the Historically Underutilized Business Zone (HUBZone) program, after which the Air Force eliminated it from competition for a contract for custodial services. Successful offeror intervened, and parties filed cross motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Apparent successful offeror for Air Force contract had standing to bring suit challenging the decision by the United States Small Business Administration (SBA) decertifying it from the Historically Underutilized Business Zone (HUBZone) program; but for SBA\rquote s decertification decision, offeror had a substantial chance of being awarded the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Adverse inference drawn by Small Business Administration (SBA), that offeror\rquote s principal office was not located in a Historically Underutilized Business Zone (HUBZone), and thus that offeror could not be certified as qualified to participate in HUBZone program, was not warranted by offeror\rquote s failure to provide work location information for each of its employees where SBA\rquote s requests for information were vague, varying and confusing, and were ill-tailored to the goal of getting pertinent information from offeror in a short time-frame; offeror received several SBA requests for employee work location information, expressed differently in different communications, and was given twenty-four hours to comply with all of those requests, SBA never provided offeror with a list identifying the employees for whom it required such information, SBA\rquote s requests for work location data failed to suggest a particular format that would satisfy SBA\rquote s need for documentation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration\rquote s (SBA) decertification of offeror from the Historically Underutilized Business Zone (HUBZone) program was reasonable; offeror did not provide work location information for each of its employees, and therefore the SBA did not have sufficient information to perform its analysis of the location of the offeror\rquote s principal office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': 10, 2011. In its complaint, RCD challenges the decision by the United States Small Business Administration (SBA) decertifying RCD from the Historically Underutilized Business Zone (HUBZone) program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': SBA does not have unlimited time to decide HUBZone status protests. The regulation, in pertinent part, contains two statements regarding the time allowed for processing a HUBZone status protest: (1) \SBA will determine the HUBZone status of the protested HUBZone SBC [Small Business Concern] within 15 business days after receipt of the protest\; (2) \If SBA does not contact the contracting officer within 15 business days, the contracting officer may award the contract, unless the contracting officer has granted SBA an extension.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 72 - RCD Cleaning Service Inc v US.doc, Paragraph with 'The Rule of Two': \The purpose of the HUBZone program is to provide federal contracting assistance for qualified [small business concerns] located in historically underutilized business zones in an effort to increase employment opportunities, investment, and economic development in such areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 80 - ICP Northwest LLC v US.doc, Paragraph with 'The Rule of Two': The solicitations provide that BPAs will first be offered to HUBZone small business concerns and Service Disabled Veteran Owned Small Business (\SDVOSB\) concerns. AR 35(\u167 B). If not enough offers are received from either HUBZone or SDVOSB concerns, additional awards will be made to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 80 - ICP Northwest LLC v US.doc, Paragraph with 'The Rule of Two': Similarly, orders issued pursuant to the BPAs will first go to HUBZone and SDVOSB concerns, with priority given to those with the lowest price. AR 49 (\u167 D.6.2). If there are no HUBZone and SDVOSB concerns available, orders will be issued to small businesses with priority given to those with the lowest price. AR 35(\u167 B). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Section M of the solicitation established five evaluation factors: (1) Past Performance, (2) Management/Operations Plan, (3) Small Business Subcontracting Plan, (4) Technical Approach to Sample Task Order, and (5) Price. AAR at 318\u821119; CAR 4\u821111. As to the relative importance of the five evaluation factors, the solicitation stated that the evaluation factors other than cost or price, when combined, were \significantly more important than cost or price.\ AAR 318. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Section L of the solicitation instructed offerors to organize their proposals into five volumes: Volume I was to include the offeror\rquote s Section B price proposals for each region in which it was competing; Volume II, the offeror\rquote s past performance information and small business contracting plan; Volume III, the offeror\rquote s management and operations plan; Volume IV, the offeror\rquote s technical response to the STO; and Volume V, the offeror\rquote s \pricing information\ for the STO. AAR 351\u821152. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': In addition, all offerors were rated \Outstanding\ with regard to the Small Business Subcontracting Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Volume II: The small business subcontracting plan does not affirmatively state that indirect costs are either included or excluded from the proposed goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Volume II: The small business subcontracting plan does not provide details on how you will achieve goals or improve contribution by small businesses at the sub-category level. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': Volume II: Past performance in meeting small business subcontracting goals shows mixed results. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': voting members of the technical evaluation team read each proposal and completed individual assessments. The team met and developed consensus ratings for all the factors and subfactors. The SSEB assigned new proposal risk ratings and summarized the technical evaluation team\rquote s consensus ratings for all factors and subfactors. As before, all offerors received the highest available ratings for Past Performance, Management/Operation Plan, Small Business Contracting Plan, and the technical evaluation of the STO. CAR 1010. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': with regard to the Small Business Subcontracting factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': past performance for both ECC and AshBritt, Inc. are comparable. Both proposals had very good management/operations plans. AshBritt, Inc.\rquote s offer had no identified weaknesses in the management/operations plans. ECC\rquote s proposal did not discuss the number of monitors in relation to the number of crews in the field. Also, the recycle plan was not new and innovative. The proposal did not adequately discuss green waste initiatives. For the Small Business Subcontracting Plan, neither proposal had an identified weakness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': The SSA addressed non-cost factors first, noting that they were significantly more important than price. The SSA observed that both offerors\rquote proposals had good management/operations plans, and neither had an identified weakness for their Small Business Subcontracting Plan. The SSA further determined that P & J\rquote s and Ceres\rquote past performance were comparable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 81 - Ceres Environmental Services Inc v US.doc, Paragraph with 'The Rule of Two': \u8226 Under past performance, proposal demonstrated past performance as a prime contractor in Hurricane Katrina, and exceeded goals for small business during Hurricane Katrina. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Paragraph with 'The Rule of Two': The agency chose to satisfy its needs through a Simplified Acquisition Procedure requesting from interested vendors firm fixed-price quotations for the buses. Interested vendors were required to submit their quotations online through the Virtual Incident Procurement (VIPR) system. AR 445. The BPAs were awarded on the basis of a \cascading set-aside procedure,\ whereby preference would be given to eligible HUBZone small business concerns and Service Disabled Veteran Owned Small Business concerns, and then to other responsible small business concerns. Solicitation \u167 B (Method of Award). Orders issued against awarded BPAs were to be made using the same order of preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Paragraph with 'The Rule of Two': The Forest Service desired to establish multiple BPAs for each of a number of Host Dispatch Zones or Geographical Area Coordination Centers. AR 5. In the event of forest fire or all-hazard incident, the dispatcher for the affected Host Dispatch Zone would place an order against one or more of the BPAs, in accordance with the ordering protocol, or Dispatch Priority List (DPL). AR 17. Under the Solicitation, BPAs are issued on a lowest-price basis. The DPLs give priority first to HUBZone small business concerns, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Paragraph with 'The Rule of Two': , with the lowest evaluated price from such an entity to be ranked highest on the DPL. In the event there are insufficient HUBZone vendors to meet the anticipated need, then orders are placed from small business concerns, generally, which are likewise ranked by the DPL on the basis of price. AR 1; 6\u82117; 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Paragraph with 'The Rule of Two': \u167 2:16 (Purpose of the BPA \is to reduce administrative costs, improve opportunities for small business concerns, to promote efficiency and economy in contracting, and to avoid undue burdens for agencies and contractors.\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Incumbent small business contractor brought action challenging the government\rquote s decision to procure credit reports using the federal supply schedule (FSS) rather than continue its procurement pursuant to the requirement it had set aside for small businesses. Parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , J., held that because contractor\rquote s contract had expired, procuring agency was free to procure credit reports using the FSS without regard to whether its requirement had been or could be met through set-aside or preference program for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Because incumbent small business contractor\rquote s contract had expired, procuring agency was free to procure credit reports using the federal supply schedule (FSS) without regard to whether its requirement had been or could be met through set-aside or preference program for small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , the plaintiff challenges the government\rquote s September 2008 decision to procure credit reports using the Federal Supply Schedule (\FSS\) rather than continue its procurement pursuant to the requirement it had set aside for small businesses in 2007. The plaintiff was the small business incumbent providing credit reports before its contract expired in 2008. Because nothing in the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (2006) or applicable regulations requires an agency to retain a requirement in the small business set-aside program if the agency can meet its needs through the FSS, and because there is no evidence to show that the agency abused its discretion when it decided to meet its credit report needs using the FSS, the court determines that the plaintiff\rquote s challenge must fail and that the government is entitled to judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': States Department of the Air Force (\Air Force\) under a one-year contract (No. FA 3089\u821108\u8211P\u82110018, effective October 1, 2007 through September 30, 2008) awarded as a direct sole-source contract under the Small Business Association (\SBA\) 8(a) Business Development Program (\8(a) program\ or \8(a) BD program\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': AR 132. K\u8211LAK sent a letter to the SBA challenging the Air Force\rquote s decision not to procure from a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The court held that K\u8211LAK could challenge the government\rquote s decision to use the FSS rather than continue use of a small business set-aside because, as a small businesses that would have had a substantial chance at award if the FSS procurement were found to be not in accordance with law, K\u8211LAK was an interested party with standing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . In essence, the plaintiff argues that the Air Force\rquote s procurement of credit reports from the FSS violates both the rules of the SBA and the FAR because the Air Force effectively removed the requirement from the 8(a) program and awarded a follow-on contract to a large business. In response, the government argues that (1) the Air Force\rquote s use of the FSS is not the same as withdrawal of the requirement from the 8(a) program; (2) the agency had discretion to decide which procurement method meets its needs; and (3) the agency was not legally obligated to continue procuring credit reports using a small business set-aside when a product on the FSS met its mission requirements at a lower price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': that K\u8211LAK and other small businesses were incapable of supplying the credit reports the Air Force needed at a \fair market price.\ K\u8211LAK argues that the Air Force did not conduct a proper study of market prices under FAR Part 19 (regarding small business set-asides). FAR Part 19 provides: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The contracting officer shall set aside any acquisition over $150,000 for small business participation when there is a reasonable expectation that (1) offers will be obtained from at least two responsible small business concerns offering the products of different small business concerns ... and (2) award will be made at fair market prices. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . This so-called \Rule of Two\ requires a contracting officer to make a determination as to whether at least two small businesses could provide the relevant good or service at a fair market price before proceeding with the procurement process with a larger business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': While the government defends the Air Force\rquote s evaluation of fair market price in connection with its decision not to exercise the K\u8211LAK option, it argues that it was not necessary for the Air Force to evaluate price under FAR Part 19 when it decided to use the FSS, because, by law, the price comparison provisions of Part 19 do not apply when an agency decides to meet its mission requirements through the FSS. In support of this contention, the government points to several FAR provisions, including FAR Part 8, which provides, \Parts 13 ... 14, 15, and 19 [regarding small business set-asides] (except for the requirement at 19.202\u82111(e)(1)(iii) [regarding bundling] ) do not apply to [blanket purchase agreements (\BPAs\) ] or orders placed against Federal Supply Schedules contracts ...,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': ; and FAR Part 19 on set-asides for small businesses, which states that requirements for setting aside acquisitions do not apply to \purchases from required sources of supply under Part 8 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The court agrees with the government and concludes for the reasons set forth below that because the Air Force decided to use the FSS after K\u8211LAK\rquote s contract expired, the Air Force was not required to comply with the Rule of Two or any of the other regulations applicable to small businesses that the plaintiff relies upon in its complaint and subsequent briefing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The plaintiff has not cited and the court has not found any statutory or regulatory support for the plaintiff\rquote s underlying contention that, where the required goods or services are available from the FSS, the FAR or SBA rules mandate that an agency continue to procure the goods or services as a small business set-aide. To the contrary, the court finds that there are no such restrictions applicable when an agency decides to use the FSS to meet agency needs. Therefore, a procuring agency is free to decide whether to use the FSS without regard to whether the requirement has been or could be met through a set-aside or preference program. The language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , quoted above, makes it plain that the small business set aside rules relied upon by the plaintiff do not apply to purchases under the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The Comptroller General has reached this same conclusion in several similar cases, repeatedly denying protests in which small business protesters have argued that an agency inappropriately failed to follow rules Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': regarding small business set-asides when an agency decided to meet its requirements via the FSS. For instance, in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , a small business challenged an agency\rquote s issuance of a BPA against an FSS contract. The agency had previously issued a solicitation using service-disabled veteran-owned small business (\SDVOSB\) procedures and subsequently cancelled the SDVOSB solicitation in favor of acquiring the relevant services via the successful vendor\rquote s FSS contract. The Comptroller General stated: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The regulations implementing the Small Business Act and [the General Service Agency\rquote s] FSS Program expressly anticipate and exclude FSS buys from set-aside requirements. [citations omitted] In this regard, FAR sect. 8.404(a) and sect. 38.101\u8212both of which pertain to FSS contracting\u8212provide that FAR part 19, pertaining to small business programs, do not apply to BPAs or orders placed against FSS contracts. Similarly, FAR sect. 19.502\u82111(b), which implements small business requirements, also confirms that set-aside provisions do not apply to FSS buys. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Nothing in the Small Business Act suggests or requires that the Rule of Two ... takes precedence over the FSS program. To the contrary, and as noted above, the implementing regulations for the small business set-aside program and the FSS program expressly provide that set-aside requirements for the program do not apply to FSS buys. [citations omitted] Accordingly, we conclude that the Small Business Act and its implementing regulations do not impose a requirement on agencies to first evaluate whether a solicitation should be set-aside for small businesses before purchasing the goods or services through the FSS program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (denying protester\rquote s argument that \where an agency initially competes a requirement as a small business set-aside, it should be required to complete the competition on that basis,\ holding that small business procedures do not apply to orders placed against FSS contracts); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (denying protester\rquote s argument that agency\rquote s purchase from FSS should have been set aside for small business concerns, holding FAR provision \obviates the need for agencies to apply small business set-aside procedures where ... they are purchasing from the FSS\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': at 478 (2008) (\Small Business Program requirements in FAR Part 19 do not apply to GSA Schedule contract orders.\). The court agrees with the Comptroller General\rquote s reasoning and reading of the relevant FAR provisions in the above-cited decisions and finds that the plaintiff\rquote s situation in this case is not distinguishable from the protestors\rquote in those GAO cases. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Further, contrary to the plaintiff\rquote s contentions, a different result is not compelled because the agency\rquote s request to \withdraw\ the requirement from the small business set-aside program in this case was rejected by the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': , which governs withdrawal and modification of small business set-asides, is not identified as an exception to the general rule that purchases off of the FSS are exempt from the small business set-aside procedures in Part 19. Indeed, the Comptroller General considered just this issue in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': at 479 (\[A]gencies are not obligated to conduct procurements on a small business set-aside basis even if the procurement involves the same requirements that have been awarded in a small business set-aside contract in the past.\ (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (holding that the agency had discretion to use contracting method of its choice unless prohibited by statute or regulation and was not required to consider whether small businesses could provide the same or similar product at a fair market price in indefinite delivery/indefinite quantity context). The record demonstrates that the credit reports prepared by Equifax and obtained through the FSS are similar to K\u8211LAK\rquote s and were sufficient to meet the Air Force\rquote s needs. The record also establishes that Equifax\rquote s price for the reports is substantially lower than the prices charged for similar reports by K\u8211LAK and other potential providers. In such circumstances, the Air Force\rquote s decision to use the FSS was reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The 8(a) program is designed to give small businesses owned and controlled by socially and economically disadvantaged individuals access to the federal procurement market. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (including a detailed discussion of the legislative history of the Small Business Act and its preference programs in particular). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The competition procedures in FAR Parts 13, 14, and 15 and the Small Business Program rules in FAR Part 19 do not apply to orders placed against and fully within the scope of existing FSS contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . Small businesses are, however, considered for inclusion on the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': . In addition, agencies are \encouraged to consider small businesses for [FSS contract] award, and they receive credit toward their small business goals when placing orders with small business GSA Schedule contractors.\ Sherry et al., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (2) May consider the effect on small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (iii) The concern qualifies as a small business for the requirement now offered to the 8(a) BD program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': (3) If SBA declines to accept the offer and releases the requirement, it will recommend to the procuring activity that the requirement be procured as a small business or, if authorized, [a Small Disadvantaged Business] set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': As the court has noted, the agency\rquote s option exercise decision is not currently before the court. The court could have reviewed that decision had the plaintiff timely challenged it pursuant to this court\rquote s CDA jurisdiction, but the court may not review that decision now and not pursuant to its bid protest jurisdiction. In addition, the plaintiff\rquote s arguments regarding the merits of the market survey are not supported. The plaintiff argues that the Air Force erred by considering products offered by large companies in its market survey performed to determine fair market price, arguing that the Air Force\rquote s analysis should have been restricted to small businesses. This contention is contrary to the rules governing price analyses, which authorize consideration of \commercial prices for similar products,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': K\u8211LAK has acknowledged that it may not challenge in this action the Air Force\rquote s decision not to exercise the contract options under FAR Part 17 because that decision is outside the scope of this court\rquote s bid protest jurisdiction. Rather, this bid protest action is focused on the Air Force\rquote s decision to use the FSS for its credit report procurement rather than entering into a contract through a small business set-aside as it had previously. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': The court notes that FAR Part 8 also provides, \Orders placed under Federal Supply Schedules are exempt from the requirements in Part 6 [regarding general requirements for competition and small business set-asides].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'The Rule of Two': Small Business Administration, 74 Fed.Reg. 55694, 55705 (proposed Oct. 28, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Government contractor brought suit challenging its decertification by Small Business Administration (SBA) as Historically Underutilized Business Zone (\HUBZone\) small business concern (SBC). Parties filed cross-motions for judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Court of Federal Claims had jurisdiction under Tucker Act over government contractor\rquote s suit challenging its decertification by Small Business Administration (SBA) as Historically Underutilized Business Zone (HUBZone) small business concern (SBC), which impaired its ability to seek award of Air Force contract, such that action was action by an interested party objecting to an alleged violation of a statute or regulation in connection with a procurement or a proposed procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': If Small Business Administration\rquote s (SBA) interpretation of its regulation is reasonable or where relevant sources of law are ambiguous regarding issue presented in bid protest, court must defer to SBA\rquote s interpretation, so long as it is not inconsistent with regulation, or plainly erroneous. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Bidder certified by Small Business Administration (SBA) as Historically Underutilized Business Zone (HUBZone) small business concern (SBC) must satisfy requirement that at least 35% of its employees reside in HUBZone at time of submission of its initial offer and at time of award; safe harbor that the concern \attempt to maintain\ residency targets applies only during performance of the contract, and does not relieve bidder of residency threshold at time of bid or award. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , Director, and Alan J. Lo Re, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; and Karen H. Holzen, Office of General Counsel, U.S. Small Business Administration, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': In this action, Plaintiff Mission Critical Solutions (\MCS\) challenges its decertification by the Small Business Administration (\SBA\) as a Historically Underutilized Business Zone (\HUBZone\) small business concern (\SBC\). The effect of its decertification is that Plaintiff cannot compete for government contracts which require HUBZone qualification as a condition for bidding and award, including in particular Department of the Air Force Solicitation FA8773\u821110\u8211R\u82110053, which is a 100% set-aside for HUBZone small businesses. Plaintiff seeks judgment on the Administrative Record (\AR\), declaratory relief that the SBA improperly decertified MCS as a qualified HUBZone SBC, and an injunction against the award of the Air Force solicitation pending the restoration of MCS to the HUBZone List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': Small Business Administration 2009 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': The Historically Underutilized Business Zone (\HUBZone\) program, codified in the Small Business Act at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': (unpublished). It allows federal agencies, in cooperation with the Small Business Administration, to establish small business set-asides \to aid small businesses located in economically disadvantaged or distressed areas.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': , entitled \What requirements must a concern meet to receive SBA certification as a qualified HUBZone SBC?\ For a nonagricultural, non-Indian Tribal Government entity such as MCS, there are six requirements. These requirements involve standards relating to: 1) percentage of ownership and control by United States citizens, 2) size as a small business, 3) location of the principal office of the concern within the HUBZone, 4) percentage of the concern\rquote s employees residing with the HUBZone, 5) attempting to maintain that percentage during the performance of any HUBZone contract, and 6) certain subcontracting performance obligations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 86 - Mission Critical Solutions v US.doc, Paragraph with 'The Rule of Two': [W]hen enacting the HUBZone program, Congress was well aware that small businesses must hire employees to perform on specific contracts. Because the hiring of additional employees for a specific HUBZone contract could impact the businesses\rquote ability to meet the 35% HUBZone residency requirement, the HUBZone small business is required, by statute, to \attempt to maintain\ that requirement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 90 - OK's Cascade Co v US.doc, Paragraph with 'The Rule of Two': On February 13, 2004, the Forest Service issued solicitation RFP 49\u821103\u821107 (the \2004 Solicitation\) as a partial small business set-aside, through which the agency intended to provide multiple awards for contracts that were referred to collectively as the National Mobile Food Services Contracts or \national contracts.\ (Stip. \u182 1.) The intent of the solicitation was \to obtain Mobile Food Services to provide tasty, well balanced hot and special meals, sack lunches, and hot and cold can meals, and supplemental items at various field locations some of which will be semi-remote.\ (DX 3.18.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 90 - OK's Cascade Co v US.doc, Paragraph with 'The Rule of Two': After the 2004 fire season concluded, the agency issued a request for proposals for the 2005 season on a total small business set-aside basis. (Stip. \u182 49.) OK\rquote s Cascade is not an eligible small business and could not submit a proposal for the 2005 solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 90 - OK's Cascade Co v US.doc, Paragraph with 'The Rule of Two': Second, OK\rquote s Cascade asserts that had it known it would be operating under EERAs with less stringent standards, it would not have undertaken the efforts to renovate its kitchens to meet the requirements for the 2004 Solicitation. (Pl.\rquote s Post\u8211Trial Resp. Br. 15.) Third, OK\rquote s Cascade states that its losses are compounded by the fact that it could not compete for the re-solicitation of the contract in the 2005 fire season because the solicitation in that year was a total small business set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 90 - OK's Cascade Co v US.doc, Paragraph with 'The Rule of Two': OK\rquote s Cascade argues that because the 2005 solicitation was a total small business set-aside in which it could not participate, in essence, the Forest Service\rquote s termination \resulted in OK\rquote s going out of business for providing mobile kitchen services for national contracts for wildland firefighting activities.\ (Pl.\rquote s Post\u8211Trial Br. Arg. 11.) As noted before, the 2005 solicitation is entirely irrelevant to damages resulting from the termination of the 2004 contract, and the Forest Service never promised OK\rquote s Cascade any performance beyond the 2004 dates provided in the national contract. In essence, OK\rquote s Cascade argues that when a contract reaches its natural termination date, the contractor is put out of business for providing services under that contract. While perhaps a true statement, going \out of business\ in this manner is not a compensable injury. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': in which it alleged that the Air Force violated the Small Business Act by not giving requisite priority to HUBZone small business concerns in a procurement for housing maintenance, inspection, and repair services at an Air Force base. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Contractor was the prevailing party in its bid protest against the Air Force, where it was successful on all of its arguments that the Air Force should have applied statutory preference for HUBZone small business concerns, and it overcame the Air Force\rquote s affirmative defense that the court lacked jurisdiction due to contractor\rquote s failure to file a judicial action prior to the closing date for receipt of proposals. Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s position that contractor waived its right to challenge Air Force\rquote s alleged violation of Small Business Act in conducting small business set-aside procurement for military housing maintenance services was not substantially justified, and, thus, contractor was entitled, as the prevailing party in bid protest against Air Force, to an award of attorney fees, costs, and expenses pursuant to the Equal Access to Justice Act (EAJA), where contractor timely challenged alleged defect in solicitation before closing date for receipt of proposals and diligently pressed position at each step of administrative process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Air Force\rquote s position that it was not required, under the Small Business Act and implementing regulations, to give priority to HUBZone small business concerns in a procurement for housing maintenance, inspection, and repair services was not substantially justified, and, thus, contractor that prevailed in its bid protest against the Air Force was entitled to an award of attorney fees, costs, and expenses pursuant to the Equal Access to Justice Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Act (EAJA), where, at time contractor filed suit, multiple courts had uniformly held that the Act unambiguously required that the HUBZone program be given a preference over other small business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ; Small Business Act, \u167 2[31], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , Small Business Administration, Of Counsel, for Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . DGR prevailed in its bid protest against the United States Air Force, showing that, in a procurement for housing maintenance, inspection, and repair services at Eielson Air Force Base, Alaska, the Air Force violated the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': , by not giving a priority to HUBZone small business concerns. The Court issued an injunction requiring the Air Force to terminate an unlawfully awarded contract, and to apply the statutory HUBZone preference in a new or revised solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': DGR prevailed on all of its arguments that the Air Force should have applied the statutory preference for HUBZone small business concerns. The Court issued an injunction requiring the Air Force to comply with the Small Business Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Defendant essentially presented two arguments in the underlying litigation to show why DGR\rquote s judicial bid protest should fail: (1) DGR waived its right to bring suit in this Court by not filing its action prior to the closing date for receipt of proposals; and (2) under the Small Business Act and applicable regulations, as interpreted by at least three executive agencies, the Air Force was not required to give priority to HUBZone small business concerns. The Court will address both of these arguments below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Statutory Preference for the HUBZone Small Business Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Defendant\rquote s second argument, that under the Small Business Act and implementing regulations, the Air Force was not required to give priority to HUBZone small business concerns, contradicted the plain meaning of the Small Business Act. Defendant asserts that the interpretation of the statute was a novel issue, and thus its position was substantially justified. (Def.\rquote s Resp. 19\u821120, Jan. 6, 2011.) However, the Court concludes otherwise, that the interpretation of the HUBZone statutory language was not novel. Due to the unambiguous wording of the statute, and the existing case law precedent, Defendant\rquote s position in the underlying litigation was not reasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': When DGR filed suit in this Court for declaratory and injunctive relief on June 28, 2010, multiple courts and the GAO uniformly had held that the Small Business Act was unambiguous, and that the HUBZone program should be given a preference over other small business programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': ( \Congress has used clear language to mandate, \u8216notwithstanding any other provision of law,\u8217 the award of contract opportunities on the basis of competition restricted to qualified HUBZone small business concerns when certain, specific criteria are met.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': (\[T]he statutory language is mandatory and that the plain meaning of the HUBZone statute requires a contract opportunity to be competed among qualified HUBZone small business concerns whenever the specified criteria are met, notwithstanding other provisions of law\u8212including those found within the Small Business Act itself.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Small Business Administration Reconsideration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': Furthermore, Defendant\rquote s position did not have a reasonable basis in law, as the HUBZone statutory language was unambiguous. The GAO \read the plain language of the HUBZone statute as requiring an agency to set aside an acquisition for competition restricted to qualified HUBZone small business concerns where it has a reasonable expectation\ that the two pre-conditions of the HUBZone statute would be satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 91 - DGR Associates Inc v US.doc, Paragraph with 'The Rule of Two': . If the Air Force simply had elected to follow the GAO\rquote s decision, DGR\rquote s lawsuit would not have been necessary. However, the Air Force rejected the GAO\rquote s decision, forcing DGR to pursue further litigation in this Court. Given the clear statutory language, Defendant was unreasonable in putting DGR to additional effort and expense. The Court\rquote s analysis of the Small Business Act\rquote s HUBZone program found no room for debate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 93 - Hi-Tech Bed Systems Corp v US.doc, Paragraph with 'The Rule of Two': (Plaintiff waived objection to a term of a solicitation designating the procurement as a small business set aside by failing to object prior to the contract award);
import os
import pandas as pd
# Step 1: Loop each '.doc' file under all subdirectories
root_dir = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
doc_files = []
for subdir, dirs, files in os.walk(root_dir):
for file in files:
if file.endswith('.doc'):
doc_files.append([subdir, file])
# Step 2: Produce a dataframe that includes [subdir (excluding filename), filename]
df_doc_files = pd.DataFrame(doc_files, columns=['Subdir', 'Filename'])
df_doc_files['small_business'] = 0 # By construction, set 'small_business' to zero
# Step 3: Check if [Subdir, Filename] exist in [Subdir, Filename] of 'paragraphs_with_regex_small_business.xlsx'
df_small_business = pd.read_csv('paragraphs_with_regex_sb.csv')
df_doc_files['small_business'] = df_doc_files.apply(lambda row: 1 if any(
(df_small_business['Subdir'] == row['Subdir']) & (df_small_business['Filename'] == row['Filename'])) else 0, axis=1)
# Step 4: Count the unique number of [Subdir, Filename] in 'paragraphs_with_regex_small_business.xlsx'
unique_small_business = df_small_business[['Subdir', 'Filename']].drop_duplicates().shape[0]
print(f"Unique [Subdir, Filename] in paragraphs_with_regex_small_business.xlsx: {unique_small_business}")
# Step 5: Count the sum of variable 'small_business'
sum_small_business = df_doc_files['small_business'].sum()
print(f"Sum of 'small_business': {sum_small_business}")
Unique [Subdir, Filename] in paragraphs_with_regex_small_business.xlsx: 974 Sum of 'small_business': 974
df_doc_files
| Subdir | Filename | small_business | |
|---|---|---|---|
| 0 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 001 - PDS Consultants Inc v United States.doc | 1 |
| 1 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 002 - Veterans Contracting Group Inc v United ... | 1 |
| 2 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 003 - Q Integrated Companies LLC v United Stat... | 1 |
| 3 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 004 - In re Global Computer Enterprises Inc.doc | 0 |
| 4 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 005 - AT And T Corp v United States.doc | 0 |
| ... | ... | ... | ... |
| 3400 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 95 - Nilson Van And Storage v US.doc | 0 |
| 3401 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 96 - L-3 Communications Integrated Systems LP ... | 0 |
| 3402 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 97 - Acrow Corp of America v US.doc | 0 |
| 3403 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 98 - Fulcra Worldwide LLC v US.doc | 0 |
| 3404 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 99 - Washington Consulting Group Inc v Raytheo... | 0 |
3405 rows × 3 columns
df_doc_files.describe()
| small_business | |
|---|---|
| count | 3405.000000 |
| mean | 0.286050 |
| std | 0.451979 |
| min | 0.000000 |
| 25% | 0.000000 |
| 50% | 0.000000 |
| 75% | 1.000000 |
| max | 1.000000 |
import csv
import os
import re # Import the regular expression module
def clean_text(text):
# Replace the specific sequences with desired characters or an empty string
text = text.replace('u8220' , "") # Example: replacing with a standard left double quotation mark
text = text.replace('u8221' , "") # Example: replacing with a standard right double quotation mark
text = text.replace('\\\'3f', '') # Removes the sequence \'3f correctly
# Add more replacements as needed
return text
def save_paragraphs_with_regex_to_csv(root_dir, csv_filename='paragraphs_with_regex_vet.csv'):
# Compile the regular expression for efficiency in a loop
pattern = re.compile(r'veteran', re.IGNORECASE) # Case-insensitive search
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir','Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if ".doc" in filename:
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if pattern.search(paragraph): # Use re.search to find the pattern
paragraph = clean_text(paragraph)
print(f"Dir: {subdir}, File: {filename}, Paragraph with 'Veteran: {paragraph}") # Keep printing
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_regex_to_csv(root_directory)
Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: After service-disabled veteran-owned small business (SDVOSB) was granted judgment on administrative record, by the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying \rule of two\ analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), incumbent contractor filed motion, as defendant-intervenor, seeking stay pending appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The Javits-Wagner-O\rquote Day Act (JWOD) generally requires federal agencies, including but not limited to the Veterans Administration (VA), to purchase products and services from designated nonprofits that employ blind and otherwise severally disabled people when those products and services are listed on the AbilityOne Procurement List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The Veterans Benefits, Health Care, and Information Technology Act (VBA) generally requires the Veterans Administration (VA) to set goals for providing contracts to veteran-owned small businesses (VOSBs), with a special preference for service-disabled veteran-owned small businesses (SDVOSBs), and further requires that the VA perform a \rule of two\ analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services; if the rule of two is met, the VA must conduct the competition for such products or services only among VOSBs or SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small business\rquote s (SDVOSB) challenge to Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD), before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was \in connection with a procurement or a proposed procurement,\ within meaning of Tucker Act, providing bid protest jurisdiction, since VA made clear that, absent judicial intervention, VA would continue to enter into eyewear contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor\rquote s appeal of judgment for service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two analysis prescribed under Veterans Benefits, Health Care, and Information Technology Act (VBA), was substantial case on merits, in support of granting stay of procurement pending appeal, since issues on appeal were of first impression involving important contracting preferences and thus were fair ground for litigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor would suffer irreparable harm in absence of stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA); incumbent contractor was nonprofit that existed to provide employment, training, and services to blind persons, so incumbent\rquote s harm was unique from other incumbents in that judgment would cause incumbent to lose 62% of optical services revenue or 15.5% of total revenue, likely resulting in loss of employment opportunities for blind persons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Balance of harms favored stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and services from list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA), since harm to incumbent contractor from loss of 62% of its optical services revenue or 15.5% of its total revenue that would likely result in loss of employment opportunities for blind persons was more significant than hypothetical harm to SDVOSB from inability to compete for eyewear contracts during pendency of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Public interest supported grant of stay pending appeal of judgment in favor of service-disabled veteran-owned small business (SDVOSB), in SDVOSB\rquote s bid protest challenging Veterans Administration\rquote s (VA) continued procurement of eyewear products and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: services from AbilityOne procurement list created under Javits-Wagner-O\rquote Day Act (JWOD) before first applying rule of two required by Veterans Benefits, Health Care, and Information Technology Act (VBA), since harm to incumbent contractor from loss of 62% of its optical services revenue or 15.5% of its total revenue that would likely result in loss of employment opportunities for persons who were blind and had severe disabilities outweighed hypothetical harm to SDVOSB from inability to compete for eyewear contracts during pendency of appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , Staff Attorney, Department of Veterans Affairs, of counsel. Timi N. Kenealy, General Counsel, and John Konst, Assistant General Counsel, Committee for Purchase from People who are Blind or Severely Disabled, Arlington, VA of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Stay Pending Appeal; Application of the Veterans Benefits, Health Care, and Information Technology Act of 2006 when products and services are listed on the AbilityOne Procurement List. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: This bid protest case was originally filed by plaintiff, PDS Consultants Inc. (\PDS\), a service-disabled veteran-owned small business (\SDVOSB\), on August 25, 2016 challenging the Veterans Administration\rquote s (\VA\) continued procurement of products and services from the AbilityOne Procurement List created under the Javits\u8211Wagner\u8211O\rquote Day Act (\JWOD\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: before first applying the \Rule of Two\ analysis prescribed under the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\VBA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The VBA generally requires the VA to set goals for providing contracts to veteran-owned small businesses (\VOSBs\), with a special preference for SDVOSBs, and further requires that the VA perform a Rule of Two analysis to determine whether at least two VOSBs are capable of performing the work at fair market value before procuring goods and services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: At issue in this protest was whether the requirement that the VA conduct a Rule of Two analysis to determine whether to restrict a procurement to VOSBs or SDVOSBs under the VBA applies when a good or service has been previously placed on the AbilityOne Procurement List. Specifically, the protest focused on the VA\rquote s decision to procure eyewear products and services from an AbilityOne nonprofit for four Veterans Integrated Service Networks (\VISNs\) without performing a Rule of Two analysis. Eyewear products and services for VISNs 2 and 7 were added to the AbilityOne Procurement List before 2010. VISNs 6 and 8 were added to the AbilityOne Procurement List after 2010. In its protest PDS, a SDVOSB, argued based on the plain language of the VBA and the broad reading to the language of the VBA given by the Supreme Court in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: As relevant here, the VBA provides: \(d) USE OF RESTRICTED COMPETITION.\u8212Except as provided in subsections (b) and (c) [with regard to circumstances when noncompetitive procedures are authorized with SDVOSB and VOSB concerns] for purposes of meeting the goals under subsection (a) and in accordance with this section, a contracting officer of the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The statute also sets out the order of priority and gives SDVOSB concerns a first priority between veteran owned businesses. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Specifically, the VA\rquote s 2017 Veterans Administration Acquisition Regulation 808.002 provides that the VA will apply the Rule of Two before procuring any item on the AbilityOne Procurement List if that item was added on or after January 7, 2010. It states in relevant part: \Priorities for use of mandatory Government sources. (a)(1) Supplies.... (iv) Supplies on the Procurement List maintained by the Committee for Purchase of People Who are Blind or Severely Disabled, known as AbilityOne ... Supplies on the Procurement List are mandatory only if: (1) The supplies were added to the Procurement List prior to January 7, 2010, and the date the supplies were added is readily available; or (2) The supplies were added to the Procurement List on or after January 7, 2010, the VA Rule of Two ... was applied prior to the addition of the supplies to the Procurement List, and that information is readily available ... (C) When the VA Rule of Two is not satisfied and award to eligible SDVOSBs/VOSBs.... will not occur, the priority use of AbilityOne ... applies.\ The same language is repeated with regard to services in the next section of the regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: National Industries for the Blind et al. v. The Department of Veterans Affairs et al., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 001 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: In this connection, the court distinguished the 2006 VBA at issue in this protest with the Veterans Benefit Act of 2003, which amended the Small Business Act to provide authority for contracting officers throughout the government to restrict competition to SDVOSB concerns, but which expressly provides that the SDVOSB preference is not permitted if the procurement would otherwise be made under the JWOD. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans Contracting Group, Inc. v. United States, 133 Fed.Cl. 613 (2017) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: VETERANS CONTRACTING GROUP, INC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Contractor filed pre-award bid protest against United States, challenging Department of Veterans Affairs\rquote (VA) removal of contractor from VA database for qualified service-disabled veteran-owned small businesses (SDVOSBs) and Small Business Administration\rquote s (SBA) underlying determination that contractor was ineligible to compete for federal contracts as SDVOSB. Contractor moved for preliminary injunction requiring VA to reinstate contractor into SDVOSB database and to enable contractor to compete for VA\rquote s two procurements that were set aside for SDVOSBs. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Contractor that was removed by Department of Veterans Affairs (VA) from database for qualified service-disabled veteran-owned small businesses (SDVOSBs), after Small Business Administration (SBA) determined that contractor was ineligible to compete as SDVOSB, was \interested party,\ within meaning of Tucker Act, as required for standing to pursue pre-award bid protest of two VA procurements set aside for SDVOSBs, since contractor was actual bidder for one contract and prospective bidder for second contract, and contractor had direct economic interest in both procurements due to VA\rquote s deprivation of contractor\rquote s opportunity to compete for contracts by allegedly erroneously removing contractor from SDVOSB database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Bid protestor, seeking preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so protestor could compete for VA set aside contracts, was more likely than not to succeed on merits of claim that VA\rquote s removal of protestor from database and Small Business Administration\rquote s (SBA) underlying decision that contractor was ineligible to compete as SDVOSB were arbitrary, capricious, and contrary to law; SBA unreasonably concluded that service-disabled veteran did not unconditionally own 51% of protestor\rquote s shares due to availability of optional buy-out that was contrary to regulation requiring SBA to disregard unexercised stock options in determining unconditional ownership. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Bid protestor would suffer irreparable harm in absence of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for VA contracts set aside for SDVOSBs, since absent injunctive relief protestor would be deprived of opportunity to compete for SDVOSB procurements with VA and any future SDVOSB solicitations for which protestor would otherwise be eligible competitor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Balance of hardships weighed in favor of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate bid protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for two VA procurements set aside for SDVOSBs, since protestor would suffer irreparable harm by denial of opportunity to compete for SDVOSB procurements with VA, and VA would not suffer harm from any delay due to protestor\rquote s reinstatement, as protestor would be eligible for competition without further delay of procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Public interest supported grant of preliminary injunction requiring Department of Veterans Affairs (VA) to reinstate bid protestor into VA\rquote s database for qualified service-disabled veteran-owned small businesses (SDVOSBs) so that protestor could compete for two VA procurements set aside for SDVOSBs, since public had strong interest in preserving integrity of procurement process, and protestor was more likely than not to succeed on merits of claim that VA\rquote s removal of protestor from database and Small Business Administration\rquote s (SBA) underlying decision that contractor was ineligible to compete as SDVOSB were arbitrary, capricious, and contrary to law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , Director, and Allison Kidd\u8211Miller, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington D.C. Of counsel were Steven Devine and Mark G. Machiedo, Office of General Counsel, United States Department of Veterans Affairs, and Karen Hunter, Office of General Counsel, United States Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Pre\u8211award bid protest; motion for a preliminary injunction; protester\rquote s qualification as a service-disabled veteran-owned small business; jurisdiction; standing; differences between VA\rquote s and SBA\rquote s regulations; likelihood of success on the merits; equitable factors Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: This pre-award bid protest is before the court on plaintiff\rquote s motion for a preliminary injunction and the government\rquote s motion to dismiss. Plaintiff, Veterans Contracting Group (\Veterans\), previously was verified Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: by the United States Department of Veterans Affairs (\VA\) as a service-disabled veteran-owned small business (\SDVOSB\). It has a history of bidding on and securing awards of contracts from the VA that are set aside for competition among firms qualifying as SDVOSBs. It planned to submit offers on two such solicitations announced by VA, but very recently it was disqualified as a SDVOSB as a result of a dispute that arose after Veterans received a contract award in January 2017 that was set aside for SDVOSBs. After another bidder protested the award, an area office of the Small Business Administration (\SBA\) determined in July 2017 that Veterans did not qualify as a SDVOSB and was therefore ineligible for the award. Shortly thereafter, the VA informed Veterans that it was being removed from the VA database for qualified SDVOSBs. Veterans then filed this bid protest with respect to the two SDVOSB procurements that have not yet been awarded, alleging that it is a qualified SDVOSB eligible for an award in those procurements and it should not have been removed from the VA database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: In seeking a preliminary injunction, Veterans requests that the court set aside the VA\rquote s decision to decertify Veterans as a SDVOSB, order the VA to reinstate Veterans into the SDVOSB database, and bar the VA from acting on the solicitations for awarding the two proposed contracts if and to the extent that Veterans is precluded from participating in the competition for those contracts. The government has opposed that motion and moved to dismiss Veterans\rquote complaint. For the reasons stated, Veterans\rquote motion is granted in part and the government\rquote s motion is denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: A. Veterans\rquote Inclusion in the SDVOSB Database Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans is a corporation organized under the laws of New York. Compl. \u182 24. Ronald Montano, a service-disabled veteran, owns 51 percent of the company and Greg Masone owns the remaining 49 percent. Compl. \u182\u182 22, 24. On July 17, 2013, the VA, acting through the Center for Veterans Enterprise (now known as the Center for Verification and Evaluation) (\CVE\), verified Veterans as a qualified SDVOSB on its Vendor Information Pages (\VIP\) database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: . The VA subsequently performed site visits and reaffirmed Veterans\rquote eligibility in 2014, 2015, and 2016. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Pl.\rquote s Mem. at 9, ECF No. 12\u82112. The VA explained that Veterans satisfied the eligibility requirements in 38 C.F.R. Part 74, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: B. SBA\rquote s Decision Regarding Veterans\rquote SDVOSB\u8211Eligibility Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: On January 5, 2017, Veterans learned that it was the lowest-priced bidder on an Invitation for Bids, solicitation number W912DS\u821116\u8211B\u82110017, issued by the United States Army Corps of Engineers \for the removal of hazardous materials and demolition of buildings at the St. Albans Community Living Center in Jamaica, New York.\ Compl. \u182\u182 7, 10. The award was set aside for SDVOSBs, and Veterans certified itself as such in making its bid. Compl. \u182\u182 8\u82119. On January 11, 2017, Williams Building Company (\Williams\), another bidder that was second in line for the award, filed a protest with the contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Williams asserted that Veterans was ineligible because it did not meet the size requirements for the procurement or qualify as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans thereafter provided additional information to SBA, including its shareholder agreement. AR Tabs 41\u821142; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: AR Tabs 43\u821160. An SBA area office determined that Veterans was eligible for the award in February 2017. AR Tab 13. Williams appealed that decision to the Office of Hearings and Appeals (\OHA\), AR Tab 11, and submitted supplemental briefing regarding Veterans\rquote status as a SDVOSB, specifically focusing on the company\rquote s shareholder agreement, AR Tab 10. Before OHA addressed that appeal, however, SBA requested a remand in March 2017 to \reconsider the issues raised on [a]ppeal.\ AR 9\u821176 to \u821178. OHA granted that request. AR 8\u821173. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: On July 18, 2017, the SBA area office determined that Veterans did not satisfy the SDVOSB eligibility requirements for the procurement and therefore sustained Williams\rquote protest. AR 2\u82113. The SBA office explained that Mr. Montano, a service-disabled veteran, did not \unconditionally\ own at least 51% of Veterans, as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: . AR 2\u82117 to \u82118. SBA specifically examined Veterans\rquote shareholder agreement and found that \upon shareholder death, incompetency, or insolvency, all of his or her shares must be purchased by the corporation at the Certificate of Value price.\ AR 2\u82117; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: AR 48\u8211450. According to SBA, that language restricted Mr. Montano\rquote s and his heirs\rquote ability \to convey or transfer their [Veterans\rquote ] stock,\ thus placing \impermissible conditions\ on Mr. Montano\rquote s ownership interest. AR 2\u82117 (relying upon Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: ). Additionally, SBA found that Veterans\rquote shareholder agreement prevented Mr. Montano from controlling the corporation, as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: AR 2\u82118 to \u821110. Veterans has stated that it appealed SBA\rquote s decision on August 1, 2017. Pl.\rquote s Mem. at 8 n.2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: C. The VA\rquote s Removal of Veterans from the VIP Database Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: On July 21, 2017, the VA informed Veterans that it was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: based on [the SBA area office determination that Veterans did not qualify as a SDVOSB].\ AR 4\u821114; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: D. Veterans\rquote Current Bid Protest Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans filed this bid protest on July 28, 2017, challenging the VA\rquote s decision to remove it from the VIP database and the underlying determination by SBA that it is ineligible to compete as a SDVOSB. Compl. \u182 1. Veterans alleges that the government\rquote s actions have precluded it from competing for two upcoming \VA SDVOSB set-aside procurements.\ Compl. \u182\u182 1\u82112. The first solicitation, number VA242\u821117\u8211B\u82110723, is a roof replacement contract at the Northport VA Medical Center in Northport, New York (\roofing solicitation\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: for a Prelim. Inj. and TRO and Def.\rquote s Mot. to Dismiss (\Def.\rquote s Resp.\) at 6, ECF No. 17. Veterans submitted its bid on the roofing solicitation before the deadline of July 28, 2017, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: On August 5, 2017, Veterans moved for a preliminary injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: It specifically requests that the court set aside CVE\rquote s decision to decertify Veterans as a SDVOSB, order the VA to reinstate Veterans into the VIP database, and enable Veterans to compete for the SDVOSB set-aside roofing and relocation solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Def.\rquote s Resp. Veterans\rquote motion for a preliminary injunction and the government\rquote s motion to dismiss were addressed at a hearing held on August 16, 2017. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans challenges the VA\rquote s decision to remove it from the VIP database, as well as the underlying SBA ineligibility determination that led to the VA\rquote s decision, on the grounds that those decisions were arbitrary, capricious, and contrary to law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Compl. \u182\u182 1\u82112; Pl.\rquote s Mem. at 13\u821114. Because Veterans has been declared to be ineligible to compete for the SDVOSB solicitations at issue in this case, Compl. \u182\u182 1\u82112, Veterans\rquote allegations fall within this court\rquote s jurisdiction under the third prong of Paragraph 1491(b)(1), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: (finding jurisdiction where a bid protester alleged that the \VA contravened its regulations governing [veteran-owned small business] eligibility through an unreasonable and inconsistent application of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Regarding the first prong, Veterans has submitted a bid on the roofing solicitation and is preparing a bid for the relocation solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Thus, Veterans\rquote protest is in a pre-award posture regarding both of the solicitations and it has satisfied the first prong as a prospective bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Regarding the second prong, the government argues that Veterans has failed to show a direct economic interest because it is not a qualified SDVOSB. Def.\rquote s Resp. at 9\u821114. According to the government, Veterans cannot claim any direct economic interest because it was de-listed from the VIP database and is thus ineligible for the SDVOSB procurements at issue in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: (finding standing where a bid protester challenged the VA\rquote s determination that the protester did not qualify as a SDVOSB). The VA\rquote s alleged error itself has prevented Veterans from competing for the solicitations. Thus, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: ). Rather, the VA\rquote s alleged error has deprived Veterans of its \opportunity to compete\ for the roofing and relocation solicitations, and such deprivation presents \sufficient economic harm to demonstrate prejudice for purposes of standing.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Additionally, the government asserts that the court lacks jurisdiction over SBA\rquote s ineligibility decision because Veterans appealed that decision to OHA and the appeal remains pending. Def.\rquote s Resp. at 7\u82119. The government primarily relies on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , Veterans has challenged the VA\rquote s decision to remove it from the VIP database, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , Pl.\rquote s Mem. at 9\u821110. And, Veterans\rquote protest is not based upon its January 2017 contract award that was considered by SBA and is currently on appeal to OHA, but rather is based upon the final action of the VA and the two pre-award solicitations that are unrelated to the contract award currently pending before OHA. This court has jurisdiction over Veterans\rquote allegations under the Tucker Act, as discussed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: . Further, because the VA relied upon the July decision by an SBA area office in removing Veterans from the database, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: In sum, the court has jurisdiction over Veterans\rquote bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: To increase procurement opportunities for \small business concerns owned and controlled by veterans with service-connected disabilities,\ Congress authorized the VA to set aside certain contracts for SDVOSBs through the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , \[a]n applicant or participant must be at least 51 percent unconditionally and directly owned by one or more ... service-disabled veterans\ to receive a SDVOSB certification from the VA. With respect to unconditional ownership, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , a SDVOSB \must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. Section 125.12 of the SBA\rquote s regulations itself does not elaborate on the definition of \unconditional.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: To qualify for a preliminary injunction, Veterans must show that it is \more likely than not\ to succeed on the merits of its claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: (explaining that the standard in the context of a preliminary injunction is \more likely than not,\ rather than \clear or substantial likelihood,\ for matters unique to the Federal Circuit). On the merits, Veterans will need to show that the government\rquote s decision was \arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law\ under the Administrative Procedure Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Here, Veterans argues that SBA improperly relied on \erroneous\ facts and law when it found that Mr. Montano did not unconditionally own 51 percent of Veterans. Pl.\rquote s Mem. at 14. Veterans challenges both the VA\rquote s decision to remove it from the VIP database and the underlying ineligibility findings of the SBA area office, arguing that such decisions were arbitrary, capricious, and contrary to law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: when it removed Veterans from the VIP database after the SBA area office\rquote s ineligibility determination in July 2017. Def.\rquote s Resp. at 19\u821120. The government\rquote s argument is misguided. Although CVE applied Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: in decertifying Veterans, the VA\rquote s decision was based upon conclusions reached by the SBA area office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , the rationale underlying SBA\rquote s ineligibility determination is embedded within the VA\rquote s decision. The court accordingly must look not only at the VA\rquote s removal of Veterans from the VIP database, but also at the SBA findings underlying that removal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: In concluding that Mr. Montano did not unconditionally own at least 51 percent of Veterans pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: 9.03 of Veterans\rquote shareholder agreement. AR 2\u82117; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , the SBA area office stated that Articles 9.01 to 9.03 placed \impermissible conditions\ on Mr. Montano\rquote s ownership interest in Veterans, AR 2\u82117. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , the court addressed a clause providing a right of first refusal on the part of a minority shareholder that would arise when a service-disabled veteran owner had a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: In sum, the right of first refusal provision in Article XI is not presently executory, is a standard provision used in normal commercial dealings, and does not burden the veteran\rquote s ownership interest unless he or she chooses to sell some of his or her stake. As a result, Article XI, Paragraph 11.01 does not affect the veteran\rquote s unconditional ownership with regard to C.F.R. \u167 74.3(b). The decision by OSDBU to the contrary, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: )). SBA did not address or discuss such findings in reaching its decision with respect to Veterans\rquote eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , and adopted by the SBA area office in its decision addressing Veterans\rquote eligibility, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: states that \SBA will disregard any unexercised stock options or similar agreements held by disadvantaged individuals\ in determining whether an applicant unconditionally owns the company at issue. This provision, which was not addressed by the SBA area office, directly bears on Veterans\rquote shareholder agreement and its status as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: In sum, based upon the foregoing analysis, the SBA area office\rquote s findings underlying the VA\rquote s decision to remove Veterans from the VIP database fail to provide \a coherent and reasonable explanation\ for SBA\rquote s exercise of discretion, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: ). The court therefore finds that Veterans is more likely than not to succeed in proving that the government\rquote s actions were arbitrary and capricious or not in accordance with law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans asserts that if it is not granted injunctive relief, it will suffer irreparable harm because it will be deprived of the opportunity to compete for SDVOSB procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Pl.\rquote s Mem. at 14\u821115. Upon removal of Veterans from the VIP database, it will be unable to compete for the roofing and relocation solicitations at issue in this case, as well as any future SDVOSB solicitations respecting which it would otherwise be an eligible competitor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Further, as a small business, Veterans represents that its inability to obtain work as a SDVOSB could threaten its viability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , setting aside the CVE\rquote s removal of Veterans from the VIP database and reinstating Veterans as a qualified SDVOSB, would circumvent the potential harm to Veterans by allowing it to compete for the SDVOSB set-aside procurements at issue. Thus, the court finds that Veterans will suffer irreparable harm if injunctive relief is not provided. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: The government argues that it will be harmed if the relocation solicitation is indefinitely stayed. Def.\rquote s Resp. at 21\u821122. Reinstating Veterans into the VIP database, however, would render Veterans eligible for the relocation solicitation without further delay of that contract. Given Veterans\rquote likelihood of success on the merits of its claim and the irreparable harm it will suffer if injunctive relief is not provided, the court finds that the balance of hardships weighs in favor of granting Veterans\rquote preliminary injunction and temporarily reinstating Veterans into the VIP database as a qualified SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: \operate[d] within the bounds of the law.\ Def.\rquote s Resp. at 22 (citation omitted). Such an argument is misplaced. If the government has wrongfully prevented Veterans from competing for a contract award that it should be eligible to receive, as Veterans claims, the integrity of that procurement is compromised. \The public has a strong interest in preserving the integrity of the procurement process.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: . Thus, the court finds that the public interest will be served by ensuring that Veterans has the opportunity to fairly compete for the SDVOSB procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: For the reasons stated, Veterans\rquote motion for a preliminary injunction is GRANTED IN PART and the government\rquote s motion to dismiss is DENIED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: CVE\rquote s decision dated July 21, 2017, rendering Veterans ineligible for contracts awarded to SDVOSBs, is set aside. The VA shall restore Veterans to the VIP database of approved SDVOSB entities. Accordingly, Veterans shall be allowed to compete for the relocation solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: The court\rquote s grant of preliminary relief will remain in effect until the court resolves Veterans\rquote claim for permanent relief. Because this preliminary relief is structured to ameliorate harm that might arise from delays in the VA\rquote s procurement activities, Veterans is required to provide security. Pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: , Veterans shall give security in the amount of $150,000 to pay costs and damages sustained by the VA if it is found to have been wrongfully enjoined. Veterans shall provide such security on or before August 25, 2017. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: On July 25, 2017, before filing its OHA appeal, Veterans submitted an amended and restated shareholder agreement to SBA and requested reinstatement as a SDVOSB. Pl.\rquote s Mem., Ex. S (E\u8211mail from Ron Montano to Amy Kim, SBA (July 25, 2017)). SBA informed Veterans that it could either request a re-examination and forgo the OHA appeal, or file an OHA appeal and request a re-examination after OHA\rquote s decision. Pl.\rquote s Mem., Ex. T (E\u8211mail from Amy Kim, SBA to Joseph Whitcomb (July 28, 2017)). Veterans chose to file the OHA appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans also concurrently submitted an application for a temporary restraining order, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: . Here, in contrast, Veterans has challenged the VA\rquote s decision to remove it from the VIP database on the ground that such actions have effectively prevented it from competing for awards under the solicitations directly at issue as well as other such solicitations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Ultimately, Veterans must also demonstrate that it was prejudiced by the government\rquote s arbitrary or unlawful conduct. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Veterans\rquote application for a temporary restraining order is superseded and thus DENIED as moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 002 - Veterans Contracting Group Inc v United States.doc, Paragraph with 'Veteran: Because the government has stated that the roofing solicitation is in the process of being cancelled and reissued, Def.\rquote s Resp. at 11 n.4; Def.\rquote s Notice of Solicitation Cancellation, Veterans\rquote claim with respect to that solicitation is moot and the court need not address it in granting relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: Veterans Technology, LLC v. United States, 133 Fed.Cl. 146 (2017) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: VETERANS TECHNOLOGY, LLC Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: On November 10, 2016, Veterans Technology, LLC (\Vet Tech\) and MDW Associates, LLC (\MDW\) filed a Complaint (\Compl.\) in the United States Court of Federal Claims to protest a July 20, 2016 decision by the Small Business Administration\rquote s Office of Hearings and Appeals (\SBA OHA\), affirming a May 2, 2016 Small Business Administration\rquote s Area Office (\SBA Area Office\) finding that Vet Tech and MDW were \other than small businesses for the size standard of $15 million.\ AR 2634. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: A. On April 27, 2015, MDW Associates, LLC And Defense Acquisition, Inc. Formed A Joint Venture: Veterans Technology, LLC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: Set\u8211Aside Contract No. HQ0147\u821116\u8211C\u82110028 To Veteran Technology, LLC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: C. On May 2, 2016, A Small Business Administration Area Office Found That Veterans Technology, LLC, Did Not Qualify As A Small Business Concern, Because It Was Affiliated With A Large Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: C. Whether The Small Business Administration\rquote s Determination That Veterans Technology, LLC Was Not A \Small Business\ Was Contrary To Law, Not Rational, Or Arbitrary And Capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: 2. Veterans Technology, LLC\rquote s December 21, 2016 Motion For Judgment On The Administrative Record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 009 - Veterans Technology LLC v United States.doc, Paragraph with 'Veteran: 4. Veterans Technology, LLC\rquote s March 3, 2017 Reply In Support Of Motion For Judgment On The Administrative Record And Response To Defendant\rquote s Cross\u8211Motion To Dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to amend complaint to add two claims against Small Business Administration (SBA) for allegedly improperly issuing certificate of competency (COC) to awardee and improperly reconsidering initial declination to issue COC to awardee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Bid protestor\rquote s proposed amendment of its complaint to add two claims against Small Business Administration (SBA), for allegedly improperly issuing certificate of competency (COC) to awardee of service-disabled veteran-owned small business set-aside contract to train aircrew and for improperly reconsidering its initial declination to issue COC to awardee, was not justified; amendment would be futile, as SBA\rquote s issuance of COC was not subject to judicial review, and protestor failed to justify its delay in seeking to amend nearly three weeks after becoming aware that complaint was insufficient to warrant investigation into SBA\rquote s decision-making process and after Court of Federal Claims twice informed protestor that SBA\rquote s reasoning was irrelevant to complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 015 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have a facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'Veteran: Enhanced Veterans Sols., Inc. v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'Veteran: Enhanced Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 016 - Harkcon Inc v United States.doc, Paragraph with 'Veteran: Enhanced Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to supplement administrative record with all documents currently in Air Force\rquote s possession related to Small Business Administration\rquote s (SBA) decision to issue awardee certificate of competency (COC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: In bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, supplementation of administrative record was warranted with documents in Air Force\rquote s possession related to Small Business Administration\rquote s (SBA) decision to issue awardee certificate of competency (COC), specifically all communications, emails, and documents referred to in email exchange between SBA and Air Force explaining why contracting officer did not document SBA\rquote s rationale for issuing COC, since email exchange raised questions as to Air Force\rquote s decision to take corrective action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 026 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have a facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: Disappointed bidder filed post-award bid protest against United States, claiming that Department of Veterans Affairs (VA) acted arbitrarily and capriciously in awarding service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center and in revoking bidder\rquote s SDVOSB status. Following intervention of contract awardee as defendant-intervenor, parties cross-moved for judgment on administrative record, and government moved to dismiss bidder\rquote s original and supplemental complaints. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: Bid protestor\rquote s challenge to revocation of its status as service-disabled veteran-owned small business (SDVOSB), in its supplemental complaint filed after its original bid protest complaint challenging Department of Veterans Affairs\rquote (VA) award of SDVOSB contract to upgrade chiller plant at VA medical center, was not \in connection with a procurement,\ within meaning of Tucker Act, requiring bid protestor to object to regulation in connection with procurement in order to have standing to pursue bid protest, since bidder\rquote s SDVOSB status was revoked after VA awarded contract in unrelated proceeding independent of contract award and original bid protest complaint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) reasonably concluded that awardee of service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center had experience and past performance required to complete contract, although bid protestor alleged that awardee\rquote s past project was only substantially completed and that awardee failed civil and fire protection requirements of request for proposals (RFP), since RFP did not define \civil\ and \fire protection work\ that were part of minutia of procurement process over which VA had discretion, VA had authority to determine what constituted adequate work under RFP, awardee was not disqualified by sole weakness in past performance, and VA determined that awardee had clear bid bond obligation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) conducted reasonable price evaluation of bids for service-disabled veteran-owned small business (SDVOSB) set-aside contract to upgrade chiller plant at VA medical center, although bid protestor argued that VA conducted price evaluation impossibly \fast,\ failed to analyze protestor\rquote s alternate price, and wrongly determined awardee was responsible bidder; proposed prices were not far off VA\rquote s estimate, good price realism was reflected through request for proposals\rquote (RFP) price competition, more in-depth price evaluation was unnecessary as awardee\rquote s offer was lowest and its bid was technically acceptable, VA was not required to evaluate protestor\rquote s voluntary alternate price, and determination of awardee\rquote s responsibility was well within VA\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: This bid protest action comes before the Court on the parties\rquote cross-motions for judgment on the administrative record and defendant\rquote s Motion to Dismiss plaintiff\rquote s original and supplemental complaints. Plaintiff, Geiler/Schrudde & Zimmerman, A Joint Venture (\GSZ\), alleges the following: (1) the United States Department of Veterans Affairs (\Agency\) acted arbitrarily and capriciously in awarding the bid to defendant-intervenor, Innovative Support Solutions, Inc. (\ISS\); (2) GSZ should have been awarded the bid because it was the lowest-priced offeror; and (3) GSZ\rquote s status as a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) was improperly revoked by the Agency. For the reasons set forth below, the Court dismisses plaintiff\rquote s Supplemental Complaint, and grants the United States\rquote (\government\) and defendant-intervenor\rquote s motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: . The federal SDVOSB program reserves specific government contracts for service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 027 - GeilerSchrudde And Zimmerman v United States.doc, Paragraph with 'Veteran: On June 10, 2016, the government filed a motion to dismiss plaintiff\rquote s original complaint or, in the alternative, for judgment on the administrative record. Defendant\rquote s Motion to Dismiss or, Alternatively, for Judgment on the Administrative Record, and Opposition to Plaintiff\rquote s Motion for Judgment on the Administrative Record (hereinafter \D\rquote s MJAR\), ECF No. 30 at 1\u82112. The government rejects plaintiff\rquote s claims and argues that plaintiff lacks standing, asserting that GSZ lost its SDVOSB status upon the death of Mr. William R. Geiler, Jr., the service-disabled veteran, on March 18, 2016. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 033 - i3 Cable And Harness LLC v United States.doc, Paragraph with 'Veteran: Ace Electronics Defense Systems, LLC (ACE) is a privately held, Service\u8211Disabled, Veteran\u8211Owned Small Business (SDVOSB) and is International Organization for Standardization (ISO) 9001:2008 certified. The company specializes in electronics manufacturing services to include electronics and mechanical design, manufacturing of cabling assemblies, diagnostic repair and integration services including higher-level electro-mechanical assemblies. With our 22,000 sq. ft. manufacturing facility in Troy, MI and resources to another 18,000 sq. ft. in Metuchen, NJ, we support rapid prototyping and full scale production Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Contractor filed bid protest challenging Air Force\rquote s decision to terminate service-disabled veteran-owned small business set-aside contract awarded to contractor to train aircrew and instead to award same contract to different awardee as result of corrective action. Contractor moved to supplement administrative record with depositions of contracting officer and area director for Small Business Administration (SBA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Supplementation of administrative record with deposition of contracting officer (CO), limited to no more than four hours, was warranted, in bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, since two agency decisions were not adequately explained in administrative record thereby hindering judicial review, namely that CO offered no explanation for his decision to take corrective action by referring matter to Small Business Administration (SBA), and he failed to document rationale for his determination that different awardee was responsible contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: Supplementation of administrative record with deposition of area director for Small Business Administration (SBA) was not warranted, in bid protest challenging Air Force\rquote s decision to terminate award to contractor of service-disabled veteran-owned small business set-aside contract to train aircrew and instead to award same contract to different awardee as result of corrective action, since contractor sought to determine SBA\rquote s reasoning throughout its evaluation of different awardee\rquote s responsibility, but contractor\rquote s complaint never challenged SBA\rquote s responsibility determination or issuance of certificate of competency (COC), so further discovery into SBA\rquote s reasoning was irrelevant to judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 035 - Sonoran Technology and Professional Services LLC v United States.doc, Paragraph with 'Veteran: On February 29, 2016, the Air Force issued Request for Proposal FA6800\u821116\u8211R\u82110001 seeking a service-disabled veteran-owned small business for courseware development and training for its aircrew flying B\u821152 and B\u821151 aircrafts. AR 489. The awardee was required to have facility security clearance (\FCL\) at the time of the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Veterans Evaluation Services, Inc., Plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Disappointed bidders filed post-award bid protest challenging Department of Veterans Affairs\rquote (VA) award of contracts to provide medical disability examinations (MDEs) to veterans at locations throughout United States. After intervention by awardees as defendant-intervenors, parties cross-moved for judgment upon administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Supplementation of extensive administrative record was unnecessary for meaningful judicial review and, thus, inappropriate in post-award bid protest challenging Department of Veterans Affairs\rquote (VA) award of contracts to provide medical disability examinations (MDEs) to veterans, since documents proffered by bid protestor were not before VA at time of agency\rquote s decision-making and served only to support protestor\rquote s legal arguments before Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Bid protestors waived their challenge to Department of Veterans Affairs\rquote (VA) calculation of price benchmarks in awarding contracts to provide medical disability examinations (MDEs) to veterans, since protestors had notice of VA\rquote s methodology for calculating price benchmarks well before submitting their final proposal revisions, but they failed to raise challenge before VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Bid protestors waived their claim that Department of Veterans Affairs (VA) engaged in misleading discussions about price, in awarding contracts to provide medical disability examinations (MDEs) to veterans, since VA engaged in discussions with protestors about their low prices prior to their submission of final proposal revisions, due to VA\rquote s concerns that low prices could indicate that protestors had improperly changed their technical approach in violation of terms of solicitation, but protestors failed to raise challenge before VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Bid protestors waived their challenge to Department of Veterans Affairs\rquote (VA) methodology for evaluating price reasonableness, in awarding contracts to provide medical disability examinations (MDEs) to veterans, since protestors\rquote challenged patent ambiguity in solicitation that should have been raised prior to submission of final proposal revisions, but they failed to raise challenge before VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Although two awardees shared same corporate parent after merger of awardees, Department of Veterans Affairs\rquote (VA) awards of contracts to both awardees to provide medical disability examinations (MDEs) to veterans located throughout United States did not violate request for proposals (RFP), that did not prohibit VA from making same district contract awards to both awardees and instead only provided that VA intended to award contracts to two vendors per district, while reserving right to award to single vendor per district. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs appropriately investigated and mitigated any organizational conflict of interest (OCI) that could arise from corporate relationship between two awardees of contracts to provide medical disability examinations (MDEs) to veterans, due to awardees sharing same corporate parent after their merger, since contracting officer discussed new corporate relationship between awardees during its OCI investigation, sought advice from VA\rquote s general counsel, and reasonably determined that awards met VA\rquote s goal of ensuring existence of adequate network of providers in each district to cover anticipated high volume of work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) trade-off analysis in awarding contracts to provide medical disability examinations (MDEs) to veterans was well documented and contained sufficient rationale for ultimate decision that bid protestor did not offer best value to government; VA conducted analysis in two steps, making initial assumption about two apparent best value bidders for each district and then validating assumption by comparing two apparent best value bidders to all other bidders, VA\rquote s analysis was documented in addendum providing reasons for trade-off decision, and VA\rquote s analysis was based on sound agency rationale. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote discussions with bidders regarding potential bridge contract were not misleading, in awarding contracts to provide medical disability examinations (MDEs) to veterans, since VA informed bidders that they were still required to submit final proposal revisions by established due date. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: , Counsel of Record, Arnold & Porter Kaye Scholer LLP, Washington, DC, for plaintiff, Veterans Evaluation Services, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington DC, Lynn T. Burleson, Attorney, United States Department of Veterans Affairs, Washington, DC, Frank DiNicola, Protest Attorney, Office of General Counsel, United States Department of Veterans Affairs, Eatontown, NJ, for defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: In these related, post-award bid protest matters, plaintiffs, QTC Medical Services, Inc. (\QTC\) and Veterans Evaluation Services, Inc. (\VES\), seek to set aside the Department of Veterans Affairs\rquote (\VA\) award decisions with respect to several indefinite delivery/indefinite quantity (\IDIQ\) contracts to provide medical disability examinations (\MDEs\) throughout the United States. Plaintiffs have moved for judgment upon the administrative record, pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (\RCFC\). The government and the defendant-intervenors in these matters\u8212Logistics Health, Inc. (\LHI\), Medical Support Los Angeles (\MSLA\), VetFed Resources, Inc. (\VetFed\), and QTC\u8212have also moved for judgment upon the administrative record, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: In these related, post-award bid protest matters, plaintiffs, QTC and VES, challenge the VA\rquote s decisions to award several indefinite delivery/indefinite quantity contracts to provide MDEs to veterans throughout the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: On September 25, 2015, the VA issued the Solicitation No. VA119A\u821115\u8211R\u82110150, requesting proposals to provide MDEs for veterans at locations throughout the United States (\RFP\). AR at 18816\u821117. The RFP contemplates the award of at least one, and up to two, IDIQ contracts in seven districts for this purpose. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: A plain reading of the RFP also shows that the RFP does not prohibit the VA from making same district contract awards to LHI and MSLA, as plaintiffs suggest. AR at 16217\u821118, 18932. In this regard, the RFP provides that the Veterans Benefits Administration \intends to award contracts to two vendors per District, including Districts 1\u82115, reserving the right to award to a single vendor per District.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 036 - QTC Medical Services Inc v United States.doc, Paragraph with 'Veteran: Plaintiffs\rquote argument that certain statements by MSLA and its parent company support their claim is similarly misguided. QTC Mot. at 25\u821130; VES Mot. at 30\u821138. Specifically, VES relies upon an email from MSLA\rquote s chief executive officer to the contracting officer that states, in relevant part, that: \[o]ver time and pending any real or perceived conflicts, [MSLA] would seek to enhance the services provided to veterans through the sharing of best practices with LHI and appropriate integration activities.\ AR at 24976; VES Mot. at 37. While this email clearly suggests that LHI and MSLA would \integrate their efforts and technology,\ the email also makes clear that such integration will be \as appropriate\ and will be subject to \any real or perceived conflicts.\ AR at 24975\u821176. And so, the subject Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: the Department of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: On December 20, 2015, Plaintiffs Derrick Storms, A1 Procurement, LLC (\A1\), A1 Procurement JVH, A1 Procurement\u8212Transportation Leasing Corp., LLC and A1 Procurement, JVG filed a Third Amended Complaint (\TAC\) in the above-captioned action against Defendants the United States of America and the Department of Veterans Affairs (the \VA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: (TAC, Docket Entry No. 112.) Plaintiffs allege that Defendants arbitrarily denied reconsideration of Plaintiffs\rquote application to renew A1\rquote s status as a \qualified Service-Disabled, Veteran-Owned Small Business\ (\SDVOSB\), in violation of the Administrative Procedures Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006 (the \Veterans Benefits Act\) to increase contracting opportunities for small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: . By statute, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the business are listed in the database of veteran-owned businesses maintained by the Secretary [of the VA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: which is charged with evaluating applications to determine whether a small business is \unconditionally owned and controlled by one or more eligible veterans, service-disabled veterans or surviving spouses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: \u167 74.4(a). The VA elaborates that \[a]n applicant or participant\rquote s management and daily business operations must be conducted by one or more veterans or service-disabled veterans,\ and that \[i]ndividuals managing the [business] must have managerial experience of the extent and complexity needed to run the [business].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: \u167 74.4(b). Among other requirements, \[o]ne or more veterans or service-disabled veteran owners ... must devote full-time to the business during the normal working hours of firms in the same or similar line of business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: \u182 11; Defs. Mem. 3\u82114.) Storms is a service-disabled veteran, but Batlle is not. (TAC \u182 7; Defs. Mem. 4.) The CVE conducted a review of A1\rquote s application and, on April 7, 2010, approved A1 for listing in the VIP. (R. 3\u821177.) CVE\rquote s approval of A1 indicated that A1 was \both owned and controlled by Mr. Storms,\ as required by the VA\rquote s regulations. (TAC \u182 11.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: (R. 262.) Storms\rquote resume reflects that at the time, Storms was also serving as the managing partner of his law firm, Storms & Associates, P.C. (\Storms & Associates\), and as the president of Homeless Veterans of America, Inc. (\HVAI\). (R. 337\u821138.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: (the \CVE Removal Decision\). (R. 360\u821163.) The CVE noted that a service-disabled veteran must \devote full-time to the business during the normal working hours of firms in the same or similar line of business,\ and that \[e]ngagement in employment or management outside the applicant concern must not \u8216have a significant impact on the owner\rquote s ability to manage and control the applicant concern.\u8217 \ (R. 360\u821161 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: (R. 687.) Finally, the CVE found that \what is not represented is the overall amount of time or hours required to perform all the services associated with the legal services provided to [A1] in conjunction with the [service-disabled veteran\rquote s (\SDV\) ] other managerial responsibilities concerning the wide range of contract actions for this applicant.\ (R. 687.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: (ordering the VA to reinstate the plaintiff\rquote s veteran-owned small business (\VOSB\) statute extending the eligibility date \to account for the days it was wrongfully excluded from the VIP database\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: believes a veteran has the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: ) Defendants argue that the VA\rquote s definition of \control\ reasonably includes the \power to manage\ because Congress tasked the VA with ensuring that veterans, rather than non-veteran contractors, manage projects and benefit from the set-aside contracts. (Defs. Mem. 21\u821122.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: In the Veterans Benefits Act, Congress instructed the Secretary of the VA to verify that all SDVOSBs included in the VIP are \owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: . The Veterans Benefits Act does not define the term \controlled,\ nor does it dictate criteria that the VA should use in examining SDVOSB applications. Thus, because \there is silence or ambiguity in the statute\ as to the meaning of \control,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: Control is not the same as ownership, although both may reside in the same person. CVE regards control as including both the strategic policy setting exercised by boards of directors and the day-to-day management and administration of business operations.... Individuals managing the [business] must have managerial experience of the extent and complexity needed to run the [business]. A veteran need not have the technical expertise or possess a required license to be found to control a[ ] [business] if he or she can demonstrate that he or she has ultimate managerial and supervisory control over those who possess the required licenses or technical expertise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: In addition, the regulations specify that a non-veteran or entity may be found to have control in several circumstances, including where \[b]usiness relationships exist with non-veterans or entities which cause such dependence that the applicant or participant cannot exercise independent business judgment without great economic risk.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: The Court finds that the VA\rquote s definition of \control\ is reasonable. As Defendants note, \[a]n individual cannot manage a contracting business\u8212including without limitation the projects undertaken by that business\u8212unless he or she is employed full-time at the business.\ (Defs. Mem. 21.) In addition, it is entirely reasonable for the VA to consider, as part of an assessment of \control,\ whether the veteran applicant has the managerial experience and competence to operate the business so that day-to-day management is not dependent upon the skills and experience of non-veterans for whom the Veterans Benefit Act was not designed. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: Pls. Opp\rquote n Mem. 15). Plaintiffs\rquote proposed definition of \control\ would require the VA to elevate form over substance, effectively finding that a service-disabled veteran controls his business even if he is not competent to manage it, so long as internal corporate rules and organizing documents delegate such control to him. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: . The court found that the VA had relied solely on the veteran\rquote s residency, divided between two states, to determine that the veteran was unable to manage the day-to-day operations of his business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: The court also noted that nothing else in the administrative record suggested the veteran was not exercising sufficient control over his business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: ).) Unlike residency, which is not mentioned anywhere in the VA\rquote s regulations and does not directly bear on the VA\rquote s assessment of control, the resume indicated to the CVE that Storms was involved in other potentially time-consuming activities, which, according to the VA\rquote s regulations, may bear on a veteran\rquote s control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: On September 30, 2013, the Center for Veterans Enterprise changed its name to the Center for Verification and Evaluation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: Center for Veterans Enterprise (CVE) Name Change Press Release, Oct. 10, 2013, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: The parties do not dispute that a service-disabled veteran \owned\ A1, but rather dispute whether a service-disabled veteran \controlled\ A1. The Court therefore focuses on the provisions pursuant to which the VA determines who controls an SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: , discussing the VA\rquote s interpretation of its role in verifying that SDVOSBS are \owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 038 - Storms v United States.doc, Paragraph with 'Veteran: Specifically, the CVE noted that although Storms asserted that HVAI procures housing for veterans, public record searches reflected that HVAI provides mental health and crisis intervention services. (R. 685.) The CVE also observed that despite Storms\rquote statement that he serves as President of HVAI and dedicates only four hours per month to the organization, Storms did not provide examples of the work he performed for HVAI and apparently had made no investment of time or effort in developing programming or starting the organization. (R. 685.) Based on this, the CVE concluded that \even in its infancy, this organization would require more than four hours of monthly service.\ (R. 685.) Ultimately, the CVE found that Storms\rquote involvement with HVAI \d[id] not prohibit inclusion in the VIP program.\ (R. 685.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC v. United States, 132 Fed.Cl. 529 (2017) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UNITEDHEALTH MILITARY & VETERANS SERVICES, LLC, Protestor, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: The protestor, UnitedHealth Military & Veterans Services, LLC (M & V), filed a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Servs., LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Servs., LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Servs., LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Servs., LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: United Health Military & Veterans Services LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 054 - UnitedHealth Military And Veterans Services LLC v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small business brought bid protest action against United States, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements, including for products and services from designated non-profits that employed blind and otherwise severely disabled people on list required by Javits-Wagner-O\rquote Day Act, and which were added prior to VBA\rquote s passage. Successful bidder and advocacy organization intervened, government moved to dismiss for lack of jurisdiction, and parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Bid protest claim by service-disabled veteran-owned small business, seeking to prevent Department of Veteran\rquote s Affairs (VA) from awarding future contracts without first performing \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work, as required under Veterans Benefits Act, was in connection with procurement or proposed procurement, and thus Court of Federal Claims had Tucker Act jurisdiction over bid protest claim; VA made it clear that, absent intervention from Court of Federal Claims, it would have continued to enter into contracts without performing rule of two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Under Veterans Benefits Act (VBA), Department of Veteran\rquote s Affairs (VA) was required to conduct \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at fair price for all new contracts, regardless of whether or when product or service from designated non-profits that employed blind and otherwise severely disabled people were added to procurement list under Javits-Wagner-O\rquote Day Act (JWOD); if there were not two qualified veteran-owned small businesses willing to perform contract under rule of two analysis, VA would have been required to use list as mandatory source, and VBA was more specific than JWOD in applying specific mandate only to VA to give priority to veteran-owned small businesses in awarding contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Doctrine of laches did not apply to bar bid protest claim by service-disabled veteran-owned small business, alleging that Department of Veteran\rquote s Affairs (VA) was required under the Veterans Benefits Act (VBA) to perform \rule of two\ analysis to determine whether two or more veteran-owned small-businesses could perform work at a fair price prior to making new contracting determinations for all procurements; delay in bringing case was not unreasonable and unexcused in light of recent Supreme Court decision clarifying mandatory nature of VBA and VA\rquote s most recent procurement guidance, and successful bidder would not have lost investment to perform under past contracts, had more than ten years of business following enactment of VBA, and may have had past contracts renewed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , Staff Attorney, Department of Veterans Affairs, of counsel. Timi N. Kenealy, General Counsel, and John Konst, Assistant General Counsel, Committee for Purchase from People who are Blind or Severely Disabled, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Bid Protest; Veterans Benefit Act of 2006, 38 U.S.C. \u167 8127(a); Javits\u8211Wagner\u8211O\rquote Day Act, 41 U.S.C. \u167 8501\u821106; Contracting Priority; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: This bid protest concerns the construction of two statutes: the Veterans Benefits Act of 2006 (\VBA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: (\JWOD\). The VBA requires the Department of Veteran\rquote s Affairs (\VA\) to set goals for providing contracts to veteran-owned small businesses, and with exceptions not relevant here, mandates that before procuring goods and services the VA first determine whether there are at least two veteran-owned small businesses capable of performing the work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: If so, the VA must limit competition to veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: This process is known as a \Rule of Two\ analysis. The JWOD requires government agencies, including but not limited to the VA, to purchase products and services from designated non-profits that employ blind and otherwise severely disabled people when those products or services appear on a list known as the \AbilityOne List\ or \List.\ The entity responsible for placing goods and services on the List is known as the \AbilityOne Commission.\ The question before the court in this case is which procurement priority must the VA first employ: the requirement that the VA conduct a Rule of Two analysis to determine whether it must restrict the procurement to veteran-owned small businesses under the VBA or the requirement that the VA use the AbilityOne List under the JWOD, regardless of whether the VA has conducted a VBA Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The VA now agrees that if a product or service was added to the AbilityOne List after 2010, the VA will perform the Rule of Two analysis before purchasing off of the List. The new regulation provides, however, that the VA will continue to purchase items off of the AbilityOne List without first performing a Rule of Two analysis for items added to the List before 2010. Plaintiff, PDS Consultants, Inc. (\PDS\), is a service-disabled veteran-owned small business that provides eyewear and other vision-related products to the VA under a number of contracts corresponding to different regions of the country. PDS argues that under the Supreme Court\rquote s recent decision in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: it performs a Rule of Two analysis and determines whether two or more veteran-owned small-businesses can perform the subject work. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: NIB, the VA accounts for approximately 15.1% of the AbilityOne sales to government agencies in 2015, and \provided jobs for approximately 630 blind or visually impaired individuals, many of whom are veterans.\ NIB Brief at 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Prior to the passage of the VBA in 2006, AbilityOne added eyewear and eyewear prescription services provided by defendant-intervenor IFB, a qualified non-profit, to the List for specific regions, referred to as Veterans Integrated Service Network (\VISNs\). The eyewear and eyewear prescription services were added with the VA\rquote s concurrence and participation. Working in coordination with the VA, AbilityOne added to the List eyewear prescription services for VISN 7 in 2002, and added VISN 2 in 2005. Once on the List the VA entered into contracts with IFB \to produce and provide prescription eyeglasses and associated services to eligible veteran beneficiaries serviced by VA Medical Centers and all affiliated out-patient clinics .... The eyeglasses will be made to the individual veteran\rquote s prescription.\ AR 275. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: B. The Veterans Benefit Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Congress passed the current version of the VBA on December 22, 2006, PL 109\u8211461, December 22, 2006, 120 Stat. 3403. The purpose of the VBA was to \increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . To that end, the VA is required to set specific annual goals for VA contracts to be awarded to veteran-owned small businesses and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . Further, the VBA included the \Rule of Two,\ which restricts competition for contracts to veteran-owned small businesses and service-disabled veteran-owned small businesses in cases where the contracting officer \has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , the VA\rquote s guidelines stated that the agency would give first priority to all items already on the AbilityOne List. However, the VA determined that before working with AbilityOne to add any new items to the AbilityOne List, the VA\rquote s contracting officer (\CO\) would first perform a Rule of Two analysis to determine whether qualifying veteran-owned small businesses were able to perform the procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , the court found that the VA contracting officer did not follow the VA\rquote s guidelines when laundry services formerly performed by a veteran-owned small business were added to the AbilityOne List without the VA performing a Rule of Two analysis first. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . In finding that the VA\rquote s decision to give veteran-owned small businesses priority when adding items to the List was reasonable, the court noted that it is \a general maxim of statutory interpretation that a specific statute of specific intention takes precedence over a general statute, particularly when the specific statute was later enacted.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: ). The court found that \[w]here there is a conflict between the two statutes, the more specific Veterans Benefits Act would control.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Under those circumstances, the court found the VA\rquote s \action in giving first priority to [veteran-owned small businesses] is justified in light of the terms of the [VBA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . At issue in that case was the VA\rquote s position that if the VA was meeting its annual goals for contracts with veteran-owned small businesses as required by law, the VA had the discretion to issue contract awards under the Federal Supply Schedule (\FSS\) (a list of certain products and services that government agencies can quickly acquire without having to go through the ordinary procurement process) without performing a Rule of Two analysis. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . Kingdomware Technologies, Inc., a veteran-owned small business, challenged the VA\rquote s interpretation of the VBA, and on June 16, 2016, the Supreme Court issued a unanimous decision finding that the VBA\rquote s Rule of Two was mandatory for the procurement of all VA goods and services and not, as the VA argued, discretionary if the VA was meeting its VBA contracting goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: \requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , PDS wrote a letter to the AbilityOne Commission stating that many of the eyewear products and services that AbilityOne had proposed adding to the List \are the same or similar to the types of eyeglasses many veteran-owned and service-disabled veteran-owned businesses currently provide\ to the VA. AR 702. PDS asserted that adding VISN 6 to the List would cause the VA to violate \u167 8127 of the VBA, because Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: at 727. In the notice published in the Federal Register, AbilityOne addressed PDS\rquote s comments, noting that while the AbilityOne Commission appreciated that it may be possible to purchase eyewear from veteran-owned small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: [T]he Commission\rquote s mission and duty is to provide employment opportunites for people who are blind or have significant disabilities, many of whom are veterans .... Adding the proposed products to the Commission\rquote s Procurement List will provide employment opportunities to a portion of the U.S. population that has a historically high rate of unemployment or underemployment, and is consistent with the Commission\rquote s authority established by 41 U.S.C. Chapter 85. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: VISN 6 was added more recently to the AbilityOne List and thus there is no current contract with an AbilityOne contractor. There is a current contract in place with a service-disabled veteran-owned small business in VISN 8. Oral Argument Trans. 83:8\u821110. In VISN 8, the VA\rquote s contract with an AbilityOne contractor expires in May of 2017. Oral Argument Trans. 83:8\u821110. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: ECF No. 67. On March 6, 2017, the government filed a notice that it had issued a final amendment to its guidelines, codified in Veterans Administration Acquisition Regulation 808.002, with the requirements outlined above. In light of the government\rquote s change in position, the court asked the parties to submit supplemental briefing explaining what issues still remained to be decided in the pending case. Supplemental briefing was concluded on March 20, 2017. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: new procurements for eyewear, whether or not the product or service appears on the AbilityOne List, because the preference for veterans is the VA\rquote s first priority. If the Rule of Two analysis does not demonstrate that there are two qualified veteran-owned small businesses willing to perform the contract, the VA is then required to use the AbilityOne List as a mandatory source. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . The government argues that Congress did not \unambiguously express[ ] a priority for veteran-owned small businesses over mandatory sources identified on the procurement list,\ Def.\rquote s MJAR 21. Therefore, the government argues, \the VA is being required to apply two statutory mandates that Congress did not prioritize expressly, this Court should defer to the VA\rquote s reasonable construction of the Veterans Benefit Act.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: , establishes a preference for veteran-owned small businesses as the VA\rquote s first priority. As the Supreme Court stated in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Under the VBA, the VA must perform a Rule of Two inquiry that favors veteran-owned small businesses and service-disabled veteran-owned small businesses \in all contracting before using competitive procedures\ and limit competition to veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: [A] contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: was mandatory, and therefore \before contracting with a non-veteran-owned business, the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . Importantly, like the FFS, the VBA also does not contain an exception for obtaining goods and services under the AbilityOne program. Indeed, the court finds it significant that an earlier version of the 2006 VBA, the Veterans Benefit Act of 2003, contained an explicit Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The Veterans Benefits Act is a specific mandate to the Department...to grant first priority to [service-disabled veteran-owned small businesses] and [veteran-owned small businesses] in the awarding of contracts. On the other hand, the Javits\u8211Wagner\u8211O\rquote Day Act is a more general procurement statute. Were there a conflict between the two statutes, the more specific Veterans Benefits Act would control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . The VA is ordered not to enter into any new contracts for eyewear in VISNs 2 and 7 from the AbilityOne List unless it first performs a Rule of Two analysis and determines that there are not two or more qualified veteran-owned small businesses capable of performing the contracts at a fair price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: . It establishes a first priority for small businesses owned and controlled by veterans with service-connected disabilities. In this opinion both preferences are labeled as a priority for small business owned and controlled by veterans: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: (1) Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service-connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: (2) Contract awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: Veterans Administration Regulation 808.002 issued March 6, 2017. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 055 - PDS Consultants Inc v United States.doc, Paragraph with 'Veteran: The court rejects the defendants\rquote contention that giving the VBA priority effectively repeals the JWOD by implication. The VBA is a specific priority statute that does not mandate a result but a process which may or may not result in a contract award to a veteran-owned small business. If the Rule of Two is not satisfied, the VA remains required under the JWOD to purchase products and services that appear on the AbilityOne List. By its terms the VBA did not repeal the JWOD. Rather, as the VBA states, where the VBA applies the Rule of Two is satisfied, veteran-owned small businesses have the first priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 060 - Cleveland Assets LLC v United States.doc, Paragraph with 'Veteran: Veteran Shredding, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 075 - Idaho Stage LLC v United States.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 075 - Idaho Stage LLC v United States.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 077 - Open Spirit LLC v United States.doc, Paragraph with 'Veteran: AR 865. The Navy\rquote s environmental point person on this Lease competition, Derral Van Winkle, a seasoned veteran with 30 years of environmental restoration experience, had the unenviable task of briefing the SPAWAR command on \the environmental restoration indoor sampling\ following issuance of the new guidelines on the day before offers were to expire. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 079 - Enhanced Veterans Solutions Inc v United States.doc, Paragraph with 'Veteran: Enhanced Veterans Solutions, Inc. v. United States, 131 Fed.Cl. 565 (2017) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 079 - Enhanced Veterans Solutions Inc v United States.doc, Paragraph with 'Veteran: ENHANCED VETERANS SOLUTIONS, INC., Plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 079 - Enhanced Veterans Solutions Inc v United States.doc, Paragraph with 'Veteran: Enhanced Veterans Solutions, Inc. (eVETS) filed a bid protest seeking to enjoin the U.S. Department of Homeland Security\rquote s United States Citizenship & Immigration Services (USCIS or the agency) from proceeding with the contract for service center operations support services that was awarded to defendant-intervenor, Central Research, Inc. (CRI). Before the Court are the motions for judgment on the administrative record filed by each party pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal Claims (RCFC). Among other things, eVETS argues that USCIS\rquote s evaluation was unreasonable, that the agency erred by excluding eVETS from the best value analysis, and that the award to CRI was improper. For the reasons stated below, the Court disagrees with plaintiff and finds that the agency\rquote s award to CRI was not arbitrary or unreasonable. Accordingly, defendant\rquote s and defendant-intervenor\rquote s motions for judgment on the administrative record are Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 079 - Enhanced Veterans Solutions Inc v United States.doc, Paragraph with 'Veteran: Plaintiff proposed that Veterans Enterprise Technology Solutions, Inc. (VETS) would serve as its major subcontractor. AR, Tab 15 at 785. Under the previous task order, VETS was the incumbent prime contractor for the Texas and Nebraska service centers and eVETS served as a subcontractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 091 - Alpha Painting And Construction Co Inc v Delaware River Port Authority of .doc, Paragraph with 'Veteran: R.A. Glancy & Sons, Inc. v. U.S. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 096 - Agility Public Warehousing Company KSCP v US Department of Defense.doc, Paragraph with 'Veteran: CCA of Tennessee, LLC v. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\1, File: 098 - Tidewater Contractors Inc v United States.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: Veteran of United States Army and Arizona Army National Guard filed pro se complaint, alleging that his retirement pay was unlawfully garnished by Defense Finance and Accounting Service (DFAS) and seeking both injunction barring DFAS from recouping portions of his special separation benefit (SSB) and reimbursement of amounts withheld by DFAS. Veteran moved to proceed in forma pauperis (IFP) and for preliminary injunction. Government moved to dismiss and for judgment upon the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: court\rquote s inability to determine veteran\rquote s financial status necessitated denial of application to proceed IFP; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: veteran failed to allege requisite elements of contract between him and United States, as required to invoke court\rquote s jurisdiction under Tucker Act based on contract; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: veteran failed to state claim under statute governing separation pay upon involuntary discharge or release from active duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: Court of Federal Claims had no authority to direct the parties to engage in settlement negotiations or to participate in arbitration in veteran\rquote s action challenging government\rquote s recoupment of his special separation benefit (SSB). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: Under Tucker Act, Court of Federal Claims lacked authority to provide veteran with requested injunction preventing Defense Finance and Accounting Service (DFAS) from recouping amount of his special separation benefit (SSB) from his retirement payments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: Veteran challenging recoupment from his retirement pay of his special separation benefit (SSB) by Defense Finance and Accounting Service (DFAS) failed to allege requisite elements of contract with United States, as required to invoke jurisdiction of Court of Federal Claims under Tucker Act based on express or implied-in-fact contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: Veteran\rquote s complaint in action challenging recoupment from his retirement pay of his special separation benefit (SSB) by Defense Finance and Accounting Service (DFAS) set forth facts showing that DFAS was authorized to recoup SSB from veteran\rquote s retirement pay, and therefore veteran failed to state claim under statute governing separation pay upon involuntary discharge or release from active duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 006 - Toon v US.doc, Paragraph with 'Veteran: plaintiff\rquote s motion for immediate preliminary injunction, defendant\rquote s motion to dismiss, and defendant\rquote s motion for judgment upon the administrative record. In this case, plaintiff, a veteran of the United States Army (\Army\) and the Arizona Army National Guard (\National Guard\), filed a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 018 - Bilfinger Berger AG Sede Secondaria Italiana v US.doc, Paragraph with 'Veteran: Decision Matter of: Veterans Constr. of S.C., LLC, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 028 - Pyramid Real Estate Services LLC v US.doc, Paragraph with 'Veteran: Socio\u8211Economic Status of the Vendor shall be considered as a primary evaluation factor for award with the goal of achieving one of the Agency\rquote s socio-economic goals to increase small business participation as prime contractors. HUD is strongly committed to ensuring that small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned and 8a small businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Incumbent contractor filed bid protest challenging award of follow-on contract to supply laundry services for six veterans\rquote hospitals that Department of Veterans Affairs (DVA) restricted on sole-source basis to nonprofit bidder employing blind or otherwise severely disabled individuals, pursuant to AbilityOne program under Javits-Wagner-O\rquote Day Act, rather than giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, and seeking permanent injunction setting aside placement of services on AbilityOne procurement list. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Incumbent contractor\rquote s bid protest, challenging Department of Veterans Affairs\rquote (DVA) extension of laundry services contract in order to place services on AbilityOne procurement list for bidder employing blind and otherwise severely disabled individuals, pursuant to Javits-Wagner-O\rquote Day Act, as failing to comply with procurement regulation and DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, was \in connection with a procurement,\ within meaning of Tucker Act, conferring jurisdiction to consider bid protest without constraint as to any equitable remedy of removing services from AbilityOne list, since Javits-Wagner-O\rquote Day Act\rquote s rulemaking provisions subjecting deletions from AbilityOne list to judicial review under Administrative Procedure Act (APA) did not supersede Tucker Act\rquote s protest jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Incumbent contractor providing laundry services for veterans\rquote hospitals, pursuant to contract with Department of Veterans Affairs (DVA), had standing for bid protest action, under Tucker Act, to challenge DVA\rquote s alleged violation of procurement regulation and DVA\rquote s new guidelines, giving priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, although contractor was not SDVO or VO, since contractor had direct economic interest due to substantial chance of being awarded longer-term, gap-filling, follow-on contract based on satisfactory performance as incumbent contractor with resources already in place to meet requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Contracting officer\rquote s bilateral modification extending incumbent contractor\rquote s performance, under contract with Department of Veterans Affairs to provide laundry services to veterans\rquote hospitals, was valid, in accordance with contract terms that included option to extend services clause pursuant to procurement regulation authorizing government to unilaterally extend contract, where contractor signed modification agreement, did not object to extension upon executing contract, and did not establish that government made any material misrepresentations in connection with modification. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Contracting officer (CO) lacked rational basis for failing to comply with Department of Veterans Affairs\rquote (DVA) new guidelines reasonably giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, by CO intentionally awarding DVA contract to provide laundry services to veterans\rquote hospitals on sole-source basis to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, since guidelines were effective immediately, did not exempt placements on AbilityOne procurement list that were being considered but not yet completed, and warranted Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Incumbent contractor would suffer irreparable harm in absence of permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, since contractor would lose ability to compete for contract without injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Balance of hardships favored permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act, since contractor\rquote s infrastructure remained in place to provide critical services to veterans\rquote hospitals so that injunction would not result in interruption of services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Public interest in preserving integrity of procurement process supported grant of permanent injunction setting aside Department of Veterans\rquote Affairs (DVA) award of contract to provide laundry services to veterans\rquote hospitals to nonprofit bidder employing blind or otherwise severely disabled individuals, under AbilityOne program pursuant to Javits-Wagner-O\rquote Day Act, in contravention of DVA\rquote s new guidelines giving first priority to service-disabled veteran-owned (SDVO) and veteran-owned (VO) small businesses qualified under Veterans Benefits Health Care, and Information Technology Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Harold W. Askins, III, United States Department of Veterans Affairs, Atlanta, GA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Plaintiff, Angelica Textile Services, Inc. (\Angelica\ or \Angelica Textile\), alleges that the Department of Veterans Affairs (\DVA\ or \the Department\) is proceeding with a procurement of laundry services for six veterans\rquote hospitals in contravention of law and regulation. Angelica is the current incumbent contractor for such services, and it in essence protests the government\rquote s restriction of the solicitation for the follow-on contract to offerors eligible under the AbilityOne program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: questions about the priority of the federal contracting preference accorded participants under the AbilityOne program as contrasted to that given veteran-owned (\VO\) and service-disabled veteran-owned (\SDVO\) entities who qualify under the Veterans Benefits Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: The Veterans Benefits Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: The Veterans Benefits Act, signed on December 22, 2006, directs the Secretary for Veterans Affairs to \give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . To implement the Veterans Benefits Act, the Department established the \Veterans First Contracting Program\ on June 20, 2007. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: AR 38\u8211540 to 541 (New Guidelines for Placing Items and Services on the AbilityOne Procurement List (Apr. 28, 2010) (\New Guidelines\)). The program directed the Department to consider service-disabled veteran-owned small businesses (\SDVOSB\) and veteran-owned small businesses (\VOSB\) as a first and second priority when satisfying its acquisition requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: To accommodate the Veterans Benefits Act, as implemented by the Department\rquote s new acquisition regulations, the Department changed the internal process by which procurements could be added to the AbilityOne List. A Departmental Information Letter titled \New Guidelines for Placing Items on the AbilityOne Procurement List\ explained: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: [A]ll items currently on the AbilityOne Procurement List as of January 7, 2010 will continue to take priority over the contracting benefits mandated by [the Veterans Benefit Act]. However, all new requirements will be subject to the contracting preferences mandated by [the Veterans Benefit Act] prior to being considered for placement with the AbilityOne Program.... To ensure appropriate business opportunities are properly afforded to SDVOSBs and VOSBs, all [contracting officers] must adhere to the authorities and requirements of [the Veterans Benefit Act] ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: AbilityOne Procurement List: (New Requirement) [a]re subject to the contracting preferences mandated by [the Veterans Benefit Act] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: The New Guidelines for Placing Items on the AbilityOne Procurement List direct contracting officers to take a series of steps to explore whether SDVO and VO entities could provide the needed services before proposing a requirement for the AbilityOne Procurement List. Among the new steps, a contracting officer is required to perform market research in accord with FAR Part 10 and Department of Veterans Affairs Acquisition Regulations (\VAAR\) Part 810 and to prepare a determination and findings which document the requirement, the results of the market research performed, and the contracting officer\rquote s findings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: GAO did not consider whether the Department had complied with the Veterans Benefits Act and its associated regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: in extending its contract for a six-month period. Second, it asserts that the Department\rquote s initiative in having the pertinent services placed on the AbilityOne Procurement List was arbitrary and capricious because those actions failed to comply with the Department\rquote s New Guidelines for implementing the Veterans Benefits Act, and entities qualifying under the Veterans Benefits Act have priority over AbilityOne entities, at least insofar as the Department\rquote s procurements are concerned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Pl.\rquote s Cross\u8211Mot. for Judgment (\Pl.\rquote s Cross\u8211Mot.\) at 8, 17. Both contentions in essence relate to the contracting officer\rquote s actions in obtaining enough time to pursue the AbilityOne listing on a relatively expedited basis, while still maintaining Angelica\rquote s performance of the essential laundry services at the six pertinent veteran\rquote s hospitals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Angelica\rquote s challenges are made \in connection with\ the Department\rquote s procurement of laundry services for the veteran\rquote s hospitals within the meaning of the third prong of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: As the incumbent contractor performing satisfactory work and with resources already in place to meet the requirement, Angelica would have had a \substantial chance\ of being awarded a contract of some duration, and it thus has a \direct economic interest\ in the listing of the laundry services contract under the AbilityOne program. Accordingly, Angelica has standing to object to the Department\rquote s failure to follow its New Guidelines implementing the Veterans Benefits Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Veterans Benefits Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Invoking the Veterans Benefit Act, Angelica contends that the Department \failed to adhere to law and its own regulations in proceeding with the transfer of the requirements currently performed by Angelica to the NISH/AbilityOne Procurement List.\ Pl.\rquote s Cross\u8211Mot. at 8. The government does not dispute that Ms. Jones failed to follow the Department\rquote s New Guidelines for addressing the competing contractual priorities found in the Veterans Benefits Act and the Javits\u8211Wagner\u8211O\rquote Day Act. Rather, it urges the court to conclude Ms. Jones was not required to follow the New Guidelines because they were released several months after Ms. Jones had begun the laundry services procurement process. Hr\rquote g Tr. 27:2\u821128:1, 29:5\u821129:14 (Sept. 14, 2010). The government further argues that the Ability One listing should not be voided because \[n]one of the procedures that the contracting officer ... allegedly failed to satisfy are contained in the [Veterans Benefits Act].\ Def.\rquote s Resp. at 2. In short, the government argues that Ms. Jones was not obliged to follow the New Guidelines to the extent that they required action beyond that set forth in the Veterans Benefits Act and the VA Acquisition Regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . At issue is the relationship between the Veterans Benefits Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: The Veterans Benefits Act\rquote s goal is to \increase contracting opportunities for small business concerns owned and controlled by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: veterans and ... by veterans with service-connected disabilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . To that end, the Act directs the Secretary for Veterans Affairs to \maintain a database of small business concerns owned and controlled by veterans,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . The Act also allows the use of restricted competition if a contracting officer \has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . The final regulations implementing the Veterans Benefits Act became effective on January 7, 2010. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . However, the Department\rquote s regulations issued under the Veterans Benefits Act are silent regarding whether the Department should give priority to SDVOSBs and VOSBs over adding Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: The government argues that Ms. Jones\rquote omissions do not violate the Veterans Benefits Act because the Department\rquote s New Guidelines do not have the force of law. Hr\rquote g Tr. 26:23\u821127:1 (Sept. 14, 2010). The government is correct in part\u8212the guidelines do not have the force of law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: deference is warranted here. The Department is responsible for implementing the Veterans Benefits Act; indeed, it is the only federal department or agency to which the Act\rquote s requirements apply. The Department\rquote s New Guidelines provide detailed instructions to \fill[ ] a space\ between the Veterans Benefits Act and Javits\u8211Wagner\u8211O\rquote Day Act and their accompanying regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: (\Congress would expect the agency to be able to speak with the force of law when it addresses ambiguity in [a] statute or fills a space in the enacted law.\). The New Guidelines reflect agency-wide policy and do not conflict with the Veterans Benefits Act, the Javits\u8211Wagner\u8211O\rquote Day Act, or the VA Acquisition Regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Moreover, the Department\rquote s action in giving first priority to SDVO and VO small businesses is justified in light of the terms of the Veterans Benefits Act. It is a general maxim of statutory interpretation that a specific statute of specific intention takes precedence over a general statute, particularly when the specific statute was later enacted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: (same). This case is no different. The Veterans Benefits Act is a specific mandate to the Department, and only to the Department, to grant first priority to SDVOSBs and VOSBs in the awarding of contracts. On the other hand, the Javits\u8211Wagner\u8211O\rquote Day Act is a more general procurement statute. Were there a conflict between the two statutes, the more specific Veterans Benefits Act would control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Where, as here, the statutes exist in tension, albeit not in direct conflict, the Department was entirely reasonable in concluding in its New Guidelines that the Veterans Benefits Act should have priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: . The court further finds that the balance of hardships favors an injunction. The parties have addressed this issue in terms of (1) the need for continuous provision of laundry services for the pertinent veterans hospitals, (2) the desirability of a prompt decision by the court to enable the Department to make an orderly provision for continuing laundry services, and (3) the fact that Angelica has maintained its staff and equipment to provide such services through extensions to its expiring contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: Hr\rquote g Tr. 6:5\u82116:10, 7:9\u82117:12 (Sept. 10, 2010); Hr\rquote g Tr. 16:4\u821116:15 (Sept. 14, 2010). Because Angelica\rquote s infrastructure remains in place and able to provide critical laundry services to the pertinent veterans hospitals, issuing an injunction will not result in an interruption in services. Setting aside the AbilityOne placement will, therefore, not ineluctably result in a severe hardship for the veterans hospitals. The timeliness of this decision will allow the Department to arrange for the continuation of services without any hiatus. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: , the Committee\rquote s listing of laundry services for the six Departmental veterans\rquote hospitals in the southeastern United States is set aside and rescinded. The Department is enjoined from proceeding with contracting with NISH for the pertinent laundry services under the listing that is being set aside. The Department and its contracting officers and officials are also enjoined to follow and implement the New Guidelines in any follow-on procurement, excepting only a temporary contract to provide services for an interim period during which the Veterans Benefits Act and the New Guidelines are being implemented. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 029 - Angelica Textile Services Inc v US.doc, Paragraph with 'Veteran: , 2867 (Oct. 13, 2010), clarify the responsibilities of the Secretary in addressing and verifying applications for inclusion of small businesses owned or controlled by veterans on the database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 031 - Linc Government Services LLC v US.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 032 - CRAssociates Inc v US.doc, Paragraph with 'Veteran: when it failed to identify and evaluate potential organizational conflicts of interest (OCI) in its evaluation of Spectrum\rquote s proposal. Plaintiff asserts that Spectrum had such a conflict because: (i) the Army had reason to know that Spectrum had a contract with Health Net to provide staffing for the TRICARE Virginia region; and (ii) under the RFP, the contractor is involved in deciding whether to refer patients to other providers, including Health Net, the TRICARE contractor for the NCA. But, these twin premises prove faulty. First, the record contradicts plaintiff\rquote s claim that Spectrum currently provides services to Health Net in the NCA or TRICARE North regions. Overall, the record suggests that Spectrum only currently provides such services to Health Net for services to veterans in Nevada and New York. Second, plaintiff virtually ignores the fact that under the contract envisioned: (i) MTFs, and not the TRICARE contractor, were the first option for patient referrals; and (ii) referral decisions were to be reviewed by a Referral Management Office, run by the Army, with the authority to overrule any decision made by the contractor and send a patient to whatever facility that office believed appropriate. Accordingly, even if Health Net obtained a presence in the NCA, there is no indication that Spectrum could exploit referrals for Health Net\rquote s gain. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 038 - Vero Technical Support Inc v US.doc, Paragraph with 'Veteran: Armed services; \u8201veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 038 - Vero Technical Support Inc v US.doc, Paragraph with 'Veteran: Armed services; \u8201veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Upon judgment in favor of service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor, in post-award protest of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), pursuant to Small Business Act, contractor applied for attorney fees and costs, under Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor, that successfully protested award of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), was prevailing party, as required for award of attorney fees and costs, under Equal Access to Justice Act (EAJA), not only based on declaratory judgment in contractor\rquote s favor that engendered material alteration of legal relationship between contractor and government by setting aside contract, but also at every dispositive stage of litigation including denial of government\rquote s motion for relief from judgment, even though government obdurately refused to effectuate judgment for almost five months. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Government\rquote s position in defending against bid protest by service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor, that successfully challenged award of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), was not substantially justified throughout dispute, as required for award of attorney fees and costs to contractor, under Equal Access to Justice Act (EAJA), even though initial administrative protest was dismissed and legal precedent concerning application of Small Business Administration\rquote s (SBA) regulations was sparse, since administrative decision did not conform to agency\rquote s prior precedent construing SBA regulations and was not credible, regulations unambiguously contradicted government\rquote s position, and limited precedent showed that government\rquote s position was unfounded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor\rquote s request for $325 per hour for three attorneys and $175 per hour for one attorney that was higher than $125 per hour statutory cap was not justified, under Equal Access to Justice Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor warranted cost of living adjustment (COLA), raising ceiling on attorney fee award, under Equal Access to Justice Act (EAJA), for prevailing in post-award bid protest of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), since contractor calculated change in cost of living, using Department of Labor\rquote s (DOL) consumer price index (CPI), from date of enactment of EAJA until date that bid protest was filed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor\rquote s requested attorney fees, under Equal Access to Justice Act (EAJA), for 105.5 hours of attorney time, plus 48.5 hours of time spent on post-judgment proceedings, warranted reduction of half of amount of 23.3 hours spent in preparation for oral argument, upon prevailing in post-award bid protest of contract to perform internet-related support services for Department of Housing and Urban Development (HUD), since total amount of time spent preparing for oral argument was excessive in light of issues presented and total time expended on case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned (SDVO) and African-American-owned incumbent contractor\rquote s requested costs, under Equal Access to Justice Act (EAJA), were recoverable as to filing fees, but not fees to deliver complaint to intervenor via mail service carrier, pursuant to statute governing taxation of costs that included filing fees but not private process server or delivery fees, upon prevailing in post-award bid protest of contract to perform internet-related support services for Department of Housing and Urban Development (HUD). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: \). First, the award contravened a regulation adopted by the Small Business Administration (\SBA\), barring a \non-competitive\ award where potential awardees had received a statement of work and been evaluated based upon their responses. Second, HUD had made the award to a non\u8211Service\u8211Disabled\u8211Veteran\u8211Owned (\SDVO\) entity although it had indicated that the award would be made to an SDVO entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: \Competitive 8(a) Set\u8211Aside (Service Disabled/Veteran Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: (quoting AR 3\u8211000022 (May Forecast)). Several weeks later, HUD issued a revised notice for the same projected award, which differed from the prior notice only in listing the acquisition strategy as an \8(a) Direct (Service Disabled/Veteran Owned).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: AR Supp. 16\u8211000562 (E-mail from Ideogenics to Ms. Adams (May 27, 2009)) (\I understand that this is going to be an 8(a) direct award, correct?\); AR Supp. 17\u8211000657 (E-mail from Jackie Robinson & Associates to Ms. Adams (June 22, 2009)) (\inquiring what the process was\); AR 7B\u8211000124 (E-mail from Shiva Information Technology Services to Ms. Adams (June 22, 2009)) (\I am not clear about the procurement strategy listed as 8(a) direct [ ] and also Service Disabled/Veteran Owned. We are an 8(a) company but not SDVOB. Will we qualify for this procurement?\). In response to questions regarding whether SDVO was a requirement, Ms. Adams stated that SDVO was \just a preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: In both the May and June forecasts, HUD listed \Service Disabled/Veteran Owned\ in parentheses beneath the acquisition strategy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Self-represented service-disabled veteran-owned small business (SDVOSB) contractor filed pre-award bid protest, seeking to permanently enjoin Department of Veterans Affairs (VA) from denying contractor award of contract for emergency electrical system upgrade at VA medical center on ground that contractor was not listed as verified SDVOSB on VA\rquote s online vendor information pages (VIP) database. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Regulation providing that if a service-disabled veteran-owned small business (SDVOSB) status protest is sustained, pursuant to a challenge to that firm\rquote s listing status on the Department of Veterans Affairs (VA) online vendor information pages (VIP) database, and the federal contract has already been awarded, then the contracting officer cannot count the award as to a VOSB or SDVOSB and the firm cannot submit another offer as a VOSB or SDVOSB on a future procurement, unless the firm demonstrates to the VA that it has overcome the reasons for the determination of ineligibility, only applies to status protests sustained against firms that already have been awarded a contract, but does not apply against an unsuccessful bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Self-represented service-disabled veteran-owned small business (SDVOSB) contractor was not \interested party,\ within meaning of Tucker Act\rquote s requirements for standing to assert pre-award bid protest, seeking to permanently enjoin Department of Veterans Affairs (VA) from denying contractor award of contract for emergency electrical system upgrade at VA medical center due to removal of contractor from VA\rquote s online vendor information pages (VIP) database, since contractor lacked substantial chance of securing contract due to ineligibility for VIP listing based on negative finding during verification of self-represented SDVOSB status as result of organizational structural flaws that materially affected control by service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Contractor\rquote s pre-award bid protest claim seeking injunction ordering reopening of bidding on contract to be awarded by Department of Veterans Affairs\rquote (VA), based on VA\rquote s allegedly unreasonable delay in restoring contractor to online vendor information pages (VIP) database as eligible service-disabled veteran-owned small business (SDVOSB), after contractor amended operating agreement to remedy prior status protest, was rendered moot under Article III case or controversy requirements, since injunctive relief could not be granted due to subsequent determination by Center for Veterans Enterprise (CVE) that contractor was otherwise ineligible to bid on VA contract as SDVOSB as result of organizational structural flaws that precluded restoration of contractor to VIP list. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: , Staff Attorney, Department of Veterans Affairs, Office of Regional Counsel\u8211Region 3, Glen Bernie, MD, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: , Staff Attorney, Department of Veterans Affairs, Washington, DC, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: This pre-award bid protest is before the court after argument on defendant\rquote s motion to dismiss on jurisdictional grounds and the parties\rquote cross-motions for judgment on the administrative record. CS\u8211360, LLC (\plaintiff\), a self-represented service disabled veteran-owned small business (\SDVOSB\) contracting firm, seeks permanently to enjoin the Department of Veterans Affairs (the \DVA\ or \VA\) from denying plaintiff a contract award for an emergency electrical system upgrade at the VA Maryland Health Care System at the VA Medical Center in Perry Point, Maryland (the \Project\), on the ground that plaintiff is not listed on the DVA\rquote s online Vendor Information Pages (the \VIP\) database. On April 30, 2010, the DVA sustained against plaintiff a status protest in an unrelated procurement, and plaintiff was removed from the VIP database. Plaintiff contends that it has satisfied the DVA\rquote s concerns related to its SDVOSB status and charges that the DVA unreasonably delayed re-listing plaintiff on the VIP database. On July 30, 2010, the DVA acknowledged that plaintiff resolved its earlier concerns, but concluded on other grounds that plaintiff is ineligible for SDVOSB status, a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: The Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: ), was enacted to increase contracting opportunities for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: ( \[T]he Secretary shall maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: ( \A small business concern may be awarded a contract under this section only if the small business concern and the veteran owner of the small business concern are listed in the database of veteran-owned businesses maintained by the Secretary under subsection (f).\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: (\Prior to January 1, 2012, all VOSBs and SDVOSBs must be listed in the VIP database, available at http:// www.VetBiz.gov, and also must be registered in the Central Contractor Registration (CCR) (see 48 CAR subpart 4.11) to receive contract awards under VA\rquote s Veteran-owned Small Business prime contracting and subcontracting opportunities program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: (\After December 31, 2011, all VOSBs, including SDVOSBs, must be listed as verified in the VIP database, and also must be registered in the CCR to be eligible to participate in order to receive new contract awards under this program.\). The Center for Veterans Enterprise (the \CVE\), a division of the DVA, evaluates applications for inclusion in the VIP database to verify whether an applicant satisfies the eligibility requirements to be listed as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: (\The Director, Center for Veterans Enterprise, is authorized to approve or deny applications for VetBiz VIP Verification. The CVE will receive, review and evaluate all VetBiz VIP Verification applications.\). The CVE has authority to remove from the VIP database a firm \found to be ineligible due to an SBA protest decision or other negative finding,\ and the firm will not be eligible to participate in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Prior to the procurement at issue in the instant matter, plaintiff bid on another, unrelated SDVOSB set-aside DVA procurement (the \protested procurement\) and was selected for the award as the low bidder. Compl. \u182 11; Pl.\rquote s Br. filed Aug. 6, 2010, at 1. Another interested offeror bidding on the protested procurement challenged plaintiff\rquote s SDVOSB status in the VIP database by filing a status protest with the DVA\rquote s OSDBU. On April 30, 2010, the Executive Director of the OSDBU sustained the status protest, determining that plaintiff did not qualify as a SDVOSB. The OSDBU found that plaintiff\rquote s Operating Agreement potentially gave non-service disabled veterans (\SDV\) control of the company, in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: (requiring veteran control of a board of directors, of a company, and any executive committee). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: Here, non-veterans can join with a SDV to override the control of the other SDV. Further, the Operating Agreement provides no requirements that both SDVs be present to establish a quorum of the Executive Committee. Therefore, if one SDV were absent, the other three members could vote to override the control of the remaining SDV. Therefore, it cannot be reasonably determined based on the documentation submitted that SDVs control the company. In the absence of clear and sufficient evidence supporting your claim to SDVOSB status, VA has no choice but to go forward and determine that the firm is ineligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: . On June 11, 2010, in addition to amending the pre-solicitation notice, the DVA also amended the Solicitation, adding to its first page: \In accordance with VAAR 804.1102, all SDVOSB and VOSB contractors and subcontractors must be listed in Vendor Information Pages (VIP) database at the Center for Veteran Enterprise (CVE) Web Portal (VetBiz), http://www.vetbiz.gov, prior to award.\ AR at 687. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: applies to status protests where the contract already has been awarded. \If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, unless it demonstrates to VA that it has overcome the reasons for the determination of ineligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,627 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: 38 C.F.R. Part 74 and 48 C.F.R. Part 819, when read together, establish a comprehensive regulatory scheme to ensure verification of SDVOSB status in order to prevent unscrupulous bidders from misrepresenting their veteran- or service-disabled ownership status. In so doing, DVA is fulfilling its verification obligation according to congressional mandate, as prescribed by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: (\In maintaining the database, the Secretary shall carry out at least the following two verification functions: (A) Verification that each small business concern listed in the database is owned and controlled by veterans. (B) In the case of a veteran who indicates a service-connected disability, verification of the service-disabled status of such veteran.\). Defendant correctly contends that these two provisions cannot be considered in isolation. Each provision is examined in turn. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: , in turn, lists \the eligibility requirements for VIP verification.\ VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,619 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 045 - CS-360 LLC v US.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. at 64,627 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: Protester brought action challenging award of task order through the General Services Administration (GSA) Federal Supply Schedule (FSS) for the procurement of mobile medical units by the Department of Veterans Affairs, seeking preliminary and permanent injunctive relief, monetary damages, and a declaratory judgment that award was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: , Director, and Tony West, Assistant Attorney General, Civil Division. Of counsel, Barton B. Evans, Houston Office of Regional Counsel, Department of Veterans Affairs, Houston, TX. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: MMIC\rquote s protest arises from the award of a task order to Gerling & Associates (Gerling), through the General Services Administration (GSA) Federal Supply Schedule (FSS). Plaintiff alleges impropriety by the Department of Veterans Affairs, Southeast Louisiana Veterans Health Care Systems (the Agency) when the Agency procured mobile medical units through the GSA FSS. Plaintiff MMIC brings claims against the Agency for alleged violations of the federal Procurement Integrity Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: As a result of Hurricane Katrina, the New Orleans Veterans Affairs Medical Clinic in New Orleans, Louisiana was devastated and the healthcare system in New Orleans became fragmented. The Agency contacted MMIC about acquiring mobile medical trailers in an effort to ensure continuity of care, while awaiting repair of the clinic. On January 5, 2009, the Agency emailed MMIC, asking for cost information about \different types of mobile medical trailers,\ and requested that the information be provided no later than January 7, 2009. MMIC responded to the Agency\rquote s request on January 7, 2009, via email, with an attached Budgetary Proposal. The email from plaintiff contained an automatically generated confidentiality stamp which provided that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: To continue with the procurement process in this instance, the contracting officer submitted a request to the Veterans Integrated Service Network on June 16, 2009 to procure the mobile units through full and open competition. The Office of Small and Disadvantaged Business Utilization, however, denied Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: the request, stating that service-disabled, veteran-owned small businesses could manufacture the units. As an alternative to procuring the units from service-disabled, veteran-owned small businesses, the Office of Small and Disadvantaged Business Utilization suggested buying them through the GSA FSS. The contracting officer decided that service-disabled, veteran-owned small businesses were not capable of producing the units, and sought information about the capacity of companies on the FSS to produce the units. The contracting officer contacted her counterpart at the GSA FSS office, who informed her that the mobile units could be purchased through the \Firefighting Vehicles and Accessories\ category or the \New Technologies\ category of the GSA FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: On June 30, 2009, the contracting officer sought approval from the Veterans Integrated Service Network and the Office of Small and Disadvantaged Business Utilization to buy the mobile units through the FSS and permission was granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: units for inclusion on the GSA schedule and that, \[h]opefully, procuring the [mobile surgery units] through GSA will simplify your process and speed the acquisition for the New Orleans veterans.\ MMIC did not object to the use of the GSA FSS to acquire mobile medical units until the Agency issued a delivery order to Gerling on October 8, 2009. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: For the foregoing reasons, plaintiff does not have standing to bring the claims alleged against the Department of Veterans Affairs, Southeast Louisiana Veterans Health Care Systems or the General Services Administration for arbitrary and capricious agency action (Counts III\u8211IV of the complaint), or against the Department of Veterans Affairs, Southeast Louisiana Veterans Health Care Systems for violations of the Procurement Integrity Act (Count I) or the Trade Secrets Act (Count II). Plaintiff\rquote s Fifth Amendment taking claim (Count V), is dismissed on the merits because the information plaintiff contends was protected was in the public domain at the time of the procurement activity. Therefore, plaintiff\rquote s complaint is dismissed in its entirety, with prejudice. The Clerk of the Court shall enter judgment in accordance with this opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: MMIC is a Department of Veterans Affairs (VA) vendor which has leased mobile surgical units to various Veterans Administration Medical Centers on four previous occasions: Solicitation Nos. VA245\u8211P\u82110159, VA256\u8211P\u82110727, and VA248\u8211P\u82111244, and Purchase Order 405C70391, a sole source procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with 'Veteran: \If the contractor has a Supplier Evaluation Risk Score of \u82167\u8217 or higher, the contracting officer must document the additional due diligence conducted to justify an award in light of the higher risk score within the contract file.\ Department of Veterans Affairs Letter to the Heads of Contracting Activities and VA Contracting Officers, IL 049\u821108\u821103, \Use of Dun and Bradstreet Reports as a Means of Assisting in Determining Contractor Responsibility\ (Apr. 11, 2008). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'Veteran: the procurement involved a Department of Veterans Affairs (\VA\) building lease for a community-based outpatient clinic. The protester challenged a solicitation requirement that the leased space of 8,000 to 9,000 square feet must be located on one floor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 065 - DGR Associates Inc v US.doc, Paragraph with 'Veteran: \It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women, shall have the maximum practicable opportunity to participate in the performance of contracts let by any Federal agency....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 066 - HomeSource Real Estate Asset Services Inc v US.doc, Paragraph with 'Veteran: For 90% to 100% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Excellent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 066 - HomeSource Real Estate Asset Services Inc v US.doc, Paragraph with 'Veteran: For 70% to 89% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Very Good. For 51% to 69% of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Good. For 50% or less of the work being performed by small businesses, veteran-owned small businesses, service-disabled veteran-owned small businesses, HUB Zone small businesses, disadvantaged businesses, women-owned or 8a small businesses, the offeror will receive a rating of Fair. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 081 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: In providing for tailored injunctive relief, the Court balanced the hardship to plaintiffs resulting from the Air Force\rquote s failure to engage in the proper competitive processes\u8212specifically, the lost opportunity to compete in a fair procurement process\u8212against the record evidence of significant hardship to the public and to the Air Force that would result from an immediate injunction of further performance of the ID/IQ contracts, including the potential disruption of critical medical care to Air Force active duty service members, veterans, and families of veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 081 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: The Government, on the other hand, contended that if an injunction issued, it would take approximately two years to replace the disputed contracts and that the alternatives proposed by plaintiffs would not assure uninterrupted medical coverage for Air Force active duty service members, veterans, and veterans\rquote families. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 081 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: Having done so, the Court adheres to its prior conclusion that the tailored injunctive relief mandated by the Court\rquote s May 13, 2010 Opinion and Order reflects the fairest and most reasonable relief to which plaintiffs are entitled, consistent with the record evidence and the broader public interest. The economic hardships that plaintiffs rely upon flow from their failure to receive a contract, and even if it were the proper measure of harm, it would be discounted for the distinct possibility that plaintiffs would not, in fact, be awarded contracts. Properly considered, that hardship does not outweigh the likely and possibly grave hardships that would be visited upon active duty service members, veterans, and veterans\rquote families if the Court\rquote s injunction did not assure the continued availability of critical health care services while the Air Force conducts the competitive reprocurement required by the Court\rquote s Order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 081 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: , to give \due regard to the interests of national defense and national security\ when considering bid protests. To the extent that critical medical care for active duty service members, veterans, and veterans\rquote families impacts the effectiveness of the Nation\rquote s armed forces, this consideration further supports the Court\rquote s tailored injunctive relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 082 - Riser v US.doc, Paragraph with 'Veteran: Veteran of Army Reserves filed pro se suit against United States, seeking back pay, reinstatement to position from which he was allegedly unlawfully discharged due to racial harassment, correction of military records as to retirement points and years of service, and compensatory and punitive damages. Veteran moved to supplement administrative record of proceedings before Army Correction Board, and government cross-moved to remand. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: Public interest in correcting Air Force\rquote s violation of federal acquisition regulation in exercising indefinite delivery/indefinite quantity (ID/IQ) contract options for medical services supported limited permanent injunction prohibiting performance of option work two years from date of imposition of injunction until Air Force could complete new procurement, since tailored injunctive relief would provide potential competitors with opportunity to compete to provide option work two years in future while also serving public interest by maintaining uninterrupted medical services for wounded veterans, service members, and their families. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: , this court held that a contractor could not bring a CDA claim alleging a violation of a Department of Veterans Affairs regulation analogous to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: veterans, service members, and their families. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 089 - Magnum Opus Technologies Inc v US.doc, Paragraph with 'Veteran: (holding that the public interest is served through ensuring continuity in TRICARE medical administration services for veterans and families of service members); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'Veteran: , and another that is a Service Disabled Veteran Owned Small Business (\SDVOSB\) concern. AR at 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'Veteran: AR at 11199\u821111201. One of the latter group, offeror AA, was, like USfalcon, a Service Disabled Veteran Owned Small Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 092 - USfalcon Inc v US.doc, Paragraph with 'Veteran: Veterans Tech., LLC, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\10, File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with 'Veteran: (construing a comparable prejudice requirement applied in the Veterans Court via Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: award to bidder that was not service disabled/veteran owned (SDVO) was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Federal agency\rquote s award of contract to perform internet and intranet services to bidder that was not service disabled/veteran owned (SDVO) was against its published strategy for procurement, and thus was arbitrary and capricious, and prejudicial to vendors who reasonably assumed that there was no ambiguity as to whether SDVO was requirement, even though agency told participants who inquired that SDVO was preference, rather than requirement, where agency listed \Service Disabled/Veteran Owned\ in parentheses beneath acquisition strategy in its forecasts, and did not inform SDVOs that it intended to consider non-SDVO firms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Infiniti is a Service\u8211Disabled\u8211Veteran\u8211Owned (\SDVO\) and African\u8211American\u8211owned company. AR 2\u8211000020 (Vendor Information for PIH Internet/ HUDWeb/ PHA Plans Support Procurement). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Shortly before that date, on May 18, 2009, HUD issued a notice advising of a planned \PIH Internet/HUD Web/PHA Plan Support [Contract],\ for services to \perform daily maintenance and updates to existing web pages and documents, create new sub-sites within PIH\rquote s internal and external websites, perform marketing, [develop and execute] outreach and support strategies,\ and \[c]onvert files to portable document format and track are [sic] documents.\ AR 3\u8211000021 to 000022 (May Forecast). Notably, the May Forecast projected that the award would be a \Competitive 8(a) Set\u8211Aside (Service Disabled/Veteran Owned).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: at 000022. Several weeks later, on June 8, 2009, HUD issued a revised notice for the same projected award, which differed from the prior notice only with respect to the acquisition strategy; that strategy was shown on the June Forecast as \8(a) Direct (Service Disabled/Veteran Owned).\ AR 3\u8211000023 to 000024 (June Forecast). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: AR Supp. 16\u8211000562 (E-mail from Ideogenics to Ms. Adams (May 27, 2009)) (\I understand that this is going to be an 8(a) direct award, correct?\); AR Supp. 17\u8211000657 (E-mail from Jackie Robinson & Associates to Ms. Adams (June 22, 2009)) (\inquiring what the process was\); AR 7B\u8211000124 (E-mail from Shiva Information Technology Services to Ms. Adams (June 22, 2009)) (\I am not clear about the procurement strategy listed as 8(a) direct [ ] and also Service Disabled/Veteran Owned. We are an 8(a) company but not SDVOB. Will we qualify for this procurement?\). In response to questions regarding whether Service Disabled/Veteran Owned (\SDVO\) was a requirement, Ms. Adams stated that SDVO was \just a preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: Mr. Strayhorn evaluated Infiniti and the other ten vendors in four areas: (1) interview questionnaire and technical approach; (2) project management and staffing approach; (3) past performance on similar projects; and (4) whether the vendor was Service Disabled Veteran Owned. AR 13A\u8211000480 (Mr. Strayhorn\rquote s Comments for Recommendation for 8(a) Direct Award). For each of the first three areas evaluated, Mr. Strayhorn awarded the vendors between 1 and 4 points with 1 point being a rating of \poor\ and 4 being \excellent.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: With regard to the fourth area evaluated, whether the vendor was service disabled veteran owned, Mr. Strayhorn awarded one point to vendors who were veteran owned and two points to vendors who were both service disabled and veteran owned; vendors who were not veteran owned received zero points. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: at 000480 to 000484. Mr. Strayhorn\rquote s conclusions were as follows: \If the veteran preference is to be honored, then my choice for this award is Infiniti. If a new company is to be selected, then I will choose Ideogenics. In both cases, I pick Infiniti as my overall choice.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: AR 3\u8211000024 (June Forecast). An 8(a) direct award can be made on either a competitive or a sole-source basis, and the final forecast in June was consequently ambiguous on the basis for award within the ambit of SBA\rquote s 8(a) rules. By contrast, both the May and June forecasts were specific that the \Service Disabled/Veteran Owned\ criterion would apply because that notation appeared in parentheses under the acquisition strategy in both notices. Five of the eleven vendors included on the vendor list signed by Mr. Brown on June 10, 2009 were SDVO. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 007 - Infiniti Information Solutions LLC v US.doc, Paragraph with 'Veteran: A second challenged aspect of the procurement at issue tests HUD\rquote s award against its published strategy for the procurement. In both the May and June forecasts, HUD listed \Service Disabled/Veteran Owned\ in parentheses beneath the acquisition strategy. This listing engendered confusion, and some of the vendors posed questions to Susan Adams on this point. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 010 - Metropolitan Van and Storage Inc v US.doc, Paragraph with 'Veteran: (\The Court of Federal Claims concluded that Galen\rquote s complaints regarding the initial solicitation were rendered moot when the VA [G.V. Sonny Montgomery Veterans Affairs Medical Center] vacated the award and agreed to amend the solicitation. We agree that the complaints based on pre-corrective action events are moot where charged as a specific violation of a code or statute, but are relevant in order to establish a possible pattern of bias.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 010 - Metropolitan Van and Storage Inc v US.doc, Paragraph with 'Veteran: (\No part of the RFP indicates, in any way, that the VA [United States Department of Veterans Affairs] will not apply that rule [of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 011 - LTMCDragonfly Inc v Metropolitan Washington Airports Authority.doc, Paragraph with 'Veteran: Vietnam Veterans of Am. v. Shinseki, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 011 - LTMCDragonfly Inc v Metropolitan Washington Airports Authority.doc, Paragraph with 'Veteran: Vietnam Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: HUBZone program had priority over business development program and over service-disabled veteran-owned (SDVO) business program, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: Historically underutilized business zone (HUBZone) program had priority over business development program and over service-disabled veteran-owned (SDVO) business concern program, under Small Business Act provision governing HUBZone small businesses, mandating that, \notwithstanding any other provision of law,\ contract opportunity \shall be awarded\ on basis of competition restricted to qualified HUBZone small business concerns upon satisfying \rule of two,\ providing for competition among qualified HUBZone small businesses where reasonable expectation was that not less than two such qualified businesses would submit offers and award could be made at fair market price, since plain meaning of \notwithstanding\ phrase included other provisions in Small Business Act that governed business development program and SDVO businesses, and HUBZone mandatory statutory language contrasted with discretionary statutory language for business development program and SDVO businesses. Small Business Act, \u167\u167 2[8](a)(1)(A), (a)(1)(D)(I), 2[31](b)(2)(B), 2[36](b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: Before the court are Plaintiff Mission Critical Solutions\rquote Motion for Judgment on the Administrative Record and Memorandum in Support of Mission Critical Solutions\rquote Motion for Judgment on the Administrative Record (plaintiff\rquote s Motion or Pl.\rquote s Mot.), Defendant\rquote s Response and Cross\u8211Motion for Judgment Upon the Administrative Record (defendant\rquote s Response or Def.\rquote s Resp.), Plaintiff\rquote s Reply to Defendant\rquote s Cross\u8211Motion for Judgment on the Administrative Record (Pl.\rquote s Reply), and Defendant\rquote s Reply to Plaintiff\rquote s Response to Cross\u8211Motion for Judgment Upon the Administrative Record (Def.\rquote s Reply). This case presents what is primarily a legal, rather than a factual, question: whether statutory language provides for the prioritization of the Historically Underutilized Business Zone (HUBZone) Program over the 8(a) Business Development Program (and over the Service\u8211Disabled Veteran\u8211Owned (SDVO) Business Concern Program, although not at issue in this case) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: It is the policy of the United States that small business concerns, small business concerns owned and controlled by veterans, small business concerns owned and controlled by service-disabled veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: The Service\u8211Disabled Veteran\u8211Owned (SDVO) Business Concern Program is not at issue in the procurement addressed in this case, but the court\rquote s analysis of the priority of the Historically Underutilized Business Zone (HUBZone) statute necessarily requires that the SDVO program be treated in a manner parallel to the 8(a) program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 020 - Mission Critical Solutions v US.doc, Paragraph with 'Veteran: award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans ....\ (emphasis added)) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: Incumbent lessor of property used for Department of Veterans Affairs medical clinic brought post-award action, protesting bid solicitation term requiring new space to be leased by government be located on one floor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: Incumbent lessor of building used for Department of Veterans Affairs medical clinic waived its objection to term of government solicitation for contract for new lease, which imposed a one-floor requirement, when, despite having opportunity to do so, incumbent lessor failed to raise issue prior to closing of bidding process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: The Department of Veterans Affairs leases space from plaintiff Esterhill Boat Service Corporation for its Rumford, Maine, Community\u8211Based Outpatient Clinic. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: When the Department of Veterans Affairs entered the final year of its lease for the Rumford Clinic in Maine, contracting officer Keith Waye circulated an email to various officials of the Togus VA Medical Center and the Rumford Outpatient Clinic. He explained that the Rumford Clinic\rquote s lease was due to expire soon and inquired whether he should renew the current lease or begin looking for a new facility. The administrators agreed that issuing an open solicitation for a longer lease term was the better use of resources, and asked that the new facility provide sufficient space for the clinic to operate on one floor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: Esterhill had standing to sue in this court because it might have submitted a more favorable proposal upon resolicitation, particularly if it had been successful in efforts to invalidate the one-floor requirement. Plaintiff waived its argument that the one-floor requirement was unduly restrictive, however, by not filing a protest in this court before the bids were opened and considered by the Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: Esterhill\rquote s protest of the Veterans Affairs lease for the Rumford, Maine, Community\u8211Based Outpatient Clinic is DENIED. The Clerk of Court will dismiss plaintiff\rquote s complaint. No costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with 'Veteran: did not \accidentally\ neglect to list the Service Contracts Act as a consideration in evaluating the bids, for example. The Department of Veterans Affairs did not accidentally include the crucial one-floor requirement in its solicitation. Within the context of the waiver rule, the word \error\ as used in this Opinion encompasses deliberate inclusions or exclusions by the Agency as well as oversights and ambiguities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: Unsuccessful bidder filed bid-protest action, challenging Army Corps of Engineers\rquote (COE) award of multiple contracts set aside for service disabled veteran owned small businesses (SDVOSB) to provide emergency temporary roof repairs in support of disaster response for several states in coastal areas. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: Although source selection authority (SSA) considered ratings of single-state source selection evaluation plan (SSEP) in evaluating all-state SSEP ratings, in reevaluating bidder\rquote s proposal for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response, SSA was authorized to consider information outside four corners of proposal, under SSEP, permitting consideration of germane and relevant information outside of proposals, since single-state SSEP information was germane and relevant by suggesting that all-state evaluation criteria could have been misapplied, due to wide discrepancy among ratings that justified SSA\rquote s requested reevaluation of both single-state and all-state proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: Bidder\rquote s top reevaluation rating, but not highest rating, for experience-related technical factors, for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response for several states, was reasonable, where reevaluation focused on bidder\rquote s teaming agreement that extensively relied on subcontractor as teaming partner that held all of bidder\rquote s technical capability and had past experience that bidder lacked. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: Bidder\rquote s exclusion from technical/price tradeoff process in best value determination, for set aside contract solicited by Army Corps of Engineers (COE) for service disabled veteran owned small businesses (SDVOSB) to provide roof repairs as disaster response for several states, was reasonable, under source selection evaluation plan (SSEP), contemplating only examination of technically superior proposal with next best proposal, where bidder had only fourth-rated technical proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: Under the terms of the solicitation, COE intended to award one Indefinite Delivery/Indefinite Quantity (\ID/IQ\) contract (known as a Single Award Task Order Contract) in an amount not to exceed $50,000,000, with a minimum guarantee of $5,000. AR 90, 111. The period of performance for this contract consisted of a three-year base period and a two-year option period for a total of a five-year performance period. AR 147. The procurement was set aside for Service Disabled Veteran Owned Small Businesses, AR 95, and provided that the offeror was required to self-perform 30% of the work under the contract. AR 145. The six other concurrent solicitations also concerned installation of blue roofs for regions of the country or individual states. Proposals for the seven solicitations were evaluated by seven different Source Selection Evaluation Boards (\SSEB\ or \Board\). However, the final award decision was to be made by a single Source Selection Authority (\SSA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 035 - GCC Enterprises Inc v US.doc, Paragraph with 'Veteran: AR 1058\u821159. According to the solicitation, \[t]he principal objective of the evaluation process is to make award of a contract to the responsible offeror whose proposal is determined to be the \u8216best value\u8217 to the Government, price and other factors considered in a Service Disabled Veteran Owned (SDVO) Small Business set aside.\ AR 121. The evaluators considered two volumes. Volume I contained the Technical Proposal, and Volume II consisted of the Cost/Price Proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 042 - Digital Technologies Inc v US.doc, Paragraph with 'Veteran: Innovative (PBX) Tel. Servs., Inc. v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 051 - The Analysis Group LLC v US.doc, Paragraph with 'Veteran: The Analysis Group, LLC (TAG) is the incumbent support contractor since July 2006 to the U.S. Air Force\rquote s Deputy Chief of Staff for Operations, Plans, and Requirements, Strategic Plans and Policy Division (A5XP). (Pl.\rquote s Br. at 1, 4.) TAG is a veteran-owned business and was performing support services for the past three years under prior Task Orders issued under competitively awarded Air Force Blanket Purchase Agreements (BPA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: General contractor, as registered service-disabled veteran-owned small business (SDVOSB), filed pre-award bid protest against United States, seeking to permanently enjoin Department of Veterans Affairs (DVA) from soliciting contract in open and unrestricted competition, rather than set-aside procurement, for constructing new surgical suite addition and partial renovation of surgical support area at veterans hospital in Missouri. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small business (SDVOSB) general contractor\rquote s excuse that finding \needle in haystack\ on Department of Veterans Administration\rquote s (DVA) complex website by untrained SDVOSBs could be considered discovering previously unavailable evidence, discrediting sufficiency of DVA\rquote s market research for SDVOSBs before opening contract bidding to unrestricted competition, rather than set-aside procurement, was not extraordinary circumstance required for reconsideration of decision of Court of Federal Claims upholding DVA\rquote s solicitation, since evidence on website was manifestly available prior to court\rquote s decision, and contractor\rquote s attorney, not contractor, was responsible for searching DVA website. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small business (SDVOSB) general contractor\rquote s transformation of minor reference in briefing to revamped major emphasis on statute establishing priority for contracting preferences did not justify reconsideration of Court of Federal Claims\rquote decision, upholding Department of Veterans Administration\rquote s (DVA) opening of contract bidding to unrestricted competition, rather than set-aside procurement, since court\rquote s determination that DVA did not have reasonable expectation that two or more SDVOSBs would submit offers conclusively precluded any discussion on application of prioritization statute. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: , Department of Veterans Affairs, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: This pre-award bid protest is before the court after briefing on plaintiff\rquote s motion for reconsideration. Plaintiff Totolo/King Joint Venture (\plaintiff\), a Service Disabled Veteran Owned Small Business general contractor (\SDVOSB\), moves pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: for reconsideration of this court\rquote s decision granting defendant\rquote s motion for judgment (and denying plaintiff\rquote s cross-motion for judgment) on the administrative record. The motion for reconsideration echoes plaintiff\rquote s unsuccessful cross-motion and insists that the Department of Veterans Affairs (the \DVA\) improperly solicited a contract (the \Solicitation\), to the detriment of SDVOSBs, as an open and unrestricted competition. Warranting the court\rquote s reconsideration, plaintiff contends, are 1) newly discovered evidence discrediting the sufficiency of the DVA\rquote s market research for the Solicitation, and 2) the court\rquote s alleged failure to consider the explicit prioritization of SDVOSBs prescribed by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: [A] contracting officer of the [DVA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s recently discovered evidence\u8212the DVA Office of Acquisition and Material Management Information Letter 049\u821106\u82111 (Dec. 26, 2005), titled \Increasing Opportunities for Awards to Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses\ (\IL 049\u821106\u82111\)\u8212was manifestly available prior to the June 15, 2009 decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: ] to small business concerns owned and controlled by veterans with service-connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: ] to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: ....\). The section was deemed inapplicable because the contracting officer did not have \a reasonable expectation that two or more small business concerns owned and controlled by veterans [would] submit offers.\ 31 U.S.C. \u167 8127(d); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s untimely and unavailing arguments in its motion for reconsideration do not tilt the balance of hardships in plaintiff\rquote s favor or establish an overriding public interest that would justify enjoining the construction of medical facilities for veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: VetBiz.gov is a federally controlled database that houses information about service-disabled or veteran small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Were the court to consider IL 049\u821106\u82111 on its merits, IL 049\u821106\u82111 would fail to justify plaintiff\rquote s motion for reconsideration. IL 049\u821106\u82111 \provides guidance to contracting officers on awarding contracts to small business concerns owned and controlled by veterans and by service-disabled veterans.\ Pl.\rquote s Br. filed June 29, 2009, Ex. A at 1. Further, \[i]n order to place greater emphasis on the award of contracts to [Veteran Owned Small Business general contractors (\u8216VOSBs\rquote )] and SDVOSBs,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: Defendant rejoins\u8212and the court concurs\u8212that \[t]he Veterans Administration promulgated IL 049\u821106\u82111 as a guideline and not as a mandatory regulation.\ Def.\rquote s Br. filed July 13, 2009, at 5 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: OAL Resource Library\u8211Logistics Management Service, http://www1.va. gov/oamm/rlib/logistics.cfm (last visited July 10, 2009) (\Information Letters (IL) are used to release non-directive information. Mandatory policies and procedures are published in the form of Directives, Handbooks, and Regulations.\)). Moreover, defendant complied with a subsequent DVA information letter\u8212the DVA Office of Acquisition and Material Management Information Letter 049\u821107\u82111 (June 19, 2007), titled \Veterans First Contract Program\ (the \2007 IL,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 056 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: establishes priorities for contracting preferences to veterans with service connected disabilities.\ Plaintiff\rquote s post-argument brief filed May 14, 2009, at 3. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: Prior contract awardee filed sealed complaint, pursuant to Tucker Act and Contract Disputes Act (CDA), seeking injunction requiring National Guard Bureau (NGB) to disqualify subsequent contract awardee and terminate subsequent contract for total service-disabled veteran-owned small business set-aside contract for child and youth training, after prior awardee was disqualified from prior contract due to size protest, and requesting lost profits or, alternatively, reinstatement of prior contract. Government moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: Prior contract awardee that was subsequently disqualified as \other than small\ contractor, resulting in National Guard Board\rquote s (NGB) termination of total service-disabled veteran-owned small business set-aside contract for child and youth training, was not \interested party,\ within meaning of Tucker Act, as required for prior awardee\rquote s standing to protest NGB\rquote s re-award of subsequent contract to qualified contractor, since prior award was not entitled to presumption of validity due to timely size protest, and prior awardee lacked substantial chance of obtaining valid award due to size determination that was effective immediately and that prior awardee failed to appeal before NGB issued subsequent valid award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: Prior awardee lacked standing to protest National Guard Board\rquote s (NGB) alleged bad faith termination of prior award for total service-disabled veteran-owned small business set-aside contract for child and youth training, on grounds that prior awardee was not \interested party\ objecting to government contract in connection with \procurement,\ within meaning of Tucker Act, since prior awardee\rquote s complaint did not challenge award of prior contract to another contractor or failure to award contract at all. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: Prior contract awardee\rquote s claim for injunctive relief, seeking review of decision by Small Business Administration\rquote s (SBA) Office of Hearing and Appeals (OHA) affirming SBA size determination that awardee was disqualified as \other than small\ for National Guard Board\rquote s (NGB) total service-disabled veteran-owned small business set-aside contract to provide child and youth training, and ordering SBA to cease reliance on allegedly improper OHA decision and to remove any bar to prior awardee self-certifying as small for procurements of different size standard, was not ripe, since alternative administrative remedy was available to address prior awardee\rquote s concerns about future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: On December 12, 2008, the National Guard Bureau (\NGB\) issued Solicitation No. W9133L\u821109\u8211R\u821100007 for \Child and Youth training management, program assessment, curriculum development, supervision and assessment to the 54 States and Territories\ (the \Solicitation\). Gov\rquote t App. at 2. The Solicitation was a Total Service\u8211Disabled Veteran\u8211Owned Small Business Set\u8211Aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 063 - Taylor Consultants Inc v US.doc, Paragraph with 'Veteran: The NGB received proposals from six offerors, including Taylor Consultants, Inc. (\Plaintiff\) and Veteran Enterprise Technology Services (\VETS\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 066 - Walls v US.doc, Paragraph with 'Veteran: In late 2002, the Veterans Administration (\VA\) awarded Walls a twenty percent disability rating for his service-connected chronic low back strain and a ten percent disability rating for his service-connected left knee ligament injury. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Unsuccessful bidder, as disabled veteran and owner of fire protection business, filed pro se suit against United States, claiming discrimination based on nonselection for contract to replace sprinkler heads in National Institutes of Health (NIH) buildings, allegedly in violation of Jobs for Veterans Act (JVA), Veterans Employment Opportunities Act (VEOA), Civil Rights Act of 1866, Title VII, Civil Rights Act of 1968, Civil Rights Act of 1991, Americans with Disabilities Act (ADA), Rehabilitation Act, and executive order, seeking $500 million in damages for nonaward of contract, undue financial and emotional distress, and loss of personal property. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Jobs for Veterans Act (JVA) is not a money-mandating statute that can confer Tucker Act jurisdiction upon the Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Jobs for Veterans Act (JVA) requires that contractors with the federal government take affirmative action to hire veterans, but does not require the federal government itself to take affirmative action to award contracts to veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Veterans Employment Opportunities Act (VEOA) confers exclusive jurisdiction upon the district courts, rather than the Court of Federal Claims, in the event of a violation of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Claim against United States by disabled veteran, as unsuccessful bidder on contract to replace sprinkler heads in National Institutes of Health (NIH) buildings, was precluded, under executive order directing federal agencies to implement strategies to meet goal of having not less than 3% of federal contracts fulfilled by service-disabled veteran businesses, since executive order did not create private right of action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Mr. Searles alleges that he is the owner of Omegaman Fireprotection (\Omegaman\) and a disabled veteran. In July of 2006, Omegaman submitted a bid to replace sprinkler heads in eleven buildings at the National Institutes of Health (\NIH\) (Contract Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: The plaintiff\rquote s complaint indicates that Omegaman submitted the lowest bid for the contract ($98,060.00, as compared to the $118,187.96 bid submitted by DVS Industrial Products, which was awarded the contract). Plaintiff asserts that his company had the most experience related to the contract, as plaintiff had previously replaced sprinkler heads at NIH. Further, the plaintiff indicates that Omegaman offered the only bid that met all requirements of the contract solicitation. Despite these apparent qualifications, Omegaman was not awarded the contract. Plaintiff alleges discrimination in violation of the Jobs for Veterans Act, 28 U.S.C. \u167\u167 4112, 4215, the Veterans Employment Opportunities Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: 3. The Jobs for Veterans Act and Veterans Employment Opportunities Act Are Not Relevant to the Factual Scenario Outlined in Plaintiff\rquote s Complaint and Outside this Court\rquote s Jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: The Plaintiff has not specified a particular section of the Jobs for Veterans Act providing the basis for his claim; the government assumes that the plaintiff is relying upon the section of the Act requiring that \[a] contract in the amount of $100,000 or more entered into by any department or agency of the United States for the procurement of personal property and nonpersonal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States take affirmative action to employ and advance in employment qualified covered veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: . The Jobs for Veterans Act is not a money-mandating statute that can confer jurisdiction upon the Court of Federal Claims. Nor is it on its face relevant to the factual situation explained in the plaintiff\rquote s complaint: The Act requires that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: with the federal government take affirmative action to hire veterans, but does not require the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: to take affirmative action to award contracts to veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Similarly, the Veterans Employment Opportunities Act is not relevant to the plaintiff\rquote s situation and does not provide a basis for jurisdiction in this court. The Veterans Employment Opportunities Act applies not to veterans seeking government Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: but to veterans seeking Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: . For these reasons, the plaintiff\rquote s claims under the Jobs for Veterans Act and Veterans Employment Opportunities Act are dismissed for lack of jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: directs federal agencies to implement strategies to meet a goal of having not less than three percent of federal contracts fulfilled by service-disabled veteran businesses. However, on its face, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 068 - Searles v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s complaint alleges discrimination due to his status as a service-disabled veteran, but this court is without jurisdiction to hear claims under the ADA nor the Rehabilitation Act. The ADA is not a statute mandating payment by the United States. Indeed, the ADA does not apply to the federal government as an employer and district courts hold exclusive jurisdiction over ADA claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: counterexample ... where an agency attempted to procure IT work for both financial\u8211 and non-financial systems in a single, integrated solicitation\: a 2000 Department of Veterans Affairs (\VA\) competition valued at over $400 million that was known as the Core Financial and Logistics System (\CoreFLS\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: These records included documentation, licenses, \employment information on each U.S. mariner[,] and World War II Merchant Mariner Veteran\rquote s Status information.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 082 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: Although the Coast Guard veterans on our team have eaten at Coast Guard dining facilities during their careers, management of DFAMS, in my experience, has never required any personal understanding of the operations of such facilities, and my team has relied on dining facility experts in the Coast Guard to manage the application. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: Veteran\u8211Owned Small Business (VOSB) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: % veteran-owned small business, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: % veteran-owned small business, and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: AR at 1485, 1489. Crowder Gulf\rquote s list did not include any information as to the type or quantity of equipment each subcontractor could utilize. AR at 1485\u82111529. A coversheet for each region indicated the total number of subcontractors for that region and the number of subcontractors within that region who identified themselves as small business, women-owned, veteran-owned, service-disabled veteran-owned, HubZone, or small disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 089 - AshBritt Inc v US.doc, Paragraph with 'Veteran: Crowder Gulf\rquote s matrix listed categories of work, and for each of these categories, indicated which categories of small business subcontractors\u8212e.g., veteran-owned small businesses or small disadvantaged businesses\u8212Crowder Gulf expected to perform such work. AR at 1474. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: General contractor, as registered service-disabled veteran-owned small business (SDVOSB), filed pre-award bid protest against United States, seeking to permanently enjoin Department of Veterans Affairs (DVA) from soliciting contract in open and unrestricted competition, rather than set-aside procurement, for constructing new surgical suite addition and partial renovation of surgical support area at veterans hospital in Missouri. Parties cross-moved for judgment on agency record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: General contractor, as service-disabled veteran-owned small business (SDVOSB), had standing as \interested party\ to invoke Court of Federal Claims\rquote jurisdiction, under Tucker Act, for pre-award bid protest seeking to enjoin Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract by open competition, rather than set-aside procurement, since contractor would be prospective bidder if solicitation were issued as SDVOSB or small business set-aside, and had direct economic interest affected by DVA\rquote s decision to conduct open and unrestricted competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Procurement regulation governing demonstration program, for assessing ability of small businesses to compete successfully in procuring government contracts without restriction of competition by small business set-asides, does not preclude a service-disabled veteran-owned small business (SDVOSB) from participating or bidding on contracts, but rather, the regulation merely opens competition to an unrestricted rather than restricted basis; thus, the general duties and requirements under the demonstration program regulation and statute governing the set-asides for an SDVOSB are not mutually exclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: General contractor, as service-disabled veteran-owned small business (SDVOSB), would be allowed to supplement administrative record with affidavit from contractor\rquote s president explaining why Department of Veterans Affairs (DVA) unreasonably failed to specify bond estimate in sources sought notice (SSN), in soliciting bids for veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since reviewing court would not rely on affidavit to support decision, and contractor did not attempt to supplement record with numerous documents altering record, but merely provided evidentiary support for reasonable inferences drawn and arguments made from existing record facts to identify to court whether contracting officer did or did not do something so that determination could be made as to whether officer acted arbitrarily or capriciously. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Despite statutory preferences for service-disabled veteran-owned small businesses (SDVOSBs), contracting officer\rquote s ad hoc superficial market research for qualified SDVOSBs, and eleven other sources sought notices (SSNs) in which Department of Veterans Affairs (DVA) included bond estimates for small businesses to make informed business decisions whether to place contract bids, DVA\rquote s market research and SSN excluding bond estimate in soliciting bids for veterans hospital construction project in open and unrestricted competition, rather than set-aside procurement, were neither unreasonable nor constituted prejudicial violation of procurement laws, since DVA had discretion to exclude bond estimate from SSN to maintain confidentiality of project estimate, cursory market search was insufficient to render unreasonable contracting officer\rquote s other actions to identify SDVOSBs, and assertions that officer could have better performed his duties in alerting and searching for SDVOSBs did not rise to level of prejudicial violation of procurement laws. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: The manner in which the Department of Veterans Affairs (DVA) assesses its procurement needs is a business judgment and lies within the DVA\rquote s own discretionary domain. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: General contractor, as service-disabled veteran-owned small business (SDVOSB), would be irreparably harmed in absence of permanent injunction barring Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since contractor\rquote s pre-award bid protest would only allow recovery of bid preparation costs, but not loss of anticipated profits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Balance of hardships did not favor permanent injunction barring Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since financial harm to general contractor, as service-disabled veteran-owned small business (SDVOSB), in absence of injunctive relief, did not overcome contractor\rquote s failure to succeed on merits of challenge to DVA\rquote s winnowing process for determining availability of qualified SDVOSBs as unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Public interest in providing fair opportunities for qualified service-disabled veteran-owned small businesses (SDVOSBs) to bid on government contracts would not be served by permanently enjoining Department of Veterans Affairs (DVA) from soliciting veterans hospital construction contract in open and unrestricted competition, rather than set-aside procurement, since SDVOSB general contractor had not established that DVA\rquote s winnowing process for determining availability of qualified SDVOSBs was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: , Department of Veterans Affairs, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: This pre-award bid protest is before the court after argument on the parties\rquote cross-motions for judgment on the administrative record. Totolo/King Joint Venture (\plaintiff\), a Service Disabled Veteran Owned Small Business general contractor, seeks permanently to enjoin the Department of Veterans Affairs (the \DVA\) from soliciting a contract for the construction of a new surgical-suite addition and the partial renovation of surgical support area at the Harry S. Truman Veterans Memorial Hospital in Columbia, Missouri (the \Project\), as an open and unrestricted competition. The issue presented is whether the DVA conducted a meaningful winnowing process to determine the availability of eligible, capable veteran-owned small-business contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: The Administrative Record (\AR\) is the source of the following facts, unless otherwise noted. The court also draws on several agency documents that the parties provided with their briefs, inexplicably not included in the administrative record. Plaintiff is a registered Service Disabled Veteran Owned Small Business (\SDVOSB\) general contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Then, by memorandum dated October 17, 2008, Contracting Officer Frank A. Clemons issued a \Justification for Procurement\ to the DVA Office of Small and Disadvantaged Business Utilization (the \OSDBU\) recommending that \construction services for a new Surgical Suite addition to the existing hospital and renovation for surgical support functions at the Harry S. Truman Veterans Memorial Hospital, in Columbia, Missouri be solicited as full and open competition/unrestricted.\ Pl.\rquote s Br. filed Mar. 10, 2009, Ex. C. The stated purpose for the SSN was to \solicit responses from small bondable businesses capable of performing the work\ for the Project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Mr. Clemons only provided a cursory review of the basis for his recommendation, stating that three small companies responded to the SSN and that a search of VetBiz.gov (a federally controlled database that houses information about service-disabled or veteran small businesses) did not identify any small businesses demonstrating the requisite bonding capability or experience. The OSDBU approved Mr. Clemons\rquote s recommendation on October 30, 2008. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: On March 30, 2009, defendant filed notice to the court of the DVA\rquote s remand decision comprising of a second \Justification for Procurement\ prepared by Mr. Clemons\u8212again recommending that the Solicitation be conducted as full and open competition/unrestricted, AR at 5\u82116\u8212and the OSDBU\rquote s approval (Form 2268). AR at 8. Both documents are dated March 20, 2009. The memorandum stated that the reevaluation of the earlier decision was undertaken in respect to plaintiff\rquote s allegation that the procurement should be set aside for a SDVOSB under the Veterans First Program. Therefore, the remand justification should clarify \an ambiguity in the original justification memorandum\ and correct any problems found in the original decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Next, Mr. Clemons searched VetBiz.gov by NAICS code 236220. He stated that the search results identified many service-disabled veteran and veteran-owned small businesses; however, he concluded that these businesses were not qualified because they either lacked bonding capability or experience working on projects of similar size. Mr. Clemons also searched the VetBiz registry for small businesses under NAICS code 236220. His search yielded a list of 1,113 general and non-general contractors. Mr. Clemons investigated the first ten companies and also performed a random search, among the 1,113 listed contractors, for qualified small businesses. He reported that both of these searches were unsuccessful in identifying qualified small businesses, noting that \only one SDVOSB had responded to the Sources Sought ad. Consequently, [he] did not expect that two or more responsible SDVOSB firms would submit offers.\ AR at 6. Mr. Clemons offered the aforementioned processes and findings as justification for concluding that the construction and renovation services should be solicited as full and open competition/unrestricted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: . This subpart of the FAR also provides that \[a]cquisitions in the designated industry groups must continue to be considered for placement under ... the Service\u8211Disabled Veteran\u8211Owned Small Business Procurement Program (see Subpart 19.14).\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: The Veterans First Program was enacted to achieve goals similar to those under the Small Business Act, but with a focus on increasing contracting opportunities by the DVA for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: (a) Contracting goals.\u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: (A) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: (B) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: (stating that \the terms \u8216Secretary\u8217 and \u8216Department\u8217 mean the Secretary of Veterans Affairs and the Department of Veterans Affairs, respectively.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: of Veterans First provides, in pertinent part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: [A] contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: The Veterans Benefit Act of 2003 \u167 308, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: set-aside acquisitions ... for competition restricted to service-disabled veteran-owned small business concerns,\ FAR 19.1405(a) (emphasis added), when the contracting officer has a reasonable expectation that the agency will receive offers from two Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: is more on point in this procurement. The Project is issued by the DVA and is for the construction and renovation of the Harry S. Truman Veterans Memorial Hospital. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Insofar as the DVA is permitted to cancel the Solicitation, plaintiff has not explained why the DVA \has not ... met the requirements of the program ..., [and] has not properly noticed and solicited this procurement pursuant to requirements of the\ Demonstration Program. Pl.\rquote s Br. filed May 14, 2009, at 4. Addressing plaintiff\rquote s principal complaint, the court concludes that a contracting officer still can give priority placement consideration to veteran-owned small businesses under FAR subpart 19.10 and still can encourage veteran-owned small businesses to participate in a solicitation. FAR subpart 19.10 does not preclude veteran businesses from participating or bidding; instead, it merely opens competition to an unrestricted rather than restricted basis. The general duties and requirements under each respective statute are not mutually exclusive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: to the extent practicable, encourage maximum participation by small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in acquisitions by taking the following actions: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Congress has provided preferences for small businesses and specifically for veteran-owned small businesses: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: (discussing contracting goals and preferences for small business concerns owned and controlled by veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Plaintiff discounts Mr. Clemons\rquote s research of the VetBiz Registry, stating that \no objective contemporaneous records of this search, no results sheets, no physical evidence that the alleged search ever took place, no parameters of the search, or any other evidence\ substantiate the search for qualified small businesses. Pl.\rquote s Br. filed Apr. 16, 2009, at 5; Pl.\rquote s Br. filed May 1, 2009, at 9. Plaintiff asserts that the criteria used to search the database \[do] not make sense.\ Pl.\rquote s Br. filed May 1, 2009, at 9. If Mr. Clemons searched the database by the NAICS code (Service Disabled Veteran) and by bonding capacity, he would have narrowed the results, thus providing a more \reasonable number of contractors\ to review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: Plaintiff extrapolates that Mr. Clemons did not satisfy the DVA\rquote s burden under applicable regulations. FAR Part 19 states, in relevant part that \[i]t is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: The Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: ) (\Veterans First\ or \Veterans First Program\), was enacted to achieve a similar goal, but more specifically to increase contracting opportunities for service-disabled veteran and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 093 - TotoloKing v US.doc, Paragraph with 'Veteran: . Similar to provisions applicable to the SBA, \a contracting officer of the Department [of Veteran Affairs] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 096 - ViroMed Laboratories Inc v US.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\11, File: 097 - Academy Facilities Management v US.doc, Paragraph with 'Veteran: cases is narrow. We may only set aside the contract if the VA\rquote s [Veterans Affairs] actions were arbitrary and capricious, or otherwise not in accordance with the law.... The burden is therefore on the plaintiff to show that, but for the alleged error in the procurement, it likely would have been awarded the contract. A protestor\rquote s burden is higher for a negotiated procurement because the contracting officer has broad discretion when engaging in an inherently judgmental process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 002 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: In its renewed motion to strike, QSS objects to GCE\rquote s initial declarations, as well as to the following: (1) GCE\rquote s first supplemental declarations of Messrs. Muslimani, Lucas, and Winslow, and its second supplemental declarations of Messrs. Muslimani and Winslow; (2) GCE\rquote s inclusion of non-Coast Guard request for proposal (\RFP\) documents and purported summaries of RFPs available on the Internet; (3) Internet web page material related to the ITOP II contract and a SETS II task order summary; (4) Coast Guard task orders with GCE, Coast Guard RFPs, and Coast Guard requests for quotations; and (5) news reports, press releases, and other materials concerning the Department of Veterans Affairs (\VA\) Office of Inspector General \Report on Issues at VA Medical Center Bay Pines, Florida and Procurement and Deployment of the Core Financial and Logistics System (CoreFLS).\ Def.-Intervenor\rquote s Renewed Mot. Strike 4. The court considers QSS\rquote s objections to these materials, which may be generally classified into three areas, in the following order: (1) inadmissible lay Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 002 - Global Computer Enterprises Inc v US.doc, Paragraph with 'Veteran: GCE responded to this contention during the hearing on its motion for a permanent injunction: \Counsel for both the government and QSS represented at the last hearing that there are counterexamples, but they still haven\rquote t provided a single one.... We\rquote ve kept looking, and we still found nothing other than the one Veteran\rquote s Administration solicitation that we identified at the very beginning.\ Perm. Inj. Hr\rquote g Tr. 18:25\u821119:8. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: Successful bidder for federal contract to operate Department of Veterans Affairs (VA) community-based outpatient clinics (CBOCs) brought action against unsuccessful bidder and several of its members, alleging violations of Arkansas Unfair Practices Act (AUPA), Arkansas Deceptive Trade Practices Act (ADTPA), and Racketeer Influenced and Corrupt Organizations Act (RICO), as well as common law claims for fraud, tortious interference with prospective advantage, tortious interference with contract, and defamation. Parties cross-moved for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: Insofar as counterclaims under Arkansas Unfair Practices Act (AUPA) of unsuccessful bidder to operate Department of Veterans Affairs (VA) community-based outpatient clinic (CBOC) constituted direct challenges to successful bid, Court of Federal Claims had exclusive jurisdiction and district court lacked subject matter jurisdiction over claims; AUPA claims asked court to void contract awarded to successful bidder and enjoin further performance, thus forcing court to confront direct attack on bid that successful bidder submitted to government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: District court had subject matter jurisdiction over unsuccessful bidder\rquote s claims against successful bidder for federal contract to operate Department of Veterans Affairs (VA) community-based outpatient clinic (CBOC) under Arkansas Unfair Practices Act (AUPA) or Arkansas Deceptive Trade Practices Act (ADTPA) insofar as claims arose from alleged misconduct of successful bidder during bidding process, even though court lacked jurisdiction over claims to extent they amounted to direct challenges to successful bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: Alleged defamatory statements made by member of unsuccessful bidder for federal contract to operate Department of Veterans Affairs (VA) community-based outpatient clinic (CBOC) before state legislature were privileged, and thus could not form basis of successful bidder\rquote s defamation claim; statements related controversy surrounding award of CBOC contract, which was issue of public importance to elected officials and affected veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: Summary judgment affidavits of unsuccessful bidder for federal contract to operate Department of Veterans Affairs (VA) community-based outpatient clinic (CBOC) consisted of legal and factual conclusions, and thus were insufficient to establish absence of genuine issue of material fact on successful bidder\rquote s claims for fraud, conspiracy, and tortious interference with prospective advantage. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: Statement of member of unsuccessful bidder for federal contract to operate Department of Veterans Affairs (VA) community-based outpatient clinic (CBOC), that successful bidder\rquote s operation of CBOC would drastically lower standard of care at facility, constituted personal opinion of what could happen in the future, rather than a factual assertion, and thus could not form basis of defamation claim; statement was hyperbolic in nature, demonstrated broad-based dissatisfaction with CBOC contract award, and was not susceptible to proof or disproof. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: 2. On or after February 9, 2006, Valor was awarded a contract to operate the Community Based Outpatient Clinic in Hot Springs, Arkansas (\CBOC\) by the Central Arkansas Veterans\rquote Healthcare System, which is a division of the United States Department of Veteran\rquote s Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 004 - Valor Healthcare Inc v Pinkerton.doc, Paragraph with 'Veteran: . It is beyond dispute that Mr. Lewin\rquote s remarks related the controversy surrounding the award of the CBOC contract. It is further beyond dispute that the contract award constituted an issue of public importance to elected officials and affected veterans and has been characterized as such by the parties. As a result, the allegedly defamatory statements of Mr. Lewin are privileged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 033 - Software Engineering Services Corp v US.doc, Paragraph with 'Veteran: This post-award bid protest arises from the United States Air Force\rquote s second procurement of advisory and assistance services (\A & AS\) for the United States Strategic Command (\USSTRATCOM\ or the \Command\), known as USSTRATCOM systems and mission support (\USAMS\) II. Plaintiff Systems Engineering Services, Corporation (\SES\), is a small, disadvantaged, veteran-owned business located in Bellevue, Nebraska that has been performing federal contracts since its inception in 1991. SES filed this protest on November 5, 2008, challenging the Air Force\rquote s award of six indefinite delivery/indefinite quantity (\IDIQ\) contracts for USAMS II. SES voluntarily dismissed a Government Accountability Office (\GAO\) protest of the same procurement before commencing this action. Three of the awardees, Booz Allen Hamilton, Inc. (\BAH\), ITT Corporation, Advance Engineering & Sciences Division (\ITT\), and CSSS.Net, have intervened on Defendant\rquote s side. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Veteran brought action against the United States, asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by Department of Veterans Affairs (VA) following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA. Following transfer from a district court, the United States moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: it lacked jurisdiction over veteran\rquote s claims for equitable relief; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: veteran\rquote s rights to the home were extinguished on date of foreclosure, and, thus, he was not entitled to profit VA made when it re-sold the home following foreclosure; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Court of Federal Claims lacked jurisdiction over veteran\rquote s claims for equitable relief against the United States, seeking return of equity in home he purchased with a loan guaranteed by Department of Veterans Affairs (VA) following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where veteran\rquote s claims for equitable relief were not tied and subordinate to a money judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Statute which afforded Secretary of the Department of Veterans Affairs (VA) a right of subrogation to lender\rquote s rights when and to extent that the VA made payment on guaranty of borrower\rquote s loan was not a money-mandating source sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where benefit of subrogation under the statute was afforded to the VA against a borrower, not to a borrower against the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Section providing exception to statute which afforded Secretary of the Department of Veterans Affairs (VA) a right of subrogation to lender\rquote s rights when and to extent that the VA made payment on guaranty of borrower\rquote s loan, for when a veteran paid a fee up front to forestall liability for the guarantied amount in case of default, was not a money-mandating source sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where the section did not create any obligation on the part of the VA to veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Statute requiring Secretary of the Department of Veterans Affairs (VA) to waive payment of an indebtedness to the VA following default and loss of the property, when the Secretary determines that collection of such indebtedness would be against equity and good conscience, was not a money-mandating source sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where the statute applied only to veterans who were indebted to the VA, and veteran was not required to repay the guaranty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Regulations providing for refund of amount collected that exceeded balance of indebtedness resulting from participation in Department of Veterans Affairs (VA) home loan guaranty program were not money-mandating sources of law sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where regulations applied only to veterans who were indebted to the VA, and veteran was not required to repay the guaranty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: General statutory scheme of the Department of Veterans Affairs\rquote (VA), and its home loan guaranty program, were not money-mandating sources of law sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where they did not purport to confer enforceable federal rights directly on the veteran-borrower. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) policy manual, which provided for \possible adjustment of obligors\rquote debts\ after a sale, was not a money-mandating source sufficient to confer jurisdiction on the Court of Federal Claims under Tucker Act, in veteran\rquote s action asserting an implied right to return of profit from sale of home he had purchased with a loan guaranteed by the VA following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA, where veteran was not obligated to the VA and did not owe any \debts\ to the VA, and the manual did not have the force of law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Under Florida law, veteran\rquote s rights to home he had purchased with a loan guaranteed by Department of Veterans Affairs (VA) were extinguished on date of foreclosure, and, thus, veteran was not entitled to profit the VA made following foreclosure of loan by lender, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA; money veteran sought was obtained by the VA from a sale subsequent to a completed foreclosure, and price paid at foreclosure sale did not yield any surplus to which veteran was entitled. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: State law and general property law principles, when not in conflict with federal law, are controlling for the law of mortgages in relation to the Department of Veterans Affairs\rquote (VA) home loan guaranty program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) statutes requiring the VA to report to Congress investment income that included sales of foreclosed properties, and statute providing that assets of fund for home loan guaranty program included proceeds from sale of property clearly contemplated that the VA would retain proceeds from foreclosure sales, and, thus, VA was entitled to retain profit it made following foreclosure of VA-guaranteed loan, purchase of home by the VA at foreclosure sale, and re-sale of home at a profit by the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Mr. Anderson, a veteran, purchased a parcel of real property in Florida in March 1996 that was financed by Wells Fargo Home Mortgage, Inc. (Wells Fargo) through a note and a mortgage that was partially guaranteed by the United States Department of Veterans Affairs (the VA). Compl. \u182\u182 12\u821113; Def.\rquote s Mot. 3. The VA home loan guaranty Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: program provides for partial guaranties on home loans for veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: . The guaranty \operate[s] as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors to provide 100% financing for a veteran\rquote s home.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (emphasis and footnote added). This section provides that any veteran wishing to participate in the home loan guaranty program may pay a fee up front to forestall liability for the guarantied amount in case of default (but not in cases of fraud, misrepresentation or bad faith by the veteran). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: , with exceptions not relevant here, all veterans wishing to obtain a home loan guaranty after 1981 are required to pay such a fee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: that could be read to suggest that the VA owes money to plaintiff. The statute serves instead as a protection for veterans in certain circumstances against a possible claim by the VA in case of a deficiency. Plaintiff argues that the VA has \abuse[d] ... the subrogation power vested in the [VA] by Congress,\ Pl.\rquote s Resp. 5, but there is no basis whatsoever in the text of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: ). The VA home loan guaranty program \relies on financial incentives to accomplish a welfare objective and does not purport to confer enforceable federal rights directly on the veteran-borrower.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: creates any rights in a veteran-borrower against the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: With respect to any loan guaranteed, insured, or made under chapter 37 of this title [ (the home loan guaranty program) ], the Secretary shall ... waive payment of an indebtedness to the Department by the veteran ... following default and loss of the property, where the Secretary determines that collection of such indebtedness would be against equity and good conscience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: . This section, in plain language, applies only to veterans who are indebted to the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (referring to \an indebtedness to the Department by the veteran\). Plaintiff is not indebted to the VA. Mr. Anderson\rquote s home was sold in a judicially-supervised foreclosure sale and he was not indebted to the VA because of the operation of the exception language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (a) ... any portion of an indebtedness resulting from participation in benefits programs administered by the Department of Veterans Affairs which has been recovered by the U.S. Government from the debtor may be considered for waiver, provided the debtor requests waiver in accordance with the time limits of \u167 1.963(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Plaintiff argues that \the VA\rquote s general statutory scheme [is] \u8216money-mandating\u8217 under the Tucker Act as it supports the return of funds to the Plaintiff.\ Pl.\rquote s Resp. 9\u821110 (\The very notion that the VA can keep the hard [-]earned equity of a Veteran, functionally punishing the Veteran for having an asset, runs counter [to] the obvious purpose behind Congress\rquote s creation of the [VA].\). In the alternative, plaintiff states that the loan guaranty program, taken as a whole, is money-mandating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: at 9. In support, plaintiff quotes the statement of the United States Court of Appeals for the First Circuit (First Circuit) that \ \u8216the loan guarantee act evinces an intent to treat veteran mortgagors favorably, not harshly.\u8217 \ Pl.\rquote s Resp. 9 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: While in some instances a regulatory scheme taken as a whole can be money-mandating, it appears to the court unlikely that the organic laws and regulations of an entire cabinet-level agency would be money-mandating. Plaintiff claims that \the statutory scheme of the Veteran\rquote s Administration is to help [v]eterans,\ Pl.\rquote s Resp. 8, in order to support his conclusion that his claim arises from a money-mandating source of law. Several departments of the United States government, for example, the United States Department of Education and the United States Department of Housing and Urban Development have missions of benefiting groups of people that are analogous, more or less, to the mission of the VA to help veterans. Under plaintiff\rquote s logic, all sources of law relating to the various departments in government with missions to assist persons would be money-mandating. The logic of plaintiff\rquote s argument is simply inconsistent with the limited waiver of sovereign immunity provided by the Tucker Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Nor does the court find persuasive Mr. Anderson\rquote s argument that the general scheme of the VA home loan guaranty program is money-mandating. The VA home loan guaranty program was meant to \operate as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors to provide 100% financing for a veteran\rquote s home.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: However, the program \relies on financial incentives to accomplish a welfare objective and does not purport to confer enforceable federal rights directly on the veteran-borrower.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (finding that the home loan guaranty program does not give a veteran a private right of action against a private lender). The general scheme of the VA home loan guaranty program is not to provide enforceable rights to the veterans but to promote a welfare objective and, at the same time, protect the interests of the VA through provisions that allow it to manage the program and protect its financial interests. Again, unlike the plaintiff in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s Supplemental Memorandum cites a VA policy manual which, plaintiff argues, allows \possible adjustment of obligors\rquote debts\ after a sale and enables the VA to \reflect the VA\rquote s actual net loss or gain.\ Pl.\rquote s Supp. Mem. 2; Dept. of Veterans Aff., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: Grant v. U.S. Dep\rquote t of Veterans Affairs (Grant), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: the court addressed the issue of whether or not a veteran is entitled to a surplus after a foreclosure sale and decided that a veteran was not so entitled. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: the court decided that general principles of property law dictated that the VA was required to return the surplus to the veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (noting that the home loan guaranty program has an implied \obligation to treat [the guaranty] in accordance with ordinary property law principles at least where those principles would prevent inequitably harsh treatment of veteran mortgagors and where the VA has not seen fit to publish regulations to the contrary\). Here, there has not been a harsh result. Mr. Anderson defaulted on his loan; however, because of the operation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: (authorizing agency financing accounts). The fund for the home loan guaranty program is called the Veterans Housing Benefit Program Fund (VHBP Fund). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: in support of his theory that he is obligated to the United States Department of Veterans Affairs (the VA). Pl.\rquote s Resp. 6 n. 1. However, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: states: \Any amounts paid by the Secretary on account of the liabilities of any veteran guaranteed or insured under the provisions of 38 U.S.C. chapter 37 shall Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: constitute a debt owing to the United States by such veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 040 - Anderson v US.doc, Paragraph with 'Veteran: requires that the veteran submit \an application for relief\ to the VA within one year of being notified about the deficiency and informed about the application process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: Bidders filed bid protest against the United States alleging that contracting agency acted arbitrarily when it rejected all bids and canceled a solicitation issued as a competitive set-aside for Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) offerors. Parties filed cross-motions for judgment on the administrative record. Plaintiffs also moved for an order to refer bidders to the Small Business Administration (SBA) for a certificate of competency (COC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: Contracting agency did not act arbitrarily or capriciously in canceling solicitation set aside for Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) offerors, where solicitation expressly stated that agency was not obligated to award a contract, and contracting officer reasonably determined that cancellation of solicitation was in the best interests of the government because the acquisition strategy failed to elicit any SDVOSB prime contractors with relevant past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: Pending before the court in this bid protest action are the parties\rquote cross-motions for judgment upon the administrative record pursuant to Rule 52.1 of the Rules of the United States Court of Federal Claims (\RCFC\) and the motion by the plaintiffs, DCMS\u8211ISA, Inc. (\DCMS\u8211ISA\), L & R Security Forces, Inc. (\L & R\) (also known as Integrated Security Forces, Inc. (\ISF\)), the Whitestone Group, Inc. (\White stone\), and R & D Training and Technical Services (\RDTTS\) (collectively, \plaintiffs\), for an order directing the defendant, the United States (\defendant\ or \government\), to refer the Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) proposers in this case to the Small Business Administration (\SBA\) for a Certificate of Competency (\COC\). In their complaint, the plaintiffs assert that the Department of Homeland Security (\DHS\ or \agency\) acted arbitrarily, capriciously, and not in accordance with law when it rejected all bids and canceled a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: \Notice of Total Service Disabled Veteran-owned Small Business Set\u8211Aside\, the SDVO[S]B concern must agree that in performance of the contract, [\]at least 50% of the cost of personnel for contract performance will be spent for employees of the concern ...\. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: The administrative record regarding this market research refers to Service Disabled Veteran Owned Businesses (\SDVOBs\) rather than SDVOSBs, AR 4\u82116, but both the plaintiffs and the government describe it as referring to SDVOSBs. Pl.\rquote s Mot. JAR at 3; Def.\rquote s Mot. at 2\u82113. For the sake of simplicity, the court will refer to both SDVOBs and SDVOSBs as SDVOSBs throughout this opinion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 057 - DCMS-ISA Inc v US.doc, Paragraph with 'Veteran: Ms. Weindel determined that the SDVOSB offerors which did not propose teaming arrangements also had no relevant past performance. AR 1839. Specifically, she found that \[t]he 2 SDVO[S]B\rquote s that submitted on their own merit ( [CASS] and Veteran Security Services)\u8212should be rated Neutral in P[ast] P[erformance]\u8212neither of them ha[d] the relevant experience necessary to successfully perform a contract of this magnitude.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: Offerors were also presented with the following \non-mandatory objectives for participation\: Small Disadvantaged Business participation of six percent; Woman\u8211Owned Small Business participation of five percent; Service\u8211Disabled Veteran\u8211Owned Small Business participation of three percent; Veteran\u8211Owned Small Business participation of three percent; HUBZone Small Business participation of one percent; and a positive goal for Historically Black Colleges and Universities/Minority Institution (\HBCU/MI\) participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: the Government\rquote s minimum mandatory requirement for overall Small Business participation and the non-mandatory objectives ... for participation by Small Disadvantaged Business, Woman\u8211Owned Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, Veteran Owned Small Business, HUBZone Small Businesses, and HBCU/MI in the performance of the ... contract.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: Veteran-owned Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: The Government will evaluate the Offeror\rquote s approach to meeting or exceeding the Government\rquote s minimum mandatory requirement for overall Small Business participation and the non-mandatory objectives ... for participation by Small Disadvantaged Business, Woman\u8211Owned Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, Veteran Owned Small Business, HUBZone Small Businesses, and HBCU/MI in the performance of the PMSS2 contract. The amount by which the proposed percentage exceeds the overall small business category percentage and the amount by which the proposed percentages exceed the small business sub-category percentages will be considered. The assessment will include the extent to which such firms are specifically identified in the proposals; the extent of commitment to use such firms (for example, enforceable commitments are more significant than nonenforceable commitments); the extent of participation of such firms in terms of the value of the total acquisition; and, for large businesses only, an assessment of the Offerors\rquote Small Business goals for FY 2006 for the DoD and other Federal Government agencies and the actual goals achieved. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: at 10180\u821181 (Systems Research), 10329\u821130 ( [...] ), 10275\u821176 ( [...] ). Specifically, with respect to Systems Research, the Source Selection Evaluation Board identified a [...] strength for the offeror\rquote s meeting or exceeding all of the percentages listed in the solicitation except those for service-disabled, veteran-owned small business and HUBZone. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 067 - Femme Comp Inc v US.doc, Paragraph with 'Veteran: Veteran- Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\12, File: 083 - Tyler Constr Group v US.doc, Paragraph with 'Veteran: (the \Service\u8211Disabled, Veteran\u8211Owned Small Business Procurement Program\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 004 - US ex rel Osborne v Homecare Products Inc.doc, Paragraph with 'Veteran: Homecare-doing business as EZ Access-specializes in wheelchair ramps and other products designed to provide mobility and accessibility for wheelchair users. Don Everard, Geleda Everald, and Deanne Sondvold own Homecare. The Veterans Administration (VA) contracts with Homecare to provide residential wheelchair ramps for disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 004 - US ex rel Osborne v Homecare Products Inc.doc, Paragraph with 'Veteran: In the affidavit, Osborne attacked Downs\rquote s character, characterized Downs\rquote s affidavit as perjurious and misleading, asserted that Downs is not above the law and that Downs has violated his responsibilities to follow the VA\rquote s written policies and procedures, accused Downs of conspiring with Homecare to circumvent the VA ramp procurement process, complained that VA personnel have no training in ramp design or construction, asserted superior knowledge about ramp design and construction and VA contracts, and accused the VA of not caring about veteran safety. In the proposed response, Osborne objected to Downs\rquote s affidavit, complaining that Downs does not have personal knowledge of the facts and circumstances of this case because Downs has an office in Washington D.C. and because Downs asserted in a nationally-televised interview that he would feel justified in committing war crimes to get information from prisoners of war. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 004 - US ex rel Osborne v Homecare Products Inc.doc, Paragraph with 'Veteran: Osborne also sought to raise a fact question about whether Homecare made a false claim by presenting the VA\rquote s handbooks on the VA\rquote s policies and procedures for determining a veteran\rquote s eligibility for prosthetic services. Osborne characterizes the handbooks as statutory requirements for ADA-compliance, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 004 - US ex rel Osborne v Homecare Products Inc.doc, Paragraph with 'Veteran: There is a note at the bottom of the quotation form that reads as follows: \Unless otherwise specified, all ramp systems meet the Americans with Disabilities Act requirements. This system is to be used for residential access only. Please consult your local codes if commercial access is needed. EZ-Access is not responsible for any additional local codes that are above and beyond federal ADA guidelines.\ This note probably serves as the basis of Osborne\rquote s assertion that the 13-page document misrepresents that Homecare\rquote s ramps comply with the ADA. But the note is insufficient to raise a fact question about the material issue-whether the VA contracted for ADA-compliant residential ramps. The ramp quote is proposal, not a contract. The note is a disclaimer, not a certification. The ramp quote includes a detailed diagram showing Homecare\rquote s design for a ramp for a veteran\rquote s home, including building specifications, photos of the ramp site, and cost. Nothing on the corresponding invoice submitted to the VA for payment represents that the actual ramp complies with the ADA\rquote s requirements for ramps. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 004 - US ex rel Osborne v Homecare Products Inc.doc, Paragraph with 'Veteran: The exemplary BPA authorizes Texas VA organizations to contract for residential wheelchair ramps during the time period, March 1, 2005 to September 30, 2005. Osborne did not explain why the BPA clearly shows that ADA-compliance is required by VA contracts for residential ramps, but he probably bases his position on the following language: \The contractor shall provide labor, materials, equipment, and logistics for building and installing solid surfaced aluminum, non-skid/slip, modular ramps [sic] systems to accommodate access/egress issues at veterans\rquote residences Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 033 - Voisin v US.doc, Paragraph with 'Veteran: Irwin v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , J., held that focus in solicitation on past experience in multiple monetary tiers for each of numerous work-scope elements was consistent with Executive Order and did not violate conditions placed on \executive agent\ designation of the General Services Administration (GSA) by the Office of Management and Budget (OMB) in procurement structured as Veterans Technology Services Government\u8211Wide Acquisition Contract (VETS GWAC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Court of Federal Claims had jurisdiction in post-award bid protest to consider whether General Services Administration\rquote s solicitation methodology for a Veterans Technology Services Government\u8211Wide Acquisition Contract (VETS GWAC) was consistent with requirements of Executive Order, where Executive Order was issued pursuant to statutory authority, and Court was not addressing judicial enforceability of Executive Order as an independent matter; moreover, it was actions of GSA that were being reviewed, not terms of the Executive Order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Focus in solicitation on past experience in multiple monetary tiers for each of numerous work-scope elements was consistent with Executive Order and did not violate conditions placed on \executive agent\ designation of the General Services Administration (GSA) by the Office of Management and Budget (OMB) in procurement structured as Veterans Technology Services Government\u8211Wide Acquisition Contract (VETS GWAC). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Knowledge Connections, Inc. (\KCI\) filed suit in this court challenging a procurement structured by the General Services Administration (\GSA\) as a Veterans Technology Services Government\u8211Wide Acquisition Contract (\VETS GWAC\) under an \executive agent\ designation from the Office of Management and Budget (\OMB\). KCI initially focused on three alleged errors by GSA, two of which were rejected by this court in a decision issued on March 28, 2007. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: by Congress to require the President to establish a \[g]overnment-wide goal for participation by small business concerns owned and controlled by service-disabled veterans ... at not less than 3 percent of the total value of all prime contract and subcontract awards for each fiscal year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Veterans Entrepreneurship and Small Business Development Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: This goal for contractual awards to service-disabled, veteran-owned small businesses (\SDVOSBs\) is implemented through non-mandatory agency programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Federal Acquisition Regulation; Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: (\[S]pecifying the 3 percent service-disabled veteran-owned small business goals in the FAR is inappropriate in that only the goal negotiated with SBA [\Small Business Administration\] is relevant to [each] agency.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Veterans Benefits Act of 2003 (\2003 Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Federal Acquisition Regulation; Procurement Program for Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: (\contracting officer may award a sole-source contract\), 657f(b) (\contracting officer may award contracts on the basis of competition restricted to small businesses owned and controlled by service-disabled veterans\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . Agency heads were directed by the Executive Order to \develop a strategy to implement [the statutory provisions],\ and the Administrator of GSA was specifically directed to, consistent with legal and financial constraints, \establish a Government-[W]ide Acquisition Contract reserved for participation by service-disabled veteran businesses\ and \assist service-disabled veteran businesses to be included in Federal Supply Schedules.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: In February 2005, GSA sent OMB the Veterans Technology Service [VETS] business case, a proposal to establish the VETS GWAC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: AR 16\u821150 (GSA, VETS (Veterans Technology Services) Business Case For a Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Government\u8211Wide Acquisition Contract (GWAC) (Feb. 3, 2005)) (\Business Case\). GSA described the VETS GWAC as \a streamlined acquisition vehicle\ through which GSA would \offer a pre-qualified group of SDVOSB information technology [\IT\] firms the opportunity to compete for government IT services orders from [government agencies].\ AR 18 (Business Case). GSA stated that \[e]valuation criteria [would], at a minimum, focus on technical expertise, successful past performance and price.\ AR 21 (Business Case). GSA ascribed importance to \building brand awareness\ by \forg[ing] strategic partnerships with the SBA [and] VA [\Veterans Administration\]\ and noted that \frequent and consistent messaging by GSA and any strategic partners (SBA, Veterans Administration, and Department of Defense) is mandatory in order to properly explain the recent statute and Executive Order in addition to managing the expectations of both industry and federal communities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , which requires the agency to \u8216establish a Government-wide Acquisition Contract reserved for participation by service-disabled veteran businesses.\u8217 \ AR 92\u821193 (OMB Designation, Encl. B). OMB also made the designation subject to certain terms, reporting requirements, and understandings. AR 90 (OMB Designation, Encl. B). Specifically, the designation was granted with \the expectation that contracts under this GWAC w[ould] be awarded to the most highly qualified service-disabled veteran owned small businesses. Potential contractors should not be excluded from being GWAC holders based on their lack of experience as a government contractor.\ AR 93 (OMB Designation, Encl. B). Thirteen months later, in August 2006, OMB extended the executive-agent designation until the completion of the VETS GWAC contract period. AR 96, 99 (Letter Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Prior to receiving the executive-agent designation, GSA posted a pre-solicitation notice in February 2005, AR 144, and it hosted a pre-solicitation conference in March 2005 to explain the procurement to potential vendors. AR 51\u821163 (Veterans GWAC Powerpoint Presentation). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: On September 5, 2006, KCI filed a formal challenge with GSA to the small-business size and service-disabled, veteran-owned status of each of the 45 companies named as potential awardees. AR 17004\u821112 (E-mail from Bryant S. Banes, Counsel to KCI, to Babcock). Ultimately, after being referred to SBA by GSA, the challenges were dismissed. AR 17039\u821140, 17066\u821175, 17095\u8211101, 17103\u821104, 17106\u821107, 17124\u821143, 17158\u821161 (Various letters from the SBA to KCI rejecting KCI\rquote s challenges). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: On March 17, 2004, in preparation for the business case for a SDVOSB set-aside, GSA\rquote s Small Business GWAC Center (\Center\) issued a \sources sought\ notice in FedBizOpps for Service\u8211Connected Disabled Veteran Small Business Concerns in the IT area to participate in a focus group. Remand Determination at 5. The additional market research was employed to determine if there was demand for a SDVOSB GWAC, or if existing vehicles like the GSA Federal Supply Schedule 70 already addressed the matter from a procurement perspective. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: for a designation for GSA to serve as executive agent for the VETS contract.\) (OMB Letter, Encl. B). OMB relied on the Business Case assertions in deciding to grant the \executive agent\ designation. In the Business Case, GSA stated its objective of \[f]org[ing] strategic partnerships\ and stated that \frequent and consistent messaging by GSA and any strategic partners (SBA, Veterans Administration, and Department of Defense) is mandatory in order to properly explain the recent statute and Executive Order in addition to managing the expectations of both industry and federal communities.\ AR 33, 34 (Business Case). The views of these groups were deemed necessary because they are \natural constituencies\ for the adoption of VETS GWAC by federal government purchasers. AR 38 (Business Case). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: The Committee adopted an annual goal of 3% and sees this goal as an incentive to Federal agencies to undertake a major effort to make their procurement activities more accessible to veterans who sacrificed their health and limbs for our Nation. In addition, the Committee included the requirement that the Office of Federal Procurement Policy ([\]OFPP [\]) collect data to be reported annually to Congress on the number and dollar value of contracts and subcontracts awarded by Federal agencies to veteran-owned small businesses and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: A SDVOSB \[m]ust be at least 51 percent owned by one or more service-disabled veterans; or [i]n the case of a publicly owned business, at least 51 percent of the stock is owned by one or more service-disabled veterans; and [m]ust be managed by a service disabled veteran.\ AR at 54 (Veterans Technology Services (VETS) GWAC Powerpoint Presentation, Pre\u8211Solicitation Conference (Mar. 22, 2005)) (\VETS GWAC Powerpoint Presentation\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: The President\rquote s delegation to OMB of the authority to establish annual goals under Section 15(g) remains in place and has continuing effect, thus operating with respect to all subsequent amendments to the statute including the 1999 amendment adding the contracting goal of \not less than 3%\ for contractual awards to small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: 99\u82111,\ SBA implemented the requirement to establish a goal for prime contract and subcontract awards \to be made to small businesses owned and controlled by service-disabled veterans.\ SBA, Guidance On Goal Setting Under Procurement Preference Programs: Fiscal Year 2001, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: http://www.sba.gov/idc/groups/public/documents/sba_ program_office/ goals_fy01_goalsetting_pdf.pdf (Oct. 24, 2000). SBA recognized the government-wide \statutory goal[ ]\ of awarding not less than \3 percent of prime and subcontracts [to] service-disabled veteran-owned small businesses,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 039 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: The House and Senate Committees on Veterans\rquote Affairs \urge[d] the SBA and the [OFPP] to expeditiously and transparently implement th[e new sole source and set-aside] program, perform outreach, and provide the necessary resources to improve results with respect to S[mall] B[usiness] C [oncern]s owned and operated by service-disabled veterans.\ 149 Cong. Rec. S15133, S15136 (Nov. 19, 2003). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 040 - Medical Matrix LLP v US.doc, Paragraph with 'Veteran: This post-award bid protest action is before the court on the parties\rquote cross-motions for judgment on the administrative record. Plaintiff, Medical Matrix, LLP (Medical Matrix), argues that in awarding a contract for pharmacy management services, the United States Department of Veterans Affairs (the VA) committed nearly a dozen violations of the Federal procurement law. Defendant asserts that these violations did not occur; it also asserts that even if these violations occurred, they did not prejudice plaintiff. After careful consideration of the briefs and other materials filed by the parties, the oral argument, and for the reasons discussed below, the court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 040 - Medical Matrix LLP v US.doc, Paragraph with 'Veteran: Health Care, and Children of Women Vietnam Veterans Healthcare programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 047 - L-3 Communications Integrated Systems LP v US.doc, Paragraph with 'Veteran: Irwin v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 047 - L-3 Communications Integrated Systems LP v US.doc, Paragraph with 'Veteran: Irwin v. Department of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'Veteran: Paralyzed Veterans of Am. v. West, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 058 - Aeolus Systems LLC v US.doc, Paragraph with 'Veteran: Paralyzed Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 066 - HWA Inc v US.doc, Paragraph with 'Veteran: HWA\rquote s proposal was assigned a rating of \excellent\ on this factor, because HWA \is a small, veteran-owned, SBA-certified small business\ and because HWA planned to subcontract to Johnson Security, a \Black American-owned, DOT-certified, disadvantaged business located in a labor surplus area.\ AR 546. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'Veteran: SBA programs now include financial and federal contract procurement assistance, management assistance, and specialized outreach to women, minorities and armed forces veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 067 - McKing Consulting Corp v US.doc, Paragraph with 'Veteran: Because of the SBA, it is the policy of the United States that small businesses, disadvantaged small businesses, women-owned small businesses, and veteran-owned small businesses have the maximum practicable opportunity to participate in the performance of contracts awarded by any federal agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'Veteran: at 145. In addition, one contract would be awarded to a business located in a Historically Underutilized Business Zone (HUBZone); one would be granted to a Service Disabled Veteran Owned Business (SDVOB); and twenty would be awarded via the United States Small Business Administration (SBA) to socially and/or economically disadvantaged small businesses, pursuant to section 8(a) of the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 072 - IroncladEEI v US.doc, Paragraph with 'Veteran: provides that a service disabled veteran owned small business concern, like Ironclad Services, \may enter into a joint venture agreement with one or more other [small business concerns] for the purpose of performing an SDVO contract.\ There is no question that EEI is a large business. Thus, under the existing small business regulations, the joint venture between Ironclad Services and EEI is not eligible for an SDVOB award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 078 - Erinys Iraq Ltd v US.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 083 - Superior Helicopter LLC v US.doc, Paragraph with 'Veteran: Mr. Allmaras, a 32\u8211year veteran of the Forest Service, is Erickson\rquote s Firefighting Manager for North America and Australia. Tr. 164:20\u821121, 165:8\u821110 (Test. of Allmaras). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 087 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with 'Veteran: According to its website, the Rothe Companies is \a consortium of small businesses which provide a diversity of service and support to the federal government and the commercial sector.\ This consortium of small businesses includes Rothe Development, Inc., which is advertised as a \Women Owned Small Business,\ Rothe Enterprises, Inc., which is advertised as a \Women Owned HUBZone Small Business,\ Rothe VTran Services, L.L.C., which is advertised as a \Veteran Owned Small Business,\ and Rothe Joint Venture, which is advertised as a \Women Owned Small Business.\ In this case, Rothe does not challenge the preferences it receives from the federal government based on these classifications. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\13, File: 090 - Wright v Foreign Service Grievance Bd.doc, Paragraph with 'Veteran: Vietnam Veterans of Am. v. Sec\rquote y of Navy, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 007 - Heritage of America LLC v US.doc, Paragraph with 'Veteran: at 1781. In its agency protest, plaintiff alleged five reasons its protest should be sustained: (1) it did not receive preferential evaluation points as a service-disabled veteran-owned small business; (2) in spite of the CCE\u8211ACA\rquote s assertion in the debriefing slides to the contrary, plaintiff did specify program managers and alternates in conformance with the Solicitation; (3) the CCE\u8211ACA did not respond to its request for debriefing in a timely manner; (4) the debriefing did not fully respond to its request; and (5) inasmuch as it appeared equal to the awardees in all technical and other respects, plaintiff should have been awarded the contracts based on its having offered the lowest price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 008 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , remanding to the General Services Administration (\GSA\) to consider whether the terms of a procurement known as the Veterans Technology Services Government-wide Acquisition Contract (\VETS GWAC\) were consonant with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 008 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , by which Order the President sought to effectuate two federal statutes that (1) set a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans and (2) permit certain set-aside and restricted-competition procurements for service-disabled, veteran-owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 008 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . Conceptually, by way of the VETS GWAC, GSA endeavored to select a pool of pre-qualified, service-disabled, veteran-owned small businesses that then would compete for information technology \task orders\ from individual agencies across the federal government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: plaintiff did not establish that General Services Administration (GSA) artificially limited awards to 43 offerors in set-aside procurement for service-disabled, veteran-owned small business; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: plaintiff did not establish that General Services Administration (GSA) violated a condition of its \executive agent\ designation by the Office of Management and Budget (OMB) by excluding it from set-aside procurement for service-disabled, veteran-owned small business based on its lack of government contracting experience; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Bid protestor did not establish that General Services Administration (GSA) artificially limited awards to 43 offerors in set-aside procurement for service-disabled, veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Bid protestor did not establish that General Services Administration (GSA) violated a condition of its \executive agent\ designation by the Office of Management and Budget (OMB) by excluding it from set-aside procurement for service-disabled, veteran-owned small business based on its lack of government contracting experience, as protestor\rquote s non-selection was not based on its lack of government contracting experience but on its overall lack of experience. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Plaintiff Knowledge Connections, Inc. (\KCI\) lodged this bid protest involving an information-technology set-aside procurement for service-disabled, veteran-owned small businesses. The General Services Administration (\GSA\) administered the procurement, known as the Veterans Technology Services Government-wide Acquisition Contract (\VETS GWAC\), under an \executive agent\ designation bestowed on GSA by the Office of Management and Budget (\OMB\), the overseer of all federal procurement of information technology. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , by which Order the President sought to effectuate two federal statutes that (1) set a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans and (2) permit certain set-aside and restricted-competition procurements for service-disabled, veteran-owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . Conceptually, by way of the VETS GWAC, GSA endeavored to select a pool of pre-qualified, service-disabled, veteran-owned small businesses that then would compete for information technology \task orders\ from individual agencies across the federal government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Following a status conference on November 29, 2006, the court adopted an expedited schedule for submitting the administrative record and for filing cross-motions for judgment on the administrative record. By a motion filed December 15, 2006, KCI sought a temporary restraining order to preclude GSA from completing the VETS GWAC by awarding contracts, until this court ruled on KCI\rquote s pending request for a permanent injunction. On that same day, the court held a hearing on that motion and denied it. Promptly thereafter, on December 18, 2006, GSA awarded contracts to 43 service-disabled, veteran-owned small businesses, including intervenor, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: In 1999, Congress amended Section 15(g)(1) of the Small Business Act to require the President to establish a government-wide goal of not less than three percent for the participation in federal procurement contracts of small businesses owned and controlled by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Veterans Entrepreneurship and Small Business Development Act of 1999 (the \1999 Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: The FAR does not specify the statutory Government[-]wide goals for any small business category because they have no regulatory purpose for agencies. Statutory goals for small businesses are established on a Government[-]wide basis. Within these Government[-]wide goals, SBA negotiates separate annual goals for each small business category with each agency. The individual agency goals attempt to reflect the agency mission and its contracting requirements, and these individual agency goals may be higher or lower than the Government [-]wide goal. SBA then tracks cumulative agency achievements against the Government[-]wide goal. Accordingly, specifying the 3 percent service-disabled veteran-owned small business goals in the FAR is inappropriate in that only the goal negotiated with SBA is relevant to that agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Federal Acquisition Regulation; Veterans Entrepreneurship and Small Business Development Act of 1999, 66 Fed.Reg. 53,492, 53,492 (Oct. 22, 2001) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . A further amendment of the Small Business Act was enacted in 2003, when Congress added Section 36 to give federal agency contracting officers discretion to set aside certain procurements for service-disabled, veteran-owned small businesses through the use of sole-source contracts and contracts in which competition was restricted to such businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Veterans Benefits Act Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Federal Acquisition Regulation; Procurement Program for Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, 70 Fed.Reg. 14,950, 14,953 (March 23, 2005) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . The Councils explained that by using the words \may award\ the Veterans Benefits Act of 2003 \established a discretionary, not mandatory, set-aside authority for [service-disabled, veteran-owned small businesses].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: (\contract officer may award contracts on the basis of competition restricted to small businesses owned and controlled by service-disabled veterans\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . 69 Fed.Reg. at 62,549. The Executive Order required that agency heads develop a strategy for implementation of these statutory provisions and specifically directed the Administrator of GSA, subject to applicable legal and fiscal constraints, to \establish a Government-wide Acquisition Contract [GWAC] reserved for participation by service-disabled veteran businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: In February 2005, responding to the president\rquote s direction, GSA sent OMB a proposal to establish the VETS GWAC, which GSA described as a \streamlined acquisition vehicle\ through which GSA would \offer a pre-qualified group of [service-disabled, veteran-owned small business] information technology firms the opportunity to compete for government [information technology] services orders from [government agencies].\ AR 18\u821119 (GSA, VETS (Veterans Technology Services) Business Case For a Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) Government-wide Acquisition Contract (GWAC), Feb. 3, 2005) (\Business Case\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: .\ AR 89, 92 (Letter from Bolten to Perry, Encls. A, B (July 5, 2005)). OMB also included caveats for its designation of GSA as the \executive agent\ for the VETS GWAC: \This designation is granted with the expectation that contracts under this GWAC will be awarded to the most highly qualified service-disabled veteran-owned small businesses. Potential contractors should not be excluded from being GWAC holders based on their lack of experience as a government contractor.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). In August 2006, OMB extended the \executive agent\ designation until the completion of the VETS GWAC contract period. AR 96, 99 (Letter from Rob Portman, Director, OMB, to Lurita A. Doan, Administrator, GSA (Aug. 9, 2006)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Prior to receiving the \executive agent\ designation, GSA posted a pre-solicitation notice on the government\rquote s on-line procurement portal in February 2005, AR 144, and hosted a pre-solicitation conference in March 2005 to explain the VETS GWAC to potential vendors. AR 51\u821163 (Veterans Technology Services (VETS) GWAC Powerpoint Presentation, Pre\u8211Solicitation Conference (Mar. 22, 2005)) (\VETS GWAC Powerpoint Presentation\). A presentation by representatives of GSA delivered during the conference explained that the VETS GWAC would involve \competitive contract awards\ to an undetermined number of awardees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: GSA described the VETS GWAC as a multiple-award indefinite delivery, indefinite quantity contract limited to service-disabled, veteran-owned vendors and designed to provide \a wide range of information technology support services, while providing the greatest amount of flexibility possible to efficiently and effectively support agency daily operations, protection of infrastructure, the fight against terrorism, and the development and marketing of information technologies.\ AR 178 (Solicitation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: On September 5, 2006, KCI filed a formal challenge with GSA to the small-business size and service-disabled, veteran-owned status of each of the 45 companies that were named as potential awardees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: AR 17004\u821112 (E-mail from Bryant S. Banes, Counsel to KCI, to Babcock). GSA referred the challenge to the Small Business Administration (\SBA\), and by a series of decisions issued from September 12, 2006 to December 7, 2006, the SBA ultimately dismissed KCI\rquote s challenges to the small-business size and service-disabled, veteran-owned status of each of the 45 entities. AR 17039\u821140, 17066\u821175, 17095\u8211101, 17103\u821104, 17106\u821107, 17124\u821143, 17158\u821161 (Various letters from the SBA to KCI rejecting KCI\rquote s challenges). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , a condition that affects the consistency of her signatures and that supports her status as a service-disabled veteran. Pl.\rquote s Mot. Ex. 2 (Decl. of Bonhomme\u8211Knox) \u182 4. Moreover, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , it makes two claims that were not included in its amended complaint\u8212that the solicitation violated OMB\rquote s condition on not excluding offerors based on lack of government contract experience and that CPP2\rquote s tiering arrangement violated OMB\rquote s further condition that contracts be awarded to the most highly qualified service-disabled, veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: KCI\rquote s argument in this respect is unavailing. KCI complains that GSA\rquote s Business Case \made no mention of any specific limitation on the number of awards\ and that, as a result, GSA obtained the \executive agent\ designation \under false pretenses.\ Pl.\rquote s Mot. at 15\u821117. After reviewing the Business Case, however, OMB placed only two restrictions on its grant of the \executive agent\ designation: (1) that \the most highly qualified service-disabled veteran owned small businesses\ be chosen and (2) that offerors \not be excluded ... based on their lack of experience as a government contractor.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). Making a finite number of awards did not violate either OMB condition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: declared that agencies \shall more effectively implement\ certain statutory provisions that set a government-wide goal of three percent for the participation in federal procurement contracts of service-disabled, veteran-owned small businesses and permitted certain set-aside and restricted-competition procurements for such businesses. 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: . In seeking to implement the executive order, OMB\rquote s grant to GSA of the \executive agent\ designation provided that awardees be \the most highly qualified service-disabled veteran owned small businesses.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). As explained Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: that agencies attempt to meet the government-wide goal of three percent for the participation in federal contracts of service-disabled, veteran-owned small businesses. 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: , which set a government-wide goal of three percent for the participation in federal procurement contracts of service-disabled, veteran-owned small businesses and permitted agencies to establish certain set-aside and restricted-competition procurements for such businesses, 69 Fed.Reg. at 62,549; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: the condition that OMB placed on its grant to GSA of the \executive agent\ designation for the VETS GWAC: that GSA must select \the most highly qualified service-disabled veteran owned small businesses.\ AR 93 (Letter from Bolten to Perry, Encl. B (July 5, 2005)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: was simply identifying service-disabled, veteran-owned small businesses. AR 29\u821130, 33 (Business Case). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 020 - Knowledge Connections Inc v US.doc, Paragraph with 'Veteran: Federal government agencies do not themselves formally verify whether an offeror is legitimately a service-disabled, veteran-owned small business. Rather, any interested party may protest an apparently successful offeror\rquote s status before the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 021 - Protection Strategies Inc v US.doc, Paragraph with 'Veteran: Bidders were required to submit Competitive Proposals to the NNSA by July 7, 2005. Pl.\rquote s Ex. 3 at 3. Plaintiff, a service-disabled veteran-owned small business that describes itself as a \diversified security support services company,\ submitted a Competitive Proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 054 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Bid protestor did not establish that contract awardee\rquote s proposal for outpatient clinic services for Department of Veterans Affairs (VA) was nonresponsive because it failed to include onsite laboratory and radiological services and a lease of proposed facility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 054 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Plaintiff protests the award of an outpatient clinic contract by the Department of Veterans Affairs (\VA\). On July 19, 2004, the G.V. (Sonny) Montgomery VA Medical Center in Jackson, Mississippi issued a fifty-five-page solicitation for the provision of an outpatient clinic in Meridian, Mississippi for an estimated veteran population of over 3,200. The solicitation was for one year (October 1, 2004 through September 30, 2005) with options for three additional years. (AR 1\u821155.) The solicitation was amended on August 3, 2004 and again on August 11, 2004. (AR 56\u821162.) On August 17 and August 19, 2004, bids were received from Galen Medical Associates, Inc., d/b/a Patient First Urgent Care Clinic, Inc. ((\Galen\) (AR 63\u8211274); Henderson Meyer Dannemiller, LLC (AR 275\u8211392); and CRAssociates, Inc. (\CRA\) (AR 393\u8211766).) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 079 - KSD Inc v US.doc, Paragraph with 'Veteran: Sinha v. Veterans Admin., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: Incumbent contractor, which brought pre-award bid protest of decision of Department of Veterans Affairs (VA) to award small business set-aside contracts for the provision of home oxygen equipment in four locations on ground that such awards would violate the non-manufacturer rule of the Small Business Act (SBA), lacked standing to challenge agency\rquote s award decisions for the provision of such equipment in locations for which proposals were evaluated on basis of full and open competition. Small Business Act, \u167 2[8](a)(17), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: Plaintiff Rotech Healthcare Inc. (Rotech), a Delaware corporation with its principal place of business in Orlando, Florida, filed this pre-award bid protest action on April 19, 2006. Rotech is the incumbent supplier of home oxygen equipment to the United States Department of Veterans Affairs (the VA). In this lawsuit, Rotech challenges the VA\rquote s decision to award four future contracts for that work to two competitor companies, Mitchell Home Medical, Inc. (Mitchell) and First Community Care, LLC (FCC). Rotech complains that the agency\rquote s decision to award the small business set-aside contracts to Mitchell and FCC is arbitrary and capricious. Plaintiff contends that Mitchell and FCC are ineligible for the set-aside awards because, although they are small businesses, they intend to fulfill the contracts by supplying home oxygen equipment obtained from large equipment manufacturers. Rotech argues that such a practice violates Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: These areas are identified collectively as Veterans Integrated Services Network 11 (VISN 11). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: a. Service Disabled Veteran Owned Small Business Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: The following solicitation template was jointly developed by the Prosthetic Clinical Management (PCM) Program Home Oxygen Workgroup and Office of Acquisition and Material Management (OA & MM) for the acquisition of commercial products. This version contains clauses and pricing tables. It is designed for use by the different Veterans Integrated Service Networks (VISN) and VA Medical Centers to meet their individual requirements for Home Oxygen in a uniform fashion\u8212One VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: (a) the United States Department of Veterans Affairs, its officers, agents, servants, employees, and representatives and all persons acting in concert and participating with them respecting subject procurement be and they are hereby Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 091 - Rotech Healthcare Inc v US.doc, Paragraph with 'Veteran: (b) If the United States Department of Veterans Affairs elects to cancel Request for Proposals 583\u821100035\u821106 or Request for Proposals 247\u82110082\u821106 and to resolicit proposals for the work described therein, the government must do so in a manner consistent with the requirements of the Small Business Act and the statutory non-manufacturer rule, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 092 - Guam Industrial Services Inc v Rumsfeld.doc, Paragraph with 'Veteran: Vietnam Veterans of Am. v. Sec\rquote y of the Navy, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 092 - Guam Industrial Services Inc v Rumsfeld.doc, Paragraph with 'Veteran: Vietnam Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: Navy veteran brought suit against the United States seeking correction of his naval records to reflect disability retirement on the basis of post-traumatic stress disorder (PTSD) and the back pay, allowances, and benefits that would flow therefrom. Defendant filed motion for summary judgment or, in the alternative, for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: Court of Federal Claims would not apply doctrine of laches to bar Navy veteran\rquote s disability retirement claim which was asserted more than thirty years after his discharge, where statute governing military disability retirement did not limit period in which plaintiff could bring suit beyond six-year statute of limitations prescribed by the Tucker Act, and government did not allege extraordinary circumstances. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: For purposes of six-year statute of limitations on suits against the United States in the Court of Federal Claims, Navy veteran\rquote s disability claim accrued on date that the Board for the Correction of Naval Records (BCNR) denied the claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: Genuine issue of material fact as to whether a silencing order existed which prevented Navy veteran from disclosing his post-traumatic stress disorder (PTSD) at time of his discharge precluded judgment on the administrative record or summary judgment on his disability retirement claim, as existence of the alleged silencing order was directly relevant to the question of whether veteran had disabling PTSD at the time of his discharge. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: On July 21, 1999, the Department of Veterans Affairs (VA) awarded plaintiff disability benefits for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: Veteran has a long history of Chronic PTSD which started after he barely saved his life when in June of 1967, in the middle of the \Six day war\ while on board the USS Liberty, they were attacked in the Mediterranean Sea[,] a torpedo hit the room he was in, and he was the only survivor out of 26 men. He has vivid memories of the water rushing in and covering his head, but does report dissociation of other details.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: The BCNR further found that \[t]he fact that the Department of Veterans Affairs (VA) granted [plaintiff] service connection and a 10% rating for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: following the attack, has had continued contact with plaintiff \in the intervening years,\ and has reviewed plaintiff\rquote s medical records, Dr. Kiepfer could apply his expertise to his observations to evaluate the effect of the attacks on Mr. Six. The court therefore ADMITS for the purpose of supplementing the administrative record the Declaration of Dr. Kiepfer and several related documents apparently generated by the U.S. Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\14, File: 097 - Six v US.doc, Paragraph with 'Veteran: Plaintiff also tenders a Veterans Benefit Administration Table, entitled Disability/Degree of Impairment and Type of Major Disability by Period of Service, September 30, 2002 (Table) and a Directive from the Department of Veterans Affairs entitled Provision of Medical Opinions by VA Health Care Practitioners (Directive). In Plaintiff\rquote s Statement of Admissibility, plaintiff identifies the articles enclosed with the Kiepfer Declaration. The Table and Directive were not separately identified, however, nor did plaintiff provide a basis for their admissibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: United States Court of Appeals for Veterans Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: R. James NICHOLSON, Secretary of Veterans Affairs, Appellee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: Veteran appealed decision of the Board of Veterans\rquote Appeals (BVA) that, inter alia, denied entitlement to service connection for hepatitis A. Parties filed joint motion for remand, which was granted. Veteran then applied for award of attorney fees and expenses under the Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: The Court of Appeals for Veterans Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: , J., held that remand by the Court based on joint motion of the parties in which the Secretary of Veterans Affairs (VA) conceded that the Board committed error in its decision on the merits of veteran\rquote s service connection claim was a remand predicated on administrative error, conferring \prevailing party\ status on veteran for purposes of award of attorney fees and expenses under the EAJA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: Veterans\rquote benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: Veterans\rquote benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: Prevailing party status for purposes of an award of attorney fees under the Equal Access to Justice Act (EAJA) in the Court of Appeals for Veterans Claims requires either: (1) the ultimate receipt of a benefit that was sought in bringing the litigation, i.e., the award of a benefit; or (2) a court remand predicated upon administrative error. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: For purposes of prevailing party status under the Equal Access to Justice Act (EAJA), a remand by the Court of Appeals for Veterans Claims predicated upon administrative error is a remand predicated either upon the Court\rquote s finding of error or upon a concession of error by the Secretary of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: Remand by the Court of Appeals for Veterans Claims based on joint motion of the parties in which the Secretary of Veterans Affairs (VA) conceded that the Board of Veterans Appeals (BVA) committed error in its decision on the merits of veteran\rquote s service connection claim was a remand predicated on administrative error, conferring \prevailing party\ status on veteran for purposes of award of attorney fees and expenses under the Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: The appellant, veteran Zuri Zuberi, previously appealed, through counsel, a January 16, 2004, decision of the Board of Veterans\rquote Appeals (Board) that, inter alia, denied entitlement to VA service connection for Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 016 - Zuberi v Nicholson.doc, Paragraph with 'Veteran: The parties have filed a joint motion to remand this appeal to the Board of Veterans\rquote Appeals (BVA). It is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: Administrative Record (AR) at 24\u821127 (solicitation synopsis). The solicitation was restricted to service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: Def.\rquote s Facts \u182 4; AR at 28 (Hawk\rquote s request for copy of solicitation), 29 (Precision\rquote s request for copy of solicitation), 692 (Shubhada\rquote s request for technical data package). AMCOM determined that only Precision and Hawk were eligible service-disabled veteran-owned small businesses. Def.\rquote s Facts \u182 4. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: On May 13, 2005, Precision filed a protest with AMCOM challenging the award on, among other grounds, the basis that Hawk did not meet the service-disabled veteran-owned small business eligibility requirement. Def.\rquote s Facts \u182 10; AR at 845\u821156 (Precision\rquote s protest to AMCOM). By letter dated May 16, 2005, the contracting officer informed Precision that \[p]er the solicitation, we awarded the contract to the low responsible offeror.\ AR at 841 (fax confirmation of letter dated May 16, 2005 from AMCOM to Precision). The contracting officer explained that \[p]rice was the only factor considered for this award.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: for a determination of Hawk\rquote s status as a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: The SBA determined that Hawk was a service-disabled veteran-owned small business and dismissed the protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: Facts \u182 4 (although three prospective offerors originally requested and were issued \the solicitation and associated technical data,\ defendant determined that \only P[recision] and Hawk were eligible service-disabled veteran-owned small businesses.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 031 - Precision Standard Inc v US.doc, Paragraph with 'Veteran: The regulation requires the \contracting officer ... [to] forward to SBA any non-premature protest received\ challenging the apparent successful offeror\rquote s status as a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 043 - Advanced Systems Technology Inc v US.doc, Paragraph with 'Veteran: Alatec is a for-profit service-disabled veteran-owned small business corporation organized under the laws of Alabama. Alatec Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 047 - Guam Industrial Services Inc v Rumsfeld.doc, Paragraph with 'Veteran: Vietnam Veterans of America v. Sec\rquote y of the Navy, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 047 - Guam Industrial Services Inc v Rumsfeld.doc, Paragraph with 'Veteran: Vietnam Veterans of America, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'Veteran: empowered agency officials to promise free lifetime healthcare to war veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 064 - Night Vision Corp v US.doc, Paragraph with 'Veteran: was merely a housekeeping statute authorizing an agency to attend to its day-to-day affairs, but not authorizing it to create a substantive right to free lifetime health care for war veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 076 - Kentucky Educ Cabinet Dept for the Blind v US.doc, Paragraph with 'Veteran: Maryland State Department of Education v. U.S. Department of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 076 - Kentucky Educ Cabinet Dept for the Blind v US.doc, Paragraph with 'Veteran: , the Fourth Circuit construed the RSA\rquote s arbitration provisions in a case in which the Department of Veteran Affairs refused to comply with the decision of a RSA arbitration panel. The Fourth Circuit noted that \the plain language of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\15, File: 086 - SKJ And Associates Inc v US.doc, Paragraph with 'Veteran: The following facts are undisputed unless otherwise indicated. S.K.J. & Associates, Inc. (SKJ) is an Ohio corporation. Plaintiff Joseph M. Jankite is a service-disabled veteran of the United States Air Force and, according to plaintiffs, is president of SKJ. On August 28, 2002, defendant, through the Department of Health and Human Services (HHS) issued Request for Quotations No. 02M000077 (RFQ); a procurement to provide community-based counseling services to people with serious mental illness and who are homeless or at imminent risk of homelessness. The services were to be provided through funding by the Substance Abuse and Mental Health Services Administration (SAMHSA) under the Projects for Assistance in the Transition from Homelessness program (PATH). One of the services provided to these individuals is assistance in obtaining social security income and social security disability income benefits for which they are eligible. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 007 - Conner Brothers Const Co Inc v US.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 020 - Rice Services Ltd v US.doc, Paragraph with 'Veteran: , for example, we held that neither the Secretary of Veterans Affairs\rquote filing of a motion to remand to allow reconsideration in light of intervening legislation nor the Secretary\rquote s motion to remand in light of new evidence constituted relief on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with 'Veteran: Defendant called to the court\rquote s attention several federal agencies that have \supplemented\ the FAR with their own regulations, including the Department of Defense, the Army Corps of Engineers and the Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with 'Veteran: (\The Secretary ... may use ... procedures ... for the selection of a contractor on the basis of price and other evaluation criteria to perform, in accordance with the provisions of a firm fixed-price contract, both the design and construction of a facility.\)). Among other agencies that engaged in design-build procurement were the General Services Administration, the Department of Energy, the Department of State, and the Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'Veteran: (permitting supplementation of the Administrative Record when the record is insufficient for the court to render a decision). In response, on September 27, 2004, Blue Dot filed a motion to supplement the Administrative Record by the submission of other contracts that Blue Dot has with the Government, including: Contract No. F14614\u821102\u8211C\u82110003 at McConnell Air Force Base, Wichita, Kansas; Contract V255P(452)\u82110014 and Contract No. V255C(589)\u82110197 with the Department of Veterans Affairs in Wichita, Kansas. On September 27, 2004, Waste Management\u8212Washington also supplemented the Administrative Record by providing requested documents concerning its acquisition of the WUTC Certificate for the territory of Fairchild AFB, including the docket of Permanent Operating Authority Applications Pending, dated May 10, 1999, WUTC Order M. V.G. No. 1863 Granting Application, Cancelling Certificate No. G\u8211156, Amending Certificate G\u8211237, and Joint Application of John W. Gillingham, Jr. and Washington Waste Hauling & Recycling, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'Veteran: McConnell AFB, Kansas: $[ ]; Veteran\rquote s Administration Heartland Network, Leavenworth, Kansas: $[ ]; and the Veteran\rquote s Administration Medical Center, Kansas City, Missouri: $[ ]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 064 - PGBA LLC v US.doc, Paragraph with 'Veteran: Disabled American Veterans v. Secretary of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 064 - PGBA LLC v US.doc, Paragraph with 'Veteran: Disabled American Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 064 - PGBA LLC v US.doc, Paragraph with 'Veteran: involved the issue of judicial review of regulations of the Department of Veterans Affairs pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 071 - Kentucky v US.doc, Paragraph with 'Veteran: Ala. Dept. of Rehab. Servs. v. U.S. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 071 - Kentucky v US.doc, Paragraph with 'Veteran: In that case, the Fourth Circuit considered whether the DOE arbitration panel had authority to compel the Department of Veterans Affairs to comply with an order dictating specific remedial measures that the agency should carry out in order to comply with the RSA. The panel had ordered the agency to turn over both the operation of a specific retail space and certain fixtures and equipment to the petitioning SLA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with 'Veteran: AR at 219\u821121. The Integrated Assessment Best Value Decision for F45613\u821102\u8211Q\u8211A027 indicates that \[Blue Dot\rquote s] Improvement to the recycling center operation did not occur until 7 months into the contract performance, when a new management team assumed control.\ AR at 235. In addition, the Contracting Officer notes that Blue Dot received a satisfactory rating for refuse removal at McConnell AFB in Kansas and a very good rating for refuse removal from the Veterans Medical and Regional Office in Kansas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 098 - First Enterprise v US.doc, Paragraph with 'Veteran: To what degree may a court interfere with an administrative agency\rquote s budgetary process in a construction project? That is the dilemma facing the court when deciding the issues arising in this post-award bid protest case. Plaintiff, First Enterprise, challenges the U.S. Department of Veterans Affairs (\agency\ or \VA\) award of a contract to DJM Construction Co., Inc. (\DJM\) for the construction of a specialty clinic at the VA Greater Los Angeles Healthcare Center. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 098 - First Enterprise v US.doc, Paragraph with 'Veteran: (the Secretary of Veterans Affairs \is responsible for ... the control, direction, and management of the Department\). Given this impermissible result, an agency has virtually a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 098 - First Enterprise v US.doc, Paragraph with 'Veteran: Sinha v. Veterans Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\16, File: 098 - First Enterprise v US.doc, Paragraph with 'Veteran: (stating that the decision of Veterans Affairs to stop furnishing funds to pay petitioner\rquote s salary \involved the essence of agency management discretion\). Cognizant of these precepts stemming from the doctrine of separation of powers, and mindful of the necessary restraint needed of courts when reviewing matters best left in the hands of the political branches, plaintiff must here erect a very powerful case indeed for the court to breach the thick walls of agency discretion in budgetary decisions. Plaintiff, unsurprisingly, fails to demonstrate that the VA was irrational in the manner it exercised its broad discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 001 - Altos Federal Group Inc v US.doc, Paragraph with 'Veteran: Dennis Foley, U.S. Department of Veterans Affairs, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 001 - Altos Federal Group Inc v US.doc, Paragraph with 'Veteran: Plaintiff, Altos Federal Group, Inc., filed a bid protest with the United States General Accounting Office (GAO) on May 25, 2004, with respect to a contract for nursing services awarded under Request for Quotations (RFQ) No. 673\u821190F\u821104\u8211003\u8211A. The protestor alleges that the United States Department of Veterans Affairs (VA) did not perform its evaluation of the bidders according to the standards set forth in the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 001 - Altos Federal Group Inc v US.doc, Paragraph with 'Veteran: This opinion elaborates on the bench ruling invalidating the United States Department of Veterans Affairs\rquote (VA) override determination, issued after oral argument on June 4, 2004. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: The G.V. Sonny Montgomery Veterans Affairs Medical Center (\VA\) solicited bids on May 4, 2001, for provision of medical care to veterans in Meridian, Mississippi. The solicitation stated that the VA would evaluate proposals based on technical capability, past performance, and price. The solicitation was a \best value\ procurement and noted that technical capability was weighted \slightly\ higher than past performance. However, of the 200 total points possible, technical capability was assigned ninety and past performance was assigned only ten. In the final evaluation of the proposals, technical capability and past performance were combined into a single \technical score\ worth a maximum of 100 points. The score for bid price made up the remaining 100 points. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Moreover, the record supports the evaluators\rquote concerns that plaintiff lacked proper references, a viable clinic location, adequate capacity for the veteran population, and documentation of adequate support staff. While these concerns Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Galen argues that the VA accepted Downing\rquote s incorrect claim for preferential status as a \Disabled Veteran Owned Small Business Concern.\ However, the court found that there was no evidence that the VA gave any preference to Dr. Downing based on that alleged status. It noted that the proposal did not even offer such preference. On appeal, Galen has failed to adduce any evidence contradicting the court\rquote s finding. Therefore, we conclude the court\rquote s finding was not clearly erroneous. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: On appeal, Galen argues that the VA should have penalized Downing for alleged dishonesty involving her statement concerning disabled veteran ownership of her Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 011 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: clinic. However, the court made no finding as to whether Downing\rquote s claim was dishonest rather than merely mistaken. Nor does Galen adduce any evidence that Downing\rquote s misstatement was intentional. Moreover, Downing\rquote s husband was a veteran. Therefore, we conclude that the VA did not demonstrate bias by not penalizing Downing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: Offer in response to solicitation by the Department of Veterans Affairs (VA) for distribution of pharmaceutical products in 14 VA regions was an \all or none offer\ within meaning of the Federal Acquisition Regulation (FAR), notwithstanding that offer recognized that the VA maintained the right to set aside three regions for small business concerns, where proposal limited acceptance to \all regions\ contained in the offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: \All or none\ proposal for distribution of pharmaceutical products in 14 Department of Veterans Affairs (VA) regions was consistent with terms of solicitation which allowed an \all or none\ offer if it was not the only offer, where offeror submitted, in a separate proposal, individual offers for each of the regions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: , Assistant Attorney General and David M. Cohen, Director, for defendant. Maura Brown and Melbourne Noel, Office of General Counsel, Department of Veterans Affairs, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: This post-award bid protest is before the Court on the parties\rquote cross-motions for summary judgment on the administrative record. The parties completed briefing on March 5, 2004, and oral argument on the motions was held on March 11, 2004. Plaintiff, AmerisourceBergen Drug Corporation (\ABC\) challenges the United States\rquote , acting through the Department of Veterans Affairs, (\VA\ or \defendant\), award of a contract to McKesson Corporation (\McKesson\ or \defendant-intervenor\), for the distribution of pharmaceutical products. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: On June 20, 2003, the United States Department of Veterans Affairs issued Solicitation No. 797\u8211PV\u821103\u8211002 (\Solicitation\ or \RFP\) for the procurement of pharmaceutical product distribution. The solicitation provided for a contract with a base period of two years, with three two-year renewable options. The government estimated the value of the contract to be $24 billion over the entire eight-year period. The VA issued the solicitation in connection with the Veterans Affairs National Acquisition Center\rquote s (\NAC\) Pharmaceutical Prime Vendor (\PPV\) program. The solicitation contemplated award of one or more requirements contracts under which a PPV contractor distributes pharmaceutical products to the VA and other designated federal agencies. The PPV contractor purchases pharmaceutical products from various government supply contracts and is responsible for delivering the products to the participating agencies whenever they place an order with the PPV contractor. The solicitation listed 665 government facilities that would utilize the contract\rquote s services. These facilities were divided into 14 regions. Regions 1\u821113 were divided by the geographic location of the customer base. Region 14 consisted of: (1) the Consolidated Mail Outpatient Pharmacy (\CMOP\) facilities: (2) the HHS, Service Supply Center facilities; and (3) the NAC accounts. These facilities service a customer base that spans several regions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: It is only offered for all 14 Veterans Affairs Regions as a whole. It is understood that regions 6, 7, and 8 are set asides and may not factor into the overall volume. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: Next, ABC claims that McKesson\rquote s Proposal One was an \all or none\ offer that should have been rejected by the VA because it was \ \u8216only offered for all 14 Veterans Affairs Regions as a whole.\ \u8217 Pl\rquote s. Mot. for J. at 17; AR 0780. The VA and McKesson claim that this proposal was not an \all or none\ offer because the offer recognized that the VA maintained the right to set aside three regions for small business concerns. Specifically, McKesson\rquote s proposal demonstrated that it understood that Regions 6, 7 and 8 were set aside for small business. The VA and McKesson argue that this was not an \all or none\ offer because it allowed the VA to accept the reduced pricing even if the VA maintained the small business set-asides. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 028 - AmerisourceBergen Drug Corp v US.doc, Paragraph with 'Veteran: offered for all 14 Veterans Affairs Regions Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 032 - Walsh Healthcare Solutions Inc v AmeriSource Corp.doc, Paragraph with 'Veteran: Health care provider brought state court action against consolidated mail outpatient pharmacies (CMOP) supplier to recover lost profits under Department of Veteran Affairs (VA) pharmaceutical prime vendor (PPV) contracts. Supplier removed case to federal court and filed conversion and unjust enrichment counterclaims. The United States District Court for the Eastern District of Texas denied provider\rquote s motion for summary judgment on express contract grounds, but granted its motion on implied contract grounds. Parties appealed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 032 - Walsh Healthcare Solutions Inc v AmeriSource Corp.doc, Paragraph with 'Veteran: Under Texas law, settlement agreement by which health care provider released its claims against consolidated mail outpatient pharmacies (CMOP) supplier arising from \extensions\ of Department of Veteran Affairs (VA) pharmaceutical prime vendor (PPV) contracts with provider included all claims arising during time period covered by each extension of PPV contract, including all interim contracts, rather than just settlement agreement\rquote s extension of second interim contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 032 - Walsh Healthcare Solutions Inc v AmeriSource Corp.doc, Paragraph with 'Veteran: Walsh Healthcare Solutions, Inc. (\Walsh\) sued AmeriSource Corporation (\AmeriSource\) seeking lost profits under Department of Veteran Affairs (\VA\) pharmaceutical prime vendor (\PPV\) contracts. Both Walsh and AmeriSource appeal the district court\rquote s order granting and denying various portions of each party\rquote s motion for summary judgment. Because the express terms of a settlement agreement entered into by the parties bars each claim raised by Walsh and AmeriSource, we reverse and remand. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 041 - Bernard v US.doc, Paragraph with 'Veteran: (holding that a former Veterans Administration employee could not sue the agency for Privacy Act violations). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 041 - Bernard v US.doc, Paragraph with 'Veteran: (holding that a claim based on misrepresentations regarding eligibility for veterans benefits was tort claim). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 055 - Software Testing Solutions Inc v US.doc, Paragraph with 'Veteran: On June 19, 2003, the Veterans Administration Health Administration Center (VA) in Denver, Colorado issued a Request for Proposals (RFP) No. 741\u821115\u821103, for information technology services, personnel, material and equipment to be used in independent testing of the VA\rquote s enrollment database computer program. Proposals were due June 30, 2003. Six offerors, including plaintiff Software Testing Systems (STS) submitted timely bids in response to the solicitation. On July 22, 2003, the VA awarded the contract to SysTest Labs (SysTest). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 055 - Software Testing Solutions Inc v US.doc, Paragraph with 'Veteran: temporary restraining order is issued. In this regard, based on a declaration supplied the court, it appears that the services in question relate to a database that is designed to improve the delivery of services to the growing number of veterans seeking health care from the VA. According to this same declaration, if a temporary restraining order were issued, the VA would be forced either to stop the testing project in mid-performance thereby delaying the entire enrollment database or to continue implementing the database without testing. While the mere delay of a contract is insufficient, standing alone, to avoid preliminary relief, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 089 - Nutech Laundry And Textile Inc v US.doc, Paragraph with 'Veteran: Veteran Shredding, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 093 - Delaney Const Corp v US.doc, Paragraph with 'Veteran: \SMALL BUSINESS PROGRAM REPRESENTATIONS\ requiring offerors to certify whether they were: a small business concern; a women-owned small business concern; a small disadvantaged business concern; a veteran-owned small business concern; a service-disabled veteran-owned small business concern; and/or a HUB\u8211Zone small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\17, File: 098 - USA ex rel Barrett v Johnson Controls Inc.doc, Paragraph with 'Veteran: Irwin v. Veterans Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: This post-award bid protest stems from a request for proposals, Solicitation 586\u821144\u821101, issued by the G.V. Sonny Montgomery Veterans Affairs Medical Center (\VA\) on May 4, 2001. The contract was eventually awarded to the intervenor, Deborah Downing MD, PLLC (\Dr. Downing\). The solicitation was the subject of two protests to the United States General Accounting Office (\GAO\). The first was denied as moot after the VA took corrective action. The second concluded that plaintiff lacked standing. Plaintiff filed its complaint here on April 30, 2002 and Dr. Downing intervened on December 4, 2002. Limited discovery was allowed. Pending are the parties\rquote cross-motions for judgment on the administrative record. Oral argument was held on March 28, 2003. At the conclusion of arguments, relief was denied for the following reasons. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: The VA issued the solicitation on May 4, 2001, requesting proposals for providing delivery and management of primary and preventive medical care and continuity of care for veterans in and around Meridian, Mississippi. The contract was for one year with four option years. The VA estimated that the contractor would provide services to approximately 2600 to 3000 patients from six Mississippi counties in the first year. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: On November 20, 2001, plaintiff re-submitted its proposal. The technical aspects of the proposal remained the same, but it lowered its price. At $3,648,900 plaintiff\rquote s price was lower than all other offers. Dr. Downing resubmitted her proposal with a price of $4,206,900. Dr. Downing\rquote s revised proposal package also claimed preferential status as a \Disabled Veteran Owned Small Business Concern,\ even though the status was irrelevant to the proposal and the representation may have been inaccurate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Plaintiff alleges that Dr. Downing\rquote s claim that her business was a \Disabled Veteran Owned Small Business Concern\ was untrue. There is no evidence in the record, however, that evaluators gave any preference to Dr. Downing based on that alleged status. Plaintiff, therefore, cannot show that it suffered any prejudice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 003 - Galen Medical Associates Inc v US.doc, Paragraph with 'Veteran: Once again, we disagree. The VA could not require evaluators on the second panel to score plaintiff\rquote s proposal in the same way the second time. Moreover, the record supports the evaluators\rquote concerns that plaintiff lacked proper references, a viable clinic location, adequate capacity for the veteran population, and documentation of adequate support staff. While these concerns may not have been treated as rendering plaintiff\rquote s offer non-responsive, they were plainly serious concerns for the evaluators. Plaintiff has not offered any evidence that these concerns were contrived. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 006 - Resource Recycling Corp Inc v US.doc, Paragraph with 'Veteran: This action is a dispute over the remains of many of the earlier B\u821152s, all venerable war veterans that saw service on many fronts. Specifically, it is an action for breach of an implied contract arising out of a government bid for the sale of recyclable aluminum scrap from the hulks of old B\u821152 bombers. Before the court is defendant\rquote s motion to dismiss the complaint under the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 007 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Bidder filed pre-award bid protest against the United States requesting that the Department of Veterans Affairs (VA) be enjoined from accepting final proposal revisions in response to an amendment to the request for quotations (RFQ), and directed to re-evaluate all offers in the competitive range pursuant to another amendment to the RFQ. On plaintiff\rquote s motion for preliminary injunction, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 007 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: that the court enjoin the Department of Veterans Affairs (VA) from accepting final proposal revisions in response to Amendment No. 3 to RFQ (Request for Quotations) No. 247\u8211008\u821103, and direct the VA to re-evaluate all offers in the competitive range pursuant to Amendment No. 2 to the RFQ. On January 31, 2003, at the order of the court, plaintiff filed a motion for a preliminary injunction requesting the same relief. For the reasons discussed, plaintiff\rquote s motion is denied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: Contractor brought suit against the United States seeking compensation for expenses arising from the breach of alleged express, implied-in-fact, and implied-in-law contracts to replace fire alarm system at a Department of Veterans Affairs (VA) medical facility. On defendant\rquote s motion to dismiss, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: Government contractor could not base cause of action on sections of the Veterans Administration Acquisition Regulation (VAAR) which constituted internal operating procedures designed to protect the government from paying more than the estimated fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: Government contractor which undertook to replace fire alarm system at Department of Veterans Affairs (VA) medical facility failed to establish a superior knowledge claim based on allegation that it was not provided with information on congestion or traffic at the facility, and the lack of the information affected its performance; contractor was placed on notice to inquire as to the alleged vital information, where it possessed substantial prior experience in the very buildings in which it was going to perform the contract, and based its bid upon the solicitation and its own site investigation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: Government contractor which undertook to replace fire alarm system at Department of Veterans Affairs (VA) medical facility failed to establish a superior knowledge claim based on allegation that government possessed superior knowledge and withheld information that the government estimate was flawed, as government estimate was for the benefit of the government and contractor was not entitled to rely upon such information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: This government contract case is before the Court on defendant\rquote s Motion to Dismiss. Plaintiff, D.V. Gonzalez Electric & General Contractors, Inc. (\GEGC\) seeks compensation for expenses arising from the breach of alleged express, implied-in-fact, and implied-in-law contracts with the U.S. Department of Veterans Affairs (\VA\) to replace the fire alarm system at the VA Medical Campus (\VAMC\) facility in Canandaigua, New York. Defendant moved to dismiss the Complaint alleging lack of jurisdiction and failure to state a claim under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: On March 20, 1997, GEGC submitted a formal request for an equitable adjustment (\REA\), alleging a differing site condition, mutual mistake, and superior knowledge claims. The REA was based upon site congestion encountered by GEGC in various forms which plaintiff claims caused substantial delays and increased its cost of performance. On May 5, 1997, the Contracting Officer informed GEGC that the REA lacked sufficient justification. Over nine months later, on February 18, 1999, GEGC converted its REA to a certified claim of $390,412 pursuant to the Contract Disputes Act of 1978. The Contracting Officer issued his final decision denying plaintiff\rquote s claim on March 16, 1999. The Veterans Administration Board of Contract Appeals (\VABCA\) dismissed this matter on July 14, 1999, for lack of jurisdiction. Plaintiff filed the instant case with this Court on December 13, 1999. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with 'Veteran: and Veterans Administration Acquisition Regulation (\VAAR\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 012 - Concrete Works of Colorado Inc v City and County of Denver.doc, Paragraph with 'Veteran: \quality of education\ or \culture.\ The district court faulted the 1995 Study because it did not control for \marital status, veteran status, availability of other sources of income and hours worked during the previous year.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 016 - All Seasons Const Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder brought post-award protest, alleging that the Department of Veteran Affairs (VA) improperly rejected its bid as non-responsive. On plaintiff\rquote s requests for preliminary and permanent injunctive relief and the parties\rquote cross-motions for summary judgment on the administrative record, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 016 - All Seasons Const Inc v US.doc, Paragraph with 'Veteran: This is a post-award protest in which plaintiff, All Seasons Construction, Inc. (\All Seasons\), alleges that the Department of Veteran Affairs (\VA\) improperly rejected its bid as non-responsive. The matter is now before the Court on plaintiff\rquote s requests for preliminary and permanent injunctive relief and the parties\rquote cross-motions for summary judgment on the administrative record. Plaintiff seeks to enjoin the VA from taking any further action with respect to the contract it entered into with Witherington Construction (\Witherington\) under Invitation for Bid (\IFB\) No. 667\u821129\u821102 for the construction of replacement operating rooms. For the reasons below, plaintiff\rquote s motions are DENIED and defendant\rquote s motion for summary judgment is GRANTED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 032 - American Tel and Tel Co v US.doc, Paragraph with 'Veteran: Departments of Veterans Affairs and Housing and Urban Development, and Independent Agencies Appropriations Act, 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: The contract at issue in this case was awarded for the renovation and alteration of a portion of a Veterans Hospital in Bedford, Massachusetts, and was entered into by the plaintiff, Glazer Construction Co., Inc. (Glazer Construction), and the United States Department of Veterans Affairs (VA). The VA terminated Glazer Construction for default for failure to complete the contract on time. The plaintiff\rquote s amended complaint alleges that the VA improperly terminated it for default, that the defendant\rquote s actions constituted a breach of contract, were arbitrary and capricious, and constituted negligent behavior. The plaintiff requests an equitable adjustment for differing site conditions and a revocation of the termination for default. The defendant filed a motion for partial summary judgment, to which the plaintiff has responded. Defendant claims that the termination for default was valid when issued, and that, in addition, the termination is also justified based on the post-hoc discovery of Davis\u8211Bacon Act and Buy American Act violations, committed by Glazer Construction while performing the contract at issue in this case. Pursuant to the discussion which follows, the court finds that, without the need for further trial proceedings, Glazer Construction\rquote s violations of the Davis\u8211Bacon Act are valid grounds to uphold the defendant\rquote s termination for default. Defendant\rquote s motion for partial summary judgment, therefore, is granted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: On August 2, 1996, Glazer Construction and the VA entered into contract number V518C\u8211918 for the renovation and alteration of Wings A and C of Building 4 of the VA\rquote s Edith Nourse Rogers Memorial Veterans Hospital in Bedford, Massachusetts (the Bedford, VA contract). The original price of the contract was $2,186,000.00. The contract included the clause Default (Fixed\u8211Price Construction), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: The contract between Glazer Construction and the VA also contained the following clauses: Buy American Act, Veterans Administration Acquisition Regulations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: . Buy American Act, Veterans Administration Acquisition Regulations, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: material is no longer available, or (3) where the price has escalated so dramatically after the contract has been awarded that it would be unconscionable to require performance at that price. The determinations require [sic] by (1), (2) or (3) of this paragraph shall be at the sole discretion of the Secretary of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 053 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: The contract also contained two clauses by which Glazer Construction agreed to use domestic construction materials on the contract. The Buy American Act clause, required by Veterans Administration Regulations, FAR \u167 852.36\u821189, and included in the contract, states: \By signing this bid, the bidder declares that all articles, materials and supplies for use on the project shall be domestic unless specifically set forth on the Bid Form Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 063 - Hunt Const Group Inc v US.doc, Paragraph with 'Veteran: Contractor sued United States, seeking reimbursement for sales and use taxes for permanent materials that it paid in connection with hospital construction project pursuant to contract with Department of Veterans Affairs. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 063 - Hunt Const Group Inc v US.doc, Paragraph with 'Veteran: The Hunt Construction Group, Inc. (\Hunt\) appeals the decision of the United States Court of Federal Claims granting summary judgment that the United States is not liable to pay state and local sales and use taxes under a contract between Hunt and the Department of Veterans Affairs (\DVA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 080 - L Tarango Trucking v County of Contra Costa.doc, Paragraph with 'Veteran: decision was issued, a California Court of Appeal had held that a state statute requiring state departments to report data on participation by minority, women, and disabled veteran business enterprises in state contracts was a violation of Proposition 209 because it was an unseverable part of an affirmative action statute previously found unconstitutional. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\18, File: 090 - Corel Corp v US.doc, Paragraph with 'Veteran: Rapides Regional Med. Ctr. v. Secretary, Dep\rquote t of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 003 - Catholic University of America v US.doc, Paragraph with 'Veteran: The United States Soldiers\rquote and Airmen\rquote s Home, located in Washington, D.C., has provided a residence and related services for military veterans since 1851. This facility, together with the United States Naval Home (located in Gulfport, Mississippi), was incorporated into an independent establishment within the Executive Branch in 1990. The consolidated institution\u8212the Armed Forces Retirement Home\u8212is administered by the Armed Forces Retirement Home Board (\AFRHB\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 003 - Catholic University of America v US.doc, Paragraph with 'Veteran: On completion of the appraisal, our desire is to put the land up for competitive bids, and then to compare the bids with the present value of the income stream and residual values associated with the extended lease option, assuming the financial parameters of that option are validated by the independent appraisal. The Board would then hope to be in a position to execute whatever option produces the most long-term value for our Trust Fund and, thus, for the current and future veterans who are its beneficiaries. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 003 - Catholic University of America v US.doc, Paragraph with 'Veteran: In follow-up, Mr. Bateman noted that \there is no assurance the development proposal will work. Like all investments, there is an element of speculation and risk. How does developing the land \u8216ensure that those aging veterans who need the Homes will not be disenfranchised\u8217?\ In response, Mr. Lacy reiterated \the Armed Forces Retirement Home will not place its assets at risk.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 012 - Automated Communication Systems Inc v US.doc, Paragraph with 'Veteran: Alphapointe v. Department of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 028 - American Federation of Government Employees AFL-CIO v Babbitt.doc, Paragraph with 'Veteran: LeFevre v. Secretary, Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 030 - Baltimore Gas and Elec Co v US.doc, Paragraph with 'Veteran: Rapides Regional Med. Ctr. v. Secretary, Dep\rquote t of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 042 - Hunt Const Group Inc v US.doc, Paragraph with 'Veteran: In May 1996 the Department of Veterans Affairs (\VA\) issued a Solicitation for Proposals (the \Solicitation\) for construction of an Ambulatory Care Clinic Addition in Phoenix, Arizona (the \Project\). The Solicitation contained two important references to tax exemptions. First, on the page immediately following the Table of Contents, a \Special Notice\ was printed on green paper. This piece of paper was blank except for the title \SPECIAL NOTICE\ and text that read: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 042 - Hunt Const Group Inc v US.doc, Paragraph with 'Veteran: on the ground that in that case \there was no exemption available to the contractor.\ Pl.\rquote s Br. filed Oct. 25, 2000, at 6 n. 5. The Veterans\rquote Board of Contract Appeals determined that the contractor\rquote s reading of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'Veteran: litigation after 1996. Virtually the only changes to these statutory sections were additions of language including other groups in the SBA\rquote s affirmative action program: 1995 (women); 1998 (\HUBZone small business concerns\); and 2000 (veterans). Likewise, the key language in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 064 - Adarand Constructors Inc v Slater.doc, Paragraph with 'Veteran: has been amended at various times during the litigation to include government-wide contracting goals for other groups, such as women, service-disabled veterans, and HUBZone small business concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 066 - Legal Aid Society v City of New York.doc, Paragraph with 'Veteran: Harris v. Secretary, U.S. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 069 - Beverly Enterprises Inc v Herman.doc, Paragraph with 'Veteran: Corporation that operated nursing homes for veterans brought action to set aside final decision of Department of Labor\rquote s Administrative Review Board upholding Office of Federal Contract Compliance Programs\rquote (OFCCP) proposed administrative search to ensure that it met affirmative action requirements mandated by Executive Order. On cross-motions for summary judgment, the District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 069 - Beverly Enterprises Inc v Herman.doc, Paragraph with 'Veteran: Office of Federal Contract Compliance Programs (OFCCP) could not sanction subsidiaries of corporation that operated nursing homes for veterans for parent corporation\rquote s failure to comply with affirmative action requirements mandated by Executive Order, absent showing that parent and subsidiaries could be considered to be single entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 069 - Beverly Enterprises Inc v Herman.doc, Paragraph with 'Veteran: Beverly Enterprises, Inc. (\the plaintiff\) brings this action to set aside a final decision and order (\order\) by the Department of Labor\rquote s Administrative Review Board (\the Board\). The plaintiff operates nursing homes that provide care for veterans. The defendants are the Department of Labor, the Office of Federal Contract Compliance Programs (\OFCCP\) and the heads of both agencies. The order would cancel the plaintiff\rquote s current contracts with the government and bar the plaintiff and its subsidiaries from future government contracts unless the plaintiff allows the OFCCP to conduct a Corporate Management Review (\CMR\) within thirty days of the order\rquote s issuance. Under the CMR, the OFCCP would inspect the plaintiff\rquote s files and headquarters to determine whether the plaintiff is complying with affirmative-action standards required for federal contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 069 - Beverly Enterprises Inc v Herman.doc, Paragraph with 'Veteran: The plaintiff is an Arkansas corporation that operates nursing homes that provide skilled nursing care for veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 069 - Beverly Enterprises Inc v Herman.doc, Paragraph with 'Veteran: Administrative Record (hereinafter \R.\) at 1567. In various contracts with the Veterans Administration, the plaintiff has agreed to be bound by the affirmative-action provisions contained in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with 'Veteran: Plaintiff asks the court to take judicial notice of the materials located in Tabs two through six of its opposition to defendant\rquote s motion to exclude. Tabs two and three contain information obtained through the Social Security Administration (SSA) which lists the addresses of SSA buildings in Ohio. Tab four contains information which plaintiff obtained from the SSA Internet web site which includes, among other things, maps and addresses of SSA buildings in Ohio. Tab five contains a facsimile copy of a list of addresses for Department of Veterans Affairs (DVA) buildings located in Ohio which plaintiff obtained from the DVA. Tab six contains a lists of all the federal buildings located within Ohio. Plaintiff asks the court to take judicial notice of the information contained within these documents. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 087 - Young v General Services Admin.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Department of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 093 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'Veteran: Contractors Eng\rquote s Int\rquote l, Inc. v. U.S. Department of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 093 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with 'Veteran: LeFevre v. Secretary, Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\19, File: 097 - CW Government Travel Inc v US.doc, Paragraph with 'Veteran: (approving adoption by Court of Veterans Appeals, an Article I court, of the \case or controversy\ limitations on prudential grounds). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor filed post-award bid protest, challenging source selection decision by Department of Veterans Affairs (VA), awarding to two veteran-owned small businesses (VOSBs) firm-fixed price, indefinite-delivery/indefinite-quantity (IDIQ) contracts for supply of medical cylinder gases to locations and facilities within Veteran\rquote s Integrated Service Networks (VISNs) spanning 20 states. The Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Filing period for incumbent contractor\rquote s motion to alter or amend judgment began to run on date that initial judgment was entered, partially granting contractor\rquote s motion for judgment on administrative record and granting permanent injunctive relief preventing Department of Veterans Affairs (VA) from awarding veteran-owned small business (VOSB) contracts to supply medical cylinder gases to VA medical centers, rather than on date of amended judgment granting contractor permission to apply for bid preparation and proposal costs, since merits of contractor\rquote s bid protest were settled by initial judgment and explicitly undisturbed by amended judgment that related only to collateral issue of costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor that was seeking to prevent Department of Veterans Affairs (VA) from resoliciting veteran-owned small business (VOSB) contracts to supply medical cylinder gases to VA medical centers was not completely faultless for predicament as to its limited legal options for challenging VA\rquote s decision to resolicit contracts, and thus, contractor lacked extraordinary circumstances justifying relief from final judgment on administrative record granted to contractor in post-award bid protest and grant of permanent injunction preventing VA from awarding contracts to awardees, since contractor\rquote s objection to judgment arose from case decided five months before judgment was granted, but contractor failed to address that case before entry of judgment or in its motion for reconsideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 001 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: This case involves a bid protest relating to a contract for the supply of medical gases at facilities maintained by the United States Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'Veteran: Every v. Department of Veterans Affairs, Not Reported in Fed. Supp. (2017) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'Veteran: DEPARTMENT OF VETERANS AFFAIRS, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'Veteran: , US Attorney\rquote s Office, Concord, NH, for Department of Veterans Affairs, et al. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'Veteran: Robert Every, proceeding pro se, filed a \Request for Injunction and Motion to Compel\ (doc. no. 1) (the \complaint\), in which he named the United States Department of Veterans Affairs (\VA\) and the General Services Administration (\GSA\) as defendants. Every\rquote s complaint appeared to allege that the VA is corrupt and lacks effective leadership, and also appeared to involve a challenge to a bidding process undertaken by the VA to lease space for a medical facility in Rumford, Maine (the \Rumford Clinic\). Defendants moved to dismiss the complaint, and the court granted the motion \without prejudice to Every\rquote s ability to file an amended complaint setting forth facts sufficient to state plausible claims against the defendants.\ Doc. no. 15 at 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 010 - Every v Department of Veterans Affairs.doc, Paragraph with 'Veteran: Every alleges that the VA views veterans like Every and their companies \as one entity.\ Doc. no. 17 at \u182 11. For simplicity, the court will refer to Every and Esterhill interchangeably in this portion of the factual summary. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor filed post-award bid protest, challenging source selection decision by Department of Veterans Affairs (VA), awarding to two veteran-owned small businesses (VOSBs) firm-fixed price, indefinite-delivery/indefinite-quantity (IDIQ) contracts for supply of medical cylinder gases to locations and facilities within Veteran\rquote s Integrated Service Networks (VISNs) spanning 20 states. Following intervention by one contract awardee as defendant-intervenor, parties cross-moved for judgment on administrative record, and contractor sought permanent injunction preventing VA from awarding contracts to awardees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor that was not awarded contract by Department of Veterans Affairs (VA) to supply medical cylinder gases qualified as \interested party,\ as required for contractor\rquote s standing to pursue post-award bid protest, under Tucker Act, on grounds that contractor had substantial chance of receiving contract award but for alleged procurement errors, where contractor was actual bidder for contract and was included in competitive range for contract award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) conducted reasonable evaluation of respective bidders\rquote past performance, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where VA first assigned one bidder neutral rating for its past performance, but after learning more from bidders during well-documented discussions, VA adjusted all bidders\rquote past performance ratings and technical capability ratings, and VA\rquote s reasons for its findings were supported by administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) scope of discussions with bidders was appropriate, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where VA advised bidders by letter of topics VA had developed to assist in evaluating bidders\rquote strengths, weaknesses, and deficiencies, and then VA discussed those same topics with each bidder in the competitive range. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) discussions with bidders, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, complied with procurement regulation, providing that contract could be awarded without discussions if solicitation so stated, but if government determined discussions were necessary, government was required to document rationale for doing so, since VA had reserved right in both source selection plan (SSP) and request for proposals (RFP) to conduct discussions with bidders, and VA explained when establishing competitive range that objective of discussions was to maximize government\rquote s ability to obtain best value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) discussions with bidders did not treat incumbent contractor unfairly, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, where contractor gave number of unimpressive responses to VA\rquote s questions, and those answers compromised VA\rquote s view of contractor\rquote s technical capability and past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs (VA) permissibly waived requirement in request for proposals (RFP) that bidders submit their proposals on compact disc, by allowing one bidder to submit its proposal in paper form, in accordance with procurement regulation permitting agency to waive informalities and minor irregularities in proposals received, since submission format requirement was informality. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs\rquote (VA) contract specialist and contracting officer conducted unequal and unlawful exchanges with one bidder prior to VA\rquote s evaluation of bidders\rquote initial proposals, in violation of procurement regulations prohibiting use of communications to cure proposal deficiencies or material omissions, materially alter technical or cost elements, and/or otherwise revise proposal and prohibiting exchange favoring one bidder over another; any duty of VA to hold exchanges extended to all bidders, not only one bidder, and VA\rquote s exchanges unfairly favored one bidder by allowing bidder to make untimely and significant modifications to technical and cost elements of its proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) technical evaluation team (TET) established competitive range, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, that was arbitrary, capricious, and did not comport with procurement regulations or request for proposals (RFP), requiring contracting officer, not TET, to establish competitive range; contracting officer\rquote s delegation of authority to TET to establish competitive range, failure to disclose to TET significant deficiencies in contract awardee\rquote s initial proposal, and failure to address those deficiencies at time prescribed in procurement process for informing competitive range determination was procedural violation so egregiously removed from fairness as to constitute abuse of VA\rquote s discretion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) evaluation of bidders\rquote initial proposals, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, violated both solicitation and procurement regulations, requiring price to be compared against other evaluation factors to determine best value for government, requiring price to be considered before determining competitive range and to be evaluated in terms of fairness and reasonableness, and requiring contracting officer to establish competitive range based on ratings of each proposal against all evaluation criteria and to document rationale for any business judgments and tradeoffs, since contracting officer determined competitive range price before evaluating price and failed to document any tradeoff rationale. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: In awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, Department of Veterans Affairs (VA) unfairly extended time for submission of revised proposal to only one bidder, in violation of procurement regulation, prohibiting unfair treatment of bidders, since VA treated bidder differently and preferentially by extending submission deadline to give bidder additional time to prepare bid without offering correlative time extension to other bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) corrective action source selection decision, in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, misstated evaluation procedures set forth in source selection plan (SSP), providing that only past performance, veterans\rquote preference, and price would receive reevaluation by VA after competitive range determination, but not technical capability, where VA reevaluated technical capability and failed to set forth rationale for reevaluating proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) compromised competitive fairness in awarding contracts to veteran-owned small businesses (VOSBs) for supply of medical cylinder gases, in manner that was prejudicial to incumbent contractor, by granting contract awardee extension of time to submit revised proposal, by allowing other awardee to address deficiencies in its proposal but not affording other bidders same opportunity, and by conducting reevaluation of proposals without conforming to procedures set forth in source selection plan (SSP), since incumbent contractor had substantial chance of receiving contract award but for VA\rquote s unreasonable award decision and unfair procurement process that treated bidders unequally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Bid protestor would suffer irreparable harm in absence of permanent injunction preventing Department of Veterans Affairs (VA) from awarding contracts for supply of medical cylinder gases to two bidders that VA had unreasonably selected as contract awardees in unfair procurement process that failed to treat bidders equally, since protestor was incumbent contractor, had substantial chance of receiving contract award but for VA\rquote s procurement errors, protestor would suffer economic harm by loss of opportunity to supply medical cylinder gases, and protestor had no remedy other than bid protest to reclaim contract and any profits it would have earned. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Balance of hardships favored granting permanent injunction preventing Department of Veterans Affairs (VA) from awarding contracts for supply of medical cylinder gases to two bidders that VA had unreasonably selected as contract awardees in unfair procurement process that failed to treat bidders equally, since bid protestor was incumbent contractor with substantial chance of receiving contract award but for VA\rquote s procurement errors, and protestor\rquote s economic harm from loss of contract award outweighed harms to VA that were of agency\rquote s own making. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Public interest supported grant of permanent injunction preventing Department of Veterans Affairs (VA) from awarding contracts for supply of medical cylinder gases to two bidders that VA had unreasonably selected as contract awardees in unfair procurement process that failed to treat bidders equally, since public had strong interest in ensuring that VA\rquote s procurement process was fair and that contract award was made by means of competitive marketplace. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: This is a post-award bid protest filed by Progressive Industries, Inc. (Progressive or plaintiff) against the United States Department of Veterans Affairs (VA, the agency, or defendant). Compl. \u182 1, ECF No. 1, Dec. 22, 2014. Progressive challenges the VA\rquote s source selection decisions awarding firm-fixed price, indefinite-delivery/indefinite-quantity (IDIQ) contracts for the supply of medical cylinder gases to locations and facilities identified by the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: On April 16, 2014, the VA issued its source selection decision, awarding the contracts to two veteran owned small businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: 3. Veteran\rquote s Participation Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: As to the relative importance of the evaluation factors, technical capability was deemed more important than past performance and veterans participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: at AR 126. Past performance was valued as more important than veterans participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: The combination of technical capability, past performance, and veterans participation was valued as \significantly more important than price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: As to veterans participation, each offeror was asked to furnish a representation, modeled on those found at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: , as to whether it qualified as a service-disabled small business (\SDVOSB\) or a veteran-owned small business (\VOSB\). Tab 9, AR 138. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: As to price, the SSP stated that \[a]fter an evaluation of the Technical Capability, Past Performance, and Veteran Business Participation[ ] has been completed and rankings have been established[,] price will be compared against these rankings to determine the combination most advantageous to the Government.\ Tab 9, AR 129\u821130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: On July 23, 2013, the VA issued a Request for Proposal (RFP or Solicitation), numbered as VA 240C\u821113\u8211R\u82110054, for the supply of medical cylinder gases to locations and facilities within Veteran\rquote s Integrated Service Networks (VISNs) 9\u821112, 15, 16, and 23. Tab 11, AR 161\u8211230. These VISNs spanned the twenty states that encompass the VA\rquote s Service Area Office (SAO) Central Region. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: The TET convened in Minneapolis, Minnesota on the afternoon of November 19, 2013, to evaluate the offerors\rquote proposals. Suppl. Hurt Decl. \u182 43 (ECF No. 41). Using the Technical Capability Evaluation Sheet included in the SSP, each TET member completed a handwritten evaluation of each offeror\rquote s technical capability, past performance, and veterans participation. Tabs 17\u821119, AR 994\u82111167; Tab 72, AR 2543\u821162; Suppl. Hurt Decl. \u182\u182 39, 49 (ECF No. 41). According to Ms. Hurt, \the TET [members] submitted their individual evaluation sheets to the TET Chair, and the TET Chair convened a meeting to reconcile [the] disagreements and varying ratings among the evaluators.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Tab 21, AR 1177\u821178. Only Irish and [Offeror A] received credit for factor 3, veterans participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Also, the iterative process described in the SSP\u8212which provided that only past performance, veterans preference, and price (steps two through five), would receive reevaluation by the agency\u8212seems to have been omitted from the process that led to the source selection decision and the corrective action source selection decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Tab 9, AR 125. Moreover, step two of the process set forth in the SSP\u8212which involved an assessment of past performance\u8212was changed to an assessment of technical capability. Tab 45, AR 2015; Tab 59, AR 2370. Finally, the source selection decision and the corrective action source selection decision wholly eliminated step three in the SSP, the consideration of veterans participation. Tab 45, AR 2015; Tab 59, AR 2370. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Tab 9, AR 125. As provided in the SSP, only past performance, veterans preference, and price (steps two through five), would receive reevaluation by the agency. Tab 9, AR 125; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: Defendant maintains the position that VA \did not deviate from the SSP by reevaluating the technical capability factor after the competitive-range determination.\ Def.\rquote s Supp. Br. 4. The VA explained at oral argument that the disparity between the evaluation procedures of the SSP and those documented in the corrective action source selection decision \is ... an issue of form over substance.\ Hr\rquote g Tr. 23. Defendant points to the sentence in the SSP addressing the possibility of reevaluating technical capability after the competitive range determination: \In the event that additional capability information is desired before making a source selection, discussions [might] be held for those offerors with a realistic chance for award (competitive range).\ Def.\rquote s Suppl. Br. 5 (citing Tab 9, AR 125). Defendant insists that the placement of that sentence before the instruction that only past performance, veterans preference, and price (steps two through five) would receive agency reevaluation makes clear that the phrase \[s]teps two through five\ is a typographical error. Def.\rquote s Suppl. Br. 5 (citing Tab 9, AR 125). Defendant\rquote s explanation for the disparity between the contracting officer\rquote s characterization of the five-step evaluation process in the corrective action source selection decision\u8212which was derived purportedly from the SSP\u8212and those described in the SSP is summary and unsupported. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: The public, and in this case the veteran recipients of medical support, are well served by the procurement of medical cylinder gases for various VA locations by means of a competitive marketplace. When offerors compete to provide the best value for needed goods and services, they are expected to meet the requirements of the Solicitation or risk elimination from consideration. This is particularly true when, as in this case, discussions between the government and offerors are not anticipated, and no opportunity to cure an otherwise insufficient proposal is expected. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: . According to the Supreme Court, \u167 8127(a) of the \Veterans Benefits, Health Care, and Information Technology Act of 2006\ requires the VA to award contracts to a service-disabled small business or a veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: . This requirement is triggered by the \Rule of Two,\ which requires contracting officers to restrict competition to either VOSBs or SDVOSBs when \the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ \u167 8127(d). The Supreme Court stated that \before contracting with a non-veteran owned business, the [VA] must first apply the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: . But, the Supreme Court declined to determine \precisely what sort of search for veteran-owned small businesses the [VA] must conduct to comply with the Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 032 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: The VA awarded contracts to [Offeror A] for Veteran\rquote s Integrated Service Networks (VISNs) 9, 10, 15, and 16 and to Irish Oxygen for VISNs 12 and 23. The agency made contract awards for six of the seven VISNs expecting to receive medical cylinder gases under the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 042 - Caddell Construction Company v United States.doc, Paragraph with 'Veteran: The Small Business Contracting Plan listed six types of small business concerns: Small Business, Small Disadvantaged Business, Woman\u8211Owned Small Business, HUBZone Small Business, Service\u8211Disabled Veteran\u8211Owned Small Business, and Other Than Small Business. AR 371. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 045 - Land of Lincoln Mutual Health Insurance Company v United States.doc, Paragraph with 'Veteran: Coalition for Common Sense in Gov\rquote t Procurement v. Sec\rquote y of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 045 - Land of Lincoln Mutual Health Insurance Company v United States.doc, Paragraph with 'Veteran: National Org. of Veterans\rquote Advocates, Inc. v. Sec\rquote y of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 045 - Land of Lincoln Mutual Health Insurance Company v United States.doc, Paragraph with 'Veteran: Paralyzed Veterans of Am. v. Sec\rquote y of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 045 - Land of Lincoln Mutual Health Insurance Company v United States.doc, Paragraph with 'Veteran: (\While the outcome of granting more money to married people than to similarly situated single people may seem odd, it is entirely reasonable to assume a scenario in which various factions within Congress, each of which had different policy goals, were motivated to\u8212and did\u8212compromise in order to pass the Veterans Benefits Act of 2003.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 052 - Great Southern Engineering Inc v United States.doc, Paragraph with 'Veteran: , the Supreme Court held that orders issued by the Department of Veteran Affairs under the GSA Federal Supply Schedule (\FSS\) constitute contracts for purposes of compliance with the Veterans Benefits, Health Care, and Information Technology Act of 2006. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Veterans Electric, LLC v. United States, 129 Fed.Cl. 185 (2016) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: VETERANS ELECTRIC, LLC, Plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Disappointed bidder brought bid protest, arguing Department of Veterans Affairs\rquote s (VA) procurement decision relating to solicitation for electrical services to upgrade lighting circuit at national cemetery lacked rational basis and/or violated regulations, because successful bidder was purportedly unqualified to perform work required under solicitation. Parties filed cross-motions for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Decision of contracting officer for Department of Veterans Affairs (VA) to award contract to procure electrical services to upgrade lighting circuit at national cemetery to successful bidding contractor was neither arbitrary and capricious, nor in violation of regulation or procedure, on basis that successful bidder failed to comply with proposal\rquote s technical requirements; although successful bidder did not submit work plan or electrician licenses with proposal to demonstrate its qualifications, neither were required, and successful bidder had extensive construction history and was not newly entering into construction activity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Decision of contracting officer for Department of Veterans Affairs (VA) to award contract to procure electrical services to upgrade lighting circuit at national cemetery to successful bidding contractor was neither arbitrary and capricious, nor in violation of regulation or procedure, on basis that successful bidder was not qualified to perform work required under solicitation; although proper classification code was not included in registry or anywhere within its proposal, lacking a specific code would not preclude contractor from receiving procurement award, and VA had reasonable basis to conclude contractor met size standards required by solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: This bid protest comes before the Court on the parties\rquote cross-motions for judgment on the Administrative Record. Plaintiff, Veterans Electric, LLC (\VE\ or \Veterans Electric\), challenges the Department of Veterans Affairs (\VA\ or \Agency\) Solicitation No. No: VA786\u821116\u8211Q\u82110129 (\Solicitation,\ \Request for Proposals,\ or \RFP\). Plaintiff argues that the procurement decision lacked a rational basis and/or violated regulations because Architectural Consulting Group, Inc. (\ACG\) is unqualified to perform the work required under the solicitation and the award was made in violation of VA Acquisition Regulation \u167 852.219\u821110 (\VAAR\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: On March 1, 2016, the VA issued a solicitation for electrical services in order to upgrade the Monument Circle lighting circuit at Wood National Cemetery in Milwaukee, Wisconsin. Complaint (hereinafter \Compl.\) at 6. The Solicitation is a 100 percent Service Disabled Veteran Owned Small Business (\SDVOSB\) set-aside contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Two proposals, one from Veterans Electric and one from ACG, were submitted in response to the RFP. Defendant\rquote s Motion for Judgment on the Administrative Record (hereinafter \CMJAR\) at 4. ACG submitted a proposal with a bid of $ 13,400.00, and VE submitted a proposal with a bid of $ 19,250.00. MJAR at 4. The proposals were both evaluated, and each proposal received a \Technically Acceptable\ rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: On April 12, 2016, the VA issued a debriefing memo at the request of Veterans Electric. AR 162. That same day, Veterans Electric filed an Agency level protest with the VA, arguing that ACG\rquote s proposal was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Veterans Electric then filed a protest with the GAO on May 26, 2016, again arguing that ACG used the wrong NAICS code, that ACG was not a qualified electrical contractor and would have to subcontract out most of the work, and that ACG\rquote s lower price point was dubious and subjected the government to liability and increased costs. MJAR at 5; AR 268\u821171. The GAO denied VE\rquote s protest on August 25, 2016. AR 260\u821163. On September 7, 2016, this complaint followed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 054 - Veterans Electric LLC v United States.doc, Paragraph with 'Veteran: Finally, plaintiff argues that ACG should not have been awarded the contract because it was not a registered service disabled, veteran-owned small business (\SDVOSB\). MJAR at 12. Plaintiff points out that the C.F.R. requires that \at least 25 percent of the cost of the contract performance incurred for personnel will be spent on the concern\rquote s employees or the employees of other eligible service-disabled veteran-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor filed pre-award bid protest challenging decision of Department of Veterans Affairs (VA) to award sole-source contract to provide eligibility verification services for Vets First Contracting Program, that awarded contracts to small businesses owned by veterans and service-disabled veterans, to proposed awardee allegedly in violation of Competition in Contracting Act (CICA) and for which proposed awardee was allegedly ineligible due to organizational conflict of interest (OCI). Contractor moved for temporary restraining order and preliminary injunction preventing VA from awarding contract pending resolution of merits of bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Bid protestor was not actual or prospective bidder whose direct economic interest would be affected by award of verification services contract by Department of Veterans Affairs (VA), and thus, protestor lacked standing as \interested party,\ within meaning of Tucker Act, to pursue bid protest challenging VA\rquote s decision to award sole-source contract, since protestor did not satisfy small business size standard applicable to initial solicitation for contract, subsequent award of sole-source contract, or any new solicitation for verification services contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Bid protester seeking preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest lacked likelihood of success on merits of claim that VA\rquote s award decision violated Competition in Contracting Act (CICA), that did not apply in case of procurement procedures otherwise expressly authorized by statute, since VA justified sole-source award under Veterans Benefits, Health Care, and Information Technology Act, authorizing award of contract to veteran-owned small business using other than competitive procedures, and contracting officer determined that proposed awardee satisfied requirements of that Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Bid protester seeking preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest lacked likelihood of success on merits of claim that proposed awardee was ineligible for award due to organizational conflict of interest (OCI), since protestor merely alleged that proposed awardee had OCI based on unequal access to information and biased ground rules, but mere inference or suspicion of actual or apparent conflict was insufficient to support claim without identifying hard facts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Balance of the hardships weighed against granting preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest, where delay of award would result in increased costs and disruption in critical services needed to support VA\rquote s program awarding contracts to small businesses owned by veterans and service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: Public interest was best served by denying preliminary injunction preventing Department of Veterans Affairs (VA) from awarding sole-source verification services contract pending resolution of merits of bid protest, where enjoining award could result in backlog in verification process for VA\rquote s program awarding contracts to small businesses owned by veterans and service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: , Principal Deputy Assistant Attorney General, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, Aleia Barlow, Staff Attorney, United States Department of Veterans Affairs, Washington, DC, for defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: In this pre-award bid protest matter, plaintiff, Loch Harbour Group, Inc. (\LHG\), protests a decision by the United States Department of Veterans Affairs (\VA\) to award a sole-source contract to provide certain verification services for the agency\rquote s Vets First Contracting Program to GCC Technologies, LLC (\GCC\), upon the grounds that the award violates the Competition in Contracting Act and that GCC is ineligible for award due to an organizational conflict of interest. LHG has filed motions for a temporary restraining order and for a preliminary injunction, requesting that the Court enjoin the VA from awarding the contract until the Court resolves the merits of its bid protest. For the reasons set forth below, the Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: the United States Department of Veterans Affairs to award, on a sole-source basis, a contract for certain verification services to GCC Technologies, LLC, upon the grounds that the award violates the Competition in Contracting Act and that GCC is not eligible for award due to an organizational conflict of interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: The United States Department of Veterans Affairs awards contracts to businesses owned by veterans and service-disabled veterans under the Vets First Contracting Program (\Vets First Program\). Am. Compl. at \u182 10; Partridge Decl. \u182 2. To identify veterans eligible to participate in the Vets First Program, the VA must verify that applicants seeking to participate in the program are either a veteran-owned small business or a service-disabled veteran-owned small business. Am. Compl. at \u182 11. The VA\rquote s Center for Verification and Evaluation (the \CVE\), an office within the agency\rquote s Office of Small & Disadvantaged Business Utilization, is responsible for overseeing this verification process Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: To justify its proposed sole-source award a verification services contract to GCC, the VA relied upon the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: . This Act allows the VA to award a contract to a veteran-owned small business using other than competitive procedures, if three conditions are met: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: The government opposes LHG\rquote s motions and argues that the VA\rquote s award decision is reasonable and lawful under the Veterans Benefits, Health Care, and Information Technology Act. Def. Resp. at 10-11. For the reasons discussed below, the evidentiary record currently before the Court demonstrates that LHG is not entitled to the emergency injunctive relief that it seeks. And so, the Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: In this case, the current evidentiary record shows that, in awarding the subject contract to GCC, the VA relied upon the Veterans Benefits, Health Care, and Information Technology Act, which provides the contracting officer with the authority to award a contract to a veteran-owned small business using other than competitive procedures under certain conditions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: . The J&A also demonstrates that the VA\rquote s contracting officer determined that, GCC is a responsible contractor; the anticipated award price falls between the simplified acquisition threshold and $5,000,000; and that the contract award is to be made at a fair and reasonable price that offers the best value to the United States in accordance with the requirements of the Veterans Benefits, Health Care, and Information Technology Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 065 - Loch Harbour Group Inc v United States.doc, Paragraph with 'Veteran: LHG also raises several arguments in its reply brief to suggest that the VA\rquote s award decision does not comply with the Veterans Benefits, Health Care, and Information Technology Act. Pl. Reply at 3-5. But, these arguments are not substantiated by the current evidentiary record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 068 - Omran Holding Group v United States.doc, Paragraph with 'Veteran: Veteran Shredding, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 068 - Omran Holding Group v United States.doc, Paragraph with 'Veteran: (ordering the agency\rquote s decision finding the protestor ineligible as a service-disabled veteran-owned small business (SDVOSB) to be set aside, and its status as an approved SDVOSB vendor reinstated in the relevant database, after finding the agency violated the protestor\rquote s due process rights in reaching its decision). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'Veteran: Original equipment manufacturer (OEM) of proprietary heat exchanger for aircraft filed bid protest challenging Defense Logistics Agency-Aviation\rquote s (DLA) decision to qualify a new manufacturer to supply heat exchanger and challenging DLA\rquote s issuance of solicitation for heat exchanger on a Service-Disabled Veteran-Owned Small Business (SDVOSB) sole-source basis. Competitor intervened as defendant. Parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'Veteran: Court of Federal Claims did not have jurisdiction to decide issue of whether new manufacturer of aircraft heat exchangers was entitled to Service-Disabled Veteran-Owned Small Business (SDVOSB) status, raised by original equipment manufacturer (OEM) of heat exchangers in its challenge to Defense Logistics Agency-Aviation\rquote s (DLA) qualification of new manufacturer as source of heat exchangers and DLA\rquote s decision to issue solicitation for heat exchangers on SDVOSB sole source basis to new manufacturer, where Small Business Administration (SBA) had jurisdiction over SDVOSB status determinations and SBA was still considering protest of new manufacturer\rquote s status at time OEM filed bid protest. Small Business Act \u167 2[36], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'Veteran: This action comes before the Court on the parties\rquote cross-motions for judgment on the Administrative Record. Plaintiff, TAT Technologies, LTD (\TAT\), challenges the Defense Logistics Agency\u8212Aviation\rquote s (\Agency\) decision to qualify Wall Colmonoy Corporation (\WCC\) as a legitimate source to manufacture a heat exchanger originally developed by TAT. Plaintiff alleges that the Agency failed to follow applicable law and conduct a reasonable inquiry into WCC\rquote s qualification to manufacture the heat exchanger and inappropriately issued a solicitation on a Service-Disabled Veteran-Owned Small Business (\SDVOSB\) sole-source basis. Plaintiff requests that the Court do the following: (1) declare that the Agency\rquote s qualification of WCC to manufacture the heat exchanger was arbitrary, capricious, an abuse of discretion, and contrary to law; (2) require the Agency to perform or otherwise request an inquiry into WCC\rquote s right and ability to produce the heat exchanger, in strict accordance with applicable law; (3) enjoin the Agency from recognizing WCC as a qualified source of supply pending such inquiry; (4) require the Agency to procure the heat exchanger only from qualified sources; (5) declare that the Agency\rquote s SDVOSB sole source set-aside decision was arbitrary, capricious, an abuse of discretion, and contrary to law; and (6) enter a permanent injunction preventing the Agency from accepting offers under the Solicitation, as currently drafted. For the following reasons, the Court must deny plaintiff\rquote s motion for judgment on the administrative record and grant defendant and defendant-intervenor\rquote s motion for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'Veteran: The Agency temporarily suspended its SDVOSB requirement after receiving TAT\rquote s March 21, 2016, email. AR 666. On March 30, the Agency re-opened the solicitation and stated its intent to award to WCC. AR 699. The Agency issued the Solicitation on May 31, 2016, which stated that the Agency intended to solicit with a SDVOSB set-aside to WCC. AR 704. TAT has complained multiple times that WCC was not in fact an SDVOSB because it is a wholly-owned subsidiary of another company. AR 642, 645; 744-70. On June 6, 2016, TAT\rquote s counsel presented documentation to the contracting officer suggesting that WCC is owned by another company, and not a service-disabled veteran. Defendant\rquote s Cross-Motion for Judgment on the Administrative Record (hereinafter \D\rquote s CMJAR\) at 12. On July 12, 2016, the contracting officer submitted a protest to the Small Business Administration (\SBA\) questioning WCC\rquote s SDVOSB status. The SBA has not yet decided the protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 074 - TAT Technologies Ltd v United States.doc, Paragraph with 'Veteran: The final issue is whether WCC is a valid disabled veteran owned small business. Plaintiff\rquote s argument raises the question of whether this Court has the jurisdiction to decide this issue. The simple answer is no. By statute, jurisdiction over SDVOSB status lies with the SBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 091 - SOS International LLC v United States.doc, Paragraph with 'Veteran: Veteran Shredding, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 099 - Dynamic Systems Technology Inc v United States.doc, Paragraph with 'Veteran: Contracting officer evaluating bids on Defense Human Resources Activity\rquote s (DHRA) contract to provide comprehensive support services for its Family Employer Programs and Policy (FEPP) initiative adequately explained its conclusion that successful bidder\rquote s past performance references were \somewhat\ rather than \not\ relevant under the solicitation; relevancy was indicated in solicitation where the performance of a prior contract was recent and had a logical connection with performance of current contract, and agency sufficiently explained how successful bidder\rquote s past performance of contracts with Army Community Services, Housing and Urban Development (HUD), and the Veterans Administration (VA) required familiarity with similar regulations, annual budget and spending plans, outreach, and employment assistance required for performance of the DHRA contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 099 - Dynamic Systems Technology Inc v United States.doc, Paragraph with 'Veteran: The identified strengths were DysTech\rquote s plans (1) to train and test each Employment Coordinator using webinars, which would \give[ ] high confidence to the government that the [Employment Coordinators] will be more than technically proficient;\ and (2) to use instructors from the National Veterans Training Institute and the Transition Assistance Program, plus outside instructors and others, to provide annual Employment Coordinator counseling regarding the latest new trends and research in the counseling arena. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 099 - Dynamic Systems Technology Inc v United States.doc, Paragraph with 'Veteran: Pl.\rquote s Mem. at 23; AR Tab 2 at 10. Thus, section 2.2 explained that EIP \utilizes a high-tech/high-touch approach to foster employer partnerships\ and that it \delivers employment assistance to Guard and Reserve Service members via the Veterans Employment Center (VEC) website www.ebenefits.va.gov/jobs, individualized case management and participation in job fairs and Yellow Ribbon Reintegration events.\ AR Tab 2 at 10. According to DysTech, DHRA \did not recognize that IGH did not address PWS 2.2 in its proposal,\ even though it \assigned weaknesses, significant weaknesses, or deficiencies to ... [other] offerors for failing to discuss the VEC or not demonstrating an understanding of the VEC.\ Pl.\rquote s Mem. at 23. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 099 - Dynamic Systems Technology Inc v United States.doc, Paragraph with 'Veteran: AR Tab 36 at 739. Finally, IGH\rquote s contract with the VA involving rural veterans coordination included relevant tasks such as providing assistance in the development of an annual budget and spending plan and in outreach to Guard and Reserve in rural areas, as well as partnering with employment assistance agencies. AR Tab 24 at 604; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'Veteran: The United States Department of the Air Force (\Air Force\) extended these solicitations on September 30, 2015 and October 15, 2015, respectively. Both solicitations contain service-disabled veteran-owned small business set-aside provisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\2, File: 100 - Phoenix Management Inc v United States.doc, Paragraph with 'Veteran: at the Youngstown, Ohio and Pittsburgh, Pennsylvania Air Reserve Stations. AR Tab 5, Tab 32. Both solicitations contain service-disabled veteran-owned small business set-aside provisions, pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 002 - Concrete Works of Colorado Inc v City and County of Denver Colo.doc, Paragraph with 'Veteran: Although this regression analysis tried to control for some relevant variables, there was no attempt to control such seemingly important characteristics as marital status, veteran status, availability Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 041 - American Science and Engineering Inc v Kelly.doc, Paragraph with 'Veteran: Rapides Regional Medical Center. v. Secretary, Dep\rquote t of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: R.A. Glancy & Sons, Inc. v. U.S., Dept. of Veterans Affairs, 180 F.3d 553 (1999) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: UNITED STATES of America, DEPARTMENT OF VETERANS AFFAIRS, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Unsuccessful bidder for government contract to renovate veterans medical center brought action challenging government\rquote s decision to award contract to another bidder, and sought preliminary injunctive relief barring successful bidder from working on project and reinstating unsuccessful bidder\rquote s putatively successful bid. The United States District Court for the Western District of Pennsylvania, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Comptroller General reasonably concluded that invitation for bids (IFB) for renovation of veterans medical center could only reasonably be interpreted in one manner and that Department of Veterans Affairs lacked compelling reason for cancelling its first solicitation on grounds that IFB was ambiguous; therefore, unsuccessful bidder was not likely to succeed on the merits of its claim that Department acted arbitrarily and capriciously in reactivating first solicitation, and was not entitled to preliminary injunctive relief barring successful bidder under first solicitation from working on project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: , Civil Division, Washington, D.C., for Appellee, United States of America, Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 054 - RA Glancy And Sons Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: On June 1, 1998, the Department of Veterans Affairs (\VA\) issued an invitation for bids (\IFB\) to renovate the VA Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 062 - Glazer Const Co Inc v US.doc, Paragraph with 'Veteran: In re Administrator, Veterans Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 080 - Trinity Industries Inc v Herman.doc, Paragraph with 'Veteran: Absent express waiver or exemption, affirmative action reporting requirements of Rehabilitation Act, Vietnam Era Veterans\rquote Readjustment Assistance Act (VEVRAA), and Executive Order prohibiting discrimination by government contractors applied to certain facility operated by government contractor even if that facility operated in all respects separate and distinct from activities related to contractor\rquote s performance of its government contracts, was autonomous in organization, function, and management, and made its own decisions concerning hiring, firing, discipline, discharges, promotions and pay increases. Rehabilitation Act of 1973, \u167 503(c)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 080 - Trinity Industries Inc v Herman.doc, Paragraph with 'Veteran: Absent express waiver or exemption, even facilities of government contractor that are not involved in work related to government contract are subject to affirmative action reporting requirements of Rehabilitation Act, Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), and Executive Order prohibiting discrimination by government contractors. Rehabilitation Act of 1973, \u167 503(c)(2)(B), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 080 - Trinity Industries Inc v Herman.doc, Paragraph with 'Veteran: That Office of Federal Contract Compliance Programs (OFCCP) had delegated some of its authority to its local district offices did not compel finding that it delegated all of its authority, including authority to grant waivers of affirmative action reporting requirements of Rehabilitation Act, Vietnam Era Veterans\rquote Readjustment Assistance Act (VEVRAA), and Executive Order requiring affirmative action by government contractors. Rehabilitation Act of 1973, \u167 503, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 080 - Trinity Industries Inc v Herman.doc, Paragraph with 'Veteran: ; Section 402 of the Vietnam Era Veterans\rquote Readjustment Assistance Act of 1974 (VEVRAA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\20, File: 080 - Trinity Industries Inc v Herman.doc, Paragraph with 'Veteran: , and \qualified veterans of the Vietnam era,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 033 - PCL Const Services Inc v US.doc, Paragraph with 'Veteran: (Supp. II 1990), which authorizes the Department of Veterans Affairs to enter into certain leases for periods of up to 35 years but further provides that the government\rquote s obligation to make payments is \subject to the availability of appropriations for that purpose.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 043 - Southfork Systems Inc v US.doc, Paragraph with 'Veteran: Alphapointe v. Department of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 060 - CCL Inc v US.doc, Paragraph with 'Veteran: Rapides Regional Med. Ctr. v. Department of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 071 - Tri-State Motor Transit Co v US.doc, Paragraph with 'Veteran: (b)(1). The structure, phraseology and subject matter of the provisions that apply to the special exception for agreements with the government for transportation services also reflect a multitude of statutory amendments and restructuring that occurred during the period February 4, 1887, to January 1, 1996. In addition to agreements for the carriage, storage or handling of United States Government property, the statutory developments included exceptions that applied to municipal governments, transportation for charitable purposes, transportation to or from fairs and expositions, free transportation for carriers\rquote officers and employees and exchange with other carriers of passes or tickets for carriers\rquote officers and employers, free carriage for destitute and homeless persons transported by charitable societies, and free or reduced rates to ministers, and for inmates of homes for disabled veterans or orphans under arrangements with the boards of managers of said homes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: Former serviceman discharged due to physical disability brought action challenging denial of retirement pay. On serviceman\rquote s exceptions to United States Army Physical Disability Agency\rquote s (USAPDA) updated findings on remand, the Court of Federal Claims, Briggink, J., held that: (1) USAPDA did not act arbitrarily and capriciously in failing to convene new formal Physical Evaluation Board (PEB) on remand; (2) any error in lack of transcript of formal Physical Evaluation Board (PEB) hearing was harmless; (3) court would not evaluate weight given by USAPDA to Veterans Administration\rquote s (VA) medical evaluation of serviceman; and (4) it was not error for USAPDA to rate serviceman\rquote s pain at no more than ten percent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: Court would not evaluate weight given by United States Army Physical Disability Agency (USAPDA) to Veterans Administration\rquote s (VA) medical evaluation of serviceman; Army\rquote s giving little weight to VA determination would not be arbitrary or capricious in light of different purposes of Army evaluation and VA evaluation, which made comparison for sake of finding error of little value. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: It was within court\rquote s scope of review to determine whether United States Army Physical Disability Agency (USAPDA) completely disregarded Veterans Administration\rquote s (VA) evaluation and determination regarding serviceman\rquote s disability rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: In August 1994 plaintiff was examined by the Veterans Administration (VA). On April 21, 1995, plaintiff was rated by the VA with a combined disability rating of seventy percent based on that examination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: The USAPDA issued a memorandum on March 5, 1997, with new findings based on its reconsideration of the record. No new PEB was convened, nor was the transcript for the formal PEB hearing produced. The USAPDA reviewed the MEB findings, the Veterans Administration Schedule for Rating Disabilities (VASRD), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 073 - Pomory v US.doc, Paragraph with 'Veteran: Although both the Army and the VA use the VA Schedule for Rating Disabilities, the Army disability rating is intended to compensate the individual for interruption of a military career because of an impairment. The VA awards ratings because a medical condition affects the individual\rquote s civilian employment. Furthermore, while the Army must determine an appropriate permanent disability rating before the individual can be separated from the service, the VA can evaluate a veteran throughout his or her lifetime, adjusting the percentage of disability.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'Veteran: Circuit Judge, held that: (1) SBA\rquote s acceptance of corporation\rquote s contract with Veterans Administration into program did not violate SBA regulation precluding acceptance of contract that was previously subject of public solicitation; (2) SBA\rquote s actions were not arbitrary and capricious; and (3) district court properly excluded supplemental affidavits submitted by corporation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'Veteran: Issuance of oral solicitation by Veterans Administration (VA) for proposals regarding project which was ultimately awarded to corporation did not render subsequent acceptance of that contract by Small Business Administration (SBA) into program for socially and economically disadvantaged businesses, for purpose of establishing corporation\rquote s program participation term, a violation of SBA regulation precluding acceptance of contract that was previously subject of public solicitation, as VA\rquote s solicitation was not of type specified in rule. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'Veteran: when it accepted IMS\rquote s contract with the Veterans Administration (\VA\) into the section 8(a) program, we affirm the district court\rquote s decision to grant the SBA\rquote s motion for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 076 - IMS PC v Alvarez.doc, Paragraph with 'Veteran: ; 48 C.F.R. \u167 15.407 (1996); 48 C.F.R. \u167 15.410 (1996). Tellingly, the portion of the federal regulations that governs acquisitions by the Department of Veterans Affairs does so as well. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: Monterey Mechanical\rquote s bid was disqualified because the company did not comply with a state statute. The statute requires general contractors to subcontract percentages of the work to minority, women, and disabled veteran owned subcontractors, or demonstrate good faith efforts to do so. The required \goals\ are \not less than\ 15% for minority business enterprises, 5% women, 3% disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: There were two ways Monterey Mechanical might have complied with the statute. It could have used minority, women and disabled veteran business enterprises for the designated 23% (15% plus 5% plus 3%) \of the contract dollar amount.\ Its bid was $21,698,000, so compliance by this means would require subcontracting $4,990,540 to subcontractors of the designated classes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: Nor did Monterey Mechanical fully comply with the \good faith\ requirement. Monterey Mechanical contacted state and federal agencies and minority and women organizations, advertised to minority and women owned firms, and invited and considered bids from them. But it did not document contact with the University physical planning and development office to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: Swinerton and Walberg, which won the contract, did not subcontract out at least 23% of the work to firms in the designated classes (and does not claim to be a minority, women, or disabled veteran enterprise). It differed materially from Monterey Mechanical only in that it fully complied with the \good faith\ requirement. Unlike Monterey Mechanical, it provided documentation of its contact with the University physical planning and development office to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: The argument that all general contractors are treated alike, regardless of sex or ethnicity, is mistaken. They are not. The statute requires that state contracts have \participation goals\ of at least 15% minority, 5% women, and 3% disabled veteran enterprises: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: for disabled veteran business enterprises. These goals apply to the overall dollar amount expended each year by the awarding department.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (a) In awarding contracts to the lowest responsible bidder, the awarding department shall consider the efforts of a bidder to meet minority business enterprise, women business enterprise, and disabled veteran business enterprise goals set forth in this article. The awarding department shall award the contract to the lowest responsible bidder meeting or making good faith efforts to meet these goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (1) Contact was made with the awarding department to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (2) Contact was made with other state and federal agencies, and with local minority, women, and disabled veteran business enterprise organizations to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (3) Advertising was published in trade papers and papers focusing on minority, women, and disabled veteran business enterprises, unless time limits imposed by the awarding department do not permit that advertising. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (4) Invitations to bid were submitted to potential minority, women, and disabled veteran business enterprise contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (5) Available minority, women, and disabled veteran business enterprises were considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: or in combination with those of other MBEs and is committed to using WBEs for not less than five (5) percent of the contract dollar amount, and DVBEs for not less than three (3) percent of the contract dollar amount.\ Supplementary General Conditions \u167 1(b) (emphasis added). Likewise for women and disabled veteran bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (1) Contact was made with the awarding department to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (2) Contact was made with other state and federal agencies, and with local minority, women, and disabled veteran business enterprise organizations to identify minority, women, and disabled veteran business enterprises. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (3) Advertising was published in trade papers and papers focusing on minority, women, and disabled veteran business enterprises, unless time limits imposed by the awarding department do not permit that advertising. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (4) Invitations to bid were submitted to potential minority, women, and disabled veteran business enterprise contractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: (5) Available minority, women, and disabled veteran business enterprises were considered. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: Instead, the legislative findings say that markets, prices and personal opportunities will be advanced by \the policy of the state to aid the interests of minority, women and disabled veteran business enterprises.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: We are compelled by firmly established law to conclude that the statute violates the Equal Protection Clause. The state has not even attempted to show that the statute is narrowly tailored to remedy past discrimination. The laudable legislative goal, that \the actual and potential capacity of minority, women, and disabled veteran business enterprises [be] encouraged and developed,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: \M/W/DVBEs\ is the designation on the University\rquote s forms for \Minority/Woman/Disabled Veteran Business Enterprises.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: Monterey Mechanical put in 13 times as much money for black subcontractors as Swinerton and Walberg, and a slightly higher amount for women subcontractors, though the total percentages were not very high for either of them. Neither company proposed to subcontract anything to disabled veteran subcontractors. Swinerton and Walberg had a higher total for total minority participation because of a $3,000,000 item for \Pacific Asian\ minority participation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: None of the parties have presented any arguments regarding the statutory provision relating to disabled veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 082 - Monterey Mechanical Co v Wilson.doc, Paragraph with 'Veteran: , so we disregard it in our discussion. Monterey Mechanical does not challenge its constitutionality, and the University does not make any arguments relating to it. Accordingly, we do not consider the disabled veterans provisions of the statute, and our decision has no bearing on the provisions of the statute regarding disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 083 - CC Distributors Inc v US.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Dep\rquote t Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 083 - CC Distributors Inc v US.doc, Paragraph with 'Veteran: National Law Center on Homelessness and Poverty v. United States Department of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\21, File: 098 - ATA Defense Industries Inc v US.doc, Paragraph with 'Veteran: Rapides Regional Med. Center v. Dept. of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 001 - Information Systems And Networks Corp v US Dept of Health and Human Servic.doc, Paragraph with 'Veteran: Contractors Engineers Int\rquote l., Inc. v. Dept. of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 013 - ATAndT Corp v US Postal Service.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Dept. of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 033 - H And F Enterprises LTD v US.doc, Paragraph with 'Veteran: Owner of existing site at which Department of Veterans Affairs (VA) leased space for regional office, which was located outside city\rquote s centralized community business area, brought action under Administrative Procedure Act (APA) challenging decision by General Services Administration (GSA) that site for new VA facility would be within centralized area. On cross-motions for summary judgment, the District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 033 - H And F Enterprises LTD v US.doc, Paragraph with 'Veteran: Owner of building in which Department of Veterans Affairs (VA) had leased space, who chose not to participate in procurement bid competition for new VA facility after General Services Administration (GSA) announced that facility would be located inside centralized community business area (CBA), had standing under Administrative Procedure Act (APA) to challenge decision to select site from within CBA, but did not have standing to challenge final site selection. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 033 - H And F Enterprises LTD v US.doc, Paragraph with 'Veteran: Decision by General Services Administration (GSA) that new facility for Department of Veterans Affairs (VA) would be located in city\rquote s central consolidated business area (CBA) was made following adequate consideration of executive order, under which federal use of space in urban areas shall seek to strengthen nation\rquote s cities, and was not arbitrary and capricious; GSA consulted with local officials and considered relevant factors for site, and actively considered non-CBA areas. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 033 - H And F Enterprises LTD v US.doc, Paragraph with 'Veteran: Existing site where Department of Veterans Affairs (VA) was leasing space, which was described by owner of site as in \suburban\ area, was not located in adjacent area of similar character to city\rquote s centralized community business area (CBA), and thus, existing site was not entitled to first consideration by General Services Administration (GSA) after it determined, pursuant to executive order requiring federal use of space in urban areas to seek to strengthen cities, that new site would be located in CBA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 033 - H And F Enterprises LTD v US.doc, Paragraph with 'Veteran: The Department of Veterans Affairs (\VA\) regional office in Waco, Texas, currently occupies 87,111 square feet of office space in a facility owned by the plaintiff H & F Enterprises (\H & F\). The lease with H & F for use of this facility was entered into in 1964 and was due to expire on July 31, 1995. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government did not carry its burden of proof with regard to affirmative defense of laches, in hospital\rquote s action to recover for services provided to veterans, where government failed to present any evidence supporting necessary elements of proof, and, indeed, failed to even raise the issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government contractor was not entitled to amend complaint to seek reimbursement for hospital rental expenses incurred in providing services to Veterans\rquote Administration (VA), absent justification for six-year delay in asserting the claim. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government contractor was not obliged to pay rent for hospital property used to provide services to Veterans\rquote Administration (VA) and, thus, was not entitled to recover rental expenses under government contract, where there was no express lease, correspondence between owner and contractor merely addressed potential sale of the property, and owner informed contractor that it could not accept contractor\rquote s request for a month to month lease. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government contractor was entitled to reimbursement for interest accrued on promissory note assumed by it for purchase of hospital property used to provide services to veterans under cost reimbursement type contract, notwithstanding contractor\rquote s failure to pay such interest before claim was disallowed by contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government contractor was not entitled to reimbursement, under cost reimbursement type contract, for interest on mortgage on property used to provide hospital services to veterans, where such interest accrued before the term of the contract and where mortgage was foreclosed before the contract term began. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Contractor was entitled to reimbursement for capital improvement expenses paid during contract term with regard to hospital property used to provide services to veterans, even though government foreclosed on mortgage on property a year earlier, where contractor continued to pursue, albeit unsuccessfully, purchase or lease of the hospital property during the contract year; under such circumstances, contractor did not abandon the hospital property until its ouster during contract year, upon which abandonment, capital improvement expense converted to an expense. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Government properly disallowed costs proportionately allocated to outpatient care for reimbursement under contract to provide inpatient services to veterans, in light of hospital\rquote s failure to segregate outpatient costs through its accounting procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Cupey Bajo claims that defendant wrongfully disallowed $35,000 in costs that plaintiff allegedly incurred performing its cost-reimbursement type contract for the Veterans Administration (VA) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: On April 1, 1982, defendant awarded a cost reimbursement type contract, Contract No. V455P\u82111531, to Cupey Bajo for the performance of hospital services, including psychiatric care, to veteran patients at its inpatient facility in Rio Pedras, Puerto Rico (the contract). The life of the contract at issue was initially scheduled for a one-year period commencing on April 1, 1982. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: The payment terms of the contract directed the government to reimburse plaintiff for costs incurred in providing inpatient hospital services to VA beneficiaries based upon an \all-inclusive inpatient day cost basis\, or \per diem rate.\ Jt.Ex. 1, \u182 2; Pl.Ex. 1, \u182 4(a). Cupey Bajo would receive such \per diem\ reimbursement each day a veteran received inpatient care at the hospital, otherwise referred to as a \VA inpatient service day.\ Pl.Ex. 1, \u182 4(b). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: The Veterans Administration is now the Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with 'Veteran: Briefly referencing the HMG medical plan, Dr. Murcia testified that Cupey Bajo never booked the costs of the medical plan provided by HMG and never invoiced the government for such costs between 1973 and 1982, because \[i]f it had appeared in the books, the per diem that Veterans had to pay would have been much higher.... And [plaintiff] would have lost the competitive force regarding the cost with other entities.\ Tr. 351\u821152. In short, had plaintiff recognized the costs of the medical plan, its per diem rate would have been significantly higher. Tr. 369 (Murcia). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\22, File: 082 - AL Blades And Sons Inc v Yerusalim.doc, Paragraph with 'Veteran: (b) Veteran\rquote s Preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 017 - Dalton v Sherwood Van Lines Inc.doc, Paragraph with 'Veteran: Rapides Regional Medical Ctr. v. Secretary, Dep\rquote t of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder in government procurement to provide building for Veterans Administration (VA) brought action to overturn procurement decision. The District Court, Sporkin, J., held that irregularities in bidding process flawed procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder that never submitted either first or second best and final offers (BAFO) for government procurement to provide building for Veterans Administration (VA), and could not have met requirements of solicitation because building it proposed had too small a floor plate, did not have standing to challenge award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder that submitted both first and second best and final offers (BAFO) for government procurement to provide building for Veterans Administration (VA) had standing to challenge award of contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: Government procurement to provide building for Veterans Administration (VA) was flawed, and procurement was improperly awarded, where General Services Administration (GSA) improperly disclosed to successful bidder that its first best and final offers (BAFO) was not lowest bid, successful bidder prevented GSA from making thorough evaluation of its financial capability by failing to disclose material information and misrepresenting material information, GSA erroneously resolved flood plain issue relating to unsuccessful bid without affording unsuccessful bidder opportunity to respond, successful bidder made number of attempts to sell award before it even built building, and it did not appear that selected site was in fact even minimally acceptable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: Appropriate remedy for flaw in bidding process for government procurement to provide building for Veterans Administration (VA) was required General Services Administration (GSA) to issue new procurement that would eliminate irregularities, rather than awarding procurement to unsuccessful bidder who successfully challenged process, as it was unclear whether unsuccessful bidder would have been appropriate awardee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: The plaintiffs in this case, Ralvin Pacific Properties (RPP) and its affiliate, Ralvin Pacific Development (RPD), are disappointed bidders in a government procurement to provide a building for the Veterans Administration (VA) in San Diego, California. The General Services Administration (GSA) ran the procurement and awarded the contract to MV Associates (MVA) on October 31, 1992. The plaintiffs have charged that there were a number of irregularities in the bidding process, including bias against them, fraud on the part of the awardee, and the improper disclosure of information by the GSA to the awardee between the first and second best and final offers (BAFO). Plaintiffs have requested that the contract be awarded to them, or in the alternative, that the procurement be conducted again in whole or in part. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 036 - Ralvin Pacific Properties Inc v US.doc, Paragraph with 'Veteran: 43) At no time did GSA advise RPD of these shortcomings. The GSA did not seek an explanation from RPD even though GSA was aware that RPD was a substantial company having been the owner of the existing Veterans\rquote Administration building for some ten years and even though the GSA knew that the floodplain issue had been fully satisfied by RPD. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 053 - Parcel 49C Ltd Partnership v US.doc, Paragraph with 'Veteran: Veterans Contracting Group, Inc. v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 060 - McGregor Printing Corp v Kemp.doc, Paragraph with 'Veteran: Commerce, Veterans Affairs, Justice, Labor, and the General Services Administration; of the others, one must be conversant with the problems incident to employment of the blind, one must be conversant with the same problems of other severely handicapped individuals, one must represent individuals employed in qualified nonprofit agencies for the blind, and one must represent other severely handicapped individuals so employed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 061 - Saratoga Development Corp v US.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Dep\rquote t of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 061 - Saratoga Development Corp v US.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Department of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 061 - Saratoga Development Corp v US.doc, Paragraph with 'Veteran: the court used the prism of congressional intent to examine whether the savings clause excused \sharing arrangements\ for expensive medical equipment for the Veterans\rquote Administration from the competitive procurement requirements of CICA. In concluding that CICA did not apply, the court contrasted Congress\rquote intent to base reimbursement for the sharing arrangements \ \u8216on a methodology that provides appropriate flexibility to the heads of the facilities concerned,\u8217 taking into account \u8216local conditions and needs and the actual cost to the providing facility of the resource involved,\u8217 \ with CICA\rquote s emphasis on ensuring a steady supply of materials and minimizing costs \without taking into account added considerations affecting private contractors.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 075 - 60 Key Centre Inc v Administrator of General Services Admin.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 075 - 60 Key Centre Inc v Administrator of General Services Admin.doc, Paragraph with 'Veteran: , where Judge Elfvin granted injunctive relief to an unsuccessful contract bidder, that case provides no support for issuing an injunction here. In that case, Judge Elfvin found that the agency in question had acted in a precipitate and unauthorized fashion in order to moot the case before plaintiff had an opportunity to seek relief. That conduct in connection with a project\u8212replacement of boilers in a Veterans Administration hospital\u8212not in itself urgent, justified an injunction restarting the bidding process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 083 - Domagala v US.doc, Paragraph with 'Veteran: , of counsel, Department of Veterans Affairs, Washington, DC, for defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 083 - Domagala v US.doc, Paragraph with 'Veteran: Northeast Transcripts (\Northeast\) provided medical record transcription services to the Department of Veterans Affairs (\VA\) at VA facilities in Buffalo, Batavia and Rochester, New York pursuant to a contract. Northeast\rquote s contract with the VA expired in mid 1991. On February 28, 1991, the VA solicited bids to perform the transcription services after Northeast\rquote s contract ended. The new contract called for one base year, beginning May 1, 1991, with three renewal option periods. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\23, File: 088 - Gualtier v US.doc, Paragraph with 'Veteran: This action was brought under the Federal Tort Claims Act (FTCA) by the widow and children of John J. Gualtier, who died on August 4, 1988. Their claim arises from the medical treatment given to Mr. Gualtier by the Veterans Administration (VA) Hospital at Leavenworth, Kansas, during April and May, 1988. Plaintiffs allege that Mr. Gualtier\rquote s death was caused in part by the negligence of VA personnel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 005 - Trinity Industries Inc v Reich.doc, Paragraph with 'Veteran: ), the affirmative action provisions of the Vietnam Era Veterans\rquote Readjustment Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 005 - Trinity Industries Inc v Reich.doc, Paragraph with 'Veteran: of VEVRA requires all federal contractors and subcontractors holding such contracts of $10,000 or more to take affirmative action to employ and advance in employment qualified disabled veterans and veterans of the Vietnam era. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: SECRETARY, DEPARTMENT OF VETERANS\rquote AFFAIRS, Defendant, Intervenor\u8211Defendant\u8211Appellant, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Hospital brought action challenging agreement between Veterans Affairs Medical Center and competing hospital for the acquisition and use of radiation therapy device. The United States District Court for the Western District of Louisiana, F.A. Little, Jr., J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: , enjoined the sharing agreement, and Department of Veterans Affairs and competing hospital appealed. The Court of Appeals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Affidavit of president of hospital that, given the opportunity, it would have submitted a proposal to the Veterans Affairs Medical Center in connection with its medical equipment share acquisition program and would have been interested in entering into agreement which VA Center entered into with a competing hospital gave it prudential standing to challenge lack of compliance with the Competition in Contracting Act (CICA). Federal Property and Administrative Services Act of 1949, \u167 303(a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Arrangement whereby private hospital agreed to pay one half of the cost of acquisition by Veterans Affairs Medical Center of a piece of medical equipment, with the equipment to be placed in the private hospital and used by both the VA and the hospital, was not a \procurement\ for purposes of the Competition in Contracting Act (CICA). Federal Property and Administrative Services Act of 1949, \u167 303(a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Even if agreement between hospital and Veterans Affairs Medical Center for acquisition and use of piece of medical equipment was a \procurement\ for purposes of the Competition in Contracting Act (CICA), statute authorizing the Veterans Administration to enter into such arrangements was a procurement procedure \expressly authorized by statute\ and thus not subject to the full and open competition requirements of CICA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: , U.S. Dept. of Justice, Civil Div., Appellate Staff, Washington, D.C., for Secretary, Dept. of Veterans\rquote Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: patients. Two hospitals in Rapides Parish, Louisiana\u8212one private, the other operated by the Department of Veterans Affairs (VA)\u8212entered into a \sharing agreement\ for the acquisition and joint use of such an accelerator. Under the agreement, the Alexandria Veterans Affairs Medical Center (VAMC) would procure the accelerator, with nearby St. Frances Cabrini Hospital (Cabrini) donating one-half the cost of the machine to the VAMC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: \for the exchange of use (or under certain conditions the mutual use) of specialized medical facilities between Veterans\rquote Administration hospitals and other public and private hospitals or medical schools in a medical community.\ S.Rep. No. 1727, 89th Cong., 2d Sess., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Shortly after Congress began funding the sharing program, the Veterans Administration (predecessor to the Department of Veterans Affairs) promulgated interim rules to implement CICA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: . Congress said that the public bid law can be circumvented by express language contained in a statute. The regulation from the Veterans Administration is not a statute. Congress created the measuring stick and retained the power to delete public bid law requirements from contracts for goods and services. The VA is powerless to change the clear procedure set by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: Contractors Engineers International, Inc. v. Dept. of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: directs the Secretary of Veterans Affairs to notify Congress annually \on the activities carried out under this section.\ The reporting requirement, which permits Congress to monitor sharing arrangements such as that between Rapides and the VAMC, would suggest that Congress sought to ensure fairness and efficiency in such unique arrangements by means other than competitive bidding. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: (2) for the mutual use, of specialized medical resources in a Department health care facility, which have been justified on the basis of veterans\rquote care, but which are not utilized to their maximum effective capacity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 043 - Rapides Regional Medical Center v Secretary Dept of Veterans' Affairs.doc, Paragraph with 'Veteran: See Veterans Admin. No., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Contractors Engineers Intern., Inc. v. U.S. Dept. of Veterans Affairs, 947 F.2d 1298 (1991) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: UNITED STATES DEPARTMENT OF VETERANS AFFAIRS Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Disappointed subcontractor on Department of Veterans Affairs (VA) project sued VA, alleging that its approval of another subcontractor violated both Buy American Act and Competition in Contracting Act and seeking injunctive, declaratory, and monetary relief. The United States District Court for the Western District of Texas at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) did not have sufficient direct and active control over subcontractor selection to satisfy tests for disappointed subcontractor standing, even though VA\rquote s quality assurance specifications for subcontracts slightly restricted prime contractor\rquote s selection of subcontractor, effect of specifications was magnified because industry was small, and VA sought and received assurances from prime contractor that system installed by subcontractor selected complied with Buy American Act and met VA\rquote s system specifications. Buy American Act, \u167 2 et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 098 - Contractors Engineers Intern Inc v US Dept of Veterans Affairs.doc, Paragraph with 'Veteran: Plaintiff\u8211Appellant Contractors Engineers International, Inc., which does business under the name of Trans\u8211Vac Systems (Trans\u8211Vac), appeals the district court\rquote s dismissal of its suit against the Department of Veterans Affairs (the VA) for lack of standing. Trans\u8211Vac argues that, contrary to the district court\rquote s determination, the VA had sufficient direct and active control over subcontractor selection to satisfy the test for disappointed subcontractor standing set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Dept. of Veterans\rquote Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: the Department of Veterans\rquote Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: Medical center brought action alleging that agreement between Veterans Administration (VA) hospital and another hospital to share sophisticated diagnostic tool violated Competition in Contracting Act. The District Court, Little, J., held that VA\rquote s involvement in 1990 Advanced Technology Medical Equipment Shared Acquisition Program was subject to Competition in Contracting Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: Veterans Administration\rquote s involvement in 1990 Advanced Technology Medical Equipment Shared Acquisition Program was subject to Competition in Contracting Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: Veterans Administration regulation did not circumvent requirements of Competition in Contracting Act, inasmuch as regulation antedated provision of Act allowing exceptions to Act that are \expressly authorized by statute.\ Federal Property and Administrative Services Act of 1949, \u167 303(a), as amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: St. Frances Cabrini Hospital and the Veterans\rquote Affairs Medical Center, both located in Rapides Parish, Louisiana and both being providers of health care services in that community, agreed that the VA would acquire a sophisticated diagnostic tool known as a dual energy linear accelerator. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: The parties counter to Rapides General seek solace in a regulation adopted by the Veterans Administration. That regulation, found in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\24, File: 099 - Rapides Regional Medical Center v Derwinski.doc, Paragraph with 'Veteran: . Congress said that the public bid law can be circumvented by express language contained in a statute. The regulation from the Veterans Administration is not a statute. Congress created the measuring stick and retained the power to delete public bid law requirements from contracts for goods or services. The VA is powerless to change the clear procedure set by Congress. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 017 - Celtech Inc v US.doc, Paragraph with 'Veteran: Plaintiff, a contractor selected by the SBA for an 8(a) contract, submitted a bid to construct a Veterans Administration (VA) facility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with 'Veteran: 49 C.F.R. \u167 23.62. Wisconsin, for example, has certified a white male disabled Vietnam veteran as a disadvantaged individual. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 075 - A-G-E Corp v US By and Through Office of Management and Budget.doc, Paragraph with 'Veteran: Department of Agriculture; Department of Commerce; Department of Defense; Department of Education; Department of Energy; Department of Health and Human Services; Department of Housing and Urban Development; Department of the Interior; Department of Justice; Department of Labor; Department of State; Department of Transportation; ACTION; Commission on the Bicentennial of the United States Constitution; Environmental Protection Agency; Federal Emergency Management Agency; Federal Mediation and Conciliation Service; Institute of Museum Services; National Archives and Records Administration; National Endowment for the Arts; National Endowment for the Humanities; National Science Foundation; Small Business Administration; Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: of the Vietnam Era Veterans Readjustment Assistance Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: , the Vietnam Era Veterans Readjustment Assistance Act, apply to \the party contracting with the United States.\ As the district court further points out, and I think correctly, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: The relevant portion of the Vietnam Era Veterans Readjustment Assistance Act provides that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Any contract in the amount of $10,000.00 or more entered into by any department or agency ... shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 081 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: (dealing with Vietnam Era Veterans Readjustment Assistance Act); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\25, File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with 'Veteran: National Law Center on Homelessness and Poverty v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 013 - Vanguard Sec Inc v US.doc, Paragraph with 'Veteran: is instructive. The Veterans Administration conceded the fact that the justification originally advanced in support of cancellation was erroneous. The Comptroller General still found that failure to disclose a significant evaluation factor, upon which the Government would evaluate bids, was a compelling reason to cancel the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 018 - Milwaukee County Pavers Ass'n v Fiedler.doc, Paragraph with 'Veteran: Wisconsin has found a white male disabled veteran of the Vietnam war to be socially and economically disadvantaged despite the fact that he did not fall within a presumptively disadvantaged category. Approximately five applicants in the non-presumptive categories have been rejected. Since 1982, the department has denied certification to or decertified 353 firms. Approximately 75% of those firms were denied certification because the department determined they were not actually owned and controlled by disadvantaged individuals. Most of the remainder were denied certification because they lacked the expertise or resources to operate successfully or because they did not complete the certification process and supply all the necessary information. Two prominent and wealthy black athletes applied and were rejected because the department found that they were not economically disadvantaged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Board of Governors of University of North Carolina and two of its constituent institutions instituted action against United States Department of Labor seeking relief from order of Secretary of Labor cancelling all federal contracts and subcontracts which university and all of its constituents had and prohibiting university from entering any further contracts. The District Court, Britt, Chief Judge, held that: (1) affirmative action provision of Vietnam Era Veterans\rquote Readjustment Assistance Act was not subject to Tenth Amendment prohibitions; (2) contract compliance laws include states; and (3) each constituent university under University of North Carolina was \contracting party\ or \the party contracting with the United States\ within meaning of Department of Labor\rquote s contract compliance laws, and thus existence of contract between one or several institutions and United States did not render contract compliance laws applicable to each institution. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Tenth Amendment limitations are inapplicable to legislation adopted pursuant to war power, and thus, affirmative action provision of Vietnam Era Veterans\rquote Readjustment Assistance Act, which derived its constitutional authority from power of Congress to engage in war, was not subject to Tenth Amendment prohibitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: (Rehab Act), and the Vietnam Era Veterans\rquote Readjustment Assistance Act, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Any contract in the amount of $10,000 or more entered into by any department or agency for the procurement of personal property and nonpersonal services (including construction) for the United States, shall contain a provision requiring that the party contracting with the United States shall take affirmative action to employ and advance in employment qualified special disabled veterans and veterans of the Vietnam era. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 041 - Board of Governors of University of North Carolina v US Dept of Labor.doc, Paragraph with 'Veteran: Department of Transportation v. Paralyzed Veterans of America, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 094 - Professional Medical Products Inc v US.doc, Paragraph with 'Veteran: Plaintiff, Professional Medical Products, Inc. (PMP), challenges the award of certain competitive procurement contracts issued by the Veterans Administration (VA) with the purpose of securing its requirements of disposable protective bed pads. The relevant facts are as follows: In response to Solicitation No. M1\u821180\u821188 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\26, File: 096 - BMY A Div of HARSCO Corp v US.doc, Paragraph with 'Veteran: Vietnam Veterans v. Secretary of the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 02 - Abel Converting Inc v US.doc, Paragraph with 'Veteran: National Law Center on Homelessness and Poverty v. U.S. Dept. of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 37 - Three S Constructors Inc v US.doc, Paragraph with 'Veteran: In this pre-award contract claim matter, plaintiff, with respect to a pending Veterans Administration (VA) contract, contests the validity and applicability of a determination by the Small Business Administration (SBA) that it is not a small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Contractor, which had been preselected by Small Business Administration and which had submitted bid for construction of Veterans Administration facility, brought action to recover costs incurred in preparing and negotiating contract after its bid was refused. Upon cross motions for summary judgment, the Claims Court, Moody R. Tidwell, III, J., held that VA\rquote s decision not to award contract due to appearance of conflict of interest, which was based on contractor\rquote s representation in negotiations by VA employee, was not arbitrary or capricious, and contractor was not entitled to recover bid preparation costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Evidence was sufficient to establish that Veterans Administration employee acted as agent for contractor in negotiations with VA for construction of consolidated laundry facility at VA facility, in violation of statute forbidding employee of federal agency from acting as agent for anyone before any agency in connection with matter in which the Government is party or has direct and substantial interest; although VA employee in fact did not receive approval from his VA supervisor, he told contractor that he had such approval, and record of audit of contractor\rquote s cost estimate indicated that VA employee defended contractor\rquote s estimates as his own, notwithstanding that VA employee worked in VA division other than division responsible for negotiating contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: In participating on behalf of contractor in contractor\rquote s negotiations with Veterans Administration for construction of VA facility, VA employee did not violate executive order or VA regulation prohibiting federal employee from accepting or soliciting gifts from person or corporation having or seeking business with his agency, in absence of any evidence that government employee accepted compensation for his work for contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: In participating on behalf of contractor in contractor\rquote s negotiations with Veterans Administration or for construction of VA facility, VA employee did not violate executive order or VA standards of ethical conduct prohibiting giving of preferential treatment to any organization or person; contractor had been preselected by Small Business Administration, resulting in procurement being sole source procurement for which contractor had no competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: In participating on behalf of contractor in contractor\rquote s negotiation\rquote s with Veterans Administration for construction of VA facility, VA employee violated executive order and VA regulations forbidding any activity adversely affecting confidence of public and integrity of Government; although contractor was preselected by Small Business Administration, resulting in contractor having no competition for contract, VA employee\rquote s actions in appearing on behalf of contractor and in misrepresenting to contractor that he had received permission from his VA supervisor to participate in negotiations created appearance of conflict of interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: In participating on behalf of contractor in contractor\rquote s negotiations with Veterans Administration for construction of VA facility, VA employee violated VA regulation forbidding VA employees from performing any services for anyone having other business with VA unless they secure written exception; although VA employee initially asked his VA supervisor for permission to participate, supervisor only indicated that he would consider request and never gave employee approval to participate in negotiations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: By submitting proposal of contractor which was preselected by Small Business Administration and which was only company negotiating with Veterans Administration for construction of VA facility, Government impliedly obligated itself to treat proposal fairly, including obligation to accept proposal in absence of any serious intrinsic or extrinsic factors that would require denial of contract, and, upon rejection of contractor\rquote s claim, contractor was entitled to recover bid preparation costs if such factors were not present. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Veterans Administration\rquote s decision not to accept bid of contractor which had been preselected by Small Business Administration and which was only company negotiating with VA for construction of VA facility was not arbitrary or capricious, and contractor was not entitled to recover its bid preparation and negotiating costs; decision not to award contract was based on appearance of conflict of interest caused by contractor\rquote s representation during negotiation process by VA employee, in violation of executive order, VA regulations, and statute prohibiting government employee from acting as agent for anyone in connection with matter in which Government is party or has direct and substantial interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Prospective Veterans Administration contractor, whose bid on contract for construction of VA facility was not accepted due to appearance of conflict of interest in negotiating process, was not entitled to timely notice and hearing before VA refused to award contract and formally advertised procurement, as contractor had no property interest in award of public contract which would entitle it to due process hearing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: to construct a consolidated laundry facility at the Veterans Administration\rquote s Extended Care Center in St. Albans, New York and authorized the Veterans Administration\rquote s (VA) contracting officer to negotiate directly with plaintiff. Defendant\rquote s cost estimate for the project was $5.9 million and plaintiff\rquote s proposed price was $8.7 million. Because of the large difference between the estimated cost and the proposed price, VA requested an audit of plaintiff\rquote s offer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: The auditor met with Mr. Keith Scott on numerous occasions. Mr. Scott identified himself as a professional engineer acting as plaintiff\rquote s representative. It became clear during the audit that some parts of the cost estimate were prepared by Mr. Scott for plaintiff. Thereafter, Mr. Scott attended the initial negotiating session held on January 4, 1983 and identified himself as plaintiff\rquote s \consulting engineer,\ who was there to answer questions about the engineering aspects of the project. Prior to the January 4 meeting, the VA project supervisor as well as the VA Director of Construction and other senior VA officials learned that Mr. Scott was Chief Engineer of the Veterans Administration Medical Center, Bronx, New York. At the second, and last, negotiating session held on January 25, 1983, plaintiff reduced its price. The record indicates that Mr. Scott did not attend the second session. Thereafter, the SBA advised the VA that the reduced price was plaintiff\rquote s best and final offer and acceptable to the SBA, and the VA project supervisor noted that \[n]egotiations with the SBA 8(a) contractor have been successfully completed.\ None of the parties at this point in time considered Mr. Scott\rquote s participation to be questionable. However, the VA\rquote s Inspector General had received an anonymous call about Mr. Scott\rquote s activities and an investigation was undertaken. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Our view is that the same compelling reasons of public policy enunciated by the Supreme Court, i.e., to ensure honesty in Government business dealings and to overcome the inherent difficulty in looking behind a tainted transaction, apply in this case. Where preaward discussions with the bidder are tainted by at least one breach of conflict of interest regulations or statutes, we firmly believe the Veterans Administration has a sound legal basis and an obligation to the public to refuse to approve the St. Albans construction contract with Refine Construction Co. In sum, approval of the contract would be inconsistent with a strong public policy. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Relations with firms or persons seeking or doing business with the Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: (a) Full-time employees are generally prohibited from performing service for a contractor or other person engaged in contract or maintenance work or other business with the Veterans Administration. Written exceptions to this provision may be made by the station, department, or staff office head concerned, if in his judgment the performance of such service will not involve a conflict of interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: because the pertinent ones, with one exception, are verbatim with the strictures of the Executive Order. However, VA employees are generally forbidden to perform any services for anyone having \other business with the Veterans Administration\ unless they secure a written exception to the general rule. 38 C.F.R. \u167 0\u8211735\u821119(a) (1983). Station, department, or staff office heads may grant such an exception \if in his judgment the performance of such service will not involve a conflict of interest.\ Mr. Scott attempted to get such an exemption from the general rule, but failed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 48 - Refine Const Co Inc v US.doc, Paragraph with 'Veteran: Based upon the facts and law set forth above, this court finds that the Veterans Administration did not act in an arbitrary and capricious manner in refusing to contract with Refine, nor was plaintiff entitled to procedural due process. The court holds Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: Maryland State Dept. of Educ. v. U.S. Dept. of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: , which requires that blind persons licensed by state agencies be given priority to operate vending facilities on federal property. Some of the appellants are organizations which represent blind vendors. Specifically these organizations are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Another appellant is the National Council of State Agencies for the Blind (National Council). In contrast to the associations with blind vendors as members, the National Council\rquote s membership consists of state agencies which license blind vendors to operate facilities on federal property. Finally, there are two individual appellants. These individuals are Paul Verner, a blind vendor and the President of Randolph-Sheppard Vendors of America, and Jennings Randolph, a retired United States Senator and the primary sponsor of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: Paralyzed Veterans of America v. Civil Aeronautics Board, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\27, File: 71 - Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: These are the Randolph-Sheppard Vendors of America, the National Council of State Agencies for the Blind, the American Council of the Blind, and Blinded Veterans Association, Inc. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder sought bid preparation costs and lost profits or award of contact after solicitation was cancelled. On Government\rquote s motion for summary judgment, the Claims Court, Lydon, J., held that: (1) motion was not barred by res judicata on basis of prior denial of motion by the Veterans Administration Board of Contract Appeals which then determined that it lacked jurisdiction over the matter; (2) cancellation on the basis of ambiguity in the solicitation was not arbitrary; and (3) court could not award lost profits or direct the VABCA to award contract to disappointed bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Denial of motion for summary judgment by the Veterans Administration Board of Contract Appeals was not res judicata and did not preclude Claims Court from considering subsequent motion for summary judgment, especially where the evidence which the moving party used to support the subsequent motion for summary judgment was more extensive than that relied upon in its initial motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Denial of motion for summary judgment by Veterans Administration Board of Contract Appeals which then determined that it lacked jurisdiction was not a denial by a court of competent jurisdiction which would bar consideration of motion for summary judgment by Claims Court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Where Veterans Administration Board of Contract Appeals did not have jurisdiction, its ruling on motion for summary judgment was gratuitous and did not preclude Claims Court from hearing motion for summary judgment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Claims Court lacks jurisdiction to order Veterans Administration to award contract to disappointed bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: This case comes before the court on defendant\rquote s motion for summary judgment, which is supported by a contracting officer\rquote s affidavit and other pertinent evidentiary materials. Plaintiff opposes said motion solely on the ground that a previous denial of a government motion for summary judgment by the Veterans Administration Board of Contract Appeals (VABCA) constitutes Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s complaint was filed in this court on January 23, 1984, seeking primarily the award from the Veterans Administration (VA) of a contract based on a proposal it had submitted in response to a VA Solicitation which had been issued but subsequently was cancelled. In the alternative, plaintiff claims it is entitled to an award of bid preparation costs and lost profits as a disappointed bidder in not receiving the contract in question. Plaintiff alleges that defendant\rquote s cancellation of the solicitation of bids was unreasonable, arbitrary, capricious and without foundation in law or fact. Plaintiff further alleges that defendant cancelled the solicitation in order to subsequently award the contract to another bidder which had performed a similar contract with VA the previous year but had not submitted the low bid on the solicitation in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: curtain cubicles and accessory hardware and to service such products for the Veterans Administration Medical Center, Northport, New York, for the period from January 1, until September 30, 1982. Seven contractors, including plaintiff, submitted bids. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Contract Custom Drapery Service, Inc. v. Veterans Admin. Medical Center, Northport, N.Y., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: 1) the solicitations, provisions for pricing, were ambiguous, clearly reflected in the subsequent submissions of ambiguous bids in a variety of forms, and 2) the fact that the Veterans Administration was supposed to be a mandatory user under the Federal Supply Schedule contract for the solicited item and the contracting officer had mistakenly overlooked that fact. Such bases for withdrawal of the solicitation do not demonstrate bad faith. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 38 - Contract Custom Drapery Service Inc v US.doc, Paragraph with 'Veteran: Contract Custom Drapery Service, Inc. v. Veterans Admin. Medical Center, Northport, N.Y., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 44 - LG Lefler Inc v US.doc, Paragraph with 'Veteran: In suit brought under Contract Disputes Act, contractor sought review of decision of a Veterans Administration contracting officer, approving a credit, taken by the VA under changes clause of contract in question, for contractor\rquote s use of nondomestic structural steel. On cross motions for summary judgment, the Claims Court, Seto, J., held that where waiver was appropriate under terms of the Buy American Act and had been granted, contractor\rquote s bid was based on cost of foreign material in question, contractor\rquote s cost of performance was not affected by waiver of the Buy American Act, and contractor\rquote s bid would have remained the low bid even if it had been based entirely on domestic materials, imposition of credit was inappropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 44 - LG Lefler Inc v US.doc, Paragraph with 'Veteran: , plaintiff seeks review of the decision of a Veteran\rquote s Administration (\VA\) Contracting Officer, approving a credit, taken by the VA under the changes clause of the contract in question, for plaintiff\rquote s use of nondomestic structural steel. The credit followed a post-award waiver of the Buy American Act. The issue to be resolved is whether the reduction in contract price is warranted under the specific circumstances of this case. For the reasons stated below, plaintiff\rquote s motion for summary judgment is granted, defendant\rquote s cross-motion for summary judgment is denied, and judgment is to be entered for plaintiff in the amount of $108,000.00. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 44 - LG Lefler Inc v US.doc, Paragraph with 'Veteran: Thus, where the standards delineated in \u167 1\u821118.603\u82111 are met, a waiver must be granted unless the particular circumstances of the situation warrant otherwise. Defendant maintains that it was coerced into granting the waiver because of plaintiff\rquote s violation of the BAA: \[Plaintiff] placed the VA in the position of insisting on compliance with the BAA and suffering delays in providing veterans with a badly needed hospital or granting a waiver.... The VA decided that it would give up the value of its contractual right to require domestic materials only because it would protect the competitive bidding process and the public interest with a reasonable change order which included a fair credit.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 54 - Joseph Const Co v Veterans Admin of US.doc, Paragraph with 'Veteran: Joseph Const. Co. v. Veterans Admin. of U.S., 595 F.Supp. 448 (1984) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 54 - Joseph Const Co v Veterans Admin of US.doc, Paragraph with 'Veteran: The VETERANS ADMINISTRATION OF the UNITED STATES of America and Clyde C. Cook, Director of the Office of Procurement and Supply of the Veterans Administration, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 54 - Joseph Const Co v Veterans Admin of US.doc, Paragraph with 'Veteran: Government contractor brought action against Veterans Administration, challenging its debarment, and defendants moved to dismiss. The District Court, Aspen, J., held that: (1) since contractor was given opportunity to present information in opposition to debarment, due process requirements were met, and (2) debarment regulations are not unreasonable or unconstitutional. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 54 - Joseph Const Co v Veterans Admin of US.doc, Paragraph with 'Veteran: Plaintiff Joseph Construction Company (\Joseph\) has brought this action for injunctive relief against the Veterans Administration of the United States of America (\V.A.\) and Clyde Cook, Director of the Office of Procurement and Supply of the V.A., for the unlawful deprivation of its right to bid on government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\28, File: 82 - Acme of Precision Surgical Co Inc v Weinberger.doc, Paragraph with 'Veteran: procurement for DOD and the Veterans Administration) were various types of forceps, including 6,624 ea. (est.) (for DOD) and 5,000 ea. (est.) (for VA) Forceps, Hemostatic, Straight, Ranken, 6 \u188\u8243 (NSN 6515\u821100\u8211334\u82117100); 32,040 ea. (est.) (for DOD) and 12,000 ea. (est.) (for VA) Forceps, Hemostatic, Curved, Kelly, 5 \u189\u8243, Type II (NSN 6515\u821100\u8211334\u82113800); 22,320 ea. (est.) (for DOD and 15,000 ea. (est.) (for VA) Forceps, Hemostatic, Straight, Kelly, 5 \u189\u8243, Type I (NSN 6525\u821100\u8211334\u82116800); 15,000 ea. (est.) (for DOD) and 4,500 ea. (est.) (for VA) Forceps, Towel, Backhaus, 3 \u189\u8243 (NSN 6515\u821100\u8211320\u82114590); and 13,000 ea. (est.) (for DOD) Forceps, Towels, Backhaus, 5 \u188\u8243 (NSN 6515\u821100\u8211320\u82114600). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 55 - First Alabama Bank of Montgomery NA v Donovan.doc, Paragraph with 'Veteran: Selection by Department of Labor of bank for compliance review was made pursuant to administrative plan containing neutral criteria, and requested production of information, which bank was contractually obligated to supply and the production of which posed no real burden, did not constitute unreasonable search under Fourth Amendment, even though the bank had been subject of private employment discrimination litigation, where the bank, during preceding three years, had not been reviewed by government agency for compliance with the Executive Order, the employment discrimination litigation had been confined to race discrimination, the Government was not party to such litigation, and bank had never been reviewed for compliance with Rehabilitation Act or with Vietnam Era Veterans Readjustment Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 55 - First Alabama Bank of Montgomery NA v Donovan.doc, Paragraph with 'Veteran: , Section 503 of the Rehabilitation Act of 1973, and Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974. Apparently, First Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 55 - First Alabama Bank of Montgomery NA v Donovan.doc, Paragraph with 'Veteran: (regulatory inspection by Bureau of Alcohol, Tobacco and Firearms reasonable where twelve months had lapsed since prior inspection). Second, the Title VII litigation had been confined to race discrimination, and the government was not a party and did not have access to the relevant court records. Third, the record discloses that the bank had never been reviewed for compliance with Section 503 of the Rehabilitation Act or Section 402 of the Vietnam Era Veterans Readjustment Act. Taken together, these factors indicate that the decision to continue with the investigation was sufficiently reasonable to pass constitutional muster. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: Contractor, which had been awarded contract with Veterans Administration for general architectural work associated with construction of building adjacent to Veterans Administration hospital, appealed an adverse decision of the contracting officer on the contractor\rquote s request for permission to use sheet aluminum manufactured in Japan. The Veterans Administration Contract Appeals Board held that failure to request an exception to the Buy American Act at the time of bid in accordance with bidding directions precluded contractor\rquote s entitlement to consideration of an exception after the award, and the contractor petitioned for review. The United States Claims Court entered judgment denying the parties\rquote cross motions for summary judgment and remanded, and the Government appealed. The Court of Appeals, Cowen, Senior Circuit Judge, held that: (1) exceptions to Buy American Act can be granted after contract has been awarded, and (2) contractor\rquote s failure, if any, to delineate \changes\ clause in contract as basis for recovery did not bar right to recover. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: Contractor\rquote s failure, if any, to delineate \changes\ clause of contract with Veterans Administration for general architectural work associated with construction of building as basis for recovery on account of contracting officer\rquote s refusal, pursuant to Buy American Act, to permit substitution of Japanese aluminum for domestic aluminum after award of contract did not bar right to recover, where relief sought was clearly described and well understood. Buy American Act, \u167\u167 2, 3, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: of the United States Claims Court which denied the parties\rquote cross-motions for summary judgment and ordered the case remanded to the Veterans Administration Contract Appeals Board (Board) for further proceedings consistent with the opinion of the trial judge. In a Wunderlich Act review, he held that the Board erroneously decided that appellee\rquote s failure to request an exception to the Buy American Act at the time the bid was submitted precluded appellee\rquote s right to have such a request considered after the contract was awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: The facts which are material to our decision are relatively simple and undisputed. On February 25, 1977, appellee was awarded a contract with the Veterans Administration in the amount of $3,827,000, for the general architectural work associated with the construction of the Research Building adjacent to the Veterans Administration Replacement Hospital in Bronx, New York. The contract incorporated the provisions of the Buy American Act, and required that all but certain excepted construction materials be of domestic origin. One of appellee\rquote s subcontractors, Albro Metal Products Corporation (Albro) was responsible for supplying and constructing a metal curtain wall. Albro\rquote s contract price was based in part on a quotation it had received on February Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: 3, 1977, from the Aluminum Company of America (ALCOA), in the amount of $140,000, for the flat aluminum sheet required to construct the metal curtain wall. ALCOA would not accept a firm order for the aluminum sheet until the size and type of aluminum had been determined and approved by the Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: At the time of the meeting of June 8, 1977, the specific sheet sizes of the aluminum had not been determined or approved by the Veterans Administration. Consequently, the appellee was not able to place a firm order for the aluminum with ALCOA until after that date. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 56 - John T Brady And Co v US.doc, Paragraph with 'Veteran: Judge Spector\rquote s opinion is in accord with the decisions of the Comptroller General which we think have correctly interpreted the Buy American Act and the Executive Order. To hold otherwise, would produce unfair and harsh results without furthering the objectives of the Act. As the trial judge stated, it may be impossible for the contractor in some instances to make a pre-award request for the exemption. In this case, the appellee could not order the aluminum until after the contract had been awarded and the type and size of aluminum sheet had been determined and approved by the Veterans Administration. There will be other instances where domestic material is unavailable or where its price escalates dramatically after the contract has been awarded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 77 - Robert E Derecktor of Rhode Island Inc v Goldschmidt.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1070 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 86 - Robert E Derecktor of Rhode Island Inc v Goldschmidt.doc, Paragraph with 'Veteran: John Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1070 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 97 - Self-Powered Lighting Ltd v US.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Admin., 461 F.Supp. 1062, 1069 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\29, File: 97 - Self-Powered Lighting Ltd v US.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Admin., 461 F.Supp. 1062, 1069 n.4 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 004 - State of Kansas v United States.doc, Paragraph with 'Veteran: Alabama Department of Rehabilitation Services v. United States Department of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Veteran Shredding, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Veteran-owned small business brought bid protest claim seeking declaratory and injunctive relief against Department of Veterans Affairs (VA), alleging Department\rquote s failure to comply with statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Department is not excused from complying with Rule of Two, even if Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if an order is placed through Federal Supply Schedule (FSS). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Exception to mootness doctrine, for controversies that are capable of repetition yet evading review, applied to Supreme Court\rquote s certiorari review in bid protest case in which disappointed bidder alleged that Department of Veterans Affairs (VA) had failed to comply with statutory Rule of Two generally requiring Department to set aside procurement contracts for veteran-owned small businesses; while winning bidder\rquote s provision of services had already been fully performed less than two years after contract award, two years was too short to complete the judicial review of lawfulness of procurement, it was reasonable to expect that Department would refuse to apply Rule of Two in future procurements for the kind of services provided by disappointed bidder, and it was reasonably likely that disappointed bidder, which had been awarded many previous contracts, would be awarded a future contract if its interpretation of statutory Rule of Two prevailed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) is not excused from compliance with statutory Rule of Two for set asides, which states that Department generally \shall award\ a contract to a veteran-owned small business when there is a reasonable expectation that two or more such businesses will bid for the contract at a fair and reasonable price that offers the best value to the United States, even if the Department has already met its annual goals for awarding contracts to veteran-owned small businesses, and even if the order is placed through the Federal Supply Schedule (FSS). Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Prefatory clause in statutory Rule of Two for Department of Veterans Affairs (VA) set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, does not change the plain meaning of the operative clause, which requires the Department to award a contract to a veteran-owned small business regardless of whether the Department has already met its annual goals for awarding contracts to veteran-owned small businesses. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The Department of Veterans Affairs\rquote (VA) placement of an order through the Federal Supply Schedule (FSS) is a \contract,\ within meaning of statutory Rule of Two generally requiring Department to set aside contracts for veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Even assuming that the interpretation by Department of Veterans Affairs (VA) of prefatory clause in statutory Rule of Two for Department\rquote s set asides of contracts for veteran-owned small businesses, announcing an objective that Congress hoped that the Department would achieve and charging the VA Secretary with setting annual benchmarks, could be owed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: deference, the Rule of Two was unambiguous regarding Department\rquote s obligation to award a contract to a veteran-owned small business regardless of whether the Department had already met its annual goals for awarding contracts to veteran-owned small businesses, and thus, the Supreme Court would not defer to the Department\rquote s interpretation. Small Business Act, \u167 2[15], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The Veterans Benefits, Health Care, and Information Technology Act of 2006 requires the Secretary of Veterans Affairs to set annual goals for contracting with service-disabled and other veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: . To help reach those goals, a separate set-aside provision known as the \Rule of Two\ provides that a contracting officer \shall award contracts\ by restricting competition to veteran-owned small businesses if the officer reasonably expects that at least two such businesses will submit offers and that \the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In 2012, the Department procured an Emergency Notification Service for four medical centers for a one-year period, with an option to extend the agreement for two more, from a non-veteran-owned business. The Department did so through the Federal Supply Schedule (FSS), a streamlined method that allows Government agencies to acquire particular goods and services under prenegotiated terms. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Petitioner Kingdomware Technologies, Inc., a service-disabled veteran-owned small business, filed a bid protest with the Government Accountability Office (GAO), alleging that the Department procured multiple contracts through the FSS without employing the Rule of Two. The GAO determined that the Department\rquote s actions were unlawful, but when the Department declined to follow the GAO\rquote s nonbinding recommendation, Kingdomware filed suit, seeking declaratory and injunctive relief. The Court of Federal Claims granted summary judgment to the Government, and the Federal Circuit affirmed, holding that the Department was only required to apply the Rule of Two when necessary to satisfy its annual goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , General Counsel, Department of Veterans Affairs, Washington, DC, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Petitioner Kingdomware Technologies, Inc., a veteran-owned small business, unsuccessfully vied for a federal contract from the Department of Veterans Affairs to provide emergency-notification services. Kingdomware sued, arguing that the Department violated a federal law providing that it \shall award\ contracts to veteran-owned small businesses when there is a \reasonable expectation\ that two or more such businesses will bid for the contract at \a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In this case, we consider whether the Department must use the Rule of Two every time it awards contracts or whether it must use the Rule of Two only to the extent necessary to meet annual minimum goals for contracting with veteran-owned small businesses. We conclude that the Department must use the Rule of Two when awarding contracts, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In an effort to encourage small businesses, Congress has mandated that federal agencies restrict competition for some federal contracts. The Small Business Act thus requires many federal agencies, including the Department of Veterans Affairs, to set aside contracts to be awarded to small businesses. The Act requires each agency to set \an annual goal that presents, for that agency, the maximum practicable opportunity\ for contracting with small businesses, including those \small business concerns owned and controlled by service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In 1999, Congress expanded small-business opportunities for veterans by passing the Veterans Entrepreneurship and Small Business Development Act, 113 Stat. 233. That Act established a 3% governmentwide contracting goal for contracting with service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Relevant here, Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006, \u167\u167 502, 503, 120 Stat. 3431\u82113436 (codified, as amended, at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: ). That Act requires the Secretary of Veterans Affairs to set more specific annual goals that encourage contracting with veteran-owned and service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Act\rquote s \Rule of Two,\ at issue here, provides that the Department \shall award\ contracts by restricting competition for the contract to service-disabled or other veteran-owned small businesses. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers and that \the award can be made at a fair and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , a contracting officer \may use procedures other than competitive procedures\ to award contracts to veteran-owned small businesses when the goods or services that are the subject of such contracts are worth less than the simplified acquisition threshold. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , a contracting officer \may award a contract to a [veteran-owned small business] using procedures other than competitive procedures\ if the contract is worth more than the simplified acquisition threshold but less than $5 million, the contracting officer determines that the business is \a responsible source with respect to performance of such contract opportunity,\ and the award Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Kingdomware Technologies, Inc., is a service-disabled veteran-owned small business. Around January 2012, the Department decided to procure an Emergency Notification Service for four medical centers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The Department sent a request for a price quotation to a non-veteran-owned company through the FSS system. That company responded with a favorable Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Kingdomware challenged the Department\rquote s decision to award the contract to a non-veteran-owned company by filing a bid protest with the Government Accountability Office (GAO). See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: . Kingdomware contended that the Department could not award the contracts at issue here without first checking to see whether at least two veteran-owned small businesses could perform the work at a fair and reasonable price. The GAO issued a nonbinding determination that the Department\rquote s failure to employ the Rule of Two was unlawful and recommended that the Department conduct market research to determine whether there were two veteran-owned businesses that could fulfill the procurement. The Department disagreed with the recommendation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: award contracts\ to veteran-owned small businesses using restricted competition whenever the Rule of Two is satisfied, \[e]xcept as provided in subsections (b) and (c).\ (Emphasis added.) Subsections (b) and (c) provide, in turn, that the Department \may\ use noncompetitive procedures and sole-source contracts for lower value acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: ) prefer veteran-owned small businesses when the Rule of Two is satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: We therefore hold that, before contracting with a non-veteran owned business, the Department must first apply the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Iraq and Afghanistan Veterans of America as Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: case proves the point: the contract at issue here concerned complex information technology services over a multiyear period. Moreover, the Department may continue to purchase items that cost less than the simplified acquisition threshold (currently $150,000) through the FSS, if the Department procures them from a veteran-owned small business. See Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: \Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: We need not decide today precisely what sort of search for veteran-owned small businesses the Department must conduct to comply with the Rule of Two. We do not decide, for example, whether the Department may satisfy its obligations by searching for eligible veteran-owned small businesses within the FSS, or whether it must conduct a broader search for such businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 011 - United States v Gorski.doc, Paragraph with 'Veteran: \u8226 The government\rquote s motion to prevent defendant from presenting certain arguments, which it has characterized as jury nullification arguments, is GRANTED. The following evidence is not admissible: any evidence that the government saved money by contracting with Legion as opposed to a qualifying SDVOSB; any evidence as to the quality of Legion\rquote s performance under the contracts; any evidence that the government contracting officers who awarded or supervised Legion contracts were negligent for failing to have detected the alleged fraud; and any evidence of defendant\rquote s potential sentence. This ruling is without prejudice to defendant\rquote s ability to explore, within appropriate limits, whether the service disabled veterans at issue had \managerial experience of the extent and complexity needed to run the concern.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 011 - United States v Gorski.doc, Paragraph with 'Veteran: \u8226 The government\rquote s motion to exclude evidence of the site visit to Legion by the Center for Veterans Enterprises in December 2010, and any subsequent write-up or report, is granted, as the evidence is irrelevant and in any event inadmissible under Rule 403. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 014 - Res Rei Development Inc v United States.doc, Paragraph with 'Veteran: The Group C contract was set aside for service-disabled veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Bidders on solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) brought pre-award bid protest actions, challenging terms of solicitation. Actions were consolidated. Bidders and government moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: VA did not abuse its discretion by deciding not to waive \non-manufacturer\ rule and set aside procurement for small businesses or partial or total service disabled veteran-owned small businesses (SDVOSB); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Argument by bidders on solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) that solicitation as written did not conform with Federal Acquisition Regulations (FAR) and contained an unaddressed organizational conflict of interest (OCI) because one of other bidders was also performing a contract for the VA as a medical surgical prime vendor (MSPV) was mooted when separate bidder was awarded supply contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) did not abuse its discretion by deciding not to waive \non-manufacturer\ rule of Small Business Act (SBA), which required small business to manufacturer goods or distribute goods manufactured by another small business, and set aside procurement for contract for supply of custom sterile procedure packs for small businesses or partial or total service disabled veteran-owned small businesses (SDVOSB); contracting officer for VA did extensive market research and reasonably concluded that VA was not likely to receive at least two offers from qualified small business manufacturers, officer then considered seeking a waiver under SBA, but decided instead to allow for open competition under an evaluation scheme which provided more favorable ratings to socioeconomic small businesses, including SDVOSBs. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) did not contain improper bundling, so as to disadvantage small businesses in procurement process in violation of Small Business Act (SBA); contracting officer for VA conducted market research and identified a number of small businesses that asserted they could meet the solicitation\rquote s requirements. Small Business Act \u167\u167 2[2], 2[3], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Solicitation for contract for supply of custom sterile procedure packs to Department of Veterans Affairs (VA) was not unduly restrictive, as VA had rational basis for structure of its solicitation; contracting officer for VA did extensive market research and reasonably concluded that VA was not likely to receive at least two offers from qualified small business manufacturers, officer then considered seeking a waiver, but decided instead to allow for open competition under an evaluation scheme which provided more favorable ratings to socioeconomic small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: , Assistant Attorney General; Robert Kirschman, Jr., Director, Commercial Litigation Branch; and Scott D. Austin, Assistant Director, for defendant. Bart Evans, Department of Veterans Affairs, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: Pre\u8211Award Bid Protest; Department of Veterans Affairs; Small\u8211Business Set\u8211Aside; Improper Bundling; Unduly Restrictive Solicitation; Small Business Participation; Exclusion from Competitive Award Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: The parties in these two related pre-award bid protests, consolidated for the purposes of this opinion, have filed cross-motions for judgment on the administrative record challenging the terms of Solicitation No. VA240C\u821115\u8211R\u82110022 (the \solicitation\) for the supply of custom sterile procedure packs to the United States Department of Veterans Affairs (the \VA\). The plaintiffs, Geo\u8211Med, LLC (\Geo\u8211Med\) and Manus Medical, LLC (\Manus\) argue that the solicitation was improper because first, the contract should have been a partial or total service disabled veteran-owned small business (\SDVOSB\) set-aside; second, the solicitation contained unduly restrictive requirements and improper bundling; third, there was an unaddressed organizational conflict of interest (\OCI\) that gave an unfair advantage to another bidder, [xxxxxxxxxxxxxxxxxx] (\xxxxxxxx\) as a result of [xxxxxxxxxx]\rquote s existing position as a Medical Surgical Prime Vendor (\MSPV\) for the VA; and fourth, that plaintiffs were wrongly excluded from the competitive range. Plaintiff Manus had previously brought a claim based on substantially the same arguments before the United States Government Accountability Office (\GAO\), which found in favor of the agency on all grounds. Plaintiff Geo\u8211Med filed a protest of the solicitation\rquote s terms with the agency on the same basis, and the agency rejected Geo\u8211Med\rquote s arguments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: The solicitation at issue in this case is for the procurement of custom sterile procedure packs to be used in seven different Veterans Integrated Service Networks (\VISNs\) in the Service Area Office (\SAO\) Central region, an area which includes forty-six VA facilities across twenty-one states. AR 1224. According to the solicitation, the custom pack program is \designed to develop individualized procedure packs to save on operating room start-up times, cut down on the time between patients, and generally create standard practices that result in hospital effectiveness, efficiency and charge/cost capture.\ AR 1232. Prior to this solicitation, the VISNs in the central region acquired custom sterile packs under various types of contracts with different restrictions, including small-business set-asides, SDVOSB set-asides, as well as unrestricted contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: AR 575\u82111066. The CO first searched government databases and websites for capable SDVOSBs who had provided similar products in the past. AR 578. Her search uncovered sixty-three small businesses, including thirty-nine SDVOSBs and veteran-owned small businesses (\VOSBs\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: On August 3, 2015, the VA issued the solicitation as an unrestricted firm fixed price, indefinite delivery contract. AR 1224\u82111567. Though the solicitation was not set aside as a small business or SDVOSB procurement, the solicitation did include veteran ownership as one of five factors to be considered. AR 1254, 1288. The amended due date for proposals was October 14, 2015. AR 2324. Six companies bid on the contract, of which three were large concerns (Avid Medical, [xxxxxxxxxx], and [xxxxxxxxxx] (\[xxxxxxxxxx]\)) and three were small businesses (Manus, Geo\u8211Med, and [xxxxxxxxxx] (\[xxxxxxxxxx]\)). AR 12412, 12429\u821130. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: AR 12405\u821134. Though Geo\u8211Med received full credit for the Veterans Participation factor, the CO noted that Geo\u8211Med\rquote s proposal was rated as \unacceptable\ for the technical capability, quality control, and delivery capability factors and found that Geo\u8211Med\rquote s \proposed approach indicated a lack of understanding of the methods, resources, and schedules to perform the required effort of this solicitation,\ and had the second-highest price of all the offerors. AR 12433\u821134. On December 18, 2015, Geo\u8211Med was informed of its elimination from the competitive range. AR 12442. Geo\u8211Med requested a post-award debriefing and was informed that the agency would provide a debriefing after the award was issued. AR 12439\u821140. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 022 - GeoMed LLC v United States.doc, Paragraph with 'Veteran: At the heart of this protest is plaintiffs\rquote contention that the agency erred by not setting aside the procurement for SDVOSBs. A CO is required to set aside a procurement for small businesses, with SDVOSBs receiving first priority if the CO has a \reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 032 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Following unsuccessful bidder\rquote s successful protest of award of Department of Veterans Affairs (VA) ambulance service contract to successful bidder, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 032 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Motion to intervene, filed by successful bidder on Department of Veterans Affairs (VA) ambulance service contract after Court of Federal Claims ruled in favor of unsuccessful bidder in its bid protest, was untimely, and thus court would not permit successful bidder to intervene in order to appeal its decision, where successful bidder knew of its right to intervene 11 months before it filed its motion, successful bidder had responsibility of ascertaining basis of protest to determine if it wanted to intervene, unsuccessful bidder\rquote s complaint was publicly available after it was filed, additional time and resources that unsuccessful bidder and VA would have had to expend to respond to successful bidder\rquote s late participation outweighed any prejudice to successful bidder from not being able to intervene, and no unusual circumstances weighed in favor of granting motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 032 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Plaintiff Excelsior Ambulance Service, Inc. (\Excelsior\) successfully protested the award of a contract by the United States Department of Veterans Affairs (\VA\) to LMC Med Transportation, LLC (\LMC\). LMC now moves for leave to intervene in this protest for the purpose of appealing the merits of this court\rquote s decision in Excelsior\rquote s favor. For the reasons set forth below, the court denies LMC\rquote s motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 033 - Ingham Regional Medical Center v United States.doc, Paragraph with 'Veteran: under this section, except that no person eligible for health benefits under this section may be denied benefits under this section with respect to care or treatment for any service-connected disability which is compensable under chapter 11 of title 38 solely on the basis that such person is entitled to care or treatment for such disability in facilities of the Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Finance company, which provided construction loan to enable assignee of hospital lease to begin construction of hospital for Department of Veterans Affairs (VA), brought action against government, alleging that government breached subordination agreement, stating that lease was in full force and that no events had occurred that would ripen into default, when it terminated hospital lease for default. Finance company moved for partial judgment on the pleadings. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Warranties section of subordination agreement, under which government made representations regarding Department of Veterans Affairs (VA) hospital lease to finance company that provided loan for construction of hospital, assured finance company of existence of fact in unmistakable terms, as required to support company\rquote s breach of warranty claim against government based on its termination of hospital lease for default; government represented that hospital lease was in good standing, that assignee of lease timely performed its obligations under lease, and that no events occurred which would constitute default under lease provisions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Government and finance company, which provided loan for construction of Department of Veterans Affairs (VA) hospital, relied upon affirmation in warranties section of subordination agreement, under which government made assurances to company regarding VA hospital lease, as part of the basis of the bargain, as required to support company\rquote s breach of warranty claim against government based on its termination of the lease for default; agreement stated that company would not grant loan but for government\rquote s confirmation of certain matters with respect to the lease, and agreement was fully integrated contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Assurances contained in warranties section of subordination agreement, under which government made assurances regarding Department of Veterans Affairs (VA) hospital lease to finance company that provided loan for construction of hospital, proved to be untrue, and thus government breached express warranties contained in the agreement; under warranties section, government represented that hospital lease was in full force and effect and that no events occurred which would constitute default, and assignor of lease committed fraud during procurement of the lease, which resulted in lease being terminated for default. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Fraud by assignor of Department of Veterans Affairs (VA) hospital lease during procurement of the lease could not be imputed to finance company that provided loan for construction of hospital, and thus company\rquote s subordination agreement, under which government made assurances regarding hospital lease to company, was not void for fraud, where finance company was neither involved in nor aware of assignor\rquote s fraud. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Subordination agreement, under which government made assurances regarding Department of Veterans Affairs (VA) hospital lease to finance company that provided loan for construction of hospital, placed upon the government the risk that prior misconduct by assignor of the lease invalidated the lease, precluding government\rquote s defense of mistake in company\rquote s breach of contract action stemming from government\rquote s termination of the lease for default; under warranties section of agreement, government assured that hospital lease was in full force and that no events occurred which would constitute default. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: Assignment of assignee\rquote s interest in Department of Veterans Affairs (VA) hospital lease and rents to finance company that provided loan for construction of hospital did not breach subordination agreement, under which government made assurances regarding hospital lease to finance company, where subordination agreement acknowledged and approved the assignment of interest so that the lease could serve as security for the loans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: , and Reid Nicolosi, Office of General Counsel, Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 034 - Ameriserv Trust v United States.doc, Paragraph with 'Veteran: In this action for damages based upon an alleged breach of contract, plaintiff, Ameriserv Trust and Financial Services Company (\Ameriserv\), provided a secured $7.5 million construction loan to VA Butler Partners Company, LLC (\VA Butler Partners\), an assignee and affiliate of Westar Development Company (\Westar\), to enable VA Butler Partners to begin construction of a hospital for the Department of Veterans Affairs (\VA\). Ameriserv made the loan in its capacity as trustee for the Employee Real Estate Construction Trust Fund (\ERECT Fund\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with 'Veteran: Contractors Engineers Int\rquote l, Inc. v. U.S. Dep\rquote t of Veterans Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, brought pre-award bid protest action, alleging the agency improperly refused to consider bidder\rquote s offer to renew its contract. The Court of Federal Claims, Kaplan, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, was unlikely to succeed on merits of its claim in bid protest action that it was the \manufacturer\ of the pharmaceuticals, rather than a \dealer/seller,\ thereby weighing against entry of injunction to require the government to extend and hold in abeyance the expiration of bidder\rquote s existing supply schedule contract; fact that some specialized statutes and regulations defined \manufacturer\ to include repackagers indicated that repackagers would not otherwise be considered \manufacturers\ of drug products in light of that term\rquote s ordinary meaning. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, was unlikely to succeed on merits of its claim in bid protest action that VA\rquote s refusal to consider bidder\rquote s offer to renew its existing supply schedule contract was result of bad faith and bias against bidder, thereby weighing against entry of injunction to require the government to extend and hold in abeyance the expiration of bidder\rquote s contract; bidder provided no factual basis for assessing the VA\rquote s decision-making process with respect to the other offeror, let alone inferring the VA treated bidder differently, offeror differed from bidder in relevant ways, and to extent deposition testimony bidder wished to include was relevant to case, it was duplicative of information already in record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, was unlikely to succeed on merits of its claim in bid protest action that VA\rquote s refusal to consider bidder\rquote s offer to renew its existing supply schedule contract constituted an unlawful de facto debarment, thereby weighing against entry of injunction to require the government to extend and hold in abeyance the expiration of bidder\rquote s contract; VA\rquote s conduct did not amount to a systematic effort to deny contract awards to bidder, because the VA\rquote s decision not to further evaluate bidder\rquote s renewal stemmed from parties\rquote dispute over a legal issue, whether the bidder was the \manufacturer\ of the pharmaceuticals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, would not suffer irreparable harm absent entry of injunction, in pre-award bid protest action, to require the government to extend and hold in abeyance the expiration of bidder\rquote s existing supply schedule contract; although loss of contract would decrease bidder\rquote s annual revenues by more than six million dollars and force it to terminate 12 employees, those were types of harms any incumbent contractor would experience upon loss of contract, and bidder did not allege loss of contract would pose an immediate threat to its entire business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: Public interest weighed against entry of injunction to require government to extend and hold in abeyance the expiration of existing supply side contract of unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers; public had strong interest in seeing government avoid being overcharged for products that were also sold commercially, thereby making it necessary to insist that dealers/resellers without significant commercial sales supply manufacturers\rquote commercial sales practice (CSP) data, at least absent a demonstration that such data was not obtainable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 042 - AvKare Inc v United States.doc, Paragraph with 'Veteran: AvKARE holds a Federal Supply Schedule (FSS) contract with the United States Department of Veterans Affairs (VA) to supply generic pharmaceuticals to VA and other government purchasers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'Veteran: at 28\u8211118, and was set aside for a service-disabled, veteran-owned small business (\SDVOSB\) concern, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 044 - Phoenix Management Inc v United States.doc, Paragraph with 'Veteran: at 1068\u821169. On June 24, 2015, the Air Force notified plaintiff that another company, Veteran Facility Services LLC (\VFS\), was the \apparent successful offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 050 - Macaulay-Brown Inc v United States.doc, Paragraph with 'Veteran: \assignment of new task orders to the appropriate SWMS group will be determined by first examining the potential for OCI concerns (assigned to Group C).\ AR 30. Task orders that carry a \significant\ or \high\ risk of OCI would be awarded under Group C, which would be a single IDIQ award set aside for a service-disabled veteran-owned small business. AR 30\u821131. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor brought pre-award bid protest and breach of contract action against the government, alleging that Department of Veterans Affairs (VA) improperly refused to grant modifications to its existing Federal Supply Schedule (FSS) contract to supply generic pharmaceuticals and improperly refused to take further action on contractor\rquote s proposal to renew its contract. Both parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor had standing to bring bid protest based on claim that Department of Veterans Affairs (VA) misinterpreted and misapplied solicitation for contract\rquote s commercial sales practice (CSP) provision when it characterized contractor as a \dealer/reseller,\ rather than a \manufacturer,\ and as consequence, VA refused to evaluate contractor\rquote s renewal offer unless it provided suppliers\rquote CSP information, thus conferring jurisdiction on Court of Federal Claims; contractor submitted an actual offer and alleged that its offered prices were lower than prices for similar items already on the schedule, and thus contractor had substantial chance of securing the contract if its offer in fact conformed to the solicitation\rquote s requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor\rquote s failure to submit to contracting officer its claim that refusal by Department of Veterans Affairs (VA) to grant requests for modification (RFM) on its existing contract was based on misinterpretation of contract and applicable regulations and animus toward contractor or to receive any final determinations deprived Court of Federal Claims of jurisdiction over contractor\rquote s RFM-related claims; contract modifications within scope of existing contract did not constitute procurements under Tucker Act provision regarding solicitations for bids or proposals, but rather RFMs were within scope of contract and thus governed by Contract Disputes Act (CDA), requiring final determination by contracting officer. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor, who purchased pills and other pharmaceuticals in bulk from suppliers and sold them after repackaging them was not a \manufacturer\ within meaning of commercial sales practice (CSP) provision included in Department of Veterans Affairs\rquote solicitation pursuant to requirements of General Services Administration (GSA) regulation, and therefore, contractor was required to submit assurances from its suppliers confirming contractor\rquote s ability to meet VA\rquote s purchasing needs with contract renewal offer; contractor was more akin to a \dealer/reseller\ since it did not make the relevant products and did not have control over production. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor, who purchased pills and other pharmaceuticals in bulk from suppliers and sold them after repackaging them was not a \manufacturer\ within meaning of Veterans\rquote Benefits regulation regarding limitation on prices of drugs procured by Department of Veterans Affairs (VA) or other statutory and regulatory applications concerning repacking of pills and pharmaceutical products, and therefore, pursuant to requirements of General Services Administration (GSA) regulation, contractor was required to submit assurances from its suppliers confirming its ability to meet VA\rquote s purchasing needs with its contract renewal offer; variance in regulatory regime applicable to pharmaceutical industry showed that term \manufacturer\ did not always include repackagers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Contracting officer\rquote s (CO) determination that incumbent contractor lacked significant commercial sales required for Department of Veterans Affairs (VA) open solicitation for contract to renew its Federal Supply Schedule (FSS) contract to supply pharmaceutical products was not arbitrary, capricious, or contrary to law, and therefore contractor\rquote s challenge of VA\rquote s procurement decision could not succeed; CO reasonably relied on analysis conducted by the VA\rquote s Officer of the Inspector General (OIG) which assessed contractor\rquote s sales data and determined that nearly all of contractor\rquote s sales were indirect sales to government entities via commercial wholesalers and explained why it did not consider such sales to be commercial sales. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor provided no evidence to rebut presumption of regularity afforded to Department of Veterans Affairs (VA), and therefore contractor could not maintain claim that VA failed to evaluate its renewal offer regarding its Federal Supply Schedule (FSS) contract to supply pharmaceutical products and conduct negotiations in good faith; evidence showed that VA communicated regularly with contractor about its proposal and repeatedly explained why the proposal remained deficient, VA internal communications reflected consistent position that contractor\rquote s proposal was not complete since it was not a manufacturer, lacked significant commercial sales, and had not supplied manufacturers\rquote commercial sales practice (CSP) information as required by the solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: Disagreement between incumbent contractor and Department of Veterans Affairs (VA) about legal issue regarding whether contractor qualified as a \manufacturer\ under solicitation for contract\rquote s commercial sales practice (CSP) provision, without more, did not demonstrate any systematic effort by VA to deny awards to contractor, and therefore, VA\rquote s refusal to move forward with review of contractor\rquote s proposal did not amount to a de facto debarment; documents in records showed that VA consistently told contractor it would move forward with reviewing its proposal if contractor supplied required CSP information, and in contrapose, contractor consistently maintained that solicitation did not require it to provide the information sought. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: This hybrid pre-award bid protest and breach of contract action is before the Court on the parties\rquote cross-motions for judgment on the administrative record. The plaintiff in the case, AvKARE, Inc., is in the business of purchasing pharmaceutical products in bulk from their manufacturers for purposes of repackaging and selling them under the \AvKARE\ label. AvKARE currently holds a Federal Supply Schedule (FSS) contract with the Department of Veterans Affairs (VA) for the sale of such pharmaceuticals. It brought this action to challenge: 1) the VA\rquote s refusal to grant requests for modification of its existing FSS contract that would permit AvKARE to add certain drugs to the FSS; and 2) its refusal to take further action on AvKARE\rquote s proposal to renew its contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Department of Veterans Affairs (2014), www.va.gov/oal/docs/business/nac/fssContractorOverviewLibrary.zip; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Department of Veterans Affairs, http://www.va.gov/oal/business/fss/pharmaceuticals.asp Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, at 17 (Dec. 2015), http://www.va.gov/osdbu/docs/doingBusinessWithVA_ReferenceGuideFULL.pdf. At the top level, the VA\rquote s Office of Acquisition and Logistics (OAL) oversees the contracting process and \provides comprehensive acquisition support\ for all of the VA\rquote s healthcare services and products. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.va.gov/oal/ (last visited February 11, 2016). Within OAL, the VA\rquote s National Acquisition Center (NAC) \supports [the] health care requirements of VA and other government agencies\ by awarding and managing the variety of acquisition and delivery contracts that connect suppliers with government purchasers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.va.gov/oal/about/nac.asp (last visited February 11, 2016). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.fss.va.gov/ (last visited February 11, 2016). Finally, the VA\rquote s Office of the Inspector General (OIG) has a dedicated Office of Contract Review that \provide[s] preaward, postaward, and other requested reviews of vendors\rquote proposals and contracts.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.va.gov/oig/about/contract-review.asp (last visited February 11, 2016). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.va.gov/oal/business/fss/gettingOnSchedule.asp (last visited February 11, 2016). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Department of Veterans Affairs, http://www.va.gov/oal/business/fss/rfmProcess.asp (last visited February 11, 2016). The clauses specify that all requests for modification (RFM) must be submitted to the contracting officer (CO) for review, and that vendors requesting modifications must provide CSP information for the affected products\u8212including, if the vendor is a dealer/reseller, manufacturers\rquote CSP information. AR Tab 2 at 53. The VA\rquote s goal is \to review all modification requests and make an award/no award decision within 60 calendar days from receipt.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 052 - Avkare Inc v United States.doc, Paragraph with 'Veteran: U.S. Dep\rquote t of Veterans Affairs, http://www.va.gov/oal/business/fss/resellers.asp (last visited February 11, 2016). It defines a \reseller\ as \a company or individual that purchases commercial goods or services with the intention of reselling them rather than consuming or using them.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Paragraph with 'Veteran: Government contractor sufficiently stated Fifth Amendment due process claim by alleging that Department of Labor\rquote s Office of Inspector General (DOL-OIG) report, which found that Assistant Secretary of Department of Labor\rquote s Veterans\rquote Employment and Training Services (DOL-VETS) abused his authority by giving contractor advisory and assistance contracts, included statements from interviewees, which, taken together, gave unmistakable impression that contractor had few scruples about acting unethically, unlawfully, dishonestly, and ineffectively, such that the report cast doubt on contractor\rquote s good name, and had effect of both precluding contractor from contracting with government and rendering it unable to secure work from private-sector employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Paragraph with 'Veteran: According to the Complaint, which the Court must accept as true in evaluating Defendants\rquote Motion, Liff is a seasoned HR executive, having worked for several decades in senior positions within the U.S. Departments of Defense and Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Paragraph with 'Veteran: of the administration\rquote s transition team for the Department of Veterans Affairs to promote his skills and suggest reforms for the agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Paragraph with 'Veteran: , \u182 19. The individual he contacted, Ray Jefferson, did not end up serving in the VA but was appointed instead as Assistant Secretary for DOL\rquote s Veterans\rquote Employment and Training Service (DOL-VETS), which provides job training and other employment-related resources for returning service members. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 065 - Liff v Office of the Inspector General for the US Department of Labor.doc, Paragraph with 'Veteran: , \u182 52. Former federal-agency clients stopped doing business with him, including several branches of the Department of Veterans Affairs in California. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 067 - Itility LLC v United States.doc, Paragraph with 'Veteran: Coal. for Common Sense in Gov\rquote t Procurement v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 073 - Constellation West Inc v United States.doc, Paragraph with 'Veteran: companies provide COOP, DR, operations for federal customers. Constellation West outlined the COOP/DR plan for USSTRATCOM [United States Strategic Command] and provides COOP/DR support to USSTRATCOM, USAF [United States Air Force], VA [Department of Veterans Affairs], EPA [Environmental Protection Agency], and USDA [United States Department of Agriculture]. IT Contingency Planning is an element in a larger Continuity Planning Program that includes Contingency Planning and DR, BIA [Business Impact Analysis] and Testing of Consulting in COOP, DR, and Contingency Plans. TCW has extensive experience supporting federal Continuity Programs, including developing and testing Contingency and DR Plans and integrating them into a synergistic framework with other contingency capabilities to protect agencies from natural, technological, and human risks. Given the criticality of IC missions, TCW understands the importance of ensuring that DIA can effectively recover and restore its IT systems to full operational status if they are disrupted for any reason using standardized and comprehensive DR/COOP policies and guidelines consistent with industry best practices. Integrating backup DR/COOP planning into the SDLC [Software Development Life Cycle] process reduces risks and costs by assuring that these requirements are built into the solution from the start. TCW has demonstrated support for planning, execution and management of enterprise data backup, DR, and COOP operations and support services ...\. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: The prosecution alleges that from about late 2005 to about November 2010, Gorski fraudulently represented to federal government agencies that Legion was a Service\u8211Disabled Veteran Owned Small Business Entity (SDVOSB) in order to qualify for and obtain government contracts. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: . To qualify as an SDVOSB, an entity must be at least fifty-one percent owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: . The entity must also be controlled by one or more service-disabled veterans, meaning that both long-term decision-making and day-to-day management are conducted by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: . Before February 8, 2010, the service-disabled veteran owners were not required to work full time but had to \show sustained and significant time invested in the business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: . Effective February 8, 2010, the regulations were amended to require that a service-disabled veteran owner \work full-time in the business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: . The essence of the criminal case against Gorski is that Gorski, a non-veteran, made false statements about the ownership, operation, and control of Legion to appear to be in compliance with the SDVOSB eligibility requirements while retaining effective ownership and control of the company for himself. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: The prosecution alleges the following facts. Around late 2005, Gorski approached Veteran A, a service-disabled veteran, to start a construction business targeting SDVOSB contracts. Gorski told Veteran A that he wanted Veteran A\rquote s involvement for his \veteran status.\ Gorski filed a certificate of incorporation for Legion in January 2006, with Veteran A Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: From January 2006 to August 2007, Veteran A was nominally the fifty-five percent owner of Legion. In August 2007, Gorski caused Legion to undergo a corporate restructuring in which Gorski became a nominal forty-nine percent owner, Veteran A became a nominal eleven percent owner, and Veteran B\u8212also a service-disabled veteran\u8212became nominal owner of the remaining forty percent. However, Veteran A received no compensation for the stock that he relinquished. Meanwhile, Gorski retained effective control of Legion by having the veterans execute demand notes payable to Gorski and secured by their shares of Legion stock, as well as by having them sign employment agreements that allowed Gorski to terminate their employment with Legion for cause. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: Gorski also placed his wife on Legion\rquote s payroll even though she had full-time employment elsewhere, as a disguised method to pay himself more money than he was paying the veterans. Throughout this time, Legion was awarded government contracts based on representations that it qualified as an SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: In late 2009, Legion retained Mintz Levin in anticipation of the February 8, 2010, amendment in regulatory criteria for SDVOSBs. Mintz Levin effected a corporate restructuring under which Veteran B purchased Veteran A\rquote s remaining stock, resulting in Veteran B nominally owning fifty-one percent of Legion\rquote s shares and Gorski nominally owning forty-nine percent. Although the purchase did not occur until March 23, 2010, the documents were dated \as of\ February 1, 2010\u8212before the date of the regulatory amendments. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: On March 8, 2010, one of Legion\rquote s competitors filed a bid protest with the U.S. Small Business Administration (SBA) challenging Legion\rquote s SDVOSB status. The protest related to a bid submitted by Legion on January 11, 2010. On April 5, 2010, Legion, with the assistance of Mintz Levin, filed a response to the SBA. The response included new corporate documents prepared by Mintz Levin purporting to show that Legion restructured on February 1, 2010. The record supports the district court\rquote s finding that the new corporate documents were crafted so as to make it appear that they were signed before the date of the SBA regulatory amendments, when they were not, and that an affidavit that flatly swore under penalty of perjury that Veteran B purchased the stock on February 1, 2010, was false. Further, it is plain that Gorski likely knew that his lawyers\rquote handiwork could lead SBA to believe that which was false. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: Between July 29, 2010, and November 19, 2010, Gorski had discussions with Legion\rquote s accountant about circumventing the SDVOSB regulations that require the service-disabled veteran owner to be the company\rquote s highest paid officer. Gorski and Legion\rquote s accountant discussed a plan under which Gorski would receive additional, hidden compensation in a special bank account. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 075 - US v Gorski.doc, Paragraph with 'Veteran: and transfers of Legion stock involving Gorski, Veteran A, and Veteran B; and the March 2010 bid protest filed against Legion. Mintz Levin and Legion withheld production of certain documents on the basis of attorney-client privilege. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful filed post-award bid protest against Department of Veterans Affairs (VA), challenging VA\rquote s decision to award ambulance service contract to another bidder. Parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: response of successful bidder to VA\rquote s request for clarification regarding percentage of personnel costs for service-disabled veteran-owned small businesses (SDVOSB) far exceeded the scope of the VA\rquote s clarification request and materially changed bidder\rquote s original proposal; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Providing evidence of a South Carolina business license was a material term in Department of Veterans Affairs\rquote (VA) solicitation for ambulance services rather than an administrative requirement, and thus successful bidder that did not provide such business license when submitting its proposal was ineligible for contract award and VA\rquote s award to successful bidder was arbitrary and capricious; acquisition utilized lowest price technically acceptable selection procedures, which required offerors to meet certain technical requirements to be eligible for contract award, business license was listed as an evaluation factor for contract award, and solicitation specifically required a license be provided, not just obtained by offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Response of successful bidder to Department of Veterans Affairs\rquote (VA) request for clarification regarding percentage of personnel costs for service-disabled veteran-owned small businesses (SDVOSB) far exceeded the scope of the VA\rquote s clarification request and materially changed bidder\rquote s original proposal to conform to requirement that at least 50% of personnel costs be performed by a SDVOSB in solicitation for ambulance services, and thus VA\rquote s acceptance of bidder\rquote s revised proposal was arbitrary and capricious, where successful bidder\rquote s original offer stated that it was a SDVOSB, but would be subcontracting all ambulance services, and that it would be subcontracting with a non-SDVOSB, with a SDVOSB as a back-up, whereas successful bidder\rquote s response to request for clarification stated that it would be responsible for 25% of the cost of personnel performance, and added a new subcontractor that was SDVOSB, which would be responsible for 35% of cost of personnel performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder that filed bid protest to Department of Veterans Affairs (VA) solicitation for ambulance services had a substantial chance of being awarded the contract if not for VA\rquote s errors in rating successful bidder\rquote s offer as technically acceptable even though it failed to include required evidence of business license and in permitting successful bidder to change its offer in response to request for clarification, and thus unsuccessful bidder was prejudiced by VA\rquote s errors and entitled to judgment in its favor, where unsuccessful bidders was only other bidder considered technically acceptable by VA and thus eligible to be awarded contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Court would award permanent injunctive relief against Department of Veterans Affairs (VA) prohibiting it from awarding contract for ambulance services to successful bidder, in unsuccessful bidder\rquote s bid protest challenging VA\rquote s errors in rating successful bidder\rquote s offer as technically acceptable even though it failed to include required evidence of business license and in permitting successful bidder to change its offer in response to request for clarification, where VA\rquote s award of contract to successful bidder constituted a significant, prejudicial error in procurement process, irreparable harm occurred to unsuccessful bidder, who was only other technically acceptable offeror, from being denied equitable opportunity to compete and from incurring monetary loss, successful offeror did not articulate any special consequences in terminating contract, and public interest in ensuring that government procurement process was fair and even-handed was served by injunction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Bid Protest; Solicitation; Department of Veterans Affairs; RCFC 52.1; Cross\u8211Motions for Judgment on the Administrative Record; SDVOSB; Corrective Action; Ambulance Services; FAR 52.219\u821114; FAR 15.306(a); FAR 15.306(e)(1); VAAR 852.219\u821110 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: This postaward bid protest is before the court on the parties\rquote cross-motions for judgment on the administrative record pursuant to Rule 52.1(c) of the Rules of the United States Court of Federal Claims (\RCFC\). Plaintiff, Excelsior Ambulance Service, Inc. (\Excelsior\ or \plaintiff\), challenges an award of a contract for ambulance services to LMC Med Transportation, LLC (\LMC\) by the United States Department of Veterans Affairs (\VA\). After plaintiff filed this protest, defendant took corrective action, and then confirmed its award to LMC. Plaintiff challenges, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: AR 13, 119. The solicitation provided that a firm fixed-price contract would be 100% set aside for a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Second, Excelsior argues that the VA\rquote s decision to award the contract to LMC was arbitrary and capricious, without a rational basis, or contrary to law because it exceeded the scope of the corrective action that it defined. Excelsior relies on VAAR 852.219\u821110(a), which defines an SDVOSB as a small business whose management and daily business operations are controlled by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: The purpose of this requirement is to furnish 24 hours, 7 days a week ambulance service consisting of basic life support and advance life support transportation services for the beneficiaries of the Veterans Administration Williams Jennings Bryan Dorn (WJBD) VA Medical Center, Columbia, South Carolina and affiliated community based outpatient clinics. This shall include urgent or emergent requirements and non-emergency requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Definition. For the Department of Veterans Affairs, \Service-disabled veteran-owned small business concern\: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: (i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans (or eligible surviving spouses); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: (ii) The management and daily business operations of which are controlled by one or more service-disabled veterans.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: A service-disabled veteran-owned small business concern agrees that in the performance of the contract, in the case of a contract for: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: (1) Services (except construction), at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible service-disabled veteran-owned small business concerns; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: Upon review of the record, a determination has been made to take corrective action on the reference solicitation. The corrective action requires that each offeror clarifies [its] ability to comply with the contracting limitations as outlined in [VAAR] 852.219\u821110(c)(1).... The clarification must clearly address how the offeror intends to insure [sic] that \at least 50 percent of the cost of personnel for contract performance will be spent for employees of the concern or employees of other eligible veteran-owned small business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 078 - Excelsior Ambulance Service Inc v United States.doc, Paragraph with 'Veteran: It bears noting that this procurement concerns a contract to provide ambulance services for veterans. The vital nature of the services to be provided pursuant to this contract bolsters this court\rquote s finding that the business license element under Factor 1 was a requirement to be satisfied prior to contract award, and was not merely a matter of contract administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 084 - Raymond Express International LLC v United States.doc, Paragraph with 'Veteran: MPG West is a veteran-owned global fresh fruit and vegetable company that has served DeCA\rquote s Southeast Asia commissaries since 2008. MPG West was established in 2007 in partnership with Parma Fruit to exclusively handle DOD business. From this point forward, Parma Fruit MPG West will be identified as MPG West. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 090 - AvKARE Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder, as incumbent contractor providing generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, brought bid protest action, alleging that agency improperly refused to consider bidder\rquote s offer to renew its contract. Bidder moved to supplement administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 090 - AvKARE Inc v United States.doc, Paragraph with 'Veteran: Supplementation of administrative record, to review reasonableness of bidder\rquote s prices, in bid protest alleging bad faith by agency in denying bidder\rquote s renewal contract to supply generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, was not warranted; court did not require additional documents in order conduct effective review of the VA\rquote s decision since VA stopped evaluation of bidder\rquote s renewal offer after bidder failed to submit manufacturer\rquote s commercial sales practices information required by solicitation after VA determined that bidder was not the manufacturer of pharmaceuticals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 090 - AvKARE Inc v United States.doc, Paragraph with 'Veteran: Documents offered by unsuccessful bidder in bid protest for supply of generic pharmaceuticals to Department of Veterans Affairs (VA) purchasers, which purportedly related to VA\rquote s disparate treatment and lack of good faith in refusing to evaluate bidder\rquote s renewal offer, were insufficient to demonstrate threshold showing of bad faith as required for supplementation of administrative record in judicial review of VA\rquote s actions; documents, which only provided information about bidder\rquote s competitor and media reports analyzing competitor\rquote s business operations, were too general and not the sort of hard facts required to form factual basis for court to determine that VA treated bidder any differently from its competitor based on bias or bad faith. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 090 - AvKARE Inc v United States.doc, Paragraph with 'Veteran: AvKARE presently holds a Federal Supply Schedule (FSS) contract with the United States Department of Veterans Affairs (VA) to supply generic pharmaceuticals to VA purchasers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\3, File: 094 - National Telecommuting Institute Inc v United States.doc, Paragraph with 'Veteran: AR 302 (\The Commission noted that call centers are routinely staffed by severely disabled individuals and [ ] the Federal Government regularly utilizes such individuals on these contracts.\). Through its hiring, training, and staffing framework, Peckham demonstrated a commitment to employing severely disabled individuals and veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 09 - Allis-Chalmers Corp v Friedkin.doc, Paragraph with 'Veteran: In re Veterans\rquote Administration, 46 Comp.Gen. 813 (1967) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 15 - Onan Corp v US.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1072 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 19 - Uniroyal Inc v Marshall.doc, Paragraph with 'Veteran: ; Department of Transportation, 41 C.F.R. 12-60.212 (1977); and the Veteran\rquote s Administration, 38 C.F.R. 1.774, Rules 14-15 (1977). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Affected employees and their union brought class action to contest a decision of the Department of the Army to contract out to a private concern stevedoring and terminal services previously performed by government employees. The United States District Court for the District of New Jersey, Vincent P. Biunno, J., dismissed the suit, and plaintiffs appealed. The Court of Appeals, Adams, Circuit Judge, held that: (1) the Administrative Procedure Act did not afford plaintiffs a judicial forum to contest studies and evaluations that formed the basis for the Army\rquote s decision; (2) the Army\rquote s decision was a decision \committed to agency discretion by law\ within the meaning of the APA and thus was not subject to judicial review; (3) the reduction in force notices were not issued in contravention of federal regulations delimiting situations in which such notice may legally be issued to a government employee; (4) nothing in the civil service statutes or regulation prohibited the Government from abolishing positions held by veterans or other civil servants and contracting out the work; and (5) plaintiffs\rquote failure to exhaust the administrative remedy that was available precluded judicial review of their claim that the contracting out constituted an illegal personal service contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Veterans\rquote preferences Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Veterans\rquote preferences Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Nothing in the civil service statute or regulations prohibits the government from abolishing positions held by veterans or other civil servants and contracting out the work previously performed by them. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: In this suit the affected employees and their union essentially launch a three-pronged attack on the decision by the Army to contract out the services in question. First, they contend that the cost-analysis studies were faulty on a number of grounds, and that had the available options and their costs been properly evaluated, the use of civil service labor would have been found to be less costly to the government than contracting out. Second, plaintiffs maintain that the RIFs abrogated statutory and regulatory provisions that specify the circumstances in which RIFs may be issued and that grant the plaintiffs preferences as veterans, thereby depriving them of a due process property interest. Finally, plaintiffs argue that the contracting out in this case constitutes an illegal personal service contract, designed to circumvent the government\rquote s obligations to civil service employees. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Plaintiffs also assert that since many of the class members are veterans, they are protected from discharge by the various statutory and regulatory provisions granting preference in government employment to veterans. According to plaintiffs, these provisions create a reasonable expectation of continued employment or tenure, unless there is sufficient cause for removal. This due process property interest, the argument continues, is sufficiently strong to withstand the allegedly arbitrary, capricious and illegal actions by the Army that would deprive the plaintiffs of such rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: The flaw in this argument is that it reads too much into the provisions granting preferences to veterans. Whatever property interest the members of the class may have, its substantive dimensions are defined by the law that created it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 21 - Local 2855 AFGE (AFL-CIO) v US.doc, Paragraph with 'Veteran: Nothing in the civil service statute or regulations prohibits the government from abolishing positions held by veterans or other civil servants and contracting out the work previously performed by them. Indeed, as discussed above, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 22 - American Federation of Labor and Congress of Indus Organizations v Kahn.doc, Paragraph with 'Veteran: , 3 C.F.R. 565 (1971-75 Compilation) (1971) (requiring that Government contractors list \suitable employment openings with the appropriate office of the State employment service system\ in order to encourage employment of returning veterans; claiming only authority of President of the United States). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062 (1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: VETERANS ADMINISTRATION, Earl Hill, Stanley Buwaj and Hamberger & Co., Inc., Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Unsuccessful bidder on boiler room construction project at Veterans Administration hospital sought to enjoin Veterans Administration from awarding contract to the successful bidder. The District Court, Elfvin, J., held that: (1) purported award of contract did not render action moot; (2) unsuccessful bidder sufficiently exhausted available administrative remedies and thereby had standing to bring action; (3) unsuccessful bidder\rquote s action was not barred by laches, and (4) unsuccessful bidder sustained its burden of showing clear and prejudicial violation of procurement procedure, and thus, even though contract had been awarded in an attempt to circumvent district court\rquote s previous temporary restraining order, purported contract award would be set aside and total small business set-aside designation would be dissolved without prejudice to its proper reinstitution within discretion of Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Where unsuccessful bidder\rquote s counsel mailed preaward protest to Veterans Administration and where Veterans Administration had opportunity to consider merits of protest and concluded that it was \basically bunk,\ unsuccessful bidder sufficiently exhausted available administrative remedies and thereby had standing to bring action challenging legality of purported award of contract by Veterans Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Despite fact that unsuccessful bidder could have brought action challenging purported award of government contract at an earlier time, where unsuccessful bidder brought action with reasonable diligence after learning of futility of its administrative remedy and where any injuries suffered by Veterans Administration and successful bidder resulted directly from their insistence to proceed with contract in clear violation of temporary restraining order issued by district court, action brought by unsuccessful bidder was not barred by laches. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Unsuccessful bidder on contract for boiler room construction at Veterans Administration hospital failed to sustain its burden of showing that Veterans Administration failed to observe procedures set forth in applicable regulations in designating project as a total small business set-aside. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Veterans Administration\rquote s designation of boiler room construction project at Veterans Administration hospital as a total small business set-aside was neither arbitrary nor capricious. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Veterans Administration failed to comply with requirements of its regulations where invitation to bid contained no notice of total small business set-aside, where notice failed to include applicable size standard limiting bidders to those with annual average receipts for previous three fiscal years not exceeding 12 million dollars, and where Veterans Administration awarded contract despite unsuccessful bidder\rquote s protest, without giving written notice of denial of protest or written notice of its intention to proceed with awarding of contract prior to decision on protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Where unsuccessful bidder on boiler room construction project at Veterans Administration hospital met its burden of showing clear and prejudicial violation of procurement procedure required by regulations and where Veterans Administration employees and contractor collaborated clandestinely so as to award contract to successful bidder in order to circumvent district court\rquote s temporary restraining order, purported contract award would be set aside and total small business set-aside designation would be dissolved, despite delay and expense which would be incurred in ordering that contract award be set aside. Small Business Act, \u167 2[1] et seq., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Plaintiff John W. Danforth Company (\Danforth\) seeks to enjoin the Veterans Administration (\VA\) and individual defendants from awarding a contract for certain boiler room construction at the VA Hospital in Buffalo, N. Y. to defendant Hamberger & Co., Inc. (\Hamberger\). Plaintiff also seeks declaratory relief, in particular an order (1) declaring that the VA\rquote s designation of the construction project as a total small business set-aside be automatically dissolved and (2) directing that the contract be awarded to plaintiff. Defendants move to dismiss the action for failure to state a claim pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: Plaintiff argues that the VA ignored the regulations governing the designation of a total small business set-aside. Section 8-1.706-1 of the Veterans Administration Regulations, 41 C.F.R. s 8-1.706-1, As amended, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with 'Veteran: requires that \(e)ach Veterans Administration contracting officer will comply with the policy of the Federal Government that all purchase requirements be presumed suitable for award to small business unless there are supportable, compelling reasons why awards must be made to other than small business firms. * * * \ In making such determinations, the contracting officer must consider whether the project should be designated as a total or a partial set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 78 - International Tel And Tel Corp v U S.doc, Paragraph with 'Veteran: * * * the Government argues that the Veterans\rquote Preference Act, supra, does not apply to the Foreign Service, that the Foreign Service Act, 60 Stat. 999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\30, File: 78 - International Tel And Tel Corp v U S.doc, Paragraph with 'Veteran: , superseded by Veterans\rquote Preference Act and repealed by implication the transfer provisions of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Action for declaratory and other relief by contractor whose low bid for construction of Veterans Administration hospital was rejected on ground that contractor was not responsible prospective contractor. The United States District Court for the District of Columbia, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Contractor whose low bid for construction of Veterans Administrationhospital was rejected on ground that contractor was not a responsible prospective contractor had \standing\ to challenge agency rejection of bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: In determining whether low bidder for construction of Veterans Administration hospital was responsible prospective contractor, contracting officer was not required by federal procurement regulations and Veterans Administration procurement regulations to seek information from low bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Where trial judge did not grant summary judgment for defendants because he found that under prevailing standards the contractor whose low bid for construction of Veterans Administration hospital was rejected did not have standing to sue and Court of Appeals determined that this decision could no longer stand, this determination did not preclude consideration by Court of Appeals of summary judgment matter, particularly in view of merits having been briefed and argued in both district court and Court of Appeals; however, Court of Appeals would not enter a summary judgment but would remand where some of documents and information contemplated by summary judgment rule had not been tendered by contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: In the summer of 1968 appellant was invited to submit a bid for the construction of a Veterans Administration hospital in Tampa, Florida. When the bids were opened on October 1, 1968, appellant\rquote s was the lowest in amount of the five bids received. (Supp.App. 25.) Pursuant to the Federal Procurement Regulations, an assessment of responsibility was undertaken prior to the awarding of the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 24 - Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: After completing a careful analysis of appellant\rquote s contract responsibility, the contracting officer determined that, under the requirements of the Federal Procurement Regulations and the Veterans Administration Procurement Regulations, appellant contractor; on October 9, 1968, the Veterans Administration advised appellant by telegram that its bid had been rejected. (Brief for the Appellees at 10-11.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\31, File: 68 - U S for Use and Benefit of Victory Elec Corp v Maryland Cas Co.doc, Paragraph with 'Veteran: supports this result. There the contractor undertook to construct a veterans hospital for the United States and in connection therewith promised to furnish a surety bond required by an Act of Congress, insuring the fulfillment of the contract and \u8216for the prompt payment to all persons or parties furnishing labor or materials\rquote in the prosecution of the work. The contractor failed to give the bond and a supplier of labor and material was permitted to sue the ocntractor for the ensuing damages. While the suit was against the contractor and not the surety, the principle is the same. In permitting recovery Judge Cardozo said ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 08 - Virginia Engineering Co v US.doc, Paragraph with 'Veteran: April 3, 1937, plaintiff, as a result of competitive bidding, entered into a written contract with the defendant, represented by L. H. Tripp, Veterans\rquote Administration, as contracting officer, by the terms of which it agreed to construct a building designated as Hospital Building No. 110, at the Veterans\rquote Administration Facility, Kecoughtan, Virginia, for a consideration of $694,100, all work to be performed in strict accordance with the specifications, schedules, and drawings, all of which were made a part of the contract by reference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 08 - Virginia Engineering Co v US.doc, Paragraph with 'Veteran: September 17, 1937, and after the rental period and cost of operating the wellpoint system had been established, plaintiff wrote to the construction service, Veterans\rquote Administration, requesting a change order, the request being as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 08 - Virginia Engineering Co v US.doc, Paragraph with 'Veteran: If the Veterans\rquote Administration wished to leave the matter of determining the approximate water line to independent investigation prior to opening date of proposal under which our contract was awarded, it might easily have omitted any reference on the plan as to the approximate water line. The Test Pit Data and Note on drawing Number 110-25 assured us of the character of materials and approximate water line and the cost of excavation, pumping, etc., based on the representation of conditions as shown on that drawing was reflected in our proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 08 - Virginia Engineering Co v US.doc, Paragraph with 'Veteran: July 11, 1938, plaintiff appealed its claim to the Administrator of the Veterans\rquote Administration as the head of the department, submitting with the appeal the complete file of correspondence. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 08 - Virginia Engineering Co v US.doc, Paragraph with 'Veteran: November 12, 1938, the assistant administrator of the Veterans\rquote Administration notified plaintiff as follows: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\32, File: 67 - McKee v US.doc, Paragraph with 'Veteran: The astute and subtle reasoning resorted to to evade obligations, I cannot help thinking, would never have found tolerance, if the present action was between those imaginary veteran litigants, John Doe and Richard Roe, instead of between the Government and a citizen-claimant. I do not choose to strain analogies or coerce authorities to favor either party. My desire is to properly adjust the relative influences of principle and authority with as much precision as is consistent with the character of the subject to be considered, so as to do and promote justice between contestants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aero Corp v Department of the Navy.doc, Paragraph with 'Veteran: National Assoc. of Concerned Veterans v. Secretary of Defense, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Aero Corp v Department of the Navy.doc, Paragraph with 'Veteran: National Assoc. of Concerned Veterans, supra, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Federation of Government Emp Local 1858 v Callaway.doc, Paragraph with 'Veteran: . While the plaintiffs claim the protection of the Lloyd-LaFollette Act, they also enjoy the entitlement benefits from other sources too numerous to set out fully here. The primary source securing the plaintiffs\rquote claims of entitlement in the present case is regulatory: Federal Personnel Manual (FPM), Chapter 351. FPM 351 defines the retention rights of federal employees, including the right to displace other employees in the same subgroup (\u8216retreat\u8217 rights), or in different subgroups (\u8216bump\u8217 rights), who possess less tenure, or no veterans preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Federation of Government Emp v Hoffmann.doc, Paragraph with 'Veteran: Veterans\rquote preferences Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Federation of Government Emp v Hoffmann.doc, Paragraph with 'Veteran: Veterans\rquote preferences Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Federation of Government Emp v Hoffmann.doc, Paragraph with 'Veteran: So long as the seniority rights and veterans\rquote preferences among other Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: American Federation of Government Emp v Hoffmann.doc, Paragraph with 'Veteran: the efficiency of the service. Thus, if each plaintiff were being separated in an adverse action proceeding, that statute would protect them. See Arnett v. Kennedy, supra. Plaintiffs, however, are being separated in a reduction-in-force. Therefore, their protection is limited to seniority rights preventing their separation ahead of a more junior employee. So long as their seniority rights and veteran\rquote s preference among other Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Action by contractor against administrator, associate deputy administrator and construction contracting officer of Veterans Administration for declaratory judgment that contractor was responsibile low bidder for construction of hospital and that award of contract to another company for that construction job was illegal, and also for relief in nature of mandatory injunction. On plaintiff\rquote s motion for preliminary injunction and defendants\rquote motion to dismiss complaint for lack of jurisdiction, the District Court, William B. Jones, J., held that officials of Veterans Administration, who rejected contractor\rquote s low bid and awarded contract to another company after determining on basis of contractor\rquote s past performance record that it was not a responsible bidder, without, inter alia, consulting with contractor with respect to matter of its responsibility, or referring question to small business administration, acted within statutory powers, and absent showing that they acted through bias or prejudice or coercion, contractor\rquote s suit against officials was barred under doctrine of sovereign immunity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Action would lie against officials of Veterans Administration as individuals only if their actions in rejecting plaintiff\rquote s bid and awarding construction contract to another construction company were not within officials\rquote statutory powers or, if within those powers, only if powers or their exercise were constitutionally void. Federal Property and Administrative Services Act of 1949, \u167 205(c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Officials of Veterans Administration, who rejected contractor\rquote s low bid and awarded contract to another company after determining on basis of contractor\rquote s past performance record that it was not a responsible bidder, without, inter alia, consulting with contractor with respect to matter of its responsibility, or referring question to small business administration, acted within statutory powers, and absent showing that they acted through bias or prejudice or coercion, contractor\rquote s suit against officials was barred under doctrine of sovereign immunity. Federal Property and Administrative Services Act of 1949, \u167 205(c), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: To debar a person from bidding and contracting with Veterans Administration without established standards, reasonable notice and a fair hearing would be illegal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Plaintiff has brought this action against the three named defendants in their respective official capacities as Administrator of the Veterans Administration, Associate Deputy Administrator of the Veterans Administration and Construction Contracting Officer of the Veterans Administration. It seeks a declaratory judgment that plaintiff is the responsible low bidder for the construction of the Tampa, Florida, Veterans Administration Hospital and that the award of the contract to J. A. Jones Construction Company for that construction job was illegal. Plaintiff also seeks relief in the nature of a mandatory injunction that all future bids of plaintiff be considered fairly and without bias or prejudice and that defendants be ordered to rescind a notice to the Jones Company to proceed with the construction and that the work be suspended until the Comptroller General of the United States has had an opportunity to decide the merits of the plaintiff\rquote s protest. Plaintiff\rquote s application for a temporary restraining order was denied by this Court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Plaintiff, in its complaint, alleges that pursuant to an invitation of the Veterans Administration it prepared and deposited a bid for the construction of the Tampa, Florida, Veterans Administration hospital; that it was one of five bidders and of the five it was the low responsive bidder; that thereafter on October 9, 1968 it received a telegram from the Construction Contracting Officer of the Veterans Administration advising plaintiff that the contracting officer did not consider it to be a responsible prospective contractor for the Tampa, Florida, hospital and that its bid was therefore rejected; that the contracting officer had not consulted or discussed with the plaintiff or requested any statements from plaintiff with respect to the matter of plaintiff\rquote s responsibility; and that the contracting officer, defendant Robinson, was by regulation required to refer any question he might have with respect to the capacity or credit or the plaintiff to the Small Business Administration for review and determination and that Robinson did not do so. Plaintiff also alleges that prior to receipt of notice of rejection of its bid it had filed a protest by telegram to the Veterans Administration and to the Comptroller General; that on October 10, 1968 it was advised by defendant Robinson of the award of the Tampa Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: are biased and prejudiced against plaintiff and that the defendants were acting arbitrarily and capriciously when they rejected plaintiff\rquote s bid. Further, plaintiff alleges that the actions of the defendants have resulted in plaintiff being illegally debarred of its right to bid and contract with the Veterans Administration. Plaintiff asserts that between January 1963 and June 1967 it, in sole venture or in joint venture with other companies, had been awarded contracts by the Veterans Administration to perform new construction or air conditioning and remodeling work at several Veterans Administration hospitals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Plaintiff also complains that defendant Robinson as contracting officer made the award to Jones Company without awaiting the decision of the Comptroller General on plaintiff\rquote s protest. This, according to the plaintiff, was in violation of \u167 1-2.407-8(b) of the Federal Procurement Regulations. 41 C.F.R. \u167 1-2-407-8(b). But that provision of the regulations only deals with protests received before the award is made. Here, as the record discloses, plaintiff\rquote s protest was made subsequent to Robinson making the award to Jones Company. On October 9, 1968 Robinson\rquote s telegram to plaintiff advising of the rejection of its bid was transmitted at 3:08 P.M. On the same day at 3:07 P.M. there was transmitted Robinson\rquote s telegram to Jones Company advising that the latter\rquote s bid on the Tampa Hospital job was accepted. It was not until 5:42 P.M. of October 9, 1968 that plaintiff\rquote s notice of protest was received in the teletype room of the Veterans Administration. The nornal business day of that agency terminated at 4:30 P.M. and, therefore, the protest did not come to Robinson\rquote s attention until after the commencement of business the next day, October 10, 1968. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: Plaintiff further asserts that defendants by their acts and failures to act have wrongfully debarred it from bidding and contracting with the Veterans Administration. That a debarment or \u8216blacklisting\u8217 can have a serious adverse effect on a contractor needs no argument. To debar a person without established standards, reasonable notice and a fair hearing would be illegal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: and Monk\rquote s criticism of plaintiff\rquote s past performances. But to be criticized by the Administrator and Associate Deputy Administrator of the Veterans Administration is not to be debarred. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: As alleged in the complaint plaintiff was invited to bid on the Tampa job on August 15, 1968 which was subsequent to the alleged meetings with defendant Monk. If plaintiff had been debarred, the Veterans Administration would not have invited it to bid. 41 C.F.R. 1-1.603. It was not debarment but authorized action by the contracting officer that resulted in rejection of plaintiff\rquote s bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Blackhawk Heating And Plumbing Co v Driver.doc, Paragraph with 'Veteran: at which times those two defendants were highly critical of plaintiff and its contract performances. The complaint also alleges that on an occasion officers and representatives of plaintiff met with staff personnel of the Committee on Veterans Affairs of the House of Representatives at which defendant Monk was present, which meeting may have reflected discredit upon the Veterans Administration. As a result of all of this plaintiff alleges that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Century Metal Parts Corp v US.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fairplain Development Co v Freeman.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1072 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Fairplain Development Co v Freeman.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1072 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Hayes Intern Corp v McLucas.doc, Paragraph with 'Veteran: Rapides Regional Medical Center v. Secretary, Dept. of Veterans\rquote Affairs Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Health Care Service Corp v Califano.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Health Care Service Corp v Califano.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062, 1070 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Health Care Service Corp v Califano.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Health Care Service Corp v Califano.doc, Paragraph with 'Veteran: John W. Danforth Co. v. Veterans Administration, 461 F.Supp. 1062 (W.D.N.Y.1978) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: HLI Lordship Industries Inc v Committee for Purchase from the Blind and Other Severely Handicapped.doc, Paragraph with 'Veteran: It having been disclosed by this time that the Committee proposed to have the medals supplied noncompetitively by Elwyn, Lordship argued that Elwyn proposed to subcontract most of the manufacturing tasks to one of two commercial firms (one being in bankruptcy), that Elwyn had never produced a medal as prime contractor, and that therefore the reliability of the subcontractors and Elwyn should be investigated. Lordship also argued that the manufacturing steps that Elwyn proposed to subcontract comprised 70% of the labor required to produce the medal and that Elwyn\rquote s use of a subcontractor would thus violate a requirement of the statute that 75% of the work be performed by the blind or severely handicapped. It also pointed out that Lordship subcontracted part of its work to handicapped persons at a psychiatric center and a veteran\rquote s hospital, and that loss of its contract would reduce Lordship\rquote s sales and ability to subcontract to handicapped workers, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Informatics General Corp v Weinberger.doc, Paragraph with 'Veteran: The first conflict of interest identified by plaintiff involves EDS\rquote participation in ongoing Veterans\rquote Administration (VA) hospital automation demonstration projects. The VA is using the demonstration projects to evaluate the merits of two competing automation systems, known as MUMPS and non-MUMPS, one of which it will adopt for the automation of its entire hospital system. Congress, recognizing the potential economies in having the VA and DOD use similar automation systems, has directed DOD and VA to develop compatible hospital automation systems. In particular, Congress has directed DOD to design the CHCS RFP and competition to select the outstanding MUMPS and non-MUMPS proposals and to conduct a \fly-off\ between the MUMPS and non-MUMPS systems to select the CHCS contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Molina Healthcare of California Inc v United States.doc, Paragraph with 'Veteran: , in which a plaintiff lawyer agreed to represent a veteran in proceedings before the Department of Veteran Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Molina Healthcare of California Inc v United States.doc, Paragraph with 'Veteran: . The plaintiff executed a fee agreement which \specifically authorized the Secretary of Veterans Affairs to make direct payment of the attorney\rquote s fee to [plaintiff] in the event of a favorable decision.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Molina Healthcare of California Inc v United States.doc, Paragraph with 'Veteran: (citations omitted). When the Government instead made full benefit payments to the veteran, the plaintiff sued the Government for breach of an implied-in-fact contract. The statute at issue was Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Molina Healthcare of California Inc v United States.doc, Paragraph with 'Veteran: (emphasis added). The Federal Circuit further held that the \[Department of Veterans Affairs] had no legal authority to pay attorney fees when the payment of the complete amount of the past-due benefits had already been made to the claimant ....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: \) and its president, Paul Verner, the Blinded Veterans Association, Inc. (\Blinded Veterans\), the Association for the Education and Rehabilitation of the Blind and Visually Impaired (\Association\), the American Council of the Blind (\American Council\), the Affiliated Leadership League of and for the Blind of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: , the Blinded Veterans, the Association, the American Council, and the Affiliated Leadership League. Although the Court finds that the individual plaintiffs, the Association, and the Affiliated Leadership League do not have standing to challenge these contracts, the remaining plaintiffs are properly before the Court. The findings with respect to the individual plaintiffs and the associational plaintiffs are discussed in turn. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: , the Blinded Veterans, the Association, the American Council, and the Affiliated Leadership League\u8212to challenge the two procurements is more difficult to resolve. An association may seek relief for injuries suffered in its institutional capacity, as well as injuries suffered in its capacity as a representative of its members. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: Plaintiffs\rquote Motion at 14\u821116. All of the associational plaintiffs are membership organizations concerned with the interests of blind individuals. Specifically, the National Council is a membership organization of state licensing agencies. The Blinded Veterans, American Council of the Blind, and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Randolph-Sheppard Vendors of America v Weinberger.doc, Paragraph with 'Veteran: Act. When the issue is framed in this fashion, it appears that the Blinded Veterans, the American Council, and the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Regional Scaffolding And Hoisting Co Inc v City of Philadelphia.doc, Paragraph with 'Veteran: had solicited bids for the general concession contract for Veterans\rquote Stadium. The Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v National Optical Stores Co.doc, Paragraph with 'Veteran: Early in 1960, the Government sought bids on a former Veterans\rquote Administration Hospital Reservation in Waukesha, Wisconsin. One of the general terms and conditions of the bid invitation, contained in section 6, provided in part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v Sunshine Dairy.doc, Paragraph with 'Veteran: products to Veterans\rquote Administration for hospital, and prices submitted by producer in bid were below new minimum prices, and Department of Agriculture notified producer that it would instigate legal proceedings to enjoin producer from making deliveries to hospital at prices submitted in bid, and Veterans\rquote Administration opened bids and found that producer\rquote s bid was low bid, and producer requested permission of Veterans\rquote Administration to withdraw bid, and subsequently Veterans\rquote Administration awarded contract to producer, producer\rquote s revocation of bid was warranted under circumstances and under Standard Form, which was incorporated by reference in instructions to bidders, and which provided that bids could be withdrawn on request from bidders prior to time fixed for opening, and that negligence on part of bidder conferred no right to withdraw bid after it was opened. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v Sunshine Dairy.doc, Paragraph with 'Veteran: products to Veterans\rquote Administration, and prices submitted by producer in bid were below new minimum prices, and Veterans\rquote Administration opened bids and found that producer\rquote s bid was low bid, and thereafter producer requested permission of Veterans\rquote Administration to withdraw bid, revocation of bid was warranted under circumstances and under Standard Form, which was incorporated by reference in instructions to bidders, and which provided that bids could be withdrawn on request from bidders prior to time fixed for opening, and that negligence on part of bidder conferred no right to withdraw bid after it was opened. Rules and Regulations, Sec. 54.12, subd. 12, 41 U.S.C.A. Appendix. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v Sunshine Dairy.doc, Paragraph with 'Veteran: The Veterans\rquote Administration, an agency of the United States, operates a hospital known as Marquam Hill in Portland, oregon. The legal title to this institution and the ground thereof is and long has been in the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v Sunshine Dairy.doc, Paragraph with 'Veteran: stating that the bid that it had submitted to the Administration was below the minimum prices established by the Department. The letter further stated that the Department had notified the addressee by telephone and letter advising it of the promulgation of the June 12 order. The letter concluded with the statement that \u8216this Department has no alternative other than to instigate legal proceedings to enjoin you from making deliveries to the Veterans\rquote Hospital at the prices submitted in your bid.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: US v Taylors Oak Ridge Corp.doc, Paragraph with 'Veteran: In some relations the principle has been carried to the extreme limit by statute, as in the administration of Veterans\rquote affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\33, File: Virgin Islands Taxi Association v West Indian Company Limited.doc, Paragraph with 'Veteran: (concluding that a challenge to the Department of Veterans Affairs\rquote refusal to apply the statutory \Rule of Two\ under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: Incumbent contractor who had failed to receive award of contract to provide Veterans Administration (VA) with janitorial and sanitation supplies after the contract\rquote s products had been determined to be subject to government-wide blanket purchase agreements, pursuant to federal strategic sourcing initiative (FSSI), filed post-award bid protest seeking temporary restraining order (TRO) and preliminary injunction against implementation of the mandatory-use policy. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: Although incumbent contractor was an actual bidder on government contract for janitorial and sanitation supplies, since it had submitted a proposal in response to Veterans Administration\rquote s (VA) request for information (RFI), it lacked a direct economic interest in the procurement, and claimed no error in the award of the contract, and thus, lacked \interested party\ status required to have standing to file suit against the government for injunctive relief; although the bidder had previously sold almost five million dollars in paper products to the VA, accounting for 32 percent of the VA\rquote s paper product purchases, its bid was substantially higher than other offerors, so it lacked a substantial chance of winning the contract, and although bidder sought injunctive relief to prevent implementation of the VA\rquote s decision that the contract products were subject to newly established government-wide blanket purchase agreements, pursuant to federal strategic sourcing initiative (FSSI), this alleged error occurred almost a year after award of the contract, so was a distinct issue, not \in connection with\ determination that bidder\rquote s proposed quote did not offer the best overall value and most advantageous terms to the government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: The ClayGroup, LLC (\ClayGroup\) is a Service\u8211Disabled Veteran\u8211Operated Small Business (\SDVOSB\) that supplies janitorial and sanitation supplies to the Government. AR 1558. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: On August 22, 2013, the United States Department of Veterans Affairs (\VA\) announced that it would: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: purchases, purchases that are obtained under existing VA prime vendor arrangements, and purchases for motorized cleaning equipment and accessories as the anticipated FSSI solution does not anticipate awards to Veteran-owned small businesses (VOSBs) and/or service-disabled Veteran-owned small businesses (SDVOSBs) in this specific category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: On March 19, 2015, the VA\rquote s Deputy Assistant Secretary for Acquisition and Logistics issued a Memorandum, providing that the Jan\u8211San \BPAs are mandatory use contradicting vehicles for the seventeen commodities that were standardized by the Veterans Health Administration.\ AR 2373. This Memorandum also specified that this BPA included toilet paper, paper towels, and toilet seat covers that were part of the Category 3 Jan\u8211San BPA for which ClayGroup also submitted a quotation. AR 2375. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: Dep\rquote t of Veterans Affairs, Mandatory Use Provisions Temporarily Suspended for Janitorial and Sanitation Supplies Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: AR 2373 (March 19, 2015 VA Memorandum stating that the Jan\u8211San \BPAs are mandatory use contradicting vehicles for the seventeen commodities that were standardized by the Veterans Health Administration\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: The SSLC \consist[s] of representatives from the Departments of Defense (DOD), Energy, Health and Human Services, Homeland Security, Veterans Affairs, the General Services Administration, the National Aeronautics and Space Administration, and other agencies as designated by the Administrator\ and \lead[s] the [G]overment\rquote s efforts to increase the use of [G]overnment-wide management and sourcing of goods and services.\ AR 2049. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: (a) Contracting goals.\u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: (A) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 007 - ClayGroup LLC v United States.doc, Paragraph with 'Veteran: (B) establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 009 - Cyios Corporation v United States.doc, Paragraph with 'Veteran: Tab 6a, AR 148 (\The GOMONET will require retired general officers to log on using user name and password.\). CYIOS also described xxxxxxxx as \a secure, self-service logon credential ... allowing Beneficiaries affiliated with the Department of Defense (DoD) or Department of Veterans Affairs (VA) access to several websites using a single username and password.\ Tab 10a, AR 367\u821168 \u182 3.1.1 (quoting xxxxxxxxxxxxxxxxxxxxxxxx). This authentication system will replace over time the Army\rquote s current system, Army Knowledge On\u8211Line Single Sign On (AKO SSO). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: , affirmed by Office of Hearings and Appeals (OHA), that bidder was not qualified as service-disabled veteran-owned small business concern (SDVO SBC) and thus ineligible to bid on or be awarded set-aside contract with Department of State. Following intervention by two unsuccessful bidders as defendants, the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) did not violate law or abuse its discretion in determining that service-disabled veteran holding 51% of bidder\rquote s Series A common stock but none of its Series B preferred stock did not hold more than 51% of \each class\ of voting stock, within meaning of regulation prescribing ownership criteria for status as service-disabled veteran-owned small business concern (SDVO SBC), and thus, bidder was ineligible to bid on or to be awarded set-aside contract with Department of State. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Small Business Administration\rquote s (SBA) Office of Hearings and Appeals (OHA) reasonably determined that service-disabled veteran holding 51% of bidder\rquote s Series A common stock but none of its Series B preferred stock did not hold more than 51% of \each class\ of voting stock, within meaning of regulation prescribing ownership criteria for status as service-disabled veteran-owned small business concern (SDVO SBC), thus rendering bidder ineligible to bid on or to be awarded set-aside contract with Department of State, since plain meaning of common stock and preferred stock supported class distinction, and two series were not functionally equivalent but instead were separate classes with different dividend, conversion, and redemption rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Bid Protest; Small Business Administration (SBA); Office of Hearings & Appeals (OHA); Service\u8211Disabled Veteran Owned Small Business Concern (SDVO SBC); Eligibility; Status; Ownership Criteria; 15 U.S.C. \u167 632(q); 13 C.F.R. pt. 125; 13 C.F.R. \u167\u167 125.9(d), 125.10; Decision After Remand to Agency Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: In this bid protest, Precise Systems, Inc. challenges rulings of the Small Business Administration (SBA), affirmed by the Office of Hearings and Appeals (OHA), that found Precise was not an eligible \service-disabled veteran-owned small business concern\ (SDVO SBC) for failure to satisfy ownership criteria set forth in SBA regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: , which requires that a service-disabled veteran own, unconditionally and directly, \at least 51% of each class of voting stock\ as a prerequisite to SDVO SBC status. The agency had broadly construed \class of voting stock,\ and had concluded that Precise\rquote s Series A Common Stock and Series B Convertible Preferred Stock were separate \class[es].\ Because the service-disabled veteran-owner of Precise held \at least 51%\ of Series A but none of Series B, the agency had ultimately Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: . On remand, the OHA re-affirmed the ineligibility determination with expanded reasoning. The parties then returned to this court on appeal, revived their pre-remand dispositive motions, and submitted post-remand supplemental briefing. The court now enters its final decision upholding the agency\rquote s determination that the service-disabled veteran, on whom Precise\rquote s status is based, did not have sufficient ownership to maintain the company\rquote s status as an SDVO SBC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: . At the time, Mr. John Thomas Curtis, a service-disabled veteran, held [more than 51%] of Precise\rquote s issued shares and Precise\rquote s employees held the remaining [less than 51%] of issued shares through an Employee Stock Ownership Plan. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: AR Tab 14 at 773\u821174, Tab 15 at 791\u821193, 826\u821128, 845\u821148, 883\u821188 (four protests). The protests claimed, in relevant part, that Precise was ineligible for SDVO SBC status because it was not owned, unconditionally and directly, by a service-disabled veteran due to its ESOP. The Department of State agreed to stay award or performance of the subject contract pending resolution of this protest. Compl. \u182 55. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: AR Tab 8 at 77\u821184 (AD/GC determination). The AD/GC found that Precise did not satisfy regulatory criteria for service-disabled veteran ownership at the time of its offer and was therefore not a SDVO SBC entitled to bid on or receive the subject procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: service-disabled veterans. More specifically: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: must be unconditionally owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at *10. The OHA also rejected concerns that its decision would be inconsistent with the Veteran Administration\rquote s SDVO SBC program, noting that the VA program \is a separate program from that of [the] SBA, and it specifically exempts ESOPs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Lastly, the OHA rejected Precise\rquote s argument that only those distinctions between groups of stock that materially detract from the service-disabled veteran\rquote s ownership and control of the company should be dispositive. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at *13. Thus, the OHA resolved that the service-disabled veteran\rquote s undisputed control over Precise did not diminish the requirement that the service-disabled veteran also sufficiently own Precise. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: ECF Nos. 63\u821166. The central issue on remand remains whether the SBA erred in finding that Precise was not an eligible SDVO SBC because its Series A and Series B stock were separate \class[es] of voting stock\ and the service-disabled veteran did not own \at least 51% of each class,\ in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: In pre- and post-remand briefing, Precise argues that Series A and Series B were merely two series within \a single class of voting stock\ because, regardless of series, each share carried one vote and the shareholders voted together on substantially all issues. Pl.\rquote s Supp. Br. 2, ECF No. 61; Pl.\rquote s Supp. Resp. 1, ECF No. 65. Precise further contends that the OHA should have disregarded the differences between the series because the differences did not detract from, and in many ways enhanced, the service-disabled veteran\rquote s ownership and control of the company. Pl.\rquote s Supp. Br. 2. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: as precedent in this case\u8212that is, it was not required to engage in a qualitative analysis of whether distinctions in Series A and Series B materially detracted from the service-disabled veteran\rquote s ownership and control of the business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: were precedent, the OHA would have had to disregard any distinctions in Precise\rquote s Series A and Series B that were not meaningful (that is, did not adversely affect or dilute the service-disabled veteran\rquote s ownership or control of the entity). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at *12\u821113. Furthermore, the court cannot say that this interpretation of regulatory criteria was irrational or contrary to law because, as B3 has observed, \there is no requirement that the classes of stock maintain meaningful distinctions under the regulations.\ B3 Supp. Br. 9. The SBA\rquote s focus is plainly on preserving the service-disabled veteran\rquote s undiluted ownership; the SBA does not want any group of voting stock to exist in which the service-disabled veteran does not have at least a 51% interest. Thus, the OHA has presented a reasoned explanation for distinguishing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: the interests of the service-disabled veteran may support a finding of separate classes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: (describing differences); Def.\rquote s Supp. Br. 9\u821110 (same). The two groups of stock are not interchangeable. For example, only the service-disabled veteran owner holds Series A stock and only the employees hold Series B stock. Compl. \u182\u182 21\u821122; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Nonetheless, the OHA is within its discretion to adopt a hardline approach. In doing so, the OHA has signaled that it does not want to engage in a case-by-case analysis of whether differences inure to the benefit of the service-disabled veteran or someone else, or appear to inure to one but actually inure (or could be abused to inure) to the benefit of the other. Thus, while the differences between Series A and Series B arguably enhance the service-disabled veteran\rquote s interests in this case, this fact is irrelevant because the OHA has declined to engage in any qualitative analysis of the differences between stock with clear voting rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at 14 (\The \u8216functionally equivalent\u8217 standard therefore provides competitors a fishing license to troll for perceived variances between the shares of an SDVOSB held by its [service-disabled veteran] and [non-service-disabled veteran] owners.\). The court does not sanction, nor expect, that the rubric adopted herein will lead to \aimless and unfettered [agency] discretion.\ First, the SBA will be constrained by what variances actually exist between stock in an entity\rquote s organizational documents. Second, the SBA will enjoy very little discretion to weigh the variances it identifies because the SBA\rquote s hardline functional equivalency test all but ensures separate classes will be identified. Lastly, while it may be true that any entity adopting a capitalization system with many variables will run a greater risk of \class\ distinction, the court cannot say that this greater risk is contrary to law or irrational. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: should be understood to exempt a company from complying with regulatory ownership criteria if \a disadvantaged individual (or, by analogy, a service-disabled veteran) ... retains overall ownership and control of the company,\ because \such an interpretation is contravened by the plain language of the underlying regulations, including Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 018 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: (explaining dividends). All Points counters that Series B\rquote s preferred dividend is, in fact, preferred because the Series A Repayment Dividend, which may issue earlier, is not a dividend in the traditional sense of \new value or earnings\\u8212it merely reimburses the service-disabled veteran for funds he lent to the entity to establish the ESOP. All Points Supp. Resp. 5, ECF No. 63; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'Veteran: ), including businesses that are owned by women, businesses that are owned by service-disabled veterans, and businesses that are located in historically underutilized business zones, known as \HUBZones.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'Veteran: \u167 657f (establishing procurement program for small businesses owned by service-disabled veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 031 - Rothe Development Inc v Department of Defense.doc, Paragraph with 'Veteran: (\not less than 3 percent\ for small businesses owned by service-disabled veterans); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Government contractor brought action against Department of Veterans\rquote Affairs, challenging the decision to award a contract to provide home health care services to a competitor. Competitor intervened. Parties filed cross-motions for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans\rquote Affairs conducted a reasonable evaluation of government contractor\rquote s technical proposal that complied with the terms of a request for proposals (RFP) for a contract to provide home respiratory supplies and services to veterans and beneficiaries, and thus the Department\rquote s determination that contractor\rquote s proposal met all solicitation requirements was not arbitrary and capricious under the Administrative Procedure Act (APA), even though contractor did not have any employees or facilities in the applicable service region, where the amount of time for contractor to transition to providing services was a matter of contract administration, and not a requirement for a successful bid, and contractor provided a list of prospective personnel that it intended to assign to the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans\rquote Affairs conducted a reasonable past performance evaluation of a government contractor that complied with the terms of a request for proposals (RFP) for a contract to provide home respiratory supplies and services to veterans and beneficiaries, and thus Department\rquote s determination that contractor had \very relevant\ experience was not arbitrary and capricious under the Administrative Procedure Act (APA), despite contention that Department failed to use the same forms to evaluate contractor that were used to evaluate other bids, where contractor had provided similar services pursuant to another government contract and received positive references, and the omitted forms provided evaluators with a tool to summarize some information about contractor\u8217 previous contracts, but were not themselves the source of that information. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans\rquote Affairs conducted a rational price determination and complied with the terms of a request for proposals (RFP) for a contract to provide home respiratory supplies and services to veterans and beneficiaries, and thus the acceptance of a bid which was 10% lower than the independent government cost estimate (IGCE) was not arbitrary and capricious under the Administrative Procedure Act (APA), despite contention that the bid was unrealistically low and required a price realism analysis, where the bid was the third lowest of six initial offers, the bid was the closest to the IGCE, and the procurement involved a fixed price contract, which put the risk of an underpriced offer on the contractor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: , Office of Regional Counsel, U.S. Department of Veterans Affairs, Leeds, MA, of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Plaintiff Rotech Healthcare, Inc. (\Rotech\), the incumbent contractor, is challenging the decision of defendant Department of Veterans\rquote Affairs (\VA,\ \agency,\ or \government\) to award a contract to defendant-intervenor Community Surgical Supply, Inc. (\CSS\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: On January 17, 2014, the VA issued Request for Proposals (\RFP\ or \the solicitation\) No. VA241\u821114\u8211R\u82110003 for a contract to provide home respiratory supplies and services to veterans and beneficiaries in all the states in New England, which is classified by the Veterans Integrated Service Network (\VISN\) as geographical area No. 1, or \VISN 1.\ AR 48. The VISN 1 contractor is to run the VA\rquote s Home Respiratory Care Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: The Technical factor is further divided into five subfactors: (1) Management Approach; (2) Personnel Qualifications; (3) Operations & Quality Assurance; (4) Contingency Plan & Security; and (5) Veterans Preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: rating of \exceptional,\ meaning \the contractor\rquote s performance record within the area of evaluation exceeded that required by the contract[,]\ and a report that \Community Surgical Supply has been excellent and have satisfied all aspects of our veterans oxygen needs\ for its VISN 10 contract, under which it successfully served a population of over 4,500 patients, including ventilator patients, for five years across all of Ohio, and parts of Kentucky, Indiana and Pennsylvania. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Further, Mr. [...] noted that \VISN 10 has a stringent contract oversight process that reports to VISN and medical center leadership, Community Surgical has provided oxygen to veterans under any weather related conditions and exceeds the Joint Commission standards related to homecare.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 033 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Mr. [...] also noted that \Community Surgical staff are very courteous and professional, [and] the VA have received reports of veterans insisting that we keep this company forever.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 036 - US v Bowling.doc, Paragraph with 'Veteran: \u182\u182 19, 26. Kolhagen also requested that the bidding be limited to designated Service Disabled Veteran Owned Small Businesses, of which Valour was one. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 036 - US v Bowling.doc, Paragraph with 'Veteran: Ayes v. U.S. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: CS\u8211360, LLC v. U.S. Department of Veterans Affairs, 101 F.Supp.3d 29 (2015) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: U.S. DEPARTMENT OF VETERANS AFFAIRS, Defendant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Limited liability company (LLC) brought action against Department of Veteran Affairs (VA), challenging VA\rquote s denial of LLC\rquote s application for verification as a Service Disabled Veteran Owned Small Business. Parties moved for summary judgment. The District Court, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Department of Veteran Affairs (VA) decision to deny limited liability company\rquote s (LLC) application for verification as Service Disabled Veteran Owned Small Business was not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to law; VA concluded non-veterans controlled or had power to control LLC, although manager-majority member was service disabled veteran, because operating agreement allowed manager to delegate authority to others without retaining control, LLC\rquote s minority members were affiliated with construction company that provided all of LLC\rquote s capital, and LLC\rquote s lack of staff meant it would be reliant on others to manage its projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: In this action, Plaintiff CS360, LLC, challenges a final decision of the U.S. Department of Veteran Affairs denying its application for verification as a Service Disabled Veteran Owned Small Business. More than three years ago, when the Court first considered the merits of this case, the Court concluded that it was \preclude[d] from effectively exercising its review function\ because of defects in the VA\rquote s written decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: CS\u8211360, LLC v. U.S. Department of Veteran Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: CS\u8211360, LLC v. U.S. Department of Veteran Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: On June 30, 2010, the Center for Veterans Enterprise denied CS360\rquote s application for inclusion in the VetBiz VIP database in its Initial Determination. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: . Subsequently, on November 2, 2010, the Center for Veterans Enterprise denied CS360\rquote s Request for Reconsideration in its Final Decision. As a result, Plaintiff commenced this action. The Court dismissed Plaintiff\rquote s Due Process claim (Count II) and Plaintiff\rquote s claim that the VA exceeded its statutory authority in promulgating the regulations underlying in this case (Count III). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: . Subsequently, the Center for Veterans Enterprise considered additional documents that Plaintiff submitted. VA00705. On September 26, 2012, the Center for Veterans Enterprise issued a new determination (\Revised Final Determination\), once again denying CS360\rquote s application. VA00705. This action was then stayed pending the resolution of related proceedings before this Court and before the Small Business Administration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Although the Revised Final Decision is not a model of clarity, the basis for the VA\rquote s denial of Plaintiff\rquote s application is now apparent from the record, and the Court concludes that the reasoning stated by the agency is sufficient for the Court to uphold the denial. Based on several factors taken together, the agency concluded that non-veterans control or have the power to control CS360 in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: . The factors on which the agency based this conclusion include a provision in CS360\rquote s operating agreement that allows the Managing Member (a service disabled veteran) to delegate authority to others without retaining control; initial funding of CS360 by non-veterans associated with B & R Construction Services, LLC; a mentor-prote\u769ge\u769 agreement with B & R Construction Services that suggests that this company provides the resources that allow CS360 to function; and a lack of independent resources that would allow CS360 to operate independently. The Court concludes that the reasons on which the agency relies, taken together, form a sufficient basis for the Court to conclude that there is a \rational connection between the facts found and the choice made,\ the choice being to deny CS360\rquote s application. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: VA00708. Plaintiff argues that the absence of this caveat is a \distinction without a difference and is totally unreasonable.\ Pl.\rquote s Summary Judgment Mot. at 15. The Court disagrees. The importance of this caveat is that it would require the Managing Member to retain authority over any delegation of authority. Without this phrase, the Managing Member may \deem[ ]\ it \advisable\ to delegate authority to someone other than a service-disabled veteran without subjecting that delegation to his authority. VA00708. The Court concludes that the presence of other provisions in the Operating Agreement that constrain the opportunities for control by a non-veteran are insufficient to negate the threat to veteran control made possible by this clause. The agency\rquote s concern with the possibility of the Managing Member delegating control to non-veterans is particularly acute given CS360\rquote s relationship with B & R Construction and its affiliates, as described below. The Court concludes that the delegation clause in section 4.04 is a reasonable basis, together with the other factors described below, for the agency to determine that CS360 did not qualify as a Service Disabled Veteran Owned Small Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: In its September 26, 2012, Revised Final Determination, the agency explained its conclusion that non-veterans have control or the power to control CS360 as a result of the relationship between CS360 and B & R Construction Services, LLC, and its affiliates. Several reasons support this conclusion by the agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: First, all of the capital for CS360 was provided by officers and employees of B & R Construction\u8212with none provided by the service disabled veteran. VA00709. Relatedly, while the service disabled veteran, Walter Davis, has retained a 51% stake in CS360\u8212the minimum required in order to qualify as a Service Disabled Veteran Owned Small Business\u8212the minority owners are all officers and employees of B & R Construction. VA00708. The structure of the capital contributions that financed the corporation in the first instance, together with the other aspects of CS360\rquote s relationship with B & R Construction, another business in the construction sector, supports the agency\rquote s inference that B & R Construction affiliates could seek to exercise control over CS360. The Court, in its previous Memorandum Opinion, stated that it was unconvinced by the agency\rquote s \cursory statement\ that \ \u8216it is unreasonable to conclude that any rational person, or group of persons, would personally fund a start-up construction concern ... and then relinquish total control over that concern.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: . The agency has now put this funding arrangement in the context of its analysis of the dependence of CS360 on B & R Construction for resources and CS360\rquote s susceptibility to control by its minority owners who are all affiliated with B & R Construction. The Court, therefore, concludes that this funding arrangement\u8212together with the other factors discussed here\u8212supports the agency\rquote s conclusion that CS360 is susceptible to non-veteran control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Second, CS360 only has two full time employees\u8212one additional employee beyond the service disabled veteran who is the Managing Member\u8212which the agency concluded was insufficient staffing to support activities of the business. VA00708. This level of staffing necessarily limits the ability of CS360 to manage projects on its own. Moreover, the agency noted that one interviewee stated that B & R Construction Service would furnish the people necessary to do the work that CS360 obtained. VA00709. These facts support the inference that CS360 is reliant on a non-veteran controlled company for any significant work and, therefore, susceptible to non-veteran control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: dependent on the mentor in a way that would prevent the prot\u233g\u233 from qualifying as a Service Disabled Veteran Owned Small Business. However, the Court agrees with Defendant that, in these circumstances, the nature of the mentor-prot\u233g\u233 agreement is yet one more piece of evidence that CS360 is reliant on B & R Construction. In particular, the agency notes that, although the agreement stated that B & R Construction would provide training to CS360 employees, B & R provided \all but two people to be the key personnel and is the entire operation of the prot\u233g\u233.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Furthermore, the VA found it significant that CS360 would reimburse B & R Construction\u8212with the funds that were originally contributed by officers and employees of B & R Construction through their capitalization of CS360\u8212for the office space, supplies, and support personnel that B & R Construction had provided. VA00711\u821112. The agency concluded that this particular agreement demonstrated that CS360 was reliant on B & R Construction in order to operate. That reliance is substantial enough, together with the other factors discussed here, to support an inference that non-veterans are able to exert control over CS360. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: On remand, before the agency issued its Revised Final Determination, Plaintiff identified agreements with entities other than B & R Construction to show that CS360 is not dependent on that single non-veteran controlled corporation. VA00713. Plaintiff\rquote s argument is unavailing. While these agreements suggest that CS360 is not wholly dependent on B & R Construction, they do not disturb the conclusion that CS360 is substantially dependent on\u8212and indeed intertwined with\u8212B & R Construction, its employees and its officers, such that CS360 is subject to control by non-veterans. To the contrary, the agreements that CS360 entered actually support the conclusion that CS360\u8212on its own\u8212has little capacity to carry out projects. Because of this dependency on others, CS360 is vulnerable to control by non-veterans, particularly control by B & R Construction and the minority owners of CS360, who are affiliated with that business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: Based on these several factors, the agency concluded that this is a \classic case of rent-a-veteran.\ VA00709. In light of the factors discussed here and on the agency\rquote s experience in managing the Service Disabled Veteran Owned Small Business program, the agency concluded that the Managing Member contributed his status as a service disabled veteran to CS360 while B & R Construction and its affiliates have supplied the funding and other resources necessary to create and maintain CS360, in order to provide B & R Construction and its affiliates access to contracts limited to Service Disabled Veteran Owned Small Businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 049 - CS360 LLC v US Department of Veterans Affairs.doc, Paragraph with 'Veteran: VA00709. The Court concludes that, taken together, the factors on which the agency relies\u8212particularly the clause allowing the Managing Member to delegate authority to a non-veteran and the factors showing CS360\rquote s dependency on B & R Construction and its affiliates\u8212are sufficient to support the agency\rquote s determination that non-veterans control or have the power to control CS360. Accordingly, the Court concludes that the VA\rquote s decision to deny Plaintiff\rquote s VetBiz application is not arbitrary or capricious, unsupported by substantial evidence, or otherwise contrary to law. In contrast to the agency\rquote s previous decision, the agency\rquote s Revised Final Determination\u8212while still not a model of clarity\u8212adequately explains the agency\rquote s determination that Plaintiff does not qualify as a Service Disabled Veteran Owned Small Business. Therefore, the Revised Final Determination survives the Court\rquote s deferential standard of review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 052 - Progressive Industries Inc v United States.doc, Paragraph with 'Veteran: at 1. Defendant\rquote s counsel also did the following: (1) conveyed that the agency would \pursue sole-source procurements to the incumbent distributors of medical gases during the pendency of this bid protest;\ (2) identified the Veterans Integrated Service Networks (VISNs) that had not yet transitioned to the awardees; and (3) indicated the number of contracts for which plaintiff was the incumbent contractor within those VISNs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: On August 11, 2014, the United States Department of Veterans Affairs, National Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: E. Whether The Department Of Veterans Affairs\rquote Review of Anthem Builders Inc.\rquote s Bond Violated the Administrative Procedures Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: i. Whether The Department Of Veterans Affairs Violated The APA By Determining That Anthem Builders, Inc.\rquote s Bond Did Not Meet The Standards For Individual Sureties Required By The FAR. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: ii. Whether The Department Of Veterans Affairs Violated The Administrative Procedures Act By Including The System For Award Management Search Results. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: iii. Whether The Department Of Veterans Affairs Violated The APA By Including The Internet Search Results. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 059 - Anthem Builders Inc v United States.doc, Paragraph with 'Veteran: iii. Whether The Department Of Veterans Affairs Violated Its Duty Of Good Faith And Fair Dealing. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Apparent awardee brought pre-award bid protest against United States, challenging a decision by Small Business Administration (SBA) that awardee was ineligible for status as a service-disabled veteran-owned small business concern (SDVO SBC) and, therefore, ineligible for a set-aside contract with Department of State. Two unsuccessful offerors intervened as defendants, and parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Court of Federal Claims had jurisdiction under Tucker Act over apparent awardee\rquote s claim that Small Business Administration (SBA) violated a regulation governing eligibility for status as a service-disabled veteran-owned small business concern (SDVO SBC) when it found that awardee was ineligible for SDVO SBC status, where awardee\rquote s only obstacle to a set-aside contract with Department of State was SBA\rquote s decision, which was rendered in course of Department\rquote s procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Small Business Administration (SBA) failed to provide an adequately reasoned explanation for its conclusion that apparent awardee on a set-aside contract with Department of State was ineligible for status as a service-disabled veteran-owned small business concern (SDVO SBC), where SBA did not provide guideposts for its determination that variances between awardee\rquote s Series A and Series B stock were sufficient to render them separate classes and that service-disabled veteran, who owned 51% of Series A stock but none of Series B stock, lacked sufficient ownership rights to satisfy eligibility requirements for SDVO SBC status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Bid Protest; Pre\u8211Award; Small Business Administration (SBA); Office of Hearings & Appeals (OHA); Service\u8211Disabled Veteran Owned Small Business Concern (SDVO SBC); Status; Ownership Criteria; 15 U.S.C. \u167 632(q); 13 C.F.R. pt. 125; 13 C.F.R. \u167 125.9(d); Remand Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Precise Systems, Inc. (Precise) was the apparent awardee on a Department of State solicitation entirely set aside for \service-disabled veteran-owned small business concerns\ (SDVO SBCs). Four unsuccessful offerors filed agency protests resulting in a decision by the Small Business Administration (SBA), affirmed by its Office of Hearings and Appeals (OHA), that Precise was ineligible for SDVO SBC status and, therefore, also ineligible for the contract award. Precise challenges the ineligibility determination and seeks reinstatement as a SDVO SBC so that it may compete for this procurement and future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Mr. John Thomas Curtis, a service-disabled veteran (SDV), was the sole owner of Precise until 2011, when he sold a minority interest in the company to an Employee Stock Ownership Plan (ESOP). Compl. \u182\u182 15\u821118; Curtis Aff., Jan. 22, 2015, ECF No. 30\u82111, at \u182\u182 2, 4. By sharing with his employees a minority interest in the company, Mr. Curtis hoped to reward his employees\rquote contributions to the business and to promote retention and recruitment of talented staff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: In addition, although not a dissimilarity between Series A and Series B stock, it bears noting that the company\rquote s Amended Articles ensured the service-disabled veteran\rquote s representation and enhanced power on the Board of Directors, relative to other shareholders. The Board was comprised of a \Class A Director\ who was the majority shareholder (Mr. Curtis) and \Class B Director(s)\ elected by a majority of all shareholders (limited to six individuals, but filled by only four). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: AR Tab 15 at 826\u821128, 845\u821148, 883\u821188, Tab 14 at 773\u821174, Tab 15 at 791\u821193 (four protests). The protests claimed that Precise was not a valid SDVO SBC because it was not \owned\ and \controlled\ by a \service-disabled veteran,\ as those terms are defined by the Small Business Act of 1958, as amended and as codified in relevant part at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: AR Tab 8 at 77\u821184 (AD/GC determination). The AD/GC found that while Mr. Curtis qualified as a \service-disabled veteran\ under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: A concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. More specifically: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: must be unconditionally owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at 81. Although the AD/GC identified no defects in Mr. Curtis\rquote control, the AD/GC nevertheless concluded without explanation: \[F]or all the foregoing reasons, I must conclude that a service-disabled veteran [did] not control Precise as required by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: (OHA decision)). On appeal, Mr. Curtis\rquote status as a \service-disabled veteran\ was not challenged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: , requiring that the service-disabled veteran own \at least 51% of each class of voting stock outstanding.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: The OHA rejected Precise\rquote s warning that an affirmance of the AD/GC determination would create inconsistencies with the SBA\rquote s 8(a) Business Development (BD) program and the Department of Veterans Affairs (VA) program for SDVO SBCs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Because the OHA could find \no clear error\ in the AD/GC\rquote s reasoning or conclusion that Precise\rquote s service-disabled veteran, Mr. Curtis, lacked sufficient ownership to satisfy Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: a service-disabled veteran is the sole focus of this court\rquote s review and the only remaining obstacle to Precise\rquote s eligibility as a SDVO SBC. Following oral argument on the parties\rquote cross-motions for judgment on the administrative record, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: Within SBA programs, a \small business concern owned and controlled by service-disabled veterans\ (SDVO SBC) is defined, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: (A) not less than 51 percent of which is owned by one or more service-disabled veterans ...; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: (B) the management and daily business operations of which are controlled by one or more service-disabled veterans.... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: A concern must be at least 51% unconditionally and directly owned by one or more service-disabled veterans. More specifically: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: must be unconditionally owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: was intended to provide \guidance on the ownership criteria of a service-disabled veteran-owned SBC ... [specifically] that ownership must be direct and that stock options are given present effect when they are held by non-service disabled veterans ... consistent with SBA\rquote s other programs, including the 8(a) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at 3\u82114, 28. Precise advocates for a test that inquires: \[I]f there are [voting stock] dissimilarities, whether they\rquote re meaningful in terms of the SDV\rquote s ownership interest and his ability to control and run the company on a daily basis.\ Tr. 27:23\u821128:1. Such a test, Precise contends, would be \tethered to the congressional intent of the [SDVO SBC] program, that is, to make sure that the benefits of the program only go to service-disabled veterans\rquote companies.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: The inquiry into what constitutes \class[es] of voting stock\ is not just an intellectual exercise, but is part of the criteria for determining whether a service-disabled veteran sufficiently owns a small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: of ownership by service-disabled veterans where the trust is revocable, and the service-disabled veterans are, at all times, the grantors, trustees, and the current beneficiaries of the trust.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: This definition of SDVO SBC was adopted by the Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: In the interim final rule, the SBA stated that the purpose of the rule was to \implement[ ] that section of the recently enacted Veterans Benefits Act of 2003(VBA), [codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: ] [,] which addresses procurement programs for small business concerns (SBCs) owned and controlled by service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: AR Tab 15 at 801, 816 (Precise website screenshots, stating \Precise Systems is an Employee Owned Service Disabled Veteran\u8211Owned Small Business (SDVOSB)\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 060 - Precise Systems Inc v United States.doc, Paragraph with 'Veteran: at 803, 818 (Precise website screenshots, describing itself as \an employee-owned company\ and a \Disabled Veteran Owned Business\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 062 - Visual Connections LLC v United States.doc, Paragraph with 'Veteran: On June 26, 2014, AHRQ issued Request for Quote No. AHRQ\u821115\u821110003 (RFQ). The RFQ sought quotations from \service-disabled veteran-owned small businesses holding Federal Supply Schedule (FSS) 70 contracts with the General Services Administration (GSA).\ The RFQ indicated that, \[t]he purpose of this task order is to maintain agency production systems as well as the architectural, engineering, configuration management, and hosting services needed to support those systems. The contractor shall provide support for application operations and maintenance, and testing and deployment of complex technologies into the existing IT environment.\ The period of performance was for a \Base Period of 12 months with four, 12 month option periods.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 062 - Visual Connections LLC v United States.doc, Paragraph with 'Veteran: Alternatively, protestor asserts that the RFQ is \facially ambiguous,\ and, \therefore it was a latent ambiguity which triggered no duty to inquire.\ Protestor argues the RFQ was facially ambiguous because \[t]he Evaluation Factors and Evaluation Schema announced by Defendant United States Department of Health & Human Services\rquote AHRQ\rquote s Request for Quotations entirely follow the precepts set out for a Simplified Procedures Acquisition competed among the many holders of Multiple Award Schedule Contracts,\ while protestor also argues, \[b]ut it is equally reasonable to have concluded that the announced conditions for this Request for Quotations (an Acquisition greater than $5,000,000 set-aside and restricted only to those Offerors which also are Service\u8211Disabled, Veteran\u8211Owned Small Business Concerns) precluded the use of Simplified Acquisition Procedures.\ Protestor quotes from Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: Original contract awardee brought action against United States, challenging Department of Veterans Affair\rquote s rescission of a task order for acquisition support services. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: Contracting officer (CO) had a rational basis for finding that contract awardee had a potential organizational conflict of interest (OCI) and for taking corrective action by rescinding a task order for acquisition support services with Department of Veterans Affairs, where awardee had access to government requirements and solicitation documents, including confidential documents never shared with other offerors, prior to release of solicitation, and awardee did not have a mitigation plan in place during its past work for Department. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: Contract awardee\rquote s actual organizational conflict of interest (OCI) arising from its employee\rquote s conduct with respect to a prior solicitation was properly considered by contracting officer (CO) in taking corrective action by rescinding a task order for acquisition support services with Department of Veterans Affairs, where mitigation plan alleged to have been in place for current solicitation was same as plan that should have prevented actions of awardee\rquote s employee with regard to prior solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: This is a protest of the Department of Veteran Affair\rquote s recision of a task order to Monterey Consultants, Inc. for services in support of the agency\rquote s program to verify the status of small and veteran-owned businesses. The task order to Monterey was cancelled as a corrective action because the agency concluded that Monterey had a potential or actual organizational conflict of interest. Plaintiff alleges that neither is true. The parties have filed cross-motions for judgment on the administrative record. The matter is fully briefed, and oral argument was held on March 4, 2015. Because the agency was not irrational in its belief that Monterey\rquote s access to solicitation documents created at least the appearance of a conflict of interest, we grant defendant\rquote s and intervenor\rquote s motions for judgment and deny plaintiff\rquote s. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: Plaintiff, Monterey Consultants, Inc. (\Monterey\), held a blanket purchase agreement (\BPA\) with the Department of Veteran Affairs (\VA\) under which it provided support services to the VA\rquote s Center for Verification and Evaluation (\CVE\) and Office of Small and Disadvantaged Business Utilization (\OSDBU\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 065 - Monterey Consultants Inc v United States.doc, Paragraph with 'Veteran: for service-disabled veteran owned small businesses holding one or both of two GSA FSS contracts for support services. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: UNITED STATES of America, Department Of Veterans Affairs, Eric K. Shinseki, Scott W. Gould, John R. Gingrich, David H. Eckenrode, Thomas J. Leney, Jan R. Frye, William A. Cox, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: , Justina Hamberg, Jaysan Hwang, Andrea M. Gardner\u8211Ince, Supervisors of the 8127 Debarment Committee, Supervisors of the Center for Veterans Enterprise, and John/Jane Does 1\u8211100, Defendants. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: Plaintiffs Derrick Storms, Adrian Batlle, A1 Procurement, LLC, A1 Procurement JVH, A1 Procurement-transportation Leasing Corp., LLC and A1 Procurement, JVG bring the above-captioned action against Defendants the United States of America, Department of Veterans Affairs (\VA\), Erick K. Shinseki, Scott W. Gould, John R. Gingrich, David H. Eckenrode, Thomas J. Leney, Jan R. Frye, William A. Cox, Gregory Vogt, Ernest Monteleone, Delia Adams, John Fedkenheuer, Dennis Foley, Justina Hamberg, Jayson Hwang, Andrea M. Gardner\u8211Ince, Supervisors of the 8127 Debarment Committee, Supervisors of the Center for Veterans Enterprise and unknown employees of the VA, \John and Jane Does 1\u8211100,\ asserting claims pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: For the reasons discussed below, the Court grants Defendants\rquote motion to dismiss the Second Amended Complaint. Plaintiffs are permitted to amend the Second Amended Complaint as to their RICO claim and their claims under the Declaratory Judgment Act and the APA as to the VA\rquote s Center for Veterans Enterprise\rquote s (\CVE\) denial of Plaintiffs\rquote request for reconsideration of CVE\rquote s August 9, 2011 decision to remove A1 Procurement, LLC from the VA\rquote s Vendor Information Pages. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: Plaintiffs allege misconduct by Defendants in rendering certain decisions affecting Plaintiffs\rquote ability to obtain set-aside government contracts through the VA\rquote s \qualified Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\)\ program, and in failing to pay Plaintiffs for their services pursuant to a contract for the use of a para-transit bus. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: (Sec.Am.Compl.\u182 37.) The VIP database includes all SDVOSBs and Veteran Owned Small Businesses (\VOSBs\) that are verified to be at least 51% \owned and controlled\ by a veteran or service-disabled veteran. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: ) Inclusion in the VIP database is a prerequisite to bidding on certain contracts that are set aside for qualified veteran-controlled businesses. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: \u182 2 n. 1.) In granting A1\rquote s application, the CVE \unequivocally determined\ that A1 was owned and controlled by Storms, a service-disabled veteran and A1\rquote s Chief Executive Officer (\CEO\), and that Storms was a 51% majority owner of A1. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: \u182 41.) A1 was removed from the VIP database because Storms\rquote resume indicated that in addition to his role as CEO of A1, he served as President of Homeless Veterans of America, Inc., and as managing partner of Storms and Associates, P.A. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: \u182\u182 48\u821149.) Storms never received any compensation or benefits for \volunteering\ at the Homeless Veterans of America (\HVA\), and he worked approximately three to four hours each month at HVA. (Sec.Am.Compl.\u182 43.) Storms and Associates, P.A. is a \one-man law firm that ... Storms started to support A1 in legal matters.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: \u182 63 (citing Minute Entry dated Aug. 9, 2013 (\order[ing] Defendant Department of Veteran Affairs to rule on A1[\rquote s] pending request for reconsideration\)).) On or about August 12, 2013, CVE denied A1\rquote s Reconsideration Request (the \Reconsideration Decision\). ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: denying A1\rquote s application without affording procedural due-process of law and based their decision on unjustifiable grounds, refused to consider A1\rquote s request for reconsideration for two years, denied A1\rquote s request for reconsideration without affording procedural due-process of law and based their decision on unjustifiable grounds, ignored multiple congressional admonishments and GAO recommendations, intentionally failed to follow mandatory VA procedures meant to protect Plaintiffs\rquote procedural and substantive due-process rights, disregarded and were deliberately indifferent to VA officers and employees widespread constitutional violations committed against both veterans and Plaintiffs\rquote constitutional rights, intentionally and unlawfully [d]ebarred the Plaintiffs without providing procedural and substantive due-process of law ... [and] conspired to violate the Plaintiffs\rquote Fifth Amendment procedural due process rights. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: Here, Plaintiffs assert that \Defendants\rquote modus operandi of record is that they, repeatedly, and on widespread basis, violate veterans\rquote constitutional rights during Debarments and CVE Removal Decisions\ and that \in this very action, the Defendants have threatened [that] they may \u8216recommence\u8217 unlawful debarment proceedings against the Plaintiffs.\ (Pl. Opp\rquote n 52 (citing, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: \I write to supplement my prior claim to the Department of Veterans Affairs concerning Plaintiffs[\rquote ] ... claim for an official letter from the VA and rectifying Plaintiffs\rquote damages. The VA\rquote s extremely outrageous actions ... have resulted in $32 million dollars in damages to the Plaintiffs. You have previously written that the VA has declined to write a letter, rectify these damages, and resolve this claim.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: The Dept. of Veterans Affairs ... and its employees made, caused and conspired to intentionally inflict emotional distress on Derrick Storms, Adrian Batlle and their businesses.... The VA was also negligent in failing to follow mandatory VA regulations causing the unlawful debarment of Derrick Storms, Adrian Batlle, and A1 Procurement, LLC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: Gonzales\u8211McCaulley Inv. Group v. U.S. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: CS\u8211360, LLC v. U.S. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 070 - Storms v US.doc, Paragraph with 'Veteran: Plaintiffs also claimed at oral argument that the Second Amended Complaint alleges intentional abuse of process as a predicate act. In particular, Plaintiffs pointed to paragraph 185, subsection \f\ of the Second Amended Complaint which states that the Defendants \refus[ed] to implement critical recommendations from the [United States Government Accountability Office], lawmakers, veteran groups, and the media which would have prevented Plaintiffs\rquote damages in an intentional abuse of power, intentional abuse of process, and corrupt acts designed to destroy Plaintiffs\rquote businesses and livelihoods.\ (Sec.Am.Compl.\u182 185(f).) The Second Amended Complaint also alleges that the Defendants \[f]raudulently misrepresent[ed] the law in the Debarment notice and request for reconsideration determination in an intentional abuse of power, intentional abuse of process, and corrupt acts designed to destroy Plaintiffs\rquote businesses and livelihoods.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 088 - Akima IntraData LLC v United States.doc, Paragraph with 'Veteran: ServiceSource has also demonstrated in its papers that it will suffer harm if Akima is granted an injunction pending the outcome of the appeal process. According to ServiceSource, it has already begun hiring key personnel and incurred recruiting, compensation, training, and travel costs. This includes engaging the referral network to identify the persons with severe disabilities that ServiceSource serves and seeks to employ. It presented evidence that a delay would prevent it from obtaining revenue that it uses for programs such as \development and training for persons with severe disabilities, employment solutions for individuals with autism-spectrum disorders, counseling, information and referral services, rehabilitation services, youth transition services, housing and veteran services.\ Def.\u8211Intervenor\rquote s Resp., Ex. A at 9. Accordingly, the court finds that the harm to ServiceSource and the harm to the government outweigh the harm to Akima. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 094 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Paragraph with 'Veteran: Plaintiff\rquote s FAC includes allegations regarding twelve AbilityOne Program opportunities demonstrating \anticompetitive, exclusionary, and predatory conduct\: (1) Notice No. 10709, reissued as Notice No. 90705, for custodial and grounds maintenance for the Lloyd D. George U.S. Courthouse and Federal Building and Alan Bible Federal Building in Las Vegas, Nevada; (2) Notice No. 1065 for janitorial services for 18 Customs and Border Patrol sites in San Diego, California; (3) Notice No. 1108 for custodial services for Vandenberg Air Force Base in San Luis Obispo, California; (4) Notice No. 1483 for custodial services for nine child development centers in Fort Hood, Texas; (5) Notice No. 1723 for custodial services for the Veterans Affairs Headquarters in Washington D.C.; (6) Notice No. 1692 for grounds maintenance and snow and ice removal for the Denver Federal Center in Lakewood, Colorado; (7) Notice No. 1690, withdrawn and reissued as Notice No. 1741, for information technology services for Department of Defense Human Resource Activity\rquote s Defense Manpower Data Centers in Alexandria, Virginia and Monterrey, California; (8) Notice No.1944 for custodial services for the St. Elizabeth\rquote s U.S. Coast Guard Headquarters, Washington DC; (9) Notice No.1953 for total facility management services for the National Geospatial Intelligence Agency in Springfield, Virginia; (10) Notice No.2075 for total facilities management services for the National Geospatial\u8211Intelligence Agency Building in St. Louis, Missouri; (11) Notice No. 2161 for custodial and grounds maintenance services for a federal building, courthouse, and GSA Center building in Puerto Rico; and (12) Notice No. 2379 for operation and maintenance services for agricultural facilities in Peoria, Illinois. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 095 - Akima IntraData LLC v United States.doc, Paragraph with 'Veteran: In response, the government argues that CFP was not required to find that employment was guaranteed for PWSD, but rather merely must find that there was a demonstrated potential to generate employment. According to the government, CFP rationally determined that such a potential existed and supported this finding with record evidence. The government notes that CFP found that the proposed contract would provide employment for between 47 and 51 PWSD, that ServiceSource has relevant experience in hiring PWSD, and that ServiceSource has a hiring plan well-suited to this project. The government argues that CFP found that ServiceSource has created a team of human resources specialists to assist in staffing its contract locations, and that ServiceSource\rquote s track record demonstrates that ServiceSource has had success using this approach in the past under previous contracts. The government further contends that CFP found that ServiceSource\rquote s hiring plan identified a variety of state and local vocational rehabilitation agencies, other NPAs, and veteran organizations with which to create a referral network. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 095 - Akima IntraData LLC v United States.doc, Paragraph with 'Veteran: AR 8202. ServiceSource also clarified concerns about its earlier statement that the Mark Center contract employed 20 veterans without disabilities while still achieving a 100% disability ratio by noting that, as the court discussed above, the total number of employees employed is separate from the calculation of the direct labor ratio, which is a measurement of hours of specific types of labor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\4, File: 095 - Akima IntraData LLC v United States.doc, Paragraph with 'Veteran: To the extent that plaintiff argues that ServiceSource applied an improperly overbroad definition of \severely disabled,\ plaintiff has not identified any instance where ServiceSource actually proposed hiring non-PWSD as PWSD. While the record indicates that ServiceSource stated that it would seek, among other groups, to hire disabled veterans, who do not necessarily meet the statutory definition of PWSD, it also indicates that ServiceSource will seek to hire disabled veterans who meet the statutory definition. Further, based on the positive compliance reviews that it had recently performed on ServiceSource, it was reasonable for CFP to determine that ServiceSource would staff the project with PWSD who met the statutory definition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: Under Federal Acquisition Streamlining Act (FASA), unsuccessful bidder for task order to provide information technology (IT) services for United States Army waived its objection to alleged error in solicitation process, precluding Court of Federal Claims from exercising subject matter jurisdiction over unsuccessful bidder\rquote s suit alleging that task order award violated Administrative Procedure Act (APA) and Competition In Contracting Act (CICA), where, prior to close of bidding process, unsuccessful bidder only challenged task order award itself, but not terms of underlying procurement vehicle, in this case Veterans Technology Services Government\u8211Wide Acquisition Contract (VETS GWAC) under which successful bidder was able to bid on order. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: The Veterans Technology Services Government\u8211Wide Acquisition Contract (the \VETS GWAC\) allows service-disabled veteran-owned small businesses (\SDVOSBs\) to bid on information technology (\IT\) services for the federal government. AR 76 (2012 VETS Ordering Guide). The VETS GWAC applies to Systems Operations and Maintenance, as well as Information Systems Engineering. AR 77. In this case, the Administrative Record verifies that the required FAR clauses (52.222\u821141 and 52.222\u821153) were incorporated into the VETS GWAC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On December 18, 2006, the General Services Administration (\GSA\) awarded Veteran Engineering and Technology, LLC (\Veteran Engineering\) a VETS GWAC, to bid on future task orders. AR 1\u821171. The GSA modified the contract several times prior to August 30, 2012, including incorporating required SCA clauses. AR 2\u821170. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On December 19, 2006, GSA issued Amendment PS 13, incorporating the SCA labor standards into Veteran Engineering\rquote s VETS GWAC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: AR 34, 47\u821148. On May 23, 2012, Veteran Engineering signed Amendment PS 13 and a GSA Contracting Officer signed it on May 31, 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: \Fair Labor Standards Act and Service Contract Labor Standards\u8211Price Adjustment\ into Veteran Engineering\rquote s VETS GWAC. AR 64. On October 25, 2012, Veteran Engineering signed Amendment PS 14 and the Contracting Officer signed it on November 5, 2012. AR 59. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: (Fair Labor Standards Act\u8211Price Adjustment (Multiple Year and Option Contracts) (Sept. 2009)), that already were incorporated into Veteran Engineering\rquote s VETS GWAC. AR 280; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On October 4, 2012, Veteran Engineering and Innovative Management Concepts, Inc. (\IMC\ or \Plaintiff\) submitted proposals to the Army. AR 286\u8211438. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On February 4, 2013, the Army issued an Award Memorandum explaining that four of the proposals submitted, including both Veteran Engineering and IMC, received an \Acceptable\ technical evaluation, and had \relatively equal technical capability\ and a \satisfactorily confident\ evaluation on past performance. AR 490\u821191. IMC\rquote s $ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: lower than Veteran Engineering\rquote s $9,999,875.09 proposal price. AR 488\u821189. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On March 8, 2013, Veteran Engineering filed a post-award protest with the General Accountability Office (\GAO\) and the Army issued a stop work order. AR 860. On March 28, 2013, the GAO dismissed the protest, based on a notice of corrective action by the Army. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: See Matter of Veteran Eng\rquote g & Tech., LLC, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On August 12, 2012, the Army awarded the Task Order to Veteran Engineering. AR 712\u8211836. That same day, the Army issued a memorandum describing how it reviewed the competing proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: AR 702\u821111. IMC and Veteran Engineering both received \Acceptable\ ratings for their technical evaluation and \Very Relevant / Substantial Confidence\ for their past performance evaluation. AR 707\u821108. And, IMC and Veteran Engineering \earned the highest overall combined non-price ratings.\ AR 709. The total evaluated price for IMC\rquote s proposal was approximately Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: less than Veteran Engineering\rquote s. AR 703\u821104, 708. The Army explained that it selected Veteran Engineering\rquote s instead of IMC\rquote s, because: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: Veteran [Engineering\rquote s proposal] provides two more personnel (30 vs. 28) than does IMC\rquote s [proposal], or approximately 7% more manhours per year to perform the NEC\u8211IT function. While both proposals received the same overall technical rating of \Acceptable\ the difference in the amount of staffing provides a measurable difference in technical value between the two proposals. The extra staffing will provide swifter reaction times to sudden network or system administration problems by having more available manhours to draw on from the two locations that must be staffed. Additionally, their knowledge and experience with the Fort Dix facilities will generate further efficiencies that will benefit the [G]overnment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On August 13, 2013, the Army notified IMC that it made the award to Veteran Engineering. Compl. \u182 13. IMC requested a debriefing. Compl. \u182 14. On August 22, 2013, IMC attended a debriefing session at Fort Dix where contracting officer Jeffrey Zeichner explained why the Army chose Veteran Engineering over IMC. Compl. \u182\u182 14\u821118. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: On August 27, 2013, IMC filed a protest with the GAO alleging that the August 12, 2012 award to Veteran Engineering was based on unstated criteria and an improper evaluation. AR 858\u821167. On December 4, 2013, the GAO concluded that the benefit of two additional personnel was a sufficient basis, in light of the Army\rquote s stated evaluation factors, to affirm the Army\rquote s decision to award the Task Order to Veteran Engineering, and dismissed IMC\rquote s protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 008 - Innovative Management Concepts Inc v United States.doc, Paragraph with 'Veteran: that the court had jurisdiction to adjudicate the claims alleged in the February 24, 2014 Complaint, Plaintiff\rquote s argument could not succeed, because Section B.4.5 rendered Veteran Engineering\rquote s proposal invalid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Bidder on Department of Veterans Affairs (VA) construction contract, who despite being the apparent responsible, responsive lowest-cost bidder, had been declared ineligible to receive award after its certification for service-disabled veteran-owned small business (SDVOSB) eligibility had been cancelled, filed suit against government, seeking injunctive relief of reinstatement as an SDVOSB and award of the contract. Both sides moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Government contractor who challenged decision of Department of Veterans Affairs (VA) canceling the contractor\rquote s certification for service-disabled veteran-owned small business (SDVOSB) eligibility, and resulting ineligibility to receive award of VA set-aside contract, claimed statutory or regulatory violation \in connection with a procurement,\ or a proposed procurement, within meaning of Tucker Act\rquote s jurisdictional provision, so as to properly invoke bid protest jurisdiction of Court of Federal Claims; even though contractor\rquote s protest involved VA\rquote s decertification decision, the decision was made pursuant to VA\rquote s own procurement regulations and resulted in loss of award despite contractor being apparent responsible, responsive lowest-cost bidder on contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Procedural due process protections apply in agency-level protests within the Department of Veterans Affairs challenging VA determinations regarding a contractor\rquote s status as a service-disabled veteran-owned small business (SDVOSB) or a veteran-owned small business (VOSB) entity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Cancellation of government contractor\rquote s certification for service-disabled veteran-owned small business (SDVOSB) eligibility by the Veterans Affairs (VA), sua sponte, contravened Administrative Procedure Act\rquote s (APA) provision setting forth the minimal procedural requirements for an informal adjudication; there was no indication that the agency had afforded contractor any notice, let alone adequate notice, that it was the subject of an agency-initiated status protest, and since contractor was entirely unaware of the investigation and cancellation of eligibility until it was disqualified for a construction contract, despite being the apparent responsible, responsive lowest-cost bidder, it had no opportunity to respond or submit documentation regarding its status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Veterans Affairs\rquote (VA) decision to decertify contractor\rquote s eligibility as a service-disabled veteran-owned small business (SDVOSB), based on its finding that owner of the limited liability company (LLC) business was not an \unconditional owner,\ as a result of new involuntary withdrawal provisions in contractor\rquote s operating agreement, was arbitrary and capricious, and not in accord with VA\rquote s regulations, as would warrant reinstatement of eligibility by court; one provision provided only that in the event member is adjudged bankrupt or insolvent, involuntary withdrawal would occur, and other provision provided for the transfer of ownership on account of court order or otherwise by operation of law, so ultimately, neither provision directly affected the unconditional nature of the LLC\rquote s ownership, as would violate VA\rquote s SDVOSB eligibility regulation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Government contractor whose service-disabled veteran-owned small business (SDVOSB) eligibility was cancelled as a result of arbitrary and capricious decision by Veterans Affairs (VA) as to contractor\rquote s unconditional ownership, was substantially prejudiced by the action, as required to obtain relief in post-award bid protest; contractor had lost a government construction contract as a result of decertification, even though it was the apparent responsible, responsive lowest-cost bidder on the solicitation, and without SDVOSB eligibility, contractor would suffer the loss of future opportunities to compete for set-aside contracts, which would result in loss of a substantial portion of its revenues. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Permanent injunction, preventing Veterans Affairs (VA) from decertifying government contractor\rquote s eligibility as a service-disabled veteran-owned small business (SDVOSB) on basis of lack of unconditional ownership was warranted, where contractor had succeeded on the merits of its claim that such eligibility had been wrongfully denied, contractor suffered irreparable harm by the decertification, which disqualified it from consideration for construction contract and removed it from VA\rquote s set-aside eligibility database, balance of hardship weighed in favor of granting injunctive relief, and the public had a significant interest in the effective, reliable, and coherent operation of VA\rquote s procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel was Steven E. Devine, Staff Attorney, United States Department of Veterans Affairs, Office of the General Counsel, Washington, D.C. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Post-award bid protest; challenge to decertification of Service\u8211Disabled Veteran\u8211Owned Small Business for eligibility for an award of a construction contract as to which it was the apparent responsible, responsive lowest-cost bidder; protestor\rquote s lack of opportunity to address issue treated as dispositive by the agency; procedural due process; 5 U.S.C. \u167 555; unconditional nature of service-disabled veteran\rquote s majority ownership of the business; prejudice; remedy Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: This post-award bid protest arises out of a dispute emanating from a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) set-aside solicitation, issued by the Department of Veterans Affairs (\VA\). Plaintiff, AmBuild Company, LLC (\AmBuild\), was the apparent responsible, responsive lowest-cost bidder. The second lowest bidder, Welch Construction, Inc. (\Welch\) filed an administrative protest, challenging AmBuild\rquote s eligibility as a SDVOSB. The Small Business Administration (\SBA\) rejected Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: AmBuild is a limited liability company organized under the laws of the State of New York. Compl. \u182 1. AmBuild\rquote s majority owner, Mark DeChick, is a service-disabled veteran of the United States Marine Corps, who was honorably discharged after serving in the first Gulf War. Pl.\rquote s Aff. in Support of Pl.\rquote s Appl. for Inj. Relief (\DeChick Aff.\) \u182 6, ECF No. 4; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: On March 26, 2014, VA sought bids under Solicitation No. VA\u8211528\u821114\u8211B\u82110132 (\Solicitation\), which involved the renovation of revolving doors at the Veterans Affairs Medical Center located in Syracuse, New York. AR 9\u821117 to \u821159 (Solicitation). A public bid opening for the Solicitation was subsequently held on June 10, 2014. AR 10\u821160 (Pre\u8211Bid Conference Agenda). AmBuild submitted a bid in response to the Solicitation and was the apparent lowest-cost bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: (\SDVOSB/VOSB Small Business Status Protests\) and 38 C.F.R. Part 74 (\Veterans Small Business Regulations\) violates due process, the Administrative Procedure Act (\APA\), and VA\rquote s own procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: . Part 74 recites the standards CVE is to consider in determining Veteran\u8211Owned Small Business (\VOSB\) eligibility. Those standards are incorporated into the Veterans Affairs Acquisition Regulation System (\VAAR\) provisions set out in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: The procurement at issue is governed by the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: ). The Act provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: . To implement this Act, the Veterans First Contracting Program (\Program\) was established in 2007, under which VA considers SDVOSB and VOSB entities as first and second priority for procurement awards. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: outlines the ownership requirement for a participant to receive verified status by VA, mandating that 51 percent of the entity must be \unconditionally and directly owned by one or more veterans or service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: An unsuccessful offeror in a procurement under the Veterans First Contracting Program may also file an agency-level bid protest. Pursuant to the VAAR, \a contracting officer or an interested party may protest the apparently successful offeror\rquote s SDVOSB or VOSB status.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: where OSDBU\rquote s failure in an agency protest to notify a veteran about the agency\rquote s self-initiated examination into the veteran\rquote s unconditional ownership contravened the procedural protections of Section 555 of the APA. Pl.\rquote s Mem. at 8\u82119 (referring to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: ). In that case, an administrative protest was filed against an apparently successful veteran offeror on control and ownership grounds because a disappointed bidder believed that the veteran and a non-veteran entity shared common ownership and control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: . OSDBU rejected the grounds of the protest but nonetheless found that the veteran-owned entity did not meet unconditional ownership requirement of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: , based on OSDBU\rquote s independent inquiry into the veteran-owned entity\rquote s Operating Agreement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: acknowledged that OSDBU has discretion to expand the grounds of a protest beyond those raised by the protestor or the contracting officer, but ruled that the veteran must be given notice of the new inquiry. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: AmBuild concedes that \courts have permitted the VA to broaden the scope of a bid protest,\ but argues that \such an expansion may only be done if the protested [veteran] is given notice and an opportunity to respond.\ Pl.\rquote s Mem. in Further Support of Pl.\rquote s Mot. for Judgment ... and in Opp\rquote n to Def.\rquote s Cross\u8211Mot. for Judgment at 4, ECF No. 18. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: On that basis, not previously identified, the Executive Director concluded that AmBuild was not within the unconditional ownership of Mr. DeChick, the disabled-veteran 80\u8211percent owner. AR 36\u8211317 to \u821118. Consequently, the appeal did not assuage the problem of inadequate procedural due process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: In short, the regulation sets forth prohibited arrangements that would cause ownership benefits to vest in non-veterans, while accommodating and providing exceptions for normal commercial arrangements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: (holding that a right of first refusal provision in veteran\rquote s Operating Agreement providing for the opportunity to purchase a member\rquote s shares was not \presently executory,\ but rather a \standard provision used in normal commercial dealings, and [did] not burden the veteran\rquote s ownership interest unless he or she [chose] to sell some of his or her stake\). Clause ix provides for the transfer of ownership \on account of a court order or otherwise by operation of law.\ AR 38\u8211367. Through a court order or other operation of law mandating the transfer of ownership, Mr. DeChick would be obligated to sell his interest regardless of whether AmBuild\rquote s Operating Agreement recited such a requirement. Clause ix describes a circumstance amounting to an \encumbrance of stock or other ownership interest,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: Hr\rquote g Tr. 34:18\u821120. Considering the severity of the harm AmBuild will suffer without equitable relief, plus its success on the merits, the balance of hardships weighs in favor of granting injunctive relief. Finally, the public has a significant interest in the effective, reliable, and coherent operation of VA\rquote s Veterans First Contracting Program, just as it does in preserving the integrity of the competitive SDVOSB procurement process. Those interests are best served by adherence to required procedures and evaluative steps for a procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 011 - AmBuild Company LLC v United States.doc, Paragraph with 'Veteran: The Veterans Affairs Acquisition Regulation System (\VAAR\), codified at 48 C.F.R. Parts 801\u8211873, permits an offeror to challenge another offeror\rquote s SDVOSB status through an agency-level protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: This dispute involves the application of the crime-fraud exception to the attorney-client privilege. Defendant David Gorski has been charged with mail fraud and conspiracy to defraud the United States. The indictment alleges in substance that from approximately late 2005 until November 2010, Gorski defrauded the United States by fraudulently representing that his company, Legion Construction, Inc. was a Service\u8211Disabled Veteran Owned Small Business Entity (\SDVOSB\) in order to qualify for and obtain government contracts. According to the indictment, Gorski is not a service-disabled veteran, and he concealed his \true ownership and control of Legion from the [government] by making false statements, representations, and omissions regarding the ownership, operation, and control of Legion.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: According to the indictment, Gorski actually owned and controlled Legion. However, he concealed his \true ownership and control of Legion from the [government] by making false statements, representations, and omissions regarding [its] ownership, operation, and control.\ (Indictment, \u182 22). He did so because he was not a service-disabled veteran, and thus Legion did not qualify as an SDVOSB. Gorski wanted to make it appear that Legion was an SDVOSB \in order to qualify for and obtain government contracts from the VA, the GSA, the Army, and the Navy set aside SDVOSB\rquote s.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: \u182 21). The indictment alleges that the conspiracy to defraud began in late 2005, when Gorski approached a disabled veteran about setting up a business. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: \u182\u182 27\u821129). Gorski caused the company to undergo a corporate restructuring in August 2007, in which he became a 49% owner and two veterans became owners of the remainder. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: \u182 35). Gorski, however, caused the veterans to execute demand notes and employment agreements that effectively kept ownership and control with Gorski. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: \u182\u182 36\u821140). Gorski also placed his wife on Legion\rquote s payroll \to enable [him] to draw additional salary and conceal the fact that [he] was paying himself more than the supposed disabled veteran owner / operators.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: Legion underwent a second corporate restructuring on March 23, 2010, which is the basis of the present dispute. The purpose of the restructuring was nominally to buy out one of the veterans, with the remaining veteran assuming a 51% ownership interest. However, Gorski retained effective ownership and control of the enterprise. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 022 - US v Gorski.doc, Paragraph with 'Veteran: \u182 52). The date of February 1 was chosen, according to the government, because the relevant federal regulation had changed effective February 8, and Gorski wanted it to appear as if Legion was in compliance with the new regulations. The remaining veteran owner, Peter Ianuzzi, also submitted a false affidavit to the SBA essentially stating that the restructuring had occurred on February 1. The indictment alleges that the conspiracy, and the scheme to defraud the United States, continued until November 2010. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Contractor, as incumbent provider of home oxygen supplies and services for Veterans Administration (VA) in veterans integrated services network (VISN), filed pre-award bid protest challenging VA\rquote s decision to issue small business set-aside solicitation, for contract to provide home oxygen supplies and services to veterans and beneficiaries located in VISN, that allegedly failed to consider application of various statutes and regulations, and seeking permanent injunction requiring VA to bring solicitation into statutory and regulatory compliance or reissue solicitation without small business set-aside. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Veterans Administration\rquote s solicitation for home oxygen supplies and services to be provided to veterans and beneficiaries was for contract that included supplies, thus requiring inclusion of Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) in solicitation, even though solicitation was assigned North American Industry Classification System (NAICS) code designating services contract, where majority of solicitation\rquote s line items were for manufactured products to be provided to VA patients and only handful related to provision of services. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Incumbent contractor that was ineligible for small business set-aside award would suffer irreparable harm by loss of business opportunity in absence of permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include non-manufacturer rule (NMR) or reissue solicitation without small business set-aside. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Balance of hardships favored permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) or reissue solicitation without small business set-aside, since incumbent contractor that was ineligible for small business set-aside suffered irreparable harm by VA\rquote s violation of NMR by failing to include NMR in solicitation, and VA would suffer very little in reissuing solicitation conforming to NMR. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: Public interest supported grant of permanent injunction requiring Veterans Administration (VA) to amend solicitation for home oxygen supplies and services to include Small Business Act\rquote s (SBA) non-manufacturer rule (NMR) or reissue solicitation without small business set-aside, since public had strong interest in having applicable federal laws followed when bids were solicited. Small Business Act \u167 2[8], Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: This pre-award bid protest was filed by Plaintiff, Rotech Healthcare Inc. (\Rotech\) on June 11, 2014, challenging the Veterans Administration\rquote s (\VA\) decision to issue Solicitation No. VA259\u821114\u8211R\u82110107 in its current form because the solicitation fails to consider the application of various statutes and regulations. Before the Court are Cross\u8211Motions for Judgment on the Administrative Record. For the reasons set forth below, Rotech\rquote s Motion for Judgment on the Administrative Record is GRANTED, and the Government\rquote s Cross\u8211Motion is DENIED. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: At issue in the case is the VA\rquote s Solicitation No. VA259\u821114\u8211R\u82110107, issued on March 31, 2014. Compl. at 1. The Solicitation calls for the provision of home oxygen supplies and services to veterans and beneficiaries located in the Veterans Integrated Services Network (\VISN\) 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 025 - Rotech Healthcare Inc v United States.doc, Paragraph with 'Veteran: . At issue were two separate Request for Proposals (\RFP\): RFP 583, which concerned the provision of home oxygen equipment for Veterans Integrated Service Network 11 and issued under the same NAICS code as in this case, namely, 532291 (\Home Health Equipment Rental\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 026 - ARKRAY USA Inc v United States.doc, Paragraph with 'Veteran: . GSA can delegate its authority to establish FSS contracts to other agencies, and the Department of Veterans Affairs (\VA\) has been delegated authority to procure medical supplies under its own FSS program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 026 - ARKRAY USA Inc v United States.doc, Paragraph with 'Veteran: Selling Medical Supplies and Services Through the Department of Veterans Affairs Federal Supply Schedule Program, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 032 - Bona Fide Conglomerate Inc v SourceAmerica.doc, Paragraph with 'Veteran: Plaintiff\rquote s Complaint includes allegations regarding twelve AbilityOne Program opportunities \demonstrating bid rigging, group boycott, and illegal standard setting\: (1) Notice No. 10709 for custodial and grounds maintenance for the Lloyd D. George U.S. Courthouse and Federal Building and Alan Bible Federal Building in Las Vegas, Nevada; (2) Notice No. 1065 for janitorial services for 18 Customs and Border Patrol sites in San Diego, California; (3) Notice No. 1108 for custodial services for Vandenberg Air Force Base in San Luis Obispo, California; (4) Notice No. 1483 for custodial services for nine child development centers in Fort Hood, Texas; (5) Notice No. 1723 for custodial services for the Veterans Affairs Headquarters in Washington D.C.; (6) Notice No. 1692 for grounds maintenance and snow and ice removal for Denver Federal Center in Lakewood, Colorado; (7) Notice No. 1690, withdrawn and reissued as Notice No. 1741, for information technology services for Department of Defense Human Resource Activity\rquote s Defense Manpower Data Centers in Alexandria, Virginia and Monterrey, California; (8) Notice No.1944 for custodial services for the St. Elizabeth\rquote s U.S. Coast Guard Headquarters, Washington DC; (9) Notice No.1953 for total facility management services for the National Geospatial Intelligence Agency in Springfield, Virginia; (10) Notice No. 2161 for custodial and grounds maintenance services for a federal building, courthouse, and GSA Center building in Puerto Rico; (11) Notice No.2075 for total facilities management services for the National Geospatial\u8211Intelligence Agency Building in St. Louis, Missouri; and (12) Notice No. 2379 for operation and maintenance services for agricultural facilities in Peoria, Illinois. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 039 - Lawrence Battelle Inc v United States.doc, Paragraph with 'Veteran: apply only to particular contracts awarded by the General Services Administration and the Department of Veterans Affairs, which are not at issue in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder filed bid protest action, challenging Department of Veterans Affairs\rquote (VA) award of contract to provide computer information system (CIS) for intensive care units of various VA medical centers. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder had standing to pursue bid protest action, challenging Department of Veterans Affairs (VA)\u8217s award of contract to provide computer information system (CIS), since bidder had more than mere possibility of being awarded contract as lowest price technically acceptable bidder but for alleged errors in procurement process that resulted in bidder\rquote s proposal being rejected as technically unacceptable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder waived untimely challenge to definition of term \computerized patient record system\ (CPRS) in request for quotations (RFQ) by which Department of Veterans Affairs (VA) sought to procure computer information system (CIS), since bidder\rquote s proffered interpretation of CPRS was contrary to unambiguous language of solicitation, so bidder\rquote s challenge constituted allegations of patent error or ambiguity in RFQ, and challenge could have and should have been raised with VA before submitting bid, rather than waiting to raise challenge in bid protest action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) violated duty to treat all bidders fairly and equally in technical evaluation of bids for contract to provide computer information system (CIS), thus rendering procurement fundamentally irrational and invalid, where VA acted solely for successful bidder\rquote s benefit by relaxing solicitation\rquote s technical requirement of saving wave forms in computerized patient record system (CPRS), while holding unsuccessful bidder\rquote s proposal to different and more exacting technical standard. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA) never conducted discussions during procurement process seeking to award contract to provide computer information system (CIS), and thus, VA was not required or permitted to make competitive range determination for bidders, and bidders were on notice that they should not expect to have opportunity to revise their bids, where solicitation informed bidders that VA intended to evaluate offers and award contract without discussions with bidders, so bidders\rquote initial offers should contain their best terms from price and technical standpoint. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) unequal treatment of bidders in technical evaluation of bids for contract to provide computer information system (CIS) was prejudicial to unsuccessful bidder whose proposal was held to different and more exacting technical standard than successful bidder\rquote s proposal, since unsuccessful bidder offered lowest price by considerable margin and had substantial chance of receiving contract award but for VA\rquote s disparate treatment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder for contract awarded by Department of Veterans Affairs (VA) to provide computer information system (CIS) would suffer irreparable harm due to VA\rquote s unequal treatment of bidders, in absence of permanent injunction setting aside award of contract to bidder for whose sole benefit VA relaxed solicitation requirements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Balance of hardships favored permanent injunction setting aside award of contract to bidder for whose sole benefit Department of Veterans Affairs (VA) relaxed requirements of solicitation for contract to provide computer information system (CIS), thereby violating VA\rquote s duty to treat bidders fairly and equally. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: Public interest supported grant of permanent injunction setting aside award of contract to bidder for whose sole benefit Department of Veterans Affairs (VA) relaxed requirements of solicitation for contract to provide computer information system (CIS), thereby violating VA\rquote s duty to treat bidders fairly and equally, since unsuccessful bidder that was disparately treated had offered lowest price, yet VA rejected those cost savings, thus destroying public trust in government contracting and depriving government of benefits of full and open competition. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: This post-award bid protest arises out of Request for Quotations (RFQ) No. VA249\u821113\u8211Q\u82111015, by which the United States Department of Veterans Affairs (VA) sought, by means of a lowest price technically acceptable procurement conducted pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: On September 17, 2013, the VA issued RFQ No. VA249\u821113\u8211Q\u82111015 to procure a computer information system (CIS) for the intensive care units (ICUs) of seven VA medical centers located within the VA\rquote s Veteran Integrated Service Network 9 (VISN 9), which encompasses Kentucky, Tennessee, and West Virginia. AR Tab 1. The RFQ stated that the deadline for the submission of quotations was September 25, 2013, and described the period of performance under the awarded contract as beginning on September 27, 2013. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: In the \Statement of Work\ set forth in the RFQ, the procurement is described as seeking \a state of the art and fully integrated system\ that will \employ advanced technological methods in the integration of healthcare data to improve patient quality of care, reduction of medical errors, and increase in cost savings\ for the various VA medical centers within VISN 9. AR at 16. To that end, the Statement of Work emphasized that the delivery of a \complete turnkey project\ meeting the \substantial interface requirements between the CIS, the [Veterans Health Administration] hospital information system (Vista) and other systems\ was \a critical component of this project.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: \Vista\ is an acronym signifying the Veterans Health Information Systems and Technology Architecture, which is the Veterans Health Administration\rquote s (VHA\rquote s) hospital information system. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 041 - CliniComp International Inc v United States.doc, Paragraph with 'Veteran: The United States, by and through the Department of Veterans Affairs, is hereby Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small-business (SDVOSB), as former contract awardee, filed post-award bid protest action challenging corrective action by General Services Administration (GSA) in response to two Government Accountability Office (GAO) protests by disappointed bidder and seeking to enjoin resulting termination of competitive award to SDVOSB of set-aside contract for administrative support services for Public Buildings Service (PBS) and subsequent sole-source reprocurement of set-aside contract for Small Business Administration\rquote s (SBA) business development program. Parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small-business (SDVOSB), as former awardee of General Services Administration\rquote s (GSA) set-aside contract for administrative support services, filed bid protest, rather than contract dispute under CDA, as required for SDVOSB\rquote s standing to challenge GSA\rquote s corrective action in response to two Government Accountability Office (GAO) protests by disappointed bidder that resulted in termination of competitive award to SDVOSB and sole-source reprocurement set-aside for Small Business Administration\rquote s (SBA) business development program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: General Services Administration\rquote s (GSA) termination of competitive award of set-aside contract to service-disabled veteran-owned small-business (SDVOSB), to provide administrative support services, and instead commencing sole-source reprocurement awarding new set-aside contract for Small Business Administration\rquote s (SBA) business development program, was not reasonable corrective action in response to administrative bid protests, thus rendering sole-source award null and void, where SDVOSB\rquote s contract could have been modified to address GSA\rquote s alleged budget-mandated reduced needs that led to termination for convenience of SDVOSB\rquote s contract that cost less than sole-source non-competitive contract, and GSA had already addressed issues in administrative bid protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small-business (SDVOSB) would be irreparably harmed in absence of permanent injunction preventing General Services Administration (GSA) from terminating competitive award of set-aside contract to SDVOSB to provide administrative support services, and instead commencing sole-source reprocurement set-aside for Small Business Administration\rquote s (SBA) business development program, where SDVOSB lost contract representing approximately 38% of its current revenue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: Post\u8211Award Bid Protest; Corrective Action; Service\u8211Disabled Veteran\u8211Owned Small Business; Termination for Convenience; Reduction in Requirements; Reprocurement As Sole Source 8(a) Set\u8211Aside; FAR 19.804.29; FAR 19.804\u82112(a); 13 C.F.R. 124.504(a); 13 C.F.R. 124.504(c). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: GSA\rquote s invocation of budget-mandated reduced needs to conclude that ABMSI\rquote s contract no longer met agency requirements was unsupported by the record and erroneous. ABMSI\rquote s contract from the start accommodated a reduction in requirements and could have remained in place without the agency\rquote s ensuing conduct\u8212its rush to the Small Business Administration (\SBA\) to secure an 8(a) sole-source contract for services that cost more than ABMSI\rquote s contract and displaced a competitive award to a service-disabled veteran-owned small business. GSA\rquote s conduct was arbitrary, capricious, and anti-competitive, lacked a rational basis, and prejudiced a service-disabled veteran-owned small owned business. As such, this Court declares GSA\rquote s sole-source award to Premier Management Corporation (\Premier\) null and void, permanently enjoins GSA and Premier Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: On February 1, 2012, the General Services Administration (\GSA\) issued solicitation number GS\u821111P\u821112\u8211YA\u8211C\u82110017 (\original Solicitation\) as a service-disabled veteran-owned small business (\SDVOSB\) set-aside for \administrative support services\ for the Public Buildings Service (\PBS\), National Capital Region for a one-year base period with four one-year options. AR Tab 1 at 6; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: Counsel determined that an overall rating of [...] for Moody\rquote s second project, which involved transportation services from an employee parking lot to a Veteran Affairs Medical Center, was inconsistent with the evaluators\rquote finding of [...] and had to be reversed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: [T]his contract was previously awarded as an Administrative set-aside as a Small [Disabled] Veteran Owned Small Business. However, due to agency budgetary commitments to reduce the level of internal contractor support, our support needs were changed therefore resulting in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: 9. No solicitation for the specific acquisition has been issued indicating this requirement as a small business, HUBZone, service-disabled veteran-owned small business set-aside, nor a set-aside under the Women\u8211Owned Small Business (WOSB) Program, etc., nor has this requirement been publicly announced. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: On Thursday, March 13, 2014, at 12:44 p.m. SBA\rquote s 8(a) Business Opportunity Specialist, Christine Kingston, emailed GSA\rquote s Contract Specialist, Theophilus Hlovor, asking for additional information to process GSA\rquote s February 27th request for a sole-source set aside namely, (1) the original offer letter, (2) the statement of work, and (3) the acquisition history, including the firm currently performing the work. AR Tab 78 at 1112. Two hours later, Contract Specialist Hlovor responded via email that \Below is the original letter sent and the statement of work. The incumbent is not an 8a firm. It is a service-disabled veteran own[ed] small business. It was competed with 61 vendors participating. The name is ABMSI....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with 'Veteran: ). Here, GSA attempted to justify terminating ABMSI\rquote s contract and reprocuring via a sole-source award based on two circumstances\u8212an inconsequential budget cut and an unwarranted concern about Moody\rquote s GAO protests. Neither justification supported displacing a competitive award to a service-disabled veteran-owned small business and effecting a noncompetitive higher priced sole-source award. The integrity of the procurement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: Defense counsel\rquote s representation of defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), posed potential conflict of interest, where counsel were one current non-equity partner and one former equity partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts, they were potential witnesses at trial, and counsel could have divided loyalties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: Potential conflict of interest posed by defense counsel\rquote s representation of defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), based on one counsel\rquote s current status and one counsel\rquote s former status as partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts, was waivable, pursuant to the Sixth Amendment and the Massachusetts rules of professional conduct; there was no showing that no rational defendant would refuse to waive the defense or that a disinterested lawyer would conclude that defendant should not continue to allow counsel to represent him. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: Defendant charged with conspiracy to defraud the United States and four counts of wire fraud, in connection with his allegedly false representations concerning a corporation\rquote s eligibility to obtain contracts as service-disabled veteran-owned small business (SDVOSB), validly waived conflict of interest, with respect to his formal advice-of-counsel defense, but not with respect to his general lack of mens rea defense, posed by one counsel\rquote s current status and one counsel\rquote s former status as partner at law firm that represented corporation in connection with alleged fraudulent bids for SDVOSB contracts; defendant contended that he would argue that he acted in good faith because he retained counsel, but would not contend that he believed what corporation did was legal because he followed counsel\rquote s specific legal advice, and waiver did not specifically address counsel\rquote s potential divided loyalties. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: a corporation\rquote s eligibility to obtain contracts as a service-disabled veteran-owned small business (\SDVOSB\). Defendant David Gorski is charged with one count of conspiracy to defraud the United States in violation of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: , at least three percent of all government contract awards must go to businesses that are owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: Regulations promulgated by the United States Department of Veterans Affairs (\VA\) and the Small Business Association govern SDVOSB eligibility. To qualify as a SDVOSB under those regulations, an entity must be at least 51 percent owned by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: . The entity must also be controlled by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: . \Control by one or more service-disabled veterans means that both the long-term decision[ ] making and the day-to-day management and administration of the business operations must be conducted by one or more service-disabled veterans....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: Legion Construction, Inc., is a corporation based in Chelmsford, Massachusetts, that performs construction work. According to the indictment, David E. Gorski is nominally a minority owner and vice president of Legion. He is not a veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: In late 2005 or early 2006, Gorski allegedly recruited Joseph Steen, a veteran, to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: On August 20, 2007, Legion underwent a corporate restructuring. As part of the restructuring, Steen reduced his ownership to 11 percent and Gorski became a 49 percent owner. Peter Ianuzzi, also a veteran, became the owner of the remaining 40 percent. After the restructuring, Legion continued to bid on and receive construction contracts from the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 043 - US v Gorski.doc, Paragraph with 'Veteran: On January 11, 2010, Legion submitted a bid on a VA construction contract for the agency\rquote s medical center in White River Junction, Vermont. Legion was awarded the contract. On March 8, 2010, one of Legion\rquote s competitors, Ironclad Services, Inc., filed a bid protest with the SBA challenging Legion\rquote s status as a SDVOSB. Ironclad alleged that Legion was improperly awarded the White River Junction contract because it was controlled by Gorski and not by one or more service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 057 - Octo Consulting Group Inc v United States.doc, Paragraph with 'Veteran: Small Disadvantaged Veteran\u8211Owned Small Businesses], WOSB [Women\u8211Owned Small Businesses], EDWOSB [Economically Disadvantaged Women\u8211Owned Small Businesses], and/or 8(a). If at least three representatives are present for each socio-economic sub-group, no additional awards shall be made. In the event that any particular socio-economic sub-group does not have at least three representatives in a given Pool, the Government will award to the next highest rated Offeror eligible for award (in addition to the Top 40 and/or Top 20 highest technically rated Offerors) within a given socio-economic sub-group until each socio-economic sub-group has three representatives. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 061 - ARKRAY USA Inc v United States.doc, Paragraph with 'Veteran: In managing the solicitation, the Contracting Officer is tasked with coordinating and communicating with the DoD organizations that are responsible for reviewing the relative clinical effectiveness of the pharmaceutical agents under review, as well as the Department of Veterans Affairs (\VA\) FSS Service. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 063 - ARKRAY USA Inc v United States.doc, Paragraph with 'Veteran: because DHA relied upon a Department of Veterans Affairs pharmaceutical database and a contract modification, printouts of which are already included in the record. These documents speak for themselves. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 063 - ARKRAY USA Inc v United States.doc, Paragraph with 'Veteran: In its opposition brief, the government represented that the agency did not rely on the FSS contract for Abbott in making its decision to select Abbott for the BPA. Specifically, the government represents that the agency primarily relied upon a public Department of Veterans Affairs pharmaceutical database, which reflects FSS status. The government further represents that the agency only used Abbott\rquote s FSS contract to verify the status of one of Abbott\rquote s proposed test strips, and that a printout of this verification is included in the administrative record at pages 1522\u821123. The court is satisfied that the government has provided the necessary materials related to Abbott\rquote s satisfaction of the FSS requirement. Accordingly, plaintiff\rquote s motion to supplement the record with a copy of the FSS contract or other FSS-related materials is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'Veteran: Team IAL is a Small Business and Veteran Participation Leader\u8212We Exceed Small Business and Veteran-owned Small Business Subcontracting Goals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 065 - American Auto Logistics LP v United States.doc, Paragraph with 'Veteran: Protestor also projects that another of intervenor\rquote s subcontractors, SDV Command Source, is only going to earn \approximately $1.6\u82112.1 million\ per year on the contract if awarded, \which equates to approximately 1.2 percent of the total annual contract value.\ Protestor alleges that, therefore, \TRANSCOM should not have considered SDV Command\rquote s past performance at all because it is not proposed as a \u8216principal subcontractor.\u8217 \ Protestor reaches this projection, as it does with respect to Global Auto Logistics, by relying on the intervenor\rquote s proposal\rquote s indication that International Auto Logistics is assigning 1.2% of all subcontracting dollars to \SDVOSB [Service\u8211Disabled Veteran\u8211Owned Small Business],\ and noting that SDV Command Source fits that category in the proposal. Defendant does not attempt to project SDV Command Source\rquote s earning potential off the GPC III contract if awarded, but, instead states that \the awardee has proposed SDV Command Source to operate vehicle processing centers in Georgia, Missouri, and Puerto Rico and a vehicle storage facility in South Carolina. As noted above, plaintiff\rquote s restrictive definition of \u8216principal subcontractor\u8217 is not found in the solicitation.\ (internal citation omitted). SDV Command Source is slated in the proposal to operate three vehicle processing centers and one vehicle storage site. According to intervenor\rquote s proposal, the revenue generated from just the three vehicle processing centers alone will be more than what protestor alleges SDV Command Source will earn on the contract per year. In addition, even if protestor\rquote s analysis of SDV Command Source\rquote s earnings under the contract is correct, as is discussed more below, TRANSCOM still was not arbitrary and capricious in categorizing SDV Command Source as a \major subcontractor.\ Moreover, since SDV Command Source\rquote s references were rated as \Somewhat Relevant\ to the GPC III solicitation, it appears from the record the references were not given as much weight as Global Auto Logistics\rquote two \Relevant\ references. As noted by the source selection authority in her decision document, the two \Relevant\ Global Auto Logistics references were treated as \[m]ost significant and of greatest consideration\ in determining intervenor\rquote s overall past performance confidence rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'Veteran: Earlier this year, the United States Department of Veterans Affairs (\VA\) awarded a contract for home oxygen services to defendant-intervenor Rotech Healthcare, Inc. (\Rotech\). Plaintiff B & B Medical Services, Inc. (\B & B\) protested the VA\rquote s award decision, alleging errors in the VA\rquote s responsibility determination, past performance evaluation, and best value tradeoff. While the parties were engaged in briefing on cross-motions for judgment on the administrative record, the VA commenced corrective action and defendant moved to dismiss the protest as moot. For the reasons set forth below, the court grants defendant\rquote s motion. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'Veteran: On May 31, 2013, the VA issued solicitation number VA256\u821112\u8211R\u82110059 for the Veterans Integrated Service Network (\VISN\) 16 Home Oxygen Services contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 066 - BAndB Medical Services Inc v United States.doc, Paragraph with 'Veteran: at 235. The VA intended to evaluate the offerors\rquote proposals on five factors: (1) technical capability, (2) quality control program, (3) past performance, (4) participation of service-disabled veteran-owned small businesses (\SDVOSB\) and commitment to small businesses, and (5) price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 068 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder brought post-award bid protest against federal government challenging the award of blanket purchase agreement (BPA) to provide laboratory testing and analysis services for Department of Veterans Affairs (VA) medical centers. After successful bidder was permitted to intervene, all parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 068 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Decision made by Department of Veterans Affairs (VA) in awarding blanket purchase agreement (BPA) to provide laboratory testing and analysis services for medical centers lacked rational basis, given agency\rquote s errors in technical and price evaluations of the offers; agency used test type criteria as the predominant differentiator in selecting successful bid even though neither its request for quotations (RFQ) nor its statement of work (SOW) indicated that proposals would be evaluated on that basis, although RFQ indicated VA would evaluate offerors\rquote prices by adding the total price for all options to the total price for the basic requirement, neither the RFQ nor the SOW disclosed that the VA would limit its consideration only to the prices that offerors proposed for tests available under their respective federal supply schedule (FSS) contracts, agency conducted an \apples and oranges\ price comparison between offers, using incorrect figures, and it failed to adequately document its technical evaluations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 068 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder on blanket purchase agreement (BPA) to provide laboratory testing and analysis services for Department of Veterans Affairs (VA) medical centers suffered prejudice as a result of VA\rquote s flawed evaluation methods, as required to obtain injunctive relief from court, since bidder had a substantial chance of winning the contract without the VA\rquote s errors; VA circumvented unsuccessful bidder\rquote s efforts to compete under undisclosed criterion, and improperly examined the total price of only the federal supply schedule tests without a common basis to allow a fair \apples to apples\ comparison with other offers. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 068 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Permanent injunction was warranted, under Tucker Act, to enjoin Department of Veterans Affairs (VA) from proceeding with performance of blanket purchase agreement (BPA) awarded to provide laboratory testing and analysis services for its medical centers, following finding that award lacked rational basis; unsuccessful bidder demonstrated that agency applied unstated evaluation criteria, failed to properly apply technical and price evaluations, and failed to conduct best value trade-off analysis in making award, so as to demonstrate decision was arbitrary and capricious, unsuccessful bidder suffered irreparable Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 068 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: In this post-award bid protest, Plaintiff Laboratory Corporation of America Holdings (\LabCorp\) challenges the selection by the Department of Veterans Affairs (\VA\) of Quest Diagnostics, Inc. (\Quest\) for award of a Blanket Purchase Agreement (\BPA\). The BPA is for laboratory testing and analysis services at five VA Medical Centers in upstate New York. LabCorp is the incumbent contractor, and has provided these services to the VA for approximately the past twelve years. The BPA will be for one base year and an option year. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: A service-disabled veteran-owned small business brought bid protest claim seeking injunctive relief compelling Department of Veterans Affairs (VA) to comply with Veterans Benefits, Health Care, and Information Technology Act of 2006, alleging that the VA conducted procurements in violation of Act by failing to set aside those procurements for veteran-owned small businesses or service-disabled veteran-owned small businesses. The United States Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , Circuit Judge, held that Veterans Act did not require VA to conduct Rule of Two analysis in every procurement, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Veterans Act did not require Department of Veterans Affairs (VA) to conduct Rule of Two analysis in every procurement, which was procedure well-known throughout government in connection with award of contracts set aside for competition restricted to small businesses, as long as VA satisfied its annual small business participation goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Kingdomware is owned and controlled by a service-disabled veteran. The Department of Veterans Affairs (\VA\) certified Kingdomware as a service-disabled veteran-owned small business in September 2010 and recertified Kingdomware in September 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: It has long been the policy of the United States to promote small businesses, including small businesses owned and controlled by veterans. Congress has expressed this policy through the Small Business Act, 15 U.S.C. ch. 14A, and stated its expectation that small businesses generally will receive \a fair proportion of the total purchases and contracts for property and services for the Government....\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: . Veteran\u8211Owned Small Businesses (\VOSBs\) and Service\u8211Disabled Veteran\u8211Owned Small Businesses (\SDVOSBs\) are expressly recognized in the Small Business Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The policy directive to promote small businesses lies within the statutes and regulations that guide Government contract formation. The general policies and procedures for Government contracting are contained in the Federal Acquisition Regulation (\FAR\), 48 C.F.R. ch. 1, which implements the Office of Federal Procurement Policy Act of 1974, 41 U.S.C. ch. 7. Certain agency-specific contract regulations are established agency by agency, and contract regulations specific to the VA are stated in the Veterans Affairs Acquisition Regulation (\VAAR\), 48 C.F.R. ch. 8. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: \u167 38.000. For other goods and services, the VA uses the GSA FSS program. As a matter of policy, the VA encourages VOSBs and SDVOSBs to participate in the FSS program. Press Release, Dept. of Veterans Affairs, Statement on VA Veteran\u8211Owned Small Business Contract (Oct. 28, 2011). Purchasing goods and services through the FSS is important to the VA and to VOSBs: in 2011, the VA used FSS contracts for 20% of its total spending, and 13% of these FSS expenditures went to VOSBs. Kathleen Miller, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Dispute Simmers Between VA and Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The State of Veterans\rquote Employment: Hearing Before the H. Comm. on Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: H.R. 1460, The Veterans Entrepreneurship Act of 2003; H.R. 1712, The Veterans Federal Procurement Opportunity Act of 2003; and H.R. 1716, The Veterans Earn and Learn Act: Hearing Before the Subcomm. on Benefits of the H. Comm. on Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: 108th Cong. 9 (2003) (statement of Leo Mackay, Deputy Sec\rquote y of Veterans Affairs). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Congress again amended the Small Business Act in 2003 to focus on SDVOSBs. The 2003 Act grants discretionary authority (\a contracting officer may award\) to contracting officers, Government-wide, to award sole-source contracts of restricted dollar amounts to SDVOSBs when the contracting officer estimates receipt of a fair and reasonable price, and otherwise to award contracts on the basis of competition restricted to SDVOSBs \if the contracting officer has a reasonable expectation that not less than 2 small business concerns owned and controlled by service-disabled veterans will submit offers and that the award can be made at a fair market price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , at 16 (2006) ( \H.R. REP.\). Consequently, in 2006 Congress returned to the subject of preferences for businesses owned and controlled by veterans, enacting a statute specifically and only directed to the VA. While the Small Business Act and previous amendments contained provisions relating only to SDVOSBs, the 2006 Veterans Act expanded the reach of the small business provisions to include both VOSBs and SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The Veterans Act of 2006, codified at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , gives contracting officers in the VA certain specific tools in subsections (b), (c), and (d) for achieving the goals to be set by the Secretary. As the House Report accompanying the statute explained: \[g]iven this new set of acquisition tools, there should be no reason for VA not to meet the veteran and service-disabled veteran small business contracting goals.\ H.R. REP., at 16. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: (d) USE OF RESTRICTED COMPETITION.\u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the [VA] shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Memorandum from James B. Peake, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Facility Directors (Jan. 28, 2008); Memorandum from Eric K. Shinseki, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Directors (May 7, 2010); Memorandum from Eric K. Shinseki, Sec\rquote y of Veterans Affairs, to Under Sec\rquote ys, Assistant Sec\rquote ys, Other Key Officials, Deputy Assistant Sec\rquote ys, and Field Directors (Feb. 21, 2012); Summary of Veterans Affairs Veteran Owned Small Business Goals Achieved for FY 2006 through FY 2012 (Mar. 18, 2014). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Press Release, Dept. of Veterans Affairs, Statement on VA Veteran\u8211Owned Small Business Contract (Oct. 28, 2011), and in litigation. Because the regulations themselves do not expressly state that the subsection does not apply to the FSS, the court declined Chevron deference to the VA\rquote s interpretation. But since the regulations only recite statutory language verbatim, and that language was found ambiguous, and because the regulations are wholly silent as to what role the FSS might play in meeting the goals set by the Secretary, the court considered granting deference under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: \u8212\shall award\\u8212requires the VA to conduct a Rule of Two analysis in all cases (other than those covered by subsections (b) and (c)), including those cases where the VA would prefer to order against the FSS. Kingdomware points out that Congress used language almost identical to that in \u167 8127 in the 2003 Veterans Act, but importantly, changed the permissive term \may\ to the mandatory term \shall.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: H.R. 1773, the Native American Veteran Home Loan Act; H.R. 3082, the Veteran\u8211Owned Small Business Promotion Act of 2005; and Four Draft Bills: Hearing Before the Subcomm. on Econ. Opportunity of the H. Comm. on Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: 109th Cong. 2 (2005) (statement of Rep. John Boozman, Member, H. Comm. on Veterans Affairs). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Finally, Kingdomware notes that in the Report accompanying the legislation, the Committee on Veterans\rquote Affairs stated that \small businesses owned and controlled by veterans and service-disabled veterans should Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The VA also asserts that Kingdomware\rquote s reading of \shall\ conflicts with its multiple small business contracting responsibilities. According to the VA, if it were to follow subsection (d)\rquote s Rule of Two in every instance, in addition to respecting the contracting priorities of subsection (i), it would be unable to meet other small business contracting goals specified by the Small Business Act. Moreover, the VA points out that under the Small Business Act, including the 2003 Veterans Act amendments, agencies have always retained the discretion to use the FSS in lieu of following the Rule of Two. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: . It argues that a single wording change\u8212from \may\ in the 2003 Veterans Act to \shall\ in the 2006 Act\u8212without further explicit guidance as to how the provisions of the 2006 Act interact with the FSS is insufficient evidence that Congress intended to disrupt the existing scheme here. According to the VA, Kingdomware\rquote s interpretation would lead to the untenable result wherein the VA is unable to use the FSS for even routine and minor purchases. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: out of frustration with the failure of agencies Government-wide to achieve the aspirational goals of 3% for SDVOSBs. In hearings leading up to the 2006 Veterans Act, the prime reason for failure to achieve the Government-wide goals was \the discretionary, not mandatory, nature of the goals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: changed what had been a \may\ to a \shall\ in terms of goals. Congress chose the VA to set the example among Government agencies by imposing on it the obligation to meet the goals set by the Secretary for both categories of veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: (\The goals for veteran and service-disabled veteran owned businesses are not in any way intended to prevent attainment of other set-aside goals.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: As it stands, there is no reason to compel the Secretary to set aside any contract for a Rule of Two inquiry before using the FSS notwithstanding his goals, as Kingdomware requests. The VA has consistently met the mandatory goals for procurement from SDVOSBs and VOSBs in each year since the Veterans Act of 2006 went into force, and Kingdomware does not contend otherwise. The Secretary has complied with his statutory mandate to both set goals and meet them, and, accordingly, the VA contracting officer\rquote s decision not to set aside the contracts at issue was not arbitrary, capricious, or contrary to the law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The majority holds that the 2006 Veterans Act does not require the Department of Veterans Affairs (\VA\) to conduct a Rule of Two analysis in every procurement, as long as the VA satisfies its annual small business participation goals. I do not construe the 2006 Veterans Act as giving the VA discretion to decide whether to conduct a Rule of Two analysis. For this and other reasons set forth below, I respectfully Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The plain language of the 2006 Veterans Act unambiguously requires VA contracting officers to conduct a Rule of Two analysis in every acquisition and does not exempt Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: (emphasis added). This provision is part of a broader veteran-owned small business contracting program congressionally tailored to the VA, which requires the Secretary of the VA to increase small business contracting opportunities by establishing annual participation goals for veteran-owned small businesses (\VOSB\) and service-disabled veteran-owned small businesses (\SDVOSB\) in VA acquisitions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: use procedures other than competitive procedures\ in awarding contracts to veteran-owned small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: award a contract\ to a veteran-owned small business using noncompetitive procedures as long as certain requirements are met. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In contrast, subsection (d) of the 2006 Veterans Act applies to all VA acquisitions and requires VA contracting officers to conduct a Rule of Two analysis in every acquisition, without limitation. Unlike subsections (b) and (c), which use discretionary language (\may use\ and \may award\), subsection (d) uses mandatory language (\shall award\), and does not otherwise give discretion to VA contracting officers to decide whether to conduct a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: Consistent with the 2006 Veterans Act\rquote s imperative, the Government Accountability Office (\GAO\) has sustained more than seventeen protests in response to the VA\rquote s refusal to comply with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: and its construction of the 2006 Veterans Act is consistent with Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The majority takes an unusual step of collecting extrinsic evidence to show that \[t]he VA has consistently met the mandatory goals for procurement from SDVOSBs and VOSBs in each year since the Veterans Act of 2006 went into force [.]\ Maj. Op. at 934. While the exact rationale for exploration outside the record is not clear, the majority apparently rests on these statistics to conclude that \there is no reason to compel the Secretary to set aside any contract for a Rule of Two inquiry\ where the goals were met for the time period in question. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: By holding that the 2006 Veterans Act\rquote s Rule of Two provision is discretionary, the majority effectively renders Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: , the 2006 Veterans Act is devoid of any similar language that would allow the VA to proceed directly to the FSS without first conducting a Rule of Two analysis. Hence, the majority\rquote s holding reads this exemption into Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: dollars\u8212but does not elaborate on how contracting officers can determine that these goals have been \met\ before the end of the fiscal year. Participation goals require agency officials to consider a range of factors in their broader acquisition policies well before a solicitation is issued or an individual contract is contemplated. The majority thus errs when it asserts that an obligatory Rule of Two requirement would obviate the goal-setting provision of the 2006 Veterans Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: In sum, the majority adopts an untenable construction of the 2006 Veterans Act by holding that the agency need not perform a VOSB Rule of Two analysis for every contract, as long as the goals set under subsection (a) are met. The majority\rquote s holding deprives the Rule of Two mandate of its force and effect, it impedes congressional objectives regarding set asides, and it renders Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: The 2003 Veterans Act remains in effect and applies to all agencies. The 2006 Act, in contrast, applies only to the VA. The relevant provision of the 2003 Act states: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 073 - Kingdomware Technologies Inc v US.doc, Paragraph with 'Veteran: contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the [Rule of Two is satisfied]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 074 - B And B Medical Services Inc v United States.doc, Paragraph with 'Veteran: (RCFC). Defendant argues that the complaint is moot because on January 8, 2014, the Department of Veterans Affairs (VA) canceled the solicitation at issue in this case, VA244\u821110\u8211RP\u82110221 (the solicitation), and expects to reissue it on terms allowing plaintiff to compete for an award. Def.\rquote s Mot. to Dismiss (Def.\rquote s Mot.) at 6\u82119. Plaintiff B & B Medical Services, Inc. (B & B) argues that the case is not moot because the government continues to misapply the non-manufacturer rule (NMR) and because the new solicitation, under which B & B would be eligible to compete for an award, has not yet been reissued. Pl.\rquote s Resp. to Def.\rquote s Mot. to Dismiss (Pl.\rquote s Opp\rquote n) at 1\u82115. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 075 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder brought post-award bid protest against federal government challenging the award of contract to provide laboratory testing and analysis services for Department of Veterans Affairs (VA) medical centers. Government moved to strike declarations of bidder\rquote s witnesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 075 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Declaration of unsuccessful bidder\rquote s expert economist was necessary to permit meaningful judicial review of administrative record, as required to supplement record with declaration in post-award bid protest challenging federal government\rquote s award of contract to provide laboratory testing and analysis for Department of Veterans Affairs (VA) medical centers; bidder\rquote s challenge was based in part on expert\rquote s detailed quantitative analysis of prices and tests in offerors\rquote proposals, and omitting declaration would handicap not only court\rquote s understanding but bidder\rquote s ability to make its argument. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 075 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Declaration of unsuccessful bidder\rquote s economist was admissible as expert testimony in post-award bid protest challenging federal government\rquote s award of contract to provide laboratory testing and analysis for Department of Veterans Affairs (VA) medical centers; economist\rquote s education and professional experience qualified him to perform the detailed price analysis he conducted on offerors\rquote proposals, economist\rquote s analysis went beyond mere tallying of prices in each proposal, and economist\rquote s specialized knowledge would greatly assist court in understanding the evidence in the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 075 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder waived challenge to number of tests included in federal government\rquote s solicitation for contract to provide laboratory testing and analysis services for Department of Veterans Affairs (VA) medical centers, and thus administrative record would not be supplemented to include declaration of bidder\rquote s law witness regarding number of tests that should have been included in solicitation, in bidder\rquote s post-award bid protest action; bidder failed to avail itself of opportunity to challenge number of tests included in solicitation before bidding process concluded. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 075 - Laboratory Corporation of America Holdings v United States.doc, Paragraph with 'Veteran: On April 4, 2014, Plaintiff Laboratory Corporation of America Holdings (\LabCorp\) filed a post-award bid protest challenging the award of a contract by the Department of Veterans Affairs (\VA\) to provide laboratory testing and analysis services at five VA Medical Centers in upstate New York. The VA requested offerors to submit prices for 1,575 different laboratory tests based upon the VA\rquote s \FY 2014 estimated utilization\ level for each test. The VA included six evaluation factors and sub-factors in the solicitation, with price being the lowest factor in priority. The VA intended to award a Blanket Purchase Agreement (\BPA\) against the successful offeror\rquote s current Federal Supply Schedule (\FSS\) Contract. After evaluating Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 082 - American Demolition and Nuclear Decommissioning Inc v IBCS Group Inc.doc, Paragraph with 'Veteran: Individual sureties are specifically recognized by the Federal Acquisition Regulation (\FAR\). Properly issued bonds are fully compliant with the FAR.... Individual surety bonds have been accepted by, among others, the Department of Justice, Federal Bureau of Prisons, the General Services Administration, Department of the Air Force, Department of Veterans Affairs and Naval Facilities Engineering Command, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\5, File: 099 - WHR Group Inc v United States.doc, Paragraph with 'Veteran: Additionally, the FBI operates more than 60 international offices in U.S. embassies and employs over 13,000 special agents. The FBI periodically relocates these agents along this large network of offices. For example, new agents are sometimes assigned to smaller field offices and relocated once the agents have completed training under a veteran special agent. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 001 - FCN Inc v United States.doc, Paragraph with 'Veteran: UnitedHealth Military & Veterans Services, LLC v. United States Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: Unsuccessful bidder on Department of Veterans Affairs (VA) contract to provide custom surgical packs for use at five VA medical centers filed post-award bid protest. After successful bidder was permitted to intervene, all parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: Request for proposals (RFP) made by Department of Veterans Affairs (VA) on contract to provide custom surgical packs for use at five VA medical centers required offerors to submit complete information as to past performance sources in their proposals or be excluded from further consideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: Once Department of Veterans Affairs (VA) rejected bid on contract to provide custom surgical packs for use at five VA medical centers, as an incomplete proposal due to lack of required information on past performance sources using a lowest price technically acceptable (LPTA) source selection process, the corrective action it then took in referring the matter to the Small Business Administrator (SBA) for review under the agency\rquote s certificate of competency program, and ultimately accepting the bid on basis of lowest price, was improper in that it was not rationally related to the SBA responsibility defect it purported to correct; VA failed to even reach the question of responsibility, so SBA review, as corrective action, was not warranted. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: Permanent injunction enjoining Department of Veterans Affairs (VA) from awarding non-responsive bidder a contract to provide custom surgical packs for use at five VA medical centers, or permitting the bidder to perform any portion of the contract, was proper where unsuccessful bidder was likely to succeed on merits of claim that but for agency errors it would have been awarded contract, harm to unsuccessful bidder was greater than any delay VA would suffer in making the award, especially considering that delay was result of agency\rquote s own actions, and injunction was required to maintain the integrity of the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, D.C., Bridget E. Grant, Department of Veterans Affairs, Of Counsel, for Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 002 - Manus Medical LLC v United States.doc, Paragraph with 'Veteran: This case arises from a Department of Veterans Affairs (\VA\) procurement for custom surgical packs to be used at five VA Medical Centers in Denver, Colorado; Grand Junction, Colorado; Salt Lake City, Utah; Cheyenne, Wyoming; and Fort Harrison, Montana. Administrative Record (\AR\) 26. On August 24, 2012, the VA issued the solicitation as a set-aside for Service\u8211Disabled, Veteran\u8211Owned Small Businesses. AR 23. Plaintiff, Manus Medical, LLC (\Manus\), and Defendant\u8211Intervenor, Marathon Medical, LLC (\Marathon,\ or \MMC\) were among the six offerors who competed for the award. AR, Tabs 15, 16. The solicitation contemplated the award of an indefinite delivery, indefinite quantity (\IDIQ\) contract for a base year and four option years. AR 26. The VA intended to evaluate proposals and make an award by using a Lowest Price Technically Acceptable (\LPTA\) source selection process. AR 88. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'Veteran: Contractor filed pre-award bid protest challenging decision by Department of Veterans Affairs (VA) to cancel small business set-aside solicitation for home healthcare oxygen. Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'Veteran: Contractor\rquote s pre-award bid protest challenging allegedly arbitrary decision by Department of Veterans Affairs (VA) to cancel small business set-aside solicitation for home healthcare oxygen, on grounds that VA purportedly wrongfully interpreted non-manufacturer rule to determine bidder eligibility, was rendered moot by formal change in regulation governing size standard for small businesses, where contractor qualified as small business under changed size standard, so contractor no longer suffered harm from cancellation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 009 - B And B Medical Services Inc v United States.doc, Paragraph with 'Veteran: Presently before the Court is the government\rquote s motion to dismiss this case as moot. This bid protest was brought by plaintiff B & B Medical Services, Inc. (B & B) as a challenge to the decision by the Department of Veterans Affairs (VA) to cancel Solicitation No. VA\u8211249\u821110\u8211RP\u82110041 (the solicitation). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 013 - AEY Inc v United States.doc, Paragraph with 'Veteran: the plaintiff had received a contract from the Veterans Administration to educate and train veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 013 - AEY Inc v United States.doc, Paragraph with 'Veteran: In April 1949, the plaintiff received notice that his school was at risk of closure because it was not meeting the state\rquote s minimum requirements for the training of veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 013 - AEY Inc v United States.doc, Paragraph with 'Veteran: After learning that a further investigation would be required, the school destroyed its attendance records for all veterans who were in training prior to January 3, 1949. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 013 - AEY Inc v United States.doc, Paragraph with 'Veteran: A more complete audit report by the Veterans Administration in July 1949 revealed a series of substantial irregularities in the school\rquote s attendance records. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: Central Contractor Registration, 48 C.F.R. \u167 52.204\u82117(a) (2013) (changing the name of the CCR to the \System for Award Management\); Pre\u8211Award Bid Protest Jurisdiction (28 U.S.C. \u167 1491(b)(1)); Service\u8211Disabled Veteran\u8211Owned Small Business Set\u8211Aside (15 U.S.C. \u167 644(g)(1)(A)(ii)); Standing; Federal Acquisition Regulations, 1.102(b)(3) (\The Federal Acquisition System will ... [c]onduct business with integrity, fairness, and openness.\); 1.102\u82112(c)(3) (fair and impartial treatment of contractors); 1.602\u82112(b) (\impartial, fair, and equitable treatment\ of contractors by contracting officers); 3.101\u82111 (standards of conduct for government personnel); 15.305 (evaluation of proposals); 16.504 (indefinite quantity contract); 19.1405 (SDVOSB set-aside procedures); 52.219\u82111 (voluntary certifications); 13 C.F.R. \u167 125.15(e)(1) (SDVOSB status determined at the time of an initial offer); 48 C.F.R. \u167 4.1201 (2012 and 2013) (representations and certifications); 48 C.F.R. \u167 52.204\u821113(b) (contractors responsibility for the accuracy of information in the Central Contractor Registration). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: This bid protest concerns allegations made by a service-disabled veteran-owned small business that the United States Environmental Protection Agency acted arbitrarily and capriciously and in bad faith when the agency determined the bidder to be non-responsible, proposed the bidder for debarment, and then declined to award the contract to any bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: The Evaluation Of Service\u8211Disabled Veteran\u8211Owned Small Business Proposals, Initial Contract Award, And Subsequent Protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: The Agency\rquote s Decision To Terminate Plaintiff\rquote s Proposed Debarment But Not To Award The Service\u8211Disabled Veteran\u8211Owned Small Business Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: AR Tab 1 at 121. In addition, the Solicitation stated that the award would be made on a competitive basis, pursuant to a small business set-aside. AR Tab 1 at 121. The Solicitation also identified only the \Program Manager\ and \Response Managers\ as key personnel. AR Tab 1 at 144\u821145. The third contract, however, was to be \awarded based on competition restricted to service-disabled veteran-owned small businesses\ (the \SDVOSB Contract\ or the \SDVOSB set-aside\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: B. The Evaluation Of Service\u8211Disabled Veteran\u8211Owned Small Business Proposals, Initial Contract Award, And Subsequent Protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: On May 19, 2009, NEIE, Inc. (\NEIE\ or \Plaintiff\) submitted a timely proposal in response to the Solicitation for the SDVOSB Contract. AR Tab 3 at 271; AR Tab 4. NEIE represented that it was \a full service hazardous waste management company operating in the Northeast and Mid\u8211Atlantic Regions\ of the United States, providing \premier ERRS service\ within EPA Region 2. AR Tab 3 at 276. At that time, James Coleson, a service-disabled veteran, owned 100% of NEIE. Am. Compl. \u182 5. NEIE identified James Coleson as a \Responsible Corporate Officer\ and that his son, Chris Coleson, worked in Resource Management. AR Tab 3 at 280. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: 6. NEIE does not have an entry in the Department of Veterans Affairs Vendor Information Pages database. AR Tab 123 at 1990. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: 5. \It appears that NEIE even attempted to \u8216transfer\u8217 ownership of NEIE to a different veteran when Christopher Coleson indicated in a July 6, 2011 email to the Contracting Officer that Jeremy Feldbusch Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: In addition, the CO advised the SBA that \[i]n order to secure the possibility of a lucrative Government contract set-aside for a service-disabled veteran-owned small business, NEIE, Inc. knowingly and intentionally misled the Government by failing to advise EPA ... that James Coleson had died.\ AR Tab 154 at 2356. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: G. The Agency\rquote s Decision To Terminate Plaintiff\rquote s Proposed Debarment But Not To Award The Service\u8211Disabled Veteran\u8211Owned Small Business Contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: \[i]n order to secure the possibility of a lucrative Government contract set-aside for a service-disabled veteran-owned small business, NEIE, Inc. knowingly and intentionally misled the Government by failing to advise EPA ... that James Coleson had died.\ AR Tab 154 at 2356. This reasoning, however, was deeply flawed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: . AR Tab 223 at 3115 (finding that NEIE knew that James Coleson\rquote s death would not affect NEIE\rquote s eligibility); AR Tab 138 at 2126 (resolving the Guardian protest); AR Tab 149A at 2192.4 (NEIE\rquote s 2/6/12 response to the Guardian protest) (\The allegations raised by ... Guardian ... regarding NEIE\rquote s ownership ignore well-settled law establishing the date of submission of proposals as the proper date for determining an entity\rquote s eligibility as an SDVO SBC.\); AR Tab 149 (forwarding NEIE\rquote s 2/6/12 response to the CO on 5/11/12). NEIE unquestionably was controlled by James Coleson, a service-disabled veteran, at the time of its offer. The CO pointed to no evidence whatsoever suggesting that NEIE made any offers for SDVOSB set asides Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: James Coleson\rquote s death and, in fact, the Administrative Record contains evidence to the contrary suggesting that NEIE took proactive steps to ensure compliance with relevant requirements by declining to bid on other SDVOSB set-asides. AR Tab 149A at 2192.11 (\NEIE has not pursued any Government contracts with this CCR since the date of James Coleson\rquote s death.\); AR Tab 149A at 2192.15 (NEIE Corporate Meeting Notes) (same); AR Tab 149A at 2192.17 (turning down a solicitation from the United States Air Force in March 2012, because \NEIE, Inc. cannot respond as an SDVO at this time.\); AR Tab 149A at 2192.19 (turning down an inquiry from the United States Navy in February 2012, because \right now we are only Small Business\ and not veteran-owned). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: AR Tab 149A at 2355. But the CO did not have any rational basis for concluding that NEIE Medical Waste was \owned by James Coleson.\ AR Tab 149A at 2192.17 (explaining that NEIE Medical Waste Services was a distinct company because four veterans bought out James Coleson\rquote s share before his death). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: (finding that \entirely fail[ing] to consider an important aspect of the problem\ is arbitrary and capricious). The CO knew or should have known that NEIE Medical Waste was a separate business entity from NEIE. AR Tab 149A at 2192.17 (5/11/12 email to the CO stating that NEIE Medical Waste Services was acquired by other disabled veterans prior to James Coleson\rquote s death). In addition, allegations of unethical behavior by a different corporate entity cannot, without more, be attributed to another. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: Finally, the CO\rquote s claim that NEIE engaged in wrongdoing by \attempt[ing] to \u8216transfer\u8217 ownership of NEIE to a different veteran\ is unfounded and lacks a rational basis. AR Tab 154 at 2355 (referencing a 7/6/11 email from Christopher Coleson to the CO). On its face, the email at issue does not support the CO\rquote s claim. AR Tab 64 (failing to name the owner, indicate that the owner is a veteran, or even suggest that NEIE attempted to \transfer\ ownership to regain SDVOSB status). More importantly, the Government has not established that a corporation may not attain SDVOSB status by transferring ownership to a service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: (defining an SDVOSB as a small \concern\ wherein \[n]ot less than 51% of which is owned by one or more service-disabled veterans\ who manage and control daily business operations). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: [A]ny person who misrepresents a firm\rquote s status as a business concern that is ... service-disabled veteran-owned small ... shall\u8211 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: Mr. Feldbusch is a blind veteran and spokesperson for the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 022 - NEIE Inc v United States.doc, Paragraph with 'Veteran: Warrior Project, a nonprofit group to aid injured veterans. AR Tab 159 at 2626. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 025 - Optimization Consulting Inc v United States.doc, Paragraph with 'Veteran: OCI is a minority-owned, service-disabled veteran-owned, small disadvantaged business, Compl. at 6. Prior to the procurement at issue here, it served as a contractor for the NGB providing mental health support services to the ANG on a pilot project. Pl.\rquote s Mem. in Support of J. on AR (Pl.\rquote s Mot.) at 34\u821135. The pilot project was less comprehensive geographically and substantively than that proposed in the instant Solicitation. Transcript of Hearing, Feb. 12, 2013 at 18:16\u821125. According to OCI, over 80% of its employees and revenues derive from the support services provided via the pilot project. Pl.\rquote s Mot. at 35. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Disappointed bidder brought pre-award bid protest proceeding to contest a determination of the Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU), which decertified bidder as qualified veteran-owned small business (VOSB) and nullified apparently-successful offer that bidder made for contract to work on construction project. After the Court of Federal Claims, Lettow, J., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU), was substantially justified in its position, in pre-award protest proceeding, that veteran, as disappointed bidder\rquote s majority owner, did not exercise day-to-day management of bidder, thus precluding award of attorneys\rquote fees under Equal Access to Justice Act (EAJA) after bidder\rquote s successful challenge to decertification as qualified veteran-owned small business (VOSB); OSDBU focused solely on veteran\rquote s legal residence, even though he kept two residences and could have managed bidder via telecommunications when in another state, but veteran\rquote s legal residence did raise significant question because bidder failed to make veteran\rquote s legal residency apparent to investigators, and, for at least half of each year, veteran had task of managing bidder while being physically present in another state. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Dennis Foley, Counselor to the Assistant General Counsel, and Aleia Barlow, General Attorney, Office of the General Counsel, United States Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: (\KWV\) in this pre-award bid protest contesting an action by the Department of Veterans Affairs (\VA\), Office of Small and Disadvantaged Business Utilization (\OSDBU\), decertifying KWV as a qualified veteran-owned small business (\VOSB\) and nullifying an apparently successful offer KWV had made for a contract for work on the Boston Health Care System Project. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: . The court set aside OSDBU\rquote s decertification and restored KWV to the list of VOSBs qualified to be included in VA\rquote s VetBiz Vendor Information Pages (\VIP\) database, rendering it eligible for awards under VA\rquote s Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: KWV is a Rhode Island close corporation owned by James Maron, a veteran who served in the United States Army, and his two sons and a granddaughter. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: The Center for Veteran Enterprise (\CVE\) initially denied KWV\rquote s application but permitted KWV to cure and request reconsideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: The protestor alleged that Mr. Maron, by virtue of the time he spent in Florida, was not actually in control of the company, but rather his two nonveteran sons were effectively in charge of KWV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 029 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: ). Instead, SBA looked at the veteran\rquote s experience level, other jobs maintained by the veteran, and the permanence and distance of the out-of-state residency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Sister of Texas state prisoner, acting pro se and on behalf of herself and as next friend of her brother, brought action against United States, seeking damages of $350,000 and equitable and injunctive relief, and alleging that brother was unlawfully incarcerated, that Department of Veterans Affairs (VA) had conspired with various state and federal courts, court officials, and federal agencies to deny brother medical benefits and treatment, and that sister suffered harassment and retaliation due to her efforts to assist brother. Government moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Court of Federal Claims lacked subject matter jurisdiction over plaintiff\rquote s claims against Department of Veterans Affairs (VA) in her suit, acting pro se and on behalf of herself and as next friend of her brother, alleging that VA conspired with other state and federal agencies to deny brother medical benefits and treatment and that plaintiff suffered harassment and retaliation due to her efforts to assist brother, as Congress had established Court of Appeals for Veterans Claims (CAVC) as court of exclusive jurisdiction to hear claims related to grant or denial of veterans\rquote benefits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Court of Federal Claims lacked subject matter jurisdiction over plaintiff\rquote s claims against individual employees of Department of Veterans Affairs (VA) in her suit, acting pro se and on behalf of herself and as next friend of her brother, alleging that VA conspired with other state and federal agencies to deny brother medical benefits and treatment and that plaintiff suffered harassment and retaliation due to her efforts to assist brother; while Tucker Act granted court jurisdiction over claims against United States, it did not grant such jurisdiction over federal officials acting in their individual capacity. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Court of Federal Claims lacked subject matter jurisdiction over plaintiff\rquote s claims for injunctive relief and punitive damages, in her suit, acting pro se and on behalf of herself and as next friend of her brother, alleging, inter alia, that Department of Veterans Affairs (VA) conspired with other state and federal agencies to deny brother medical benefits and treatment and that plaintiff suffered harassment and retaliation due to her efforts to assist brother; generally, court could not provide equitable relief except where it was authorized by statute, and none of plaintiff\rquote s claims arose under any statute authorizing such relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: RCFC 12(b)(1); Lack of Jurisdiction over Parties Other than United States, Veterans\rquote Benefits Claims, Civil Rights Claims, Torts, RICO Claims, Prisoners in State Prison, Injunctive Relief, Punitive Damages Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: Pending before the court is the government\rquote s Motion to Dismiss Plaintiff\rquote s Complaint and Request for Injunctive Relief under Rules 12(b)(1) and 12(b)(6) of the Court of Federal Claims (\RCFC\). Ms. Gloria Trevi\u241o filed her complaint on May 29, 2013, both individually and as next friend for her brother, Robert Trevi\u241o, as a pro se plaintiff. Ms. Trevi\u241o\rquote s complaint alleges that her brother, who is serving a life sentence in a Texas State Prison following a conviction for child sexual assault, is unlawfully incarcerated and that the United States Department of Veterans\rquote Affairs (\VA\) has conspired with various state and federal courts, court officials, and federal agencies to deny him medical benefits and treatment. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: In the complaint before this court, plaintiff, on behalf of her brother, seeks injunctive relief and damages based on Mr. Trevi\u241o\rquote s status as a veteran. Compl. 11\u821112. Ms. Trevi\u241o seeks an injunction to have Mr. Trevi\u241o released from state prison and remanded to a medical facility paid for by the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: B. This court lacks jurisdiction over plaintiff\rquote s claims for veterans\rquote benefits for either her brother or herself Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: or denied by the VA and claims for additional veterans\rquote benefits for her brother and herself. In support of these claims, plaintiff cites two statutes relating to veterans\rquote benefits: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: More specifically, Congress has established the United States Court of Appeals for Veterans Claims (\CAVC\) as the court of exclusive jurisdiction to hear claims related to the grant or denial of veterans\rquote benefits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: The State of Texas and Federal Courts have operated as a sovereign state with supreme political and imperialist authority and supreme powers without accountability and in complicity with the all-white United States Senate Committee on the Judiciary, United States Senate Committee on Veterans Affairs and United States Supreme Court, United States District Court for the Northern District of Texas, United States Court of Appeals for the Fifth Circuit, United States Chief District Judge Sidney A. Fitzwater, United States CircuitJudgeEmilio M. Garza, United States Chief Circuit Judge Edith H. Jones, United States Department of Veteran Affairs/VAMC, United StatesCongressmanJohn Culberson in complicity with/others [sic] and the State of Texas, The Texas Department of Criminal Justice and the Disabled American Veterans, a party with sovereign attributes acting in active concert and on behalf of the VA and the principal initial Ellis County Judicial Offenders, Houston, Texas Attorney Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 035 - Trevio v United States.doc, Paragraph with 'Veteran: According to the complaint, the VA has erroneously reduced Mr. Trevi\u241o\rquote s disability rating on two occasions. The first reduction was from 100% to 80%, based on what the VA considered to be an improvement in Mr. Trevi\u241o\rquote s condition while in prison, which the plaintiff disputes. The second reduction was to 10%; although the complaint is not clear, the plaintiff appears to claim that this reduction was the result of a VA policy for incarcerated veterans. The plaintiff maintains Mr. Trevi\u241o and Ms. Trevi\u241o are both 100% disabled and should be afforded such status by the VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: After post-trial judgment in contractor\rquote s favor in pre-award bid protest action to challenge Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) decision to decertify contractor as qualified service-disabled veteran-owned small business (SDVOSB) and to nullify successful offer to repair storm sewer at VA medical center, contractor moved for award of attorney fees and expenses under Equal Access to Justice Act (EAJA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Government was not substantially justified in its determination that right-of-first-refusal agreement between contractor\rquote s shareholders violated regulation regarding certification as qualified service-disabled veteran-owned small business (SDVOSB), and thus government could not on those grounds avoid award of attorney fees and expenses, under Equal Access to Justice Act (EAJA), following judgment in contractor\rquote s favor in pre-award bid protest action to challenge decision of Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) to decertify contractor as SDVOSB; even in absence of prior reported decisions directly addressing scope of executory agreements in specific context of case, OSDBU should have, but did not, examine decisions extensively construing that language in bankruptcy context. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Government was not substantially justified in level of due process it provided to contractor in its pre-award bid protest to challenge decision of Department of Veterans Affairs (VA), Office of Small and Disadvantaged Business Utilization (OSDBU) to decertify contractor as qualified service-disabled veteran-owned small business (SDVOSB), and thus government could not on those grounds avoid award of attorney fees and expenses, under Equal Access to Justice Act (EAJA), following judgment in contractor\rquote s favor; contractor was entitled to notice that OSDBU was expanding proceeding to encompass ownership issues not raised by contractor in its protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: an action by the Department of Veterans Affairs (\VA\), Office of Small and Disadvantaged Business Utilization (\OSDBU\), decertifying Miles Construction, LLC (\Miles\) as a qualified service-disabled veteran-owned small business (\SDVOSB\) and nullifying an apparently successful offer Miles had made for a contract to repair a storm sewer at a VA medical center. That action had been taken by OSDBU in response to an agency protest by another offeror for the contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . The judgment set aside the decertification and restored Miles to the qualified list of SDVOSBs eligible for contracts under the VA\rquote s Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . During an investigation by the VA\rquote s Center for Veterans Enterprises (\CVE\), into Miles\rquote application, Miles amended its Operating Agreement to be consistent with applicable regulatory requirements for SDVOSBs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . This time, the CVE approved Miles\rquote application and added it to its database of companies eligible for Veterans First Contracting Program projects. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Miles filed a bid protest in this court, challenging the conclusion by OSDBU that Miles was ineligible for SDVOSB status under 38 C.F.R. Part 74 and thus ineligible for an award under VA\rquote s Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: (emphasis added). In short, unlike the SBA regulation, the VA\rquote s regulation substantially alters \unconditional\ to accommodate practical commercial arrangements while preventing ownership benefits from falling into the hands of non-veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Ownership by one or more veterans or service-disabled veterans must be unconditional ownership. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: SBA\rquote s regulation specifies that \[a] concern must be at least 50% unconditionally and directly owned by one or more service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . The SBA regulation applies to Service\u8211Disabled Veteran\u8211Owned Small Business Concerns, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 036 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: 13 C.F.R. \u167 125.8, a focus of a contracting preference program somewhat comparable to VA\rquote s Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 045 - Archura LLC v United States.doc, Paragraph with 'Veteran: Archura originally protested its exclusion from qualification in both the Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\) and general small business categories, but moved to withdraw its protest with regard to the SDVOSB category, which the court allowed on August 23, 2013. Order, ECF No. 66. Plaintiff\rquote s SDVOSB claims, as well as the defendant-intervenors, were dismissed from the proceeding, and this opinion focuses solely on Archura\rquote s protest of its exclusion from the general small business category. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'Veteran: In May, 2006 FEMA put out a solicitation for a Group Site Grounds Maintenance Contract. The solicitation indicated that the intention was to award several contracts for the maintenance and inspection of group sites in Louisiana. The solicitation stated that it was a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOB\) set-aside. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'Veteran: Although Craig was in the Navy during the Vietnam era, she was not a service-disabled veteran and did not qualify for that designation. Nevertheless, Craig and the MJ Defendants had conversations about bidding for a contract as a SDVOB. The MJ Defendants facilitated conference calls with Shaw wherein Craig represented that she could get certified as an SDVOB and provided the name of a person at the VA who could get her certification. Williams further states that the MJ Defendants and Craig had running jokes about what would be provided to her in jail if she got caught and that if she did get caught she could claim that she was injured while doing promotional events for the Navy. Williams alleges that the MJ Defendants were all aware that CMC did not qualify for treatment as a SDVOB, yet facilitated in its false representation as an SDVOB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'Veteran: MJ Defendants aver that all of Relator\rquote s claims must be dismissed because they are jurisdictionally barred. MJ Defendants maintain that because there was public disclosure of all of Relator\rquote s claims prior to the filing of the instant matter this court does not have jurisdiction. Specifically, MJ Defendants contend that the allegedly fraudulent bid for the MD Contract (categorized as \price preference claim\ by MJ Defendants) is barred because these allegations were raised in (1) articles published in the Times\u8211Picayune in April, 2006; (2) a Congressional oversight hearing on May 19,2006; (3) an Inspector General\rquote s investigation and report released on March 30, 2007; and (4) a bid protested filed on April 28, 2006 by another contractor who submitted a bid for the MD Contract. MJ Defendants also contend that the allegedly fraudulent bid for the GM Contract (categorized as \service-disabled claim by MJ Defendants) is barred because these allegations were raised in a Small Business Administration (\SBA\) protest filed on May 17, 2007 alleging that CMC was not a service-disabled veteran-owned small business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 051 - US ex rel Williams v C Martin Co Inc.doc, Paragraph with 'Veteran: The public disclosures in relation to the SDVOB were much more particularized than those in relation to the MD Contract\u8211Local Business Preference. On the other hand, the documents from the administrative procedures in no way indicate fraud on behalf of any of the defendants. Additionally, Relator brings specific allegations in her Complaint identifying the discussion in bidding for a contract as an SDVOB regardless of Craig\rquote s awareness that she was not a service disabled veteran. Additionally, Relator details conversations and agreements with other defendants in its venture to become a SDVOB. It is evident to this Court that Relator\rquote s allegations in no way stem from the generalized administrative documents provided to this Court. Accordingly, this Court finds that the GM Contract\u8211SDVOB Claim is not based upon public disclosures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 053 - ST Net Inc v United States.doc, Paragraph with 'Veteran: Under the solicitation, offerors sought FirstSource II IDIQ contracts in one or more of the following small business set-aside categories: 8(a); Historically Underutilized Business Zone (\HUBZone\); Service\u8211Disabled, Veteran\u8211Owned Small Business (\SDVOSB\); (4) Economically Disadvantaged, Women\u8211Owned Small Business (\EDWOSB\); and (5) Small Business. AR 2. IDIQ awardees are guaranteed a minimum of $250 and, with certain exceptions, the fair opportunity to bid on subsequent delivery orders. AR 8, 31. Competition for each FirstSource II delivery order is to be limited, however, to only a single small business category. AR 31. For example, should DHS decide to limit a particular delivery order to the SDVOSB category, then only contractors who received a FirstSource II IDIQ contract in the SDVOSB category will be eligible to compete for that delivery order. AR 31. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 054 - Foster v Judnic.doc, Paragraph with 'Veteran: Warf v. U.S. Dept. of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 067 - MVS USA Inc v United States.doc, Paragraph with 'Veteran: (holding that a service-disabled veteran-owned small business had standing to challenge its disqualification that resulted from agency-level protest proceedings after it had won an award); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: as a Service-Disabled Veteran-Owned Business Concern (\SDVO SBC\) in violation of the False Claims Act (\FCA\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: October 1, 2012 Order [ECF No. 51]; December 13, 2013 Order [ECF No. 61]; April 12, 2013 Order; June 24, 2013 Order). According to Relator, Marine Construction was not an SDVO SBC because it was not at least 51% owned and controlled by a service-disabled veteran as required by the applicable regulations. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: At issue in the bid protests was whether Marine Construction satisfied the requirement that an SDVO SBC be at least 51% owned or controlled by a service-disabled veteran. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: While the 51% owner of Marine Construction, Clyde Rogers (\Rogers\) was and is a service-disabled veteran, the SBA determined Rogers did not satisfy the SBA\u8217s control requirement. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Valiant II July SBA Determination 3\u82114 (finding the service-disabled veteran status and ownership requirements satisfied); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: at 7 (\Hendry, and not you, controls [Marine Construction]. For these reasons, I must conclude that a service-disabled veteran does not control [Marine Construction] as required by [applicable regulations].\)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: The Service-Disabled Veteran Owned Small Business Concern Program Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: The government, recognizing it had done too little to assist service-disabled veterans, began the SDVO SBC Program to promote business between the United States and service-disabled veterans who own small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: note, Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: , \u167 101(3). In order to further promote service-disabled veterans doing business with the United States, Congress enacted the Veterans Benefits Act of 2003, which gave contracting officers the ability to award sole source and set-aside contracts to SDVO SBCs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Veterans Benefits Act of 2003, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (\The Veterans Act establishes the Procurement Program for Small Business Concerns Owned and Controlled by Service Disabled Veterans (SDVOSBC), which permits a contracting officer to award contracts on the basis of competition restricted to \u8216small business concerns owned and controlled by service-disabled veterans.\u8217 \ (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: The regulations set forth important definitions for the Service-Disabled Veteran-Owned Small Business Concern Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (1) Not less than 51% of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51% of the stock of which is owned by one or more service-disabled veterans; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (2) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Notwithstanding the July SBA Determinations and the SBA OHA Decisions, Defendants argue Relator has failed to establish Defendants made any objectively false representation. Defendants\rquote argument is as follows: although the SBA determined Marine Construction was not at least 51% controlled by a service-disabled veteran, \it is unquestionably clear that when [Marine Construction] represented SDVO SBC status in bidding on the [Valiant II Contract] it could not have \u8216known\u8217 [ ] it was not an SDVO SBC ... and therefore any such SDVO SBC statement by [Marine Construction] was not objectively false for purposes of the FCA.\ (Defs.\rquote Mot. 16). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: cannot be used to satisfy the knowledge requirement of the FCA here. A concern must self-certify it is an SDVO SBC, and the concern cannot receive an advance determination that its owner and controller qualifies as a service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: \u182\u182 11, 14). Rogers is and was a service-disabled veteran, and his \member contribution to [Marine Construction] consisted of his significant industry experience, know-how, and time.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 068 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Relator also brought claims against Defendants for misrepresenting Hendry Corp. as an SDVO SBC and a Veteran Owned Business (\VOB\); however, the Court dismissed all such claims for lack of subject matter jurisdiction. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 070 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: \u182\u182 137\u8211142). Each cause of action is premised upon Defendants\rquote alleged misrepresentations of Hendry Corp. and Marine Construction as Veteran Owned Businesses (\VOB[s]\) and Service\u8211Disabled Veteran\u8211Owned Business Concerns (\SDVO SBC[s]\) in \185 contracts.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 070 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: ). The Court defined the \Hendry Corp. Claims\ as \[a] majority of the 185 contracts [ ] entered into by Hendry Corp.\ that were submitted to the federal government and allegedly falsely represented Hendry Corp. as a Veteran Owned Business (\VOB\) and Service\u8211Disabled Veteran\u8211Owned Business Concern (\SDVO SBC\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 070 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: 141. By virtue of the Defendants conspiring to make false claims and/or statements A1, the public fisc, Veteran Owned and SDVOSB participants, and the United States suffered damages and therefore are entitled to multiple damages under the FCA, to be determined at trial, plus a civil penalty of $5,500 to $11,000 for each violation, and attorney\rquote s fees and costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 075 - Pearl v United States.doc, Paragraph with 'Veteran: at \u182 4\u821117(a)(4). If the PEB determines that the soldier is unfit for duty because of his physical disability, the PEB then rates the soldier\rquote s disability using a modified version of the Department of Veterans Affairs Schedule for Rating Disabilities (the \ratings schedule\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 075 - Pearl v United States.doc, Paragraph with 'Veteran: at 191. Shortly before this time, he began seeing a clinical psychologist, Dr. Jerry M. Bynum, at a Veterans Affairs Mental Health Clinic. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 076 - Anderson v United States.doc, Paragraph with 'Veteran: [The Secretary shall] [p]rescribe appropriate internal procedures for periodically informing enlisted personnel about separation policy, the types of separations, the basis for their issuance, the possible effects of various actions upon reenlistment, civilian employment, veterans\rquote benefits, and related matters concerning denial of certain benefits to Service members who fail to complete at least 2 years of an original enlistment. Failure on the part of the Service member to receive or to understand such explanation shall not create a bar to separation or characterization. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'Veteran: Individual agencies are also required to establish their own contracting goals, which are to represent \the maximum practicable opportunity for small business concerns, small business concerns owned and controlled by service-disabled veterans [SDVOSBs], qualified HUBZone small business concerns, small business concerns owned and controlled by socially and economically disadvantaged individuals, and small business concerns owned and controlled by women.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 077 - Advanced American Construction Inc v United States.doc, Paragraph with 'Veteran: competition among 8(a) firms began to take shape in April 2012. Initially, Scott Beckstrand, the small business programs manager for the Walla Walla District of the Corps, planned to set aside the project for SDVOSBs. AR at 860. Following a veterans\rquote business conference in April 2012, however, Mr. Beckstrand determined that there would not be sufficient competition among SDVOSBs to ensure price reasonableness. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: Service Disabled Veteran Owned Small Business Network,..., 110 Fed.Cl. 664 (2013) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: SERVICE DISABLED VETERAN OWNED SMALL BUSINESS NETWORK, INC., Plaintiff, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: Non-profit organization sought both declaratory and injunctive relief against the United States Department of Veterans Affairs (VA) under the Administrative Procedures Act (APA), specifically requesting the court declare that the VA\rquote s procurement process was in violation of the Veterans Benefits, Health Care, and Information Technology Act. The VA moved to dismiss the claim for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: Non-profit organization aimed at assisting service-disabled veteran-owned businesses lacked standing to pursue bid-protest action under the Tucker Act in the Court of Federal Claims; organization did not cite a specific procurement action in their complaint and they did not identify any of its constituents as actual or prospective bidders or offerors to a government contract, but, instead, they sought declaratory relief that the United States Department of Veterans Affairs\rquote (VA) current procurement procedure was unlawful and an injunction preventing its use in unspecified future procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: Plaintiff, Service Disabled Veteran Owned Small Business Network, Inc. (\the Network\), is a non-profit organization aimed at \assisting veterans through the maze of paperwork, individuals, and agencies necessary for them to reach their goal of being a self-sufficient business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: To this end, the Network hosts monthly meetings for member organizations and supporters to confer and discuss issues particular to service-disabled veteran-owned businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: interest to its constituents. In this case, it set its sights on the way United States Department of Veterans Affairs\rquote (\VA\) conducts its procurement processes. Amended Complaint at \u182 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: Specifically, the Network argues that the VA\rquote s current procurement process fails to properly consider whether certain contracting opportunities should be subject to restricted competition as small-business set-asides, pursuant to the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\the Act\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: . Am. Cmpl. at \u182 1. The Act mandates that the VA restrict competition \to small business concerns owned and controlled by veterans if the contracting officer has a Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: that two or more small business concerns owned and controlled by veterans will submit offers ...\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 089 - Service Disabled Veteran Owned Small Business Network Inc v United States .doc, Paragraph with 'Veteran: The GAO believed this research was necessary for the VA contracting officers to know if a reasonable expectation that two or more service-disabled veteran-owned small businesses would submit qualifying offers was appropriate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Disappointed bidder filed pre-award bid protest, challenging determination by Department of Veterans Affairs (VA) that bidder did not satisfy status requirements of veteran-owned small business (VOSB) under Veterans Benefits, Health Care, and Information Technology Act and seeking restoration of its eligibility for contract awards under veterans first contracting program that gave priority to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: , granted motion, setting aside VA\rquote s delisting of bidder from VOSB database and restoring bidder to eligibility for veterans first contracting program. Bidder moved for judgment on the administrative record, and government moved to dismiss, or, alternatively, cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: determination disqualifying bidder as VOSB eligible to participate in veterans first contracting program was arbitrary and capricious, and not in accordance with VA\rquote s regulations; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Preference given to qualified veteran-owned and -controlled small business concerns pursuant to Veterans Benefits, Health Care, and Information Technology Act applies only to procurements by Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: By noting inconsistencies in application by Department of Veterans Affairs (VA) of identical regulations at different stages of procurement process, disappointed bidder alleged violation of regulation in connection with a procurement, triggering bid protest jurisdiction of Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Determination by Department of Veterans Affairs (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) disqualifying bidder as veteran-owned small business (VOSB) eligible to participate in veterans first contracting program was arbitrary and capricious, and not in accordance with VA\rquote s regulations; OSDBU improperly relied upon residence of bidder\rquote s majority shareholder as determinative factor of \control,\ even though residency was not identified as element by regulation, and did not address those factors identified as being relevant to control, or take into consideration methods of communication, such as telephone, e-mail, and other electronic means, by which majority shareholder maintained control, even while residing in another state. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Bidder that erroneously was found by Department of Veterans Affairs not to satisfy status requirements of veteran-owned small business (VOSB) under Veterans Benefits, Health Care, and Information Technology Act demonstrated prejudice sufficient to prevail in its bid protest, in that it was awarded task order as VOSB and, upon revocation of its status as VOSB, was disqualified from veterans first contracting program and lost opportunity to bid on other contracts and task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Permanent injunction requiring Department of Veterans Affairs (VA) to restore bidder to database as veteran-owned small business (VOSB) eligible for participation in veterans first contracting program was warranted; bidder succeeded on merits of its protest challenging VA\rquote s decision rendering it ineligible for contract awards as VOSB and demonstrated that revocation of its status as VOSB was irreparable harm, setting aside erroneous determination of bidder\rquote s eligibility would eliminate arbitrary and capricious precedent and serve purpose of veterans first set-aside program, and public\rquote s strong interest in fair and competitive procurement process was best served by ensuring that government complied with procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Dennis Foley, Counselor to the Assistant General Counsel, and Aleia Barlow, General Attorney, Office of the General Counsel, United States Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Pre-award bid protest; challenge to agency\rquote s disqualification of veteran-owned small business from participating in VA\rquote s Veterans First Contracting Program; application of \control\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: the administrative record and the government\rquote s cross-motion for judgment. On February 7, 2012, plaintiff, KWV, Inc. (\KWV\) was certified for inclusion on the list of qualified veteran-owned small businesses (\VOSBs\) eligible to participate in the Veteran\rquote s First Contracting Program. This program designates VOSBs and service-disabled veteran-owned small businesses (\SDVOSBs\) as priority bidders for certain contracting opportunities. After the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) qualified KWV for listing in 2012, KWV bid on and ostensibly won an award of a contract as a VOSB. Thereafter, a losing bidder lodged a protest against KWV\rquote s qualifications, which protest resulted in an evaluation by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\). OSDBU ultimately issued a decision in favor of the protestor, holding that KWV \d[id] not meet the status requirements of a SDVOSB [sic] concern,\ and that it was ineligible for the challenged award and future awards under the Veterans First Contracting Program. AR 570 (Letter from Thomas Leney to James Maron (Oct. 24, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: On December 14, 2012, KWV filed its complaint in this court, seeking reinstatement onto the VOSB list and restoration of eligibility for Veterans First projects, as well as an injunction barring VA from awarding contracts upon solicitations on which KWV had submitted bids. The court granted a temporary restraining order on December 21, 2012, and extended it on January 4, 2013, temporarily rescinding VA\rquote s delisting of KWV from the VOSB database. Subsequently, the court granted a preliminary injunction setting aside VA\rquote s delisting of KWV and restoring it to eligibility for VA\rquote s Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: . Compl. \u182 17. Ownership of KWV is split between James Maron, who owns 60 percent of the issued and outstanding shares, and his two sons and a granddaughter, who own the remaining 40 percent. Compl. \u182 18. Mr. Maron is a veteran of the United States Army Corps of Engineers who served in the Korean War from 1952 until his honorable discharge in 1954. Compl. \u182 13. He has more than 50 years of experience in the construction industry, 30 of which were spent as a contractor, and studied building construction at the Rhode Island School of Design for four years. Compl. \u182\u182 15\u821117; AR 434. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Currently, Mr. Maron\rquote s sole business endeavor is KWV, a company he founded and self-certified as a VOSB in 2008 as permitted by the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: AR 508\u821109; AR 513. That Act requires the Secretary of Veterans Affairs to \give priority to a small business Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: AR 508\u821109. In 2010, VA shifted from a self-certification scheme to a verification program, and KWV accordingly applied for verification as a qualified VOSB and inclusion in the VA VetBiz Vendor Information Pages (\VIP\). Compl. \u182 19. Although KWV\rquote s application was initially denied on September 22, 2011, it was given an opportunity to cure the perceived defects in the application and request reconsideration, which it did on October 12, 2011. AR 455\u821194 (KWV\rquote s Request for Reconsideration). The cited reason for the original denial of KWV\rquote s application was that KWV\rquote s corporate documents provided for a controlling board composed of a majority of non-veteran directors. AR 451\u821152. In its reconsideration application, KWV demonstrated that the company was, in fact, controlled by Mr. Maron as the majority shareholder, and that it had amended its corporate documents to reflect that circumstance. AR 455\u821194. On February 7, 2012, after reviewing KWV\rquote s revised documentation, conducting an investigation of the company, and performing a site visit and interviews, CVE approved KWV\rquote s application for designation as a VOSB and inclusion in the VIP database for one year. AR 495\u8211515.2, 516\u821117 (Letter from Dan Friend to Bruce St. John (Dec. 19, 2011)) (CVE Verification Letter). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Compl. \u182\u182 1, 45. KWV successfully bid on a BHS task order, No. VA241\u821112\u8211J1036 (part of Solicitation No. VA\u8211241\u821112\u8211R\u82110563), and was awarded that task order on July 11, 2012. Compl. Ex. 4 (Award Letter from Athena Jackson to Thomas Maron (July 11, 2012)). Following this award, a competitor, Alares, LLC (\Alares\), filed a formal protest with VA against KWV. This protest challenged KWV\rquote s status as a VOSB, alleging that Mr. Maron was not truly in control of the company. AR 518. As evidence of this lack of control, Alares pointed to Mr. Maron\rquote s Florida residency during the bare majority of each calendar year. AR 519. Alares posited that Mr. Maron\rquote s two non-veteran sons, David and Thomas Maron, were effectively in control of KWV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: management of KWV, and it disqualified KWV from participation in the Veterans First Contracting Program. AR 568\u821171. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: AR 571 (\[KWV] cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under [38 C.F.R. Part 74], as applicable, unless it demonstrates to VA\rquote s Center for Veterans Enterprise that it has overcome the reasons for the determination of ineligibility, if it is able, by applying for and receiving verified status in accordance with 38 C.F.R. Part 74.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: (governing VOSB status protests) and 38 C.F.R. Part 74 (VA\rquote s \Veterans Small Business Regulations\) amounts to a violation of its own procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: . Part 74 details the standards for CVE\rquote s evaluation of VOSB applicants, and these eligibility standards are explicitly incorporated into the Veterans Affairs Acquisition Regulation System (\VAAR\) provisions which govern SDVOSB and VOSB status protests with OSDBU. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: At the inception of the Veterans First Contracting Program in 2007, VA allowed VOSB and SDVOSB entities to self-certify themselves for registration in the VIP database. With the adoption of statutory amendments now set forth at Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: , which detail the Secretary of the Department of Veterans Affairs\rquote responsibilities for maintaining the VIP database, self-certification was replaced by a certification process administered by CVE. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed. Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: veteran did not have prior management experience, while Mr. Maron does; (2) the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: veteran maintained two other jobs, while KWV is Mr. Maron\rquote s sole business endeavor; (3) the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: veteran permanently resided three time zones away from the company in question, while Mr. Maron resides at all times in the same time zone, and for almost half of the year, the same state and locality, as KWV\rquote s sole office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: In contrast to OSDBU\rquote s approach, the CVE reviewer had addressed a range of considerations bearing on management and control. He concluded that Mr. Maron was responsible for \overseeing projects,\ \came to the office as needed,\ and was \always in communication\ with KWV. AR 515.1\u821115.2 (Handwritten Notes of CVE Reviewer). Mr. Maron worked forty hours a week, whereas his non-veteran sons (whom Alares alleged to have been managing KWV in fact) were both noted as working fewer than ten hours each week for KWV. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: . This aspect of the analysis may be dispatched easily; KWV was, in fact, awarded a task order as a VOSB. Compl. Ex. 4 (Award Letter from Athena Jackson to Thomas Maron (July 11, 2012)). Moreover, when OSDBU revoked KWV\rquote s VOSB status, it was disqualified from the Veterans First Contracting Program and lost the opportunity to bid on other contracts and task orders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 091 - KWV Incorporated v United States.doc, Paragraph with 'Veteran: KWV has succeeded on the merits of its protest, and it has demonstrated that revocation of its status as a VOSB constitutes irreparable harm by barring it from participation in the Veterans First Contracting Program. The government counters that VA will be harmed by a grant of injunctive relief to KWV because setting aside the OSDBU determination will \compromis[e] the integrity of the VA procurement process\ and \frustrate[ ] the purpose of the Veterans First set-aside program.\ Def.\rquote s Cross\u8211Mot. at 23. To the contrary, however, setting aside the OSDBU decision will eliminate an arbitrary and capricious precedent and serve the purpose of the Veterans First set-aside program\u8212that of providing eligible veterans with priority contracting opportunities. The balance of hardships thus weighs in favor of granting a permanent injunction. Correlatively, the public has a strong interest in a fair and competitive procurement process, which is best served by ensuring that the government complies with regulations governing procurement programs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 093 - Quest Diagnostics Inc v United States.doc, Paragraph with 'Veteran: The agency cited as a [redacted] for Subfactor 1E that LabCorp possessed management experience for two large contracts, it\rquote s Federal Supply Schedule (\FFS\) contract and its contract through the FFS with the Department of Veterans Affairs (\VA\). Quest asserts that these are not properly considered as relevant management experience because neither was truly a large contract and neither was listed by LabCorp in its past performance volume. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: 2d Am. Compl.). In particular, Relator alleges Hendry Corp. is not at least 51 percent owned by a veteran or a service-disabled veteran as required under applicable regulations, and, as a result, Defendants falsely represented Hendry Corp. as a Veteran Owned Business (\VOB\) and as a Service\u8211Disabled Veteran\u8211Owned Business Concern (\SDVO SBC\) to the federal government in violation of the FCA. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Relator further alleges Marine Construction and Gulf Marine are not at least 51 percent owned and controlled by a service-disabled veteran, and, as a result, Defendants falsely represented these concerns as SDVO SBCs in violation of the FCA. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: On October 26, 2010\u8212eighteen days after the ETSC Bid Protest was sent to the Coast Guard, sixteen days after the ETSC Bid Protest was referred to the SBA, and the same day the SBA dismissed the ETSC Bid Protest\u8212Relator filed its first SBA bid protest (\Relator\u8217s October 26 Bid Protest\) [ECF No. 91\u82114], claiming Hendry Corp. was ineligible to claim SDVO SBC status. In this bid protest, Relator challenged Hendry Corp.\u8217s status as an SDVO SBC by asserting, \Hendry Corporation\u8217s current majority owner and President Aaron W. Hendry is not a service disabled veteran. Consequently, Hendry Corporation is not 51% owned and operated by a service disabled veteran.\ (Relator\u8217s Oct. 26 Bid Protest, 1). Relator also specifically referred to the ETSC Bid Protest as \initial proof,\ stating Hendry Corp.\u8217s SDVO SBC \status is currently being challenged by River Hawk Marine for Solicitation No. HSCG80\u821111\u8211R\u8211PHM004.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: ). By contrast, Relator\u8217s October 26, December 1, and April 28 Bid Protests include more specific allegations\u8212namely, an allegation that an unnamed Hendry Corp. employee \confirmed\ that Aaron Hendry was not a veteran. Relator\u8217s various complaints additionally alleged Defendants could not provide documentation proving Hendry Corp. was a VOB or SDVO SBC when the representations of such status were made, and Hendry Corp. is owned and controlled by HMI. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . Relator essentially presents three arguments regarding how its knowledge materially added to the publicly disclosed allegations. First, Relator argues its knowledge materially added to the ETSC Bid Protest because a Hendry Corp. employee \admitted [to Relator that] Aaron W. Hendry was not a service-disabled veteran on October 26, 2010,\ and Relator discovered \Aaron W. Hendry was not adjudged to be a service-disabled veteran until December 20, 2011.\ (Resp. 11). Second, Relator suggests it successfully challenged a bid submitted by Marine Construction on the basis that Marine Construction was a shell company of Hendry Corp., and therefore Relator\u8217s knowledge materially added to ETSC\u8217s allegations. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Relator\u8217s first argument fails to persuade. Applicable regulations define a service-disabled veteran as \a veteran with a disability that is service-connected.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . As explained in past Orders, for FCA purposes, \[a] concern must self-represent that its owner and controller is a service-disabled veteran, not that it has the supporting documentation to prove it.\ (October 1, 2012 Order, 16 [ECF No. 51]; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: December 13, 2012 Order, 9 [ECF No. 61] (\For FCA purposes, determining whether a concern was owned and controlled by a service-disabled veteran is a factual inquiry that goes beyond the inquiry performed by the SBA in a bid protest and does not turn on whether an individual possessed documentation at the time of representing SDVO SBC status.\)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Here, the United States Department of Veteran Affairs issued a letter on December 21, 2011 [ECF No. 26\u82111] (the \VA Verification\), that certifies Mr. Hendry \has a service connected disability evaluated by the U.S. Department of Veteran Affairs (VA) to a degree of ten percent or more.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Letter to the DOJ [ECF No. 26\u82113] ); therefore, for purposes of this Motion, the Court finds Mr. Hendry has had a service-connected disability since the 1960s. Mr. Hendry has been a service-disabled veteran within the meaning of the applicable regulations at all times relevant to this action, and Relator\u8217s allegations to the contrary are wholly unsupported and unpersuasive. Therefore, Relator\u8217s allegations that Mr. Hendry was not a service-disabled veteran, while objectively false, have not\u8212and could not have\u8212materially added to the allegations contained in the ETSC Bid Protest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\6, File: 100 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: In Relator\u8217s third argument, Relator asserts, \upon extensive independent investigation, Relator discovered that Hendry Corporation was not directly owned and controlled by a service-disabled veteran and had misrepresented its VOSB and SDVOSB status on over 185 government contracts.\ (Resp. 7). In ostensible support, Relator points to the allegation in its Second Amended Complaint that Hendry Corp. is owned and controlled by HMI. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: the court would grant service member\rquote s motion to supplement the administrative record with two rating decisions issued by the Department of Veterans Affairs (VA); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: Court of Federal Claims would grant service member\rquote s motion, in connection with his challenge of the Army\rquote s determination that he was fit for duty, which went to whether he was entitled to disability retirement pay, to supplement the administrative record with two rating decisions issued by the Department of Veterans Affairs (VA) shortly after the administrative proceedings on review; service member appealed a decision of an Army physical evaluation board (PEB) directly to the court instead of to a military correction board, the VA rating decisions had therefore not been considered by any forum, and supplementation of the administrative record with the VA rating decisions and their accompanying cover letters allowed meaningful review because the VA rating decisions provided a point of comparison to the Army\rquote s determination of fitness and constituted new evidence that was not available below. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: Substantial evidence supported a determination by the Army that service member was fit for duty, such that service member was not entitled to disability retirement pay, even though service member suffered from chronic posttraumatic stress disorder (PTSD), lumbar degenerative disk disease with facet arthritis, and a right-knee injury, and an officer evaluation report for a certain year rated service member\rquote s performance as unsatisfactory; every other officer evaluation report supported a finding that service member was able to perform his duties in a satisfactory manner, service member described himself as fully recovered from the knee injury that he stated was the reason for the unsatisfactory report, only during his out-processing physical did service member discuss all of his physical complaints with the provider, and rating decisions issued by the Department of Veterans Affairs (VA) and on which service member relied pertained to ability to perform in the civilian world and were not binding on the Army or the Court of Federal Claims in determining whether service member was fit for duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: Captain Ross E. Joslyn (plaintiff or Captain Joslyn), a former United States Army (Army) officer and veteran of Operation Iraqi Freedom, brings this suit \seeking judicial review of actions by the United States Army.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: and is rated \at least 30 percent under the standard schedule of rating disabilities in used by the Department of Veterans Affairs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 001 - Joslyn v United States.doc, Paragraph with 'Veteran: Captain Joslyn requests that the court \supplement the administrative record with two Department of Veterans Affairs [ (VA) ] Rating Decisions issued shortly after the administrative proceedings on review.\ Pl.\rquote s AR Mot. 1; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: United States Court of Appeals for Veterans Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Eric K. SHINSEKI, Secretary of Veterans Affairs, Appellee. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veteran sought review a decision of the Board of Veterans\rquote Appeals, denying his claim for monthly disability compensation. Secretary of Veterans Affairs moved to dismiss for an untimely appeal. The Court of Appeals for Veterans Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: , concluded the court lacked jurisdiction over the untimely-filed appeal. Veteran appealed. The Court of Appeals, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: , Rader, C.J., held that the 120-day deadline for filing a Notice of Appeal (NOA) with Veterans Court was not jurisdictional. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: On remand, the Court of Appeals for Veterans Claims, en banc, held that: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: whether a veteran who timely misfiles an appeal has exercised due diligence is assessed on the totality of the circumstances; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: a veteran who timely misfiles an appeal must demonstrate a reasonable basis for filing at the incorrect location; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: a veteran, who timely misfiles an appeal must diligently pursue judicial review after learning of the misfiling; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: veteran\rquote s letter demonstrated a clear intention to seek appellate review; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: veterans\rquote s letter to the Office of General Counsel (OGC) put the Veteran\rquote s Affairs (VA) on notice of his intent to appeal; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: veteran demonstrated sufficient diligent effort to follow the directions for filing an appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: A prospective appellant of a decision of the Board of Veterans\rquote Appeals must demonstrate with independent proof, or evidence beyond his or her bare assertion, that the Notice of Appeal (NOA) was misfiled, or filed at a location other than the Court, within the 120-day filing period, to be eligible for equitable tolling of the time to appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: The rules that apply to determining whether a Notice of Appeal (NOA) filed in the Court of Appeals for Veterans Claims is timely, including the date of receipt of the NOA or the date of the mailing as reflected by a postmark, or by application of the common law mailbox rule, will be used to determine whether a NOA was timely misfiled at any other location; overruling Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: A prospective appellant\rquote s intent to appeal a decision of the Board of Veterans\rquote Appeals in filing a Notice of Appeal (NOA), as a requirement for review by the Court of Appeals for Veterans Claims, can be discerned from the form and content of the purported NOA and the circumstances surrounding the filing of that document. U.S.Ct. Veterans App. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: An appeal of a decision of the Board of Veterans\rquote Appeals to the Court of Appeals for Veterans Claims does not require any use of the Court\rquote s Notice of Appeal (NOA) form or any specific language, and any filing must be construed liberally in the context of its language and circumstances of filing. U.S.Ct. Veterans App. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: A purported Notice of Appeal (NOA) must place the Secretary of Veterans Affairs on notice of the individual\rquote s intent to seek further review of his or her claim. U.S.Ct. Veterans App. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: An assessment of whether an appellant, who timely misfiles an appeal of a decision of the Board of Veterans\rquote Appeals to the Court of Appeals for Veterans Claims, has exercised due diligence, as required for equitable tolling, is based on the totality of the circumstances, including the location of the misfiling and any corrective actions that the prospective appellant takes after learning of the misfiling. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: A prospective appellant, who timely misfiles an appeal of a decision of the Board of Veterans\rquote Appeals to the Court of Appeals for Veterans Claims at an incorrect location, must demonstrate a reasonable basis for the misfiling, in order to show the required due diligence for the application of equitable tolling, which includes the appellant\rquote s reasons for believing that such a location might be appropriate for obtaining judicial review or filing an appeal of a decision on veterans benefits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: A prospective appellant, who timely misfiles an appeal of a decision of the Board of Veterans\rquote Appeals to the Court of Appeals for Veterans Claims at an incorrect location, must diligently pursue judicial review after learning of the misfiling, in order to show the required due diligence for the application of equitable tolling. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Board of Veterans Appeals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Within the administrative and nonadversarial portion of the Department of Veterans\rquote Affairs (VA) benefits claims and appeal process, a VA Regional Office (RO), which adjudicates claims, has the duty to transfer a misfiled administrative motion for Board Chairman reconsideration to the proper VA office. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Board of Veterans Appeals Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: The doctrine of laches does not apply to a veteran\rquote s failure to pursue his claim when the delay is caused by the Secretary\rquote s failure to take required action, such as the Board Chairman\rquote s rendering of a decision on reconsideration. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: The timely misfiling of an Notice of Appeal (NOA) with Department of Veterans\rquote Affairs (VA) does not abate the finality of a Board of Veterans\rquote Appeals decision, and the date of that misfiling is not the operative date for a filing at the Court of Appeals for Veterans Claims because the NOA still must be filed at the Court of Appeals for Veterans Claims for a judicial appeal to proceed. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veteran\rquote s letter demonstrated a clear intention to seek appellate review at the Court of Appeals for Veterans Claims in a letter to the Office of General Counsel (OGC), as required for equitable tolling, even though a Notice of Appeal (NOA) needed to be sent to the Court of Appeals for Veterans Claims for an appeal, where the letter stated that veteran wanted to \appeal this to the Courts,\ and this intent was recognized by the OGC, as they forwarded the letter to the Regional Office (RO) to be held pending an appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veteran\rquote s letter to the Office of General Counsel (OGC) put the Department of Veterans\rquote Affairs (VA) on notice of his intent to appeal the Board of Veterans\rquote Appeals decision denying him disability benefits to the Court of Appeals for Veterans Claims, even though the Notice of Appeal (NOA) needed to be sent to the Court of Appeals for Veterans Claims for an appeal, where the letter expressly stated that veteran wished to appeal to the courts, the letter was readily associated with veteran\rquote s denied claim for disability benefits, and after the letter was forwarded to the Regional Office (RO), it was stamped \appeals.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (Formerly Court of Veterans Appeals) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Veteran demonstrated sufficient diligent effort in following the directions for filing an appeal of a decision of the Board of Veterans\rquote Appeals denying his application for disability benefits, as required for equitable tolling of the time to appeal the Board\rquote s decision, even though veteran mailed the Notice of Appeal (NOA) to the wrong location, where the Notice of Appellate Rights (NAR) listed several addresses in small print, and the address used by veteran, that of the Office of General Counsel (OGC), appeared in bold type centered at the bottom of the last page. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: On April 14, 2009, more than 120 days after the November 5, 2008, Board of Veterans\rquote Appeals (Board) decision that denied benefits for his bilateral lower extremity Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: , veteran William Rickett filed pro se a Notice of Appeal (NOA) with the Court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Irwin v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: the Federal Circuit noted that (1) the due diligence requirement for equitable tolling is more relaxed when a pro se claimant timely misfiles a pleading, (2) the veteran-friendly nature of proceedings before VA, during the \non-adversarial stage of a claim for benefits,\ counseled construing due diligence in favor of the claimant, (3) the misfiling at the RO from which the claim originated showed that the claimant actively sought redress of the Secretary\rquote s action and did not constitute a garden variety claim of excusable neglect, (4) the misfiling with the RO was the claimant\rquote s only misstep in filing his motion for reconsideration by the Board Chairman, and (5) internal VA policies governed the forwarding or return of misdirected mail. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: through his state veterans service representative, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: [a]s long as the veteran\rquote s intention is clear and [VA] is put on notice of his intention to seek further review of his claim, an error in the form or in the office to which it is sent, or both, is not sufficient to render the filing ineligible for consideration under the equitable tolling doctrine. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: again instructed that \the focus [of equitable tolling analysis is] whether the veteran exercised due diligence in preserving his legal rights, and whether the veteran\rquote s intention is clear and [VA] is put on notice of his intention to seek further review of his claim.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: the Federal Circuit made clear that \the focus [of an equitable tolling analysis is] whether the veteran exercised due diligence in preserving his legal rights,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: . In certain circumstances, there may be misfilings of an NOA at other VA offices that might reflect due diligence. As such, the reasonableness assessment will consider the prospective appellant\rquote s reasons for believing that such a location might be appropriate for obtaining judicial review or filing an appeal of a decision on veterans benefits. We address below whether the filing in this instance at the \Office of General Counsel (022D)\ reflects relaxed due diligence on the part of Mr. Rickett. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: ); M21\u82111MR, pt. I, ch. 1, sec. 1.05 (ROs contain divisions that carry out the functions of the Veterans Benefits Administration); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: . Moreover, the doctrine of laches does not apply to a veteran\rquote s failure to pursue his claim when the delay is caused by the Secretary\rquote s failure to take required action, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: (noting that \the VA benefits system, as well as the Veterans\rquote Judicial Review Act both militate against the application of the [laches] doctrine to cases before this Court\) (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: (\The proceedings of the Court of Appeals for Veterans Claims shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: In that case, the underlying Board decision was issued on September 18, 2000. On December 28, 2000, 101 days after the Board decision, Mr. Bailey completed a VA Form 9, ordinarily used for filing a Substantive Appeal to the Board from a regional office decision, that the parties agreed was intended to serve as a Notice of Appeal to the Court. Mr. Bailey took the Form 9 to his non-attorney representative at the Georgia Department of Veterans Services, a State agency, who agreed to forward it to the appropriate place. Instead of sending the Notice of Appeal to the Court, however, the representative forwarded Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Later investigation revealed that, although the regional office received Mr. Bailey\rquote s Form 9 from the [Georgia Department of Veterans Services] on January 3, 2001, it took no action with respect to that document until October 4, 2001, when Mr. Bailey\rquote s new representative contacted the regional office to inquire as to the whereabouts of the notice of appeal. The regional office located the date-stamped Form 9 in its \overflow\ file where it had been sitting since it was received from the [Georgia Department of Veterans Services]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: unequivocally stated that, \as a matter of law, a veteran who attempts to file a [N]otice of [A]ppeal by completing a document that is clearly intended to serve as a [N]otice of [A]ppeal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: and who has that document delivered to the regional office from which the veteran\rquote s claim originated within the 120\u8211day statutory period for appeal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: the Federal Circuit examined the circumstances when equitable tolling had previously been applied in timely misfiling cases, noting that \the focus was whether the veteran \u8216exercised due diligence in preserving his legal rights,\u8217 ... and whether \u8216the veteran\rquote s intention is clear and ... [VA] is put on notice of his intention to seek further review of his claim.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Circuit unequivocally stated: \If the veteran meets both criteria, \u8216an error in the form or in the office to which [notice] is sent, or both, is not sufficient to render the filing ineligible for consideration under the equitable tolling doctrine.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: The majority now adopts an analysis for determining whether equitable tolling is appropriate, which the Federal Circuit has indicated does not apply to timely misfiled appeals to this Court. That is, although the Federal Circuit did not examine the postmisfiling activities of the veteran in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: , when assessing whether the veteran satisfied the due diligence requirement, the majority, for the first time, requires an examination of the actions taken by a prospective appellant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: . Despite these variances, an examination of the Federal Circuit\rquote s decisions demonstrates that the postmisfiling actions of the prospective appellant were not relevant to the Court\rquote s due diligence assessment\u8212but, even assuming there was any doubt, I would resolve that doubt in favor of the veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: (noting that Congress\rquote s solicitude for veterans is longstanding and \plainly reflected in the [Veterans\rquote Judicial Review Act], as well as in subsequent laws that \u8216place a thumb on the scale in the veteran\rquote s favor in the course of administrative and judicial review of VA decisions,\u8217 \ quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Irwin v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: . Noting that \[m]isfiling cases within the veterans\rquote Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: the Federal Circuit addressed for the first time whether a veteran was entitled to equitable tolling when he misfiled an NOA at the RO from which his claim originated. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: . The Federal Circuit found that the veteran acted diligently when he misfiled his NOA within 120 days of the Board\rquote s decision and held, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: \that a veteran who misfiles his or her [NOA] at the same [RO] from which the claim originated within the 120\u8211day judicial appeal period of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: In the context of the non-adversarial manifestly pro-claimant veterans\rquote benefits system, and consistent with our decisions in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Once a veteran takes the affirmative act of seeking redress of his or her claim through a filing with the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: from which the claim originated rather than the Veterans Court, \[t]he filing of the misdirected paper itself satisfies the diligence requirement as a matter of law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: indicated that the due diligence requirement for equitable tolling is \relaxed\ when a pro se prospective appellant timely misfiles a pleading). With no disrespect to my esteemed colleagues, I am perplexed by their characterization of this assessment as \relaxed,\ when their decision creates at least one additional obstacle in the path of the pro se veteran\rquote s right to judicial review and alludes to others. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: to get involved in the split among its sister circuits to determine whether one satisfies due diligence by \filing the right thing in the wrong place,\ because \[m]isfiling cases within the veterans\rquote system are unlike the typical late-filing cases.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: (noting that \[t]he contrast between ordinary civil litigation ... and the system that Congress created for the adjudication of veterans\rquote benefits claims could hardly be more dramatic\ and that \[r]igid jurisdictional treatment of the 120\u8211day period for filing a[n NOA] in the Veterans Court would clash sharply with this scheme\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: the Supreme Court and the Federal Circuit \have long recognized that disputes that arise in this system are subject to procedural and other rules that are distinctly advantageous to the veteran claimant\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: to process an appeal from the time a claimant files a Notice of Disagreement to issuance of a final Board decision. An unfortunate reality of the VA benefits system is that veterans are conditioned to wait years Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Although the claimant submitted his NOA on a Form 9 (Substantive Appeal to the Board), it was \undisputed that Mr. Bailey intended that document to serve as his [NOA] to the Veterans Court.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: has overall responsibility for providing advice concerning VA\rquote s multi-billion-dollar programs of disability and death compensation and pension for Veterans and their survivors, and Federal life-insurance programs for service members and Veterans. In addition, the group is responsible for all legal advice concerning the national cemetery system (except land acquisition, which is handled by [Professional Staff Group] V) and various burial benefits administered by the Veterans Benefits Administration. The group is also responsible for reviewing proposed and final rules for all VA programs to ensure compliance with the Administrative Procedure Act, and other statutes and orders governing rulemaking. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: 111th Cong. 26 (2010) (statement of Will Gunn, General Counsel, U.S. Dep\rquote t of Veterans Affairs). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: (\[i]f the veteran meets Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: http://www.va.gov/opa/publications/factsheets/fs_department_of_veterans_affairs.pdf (Jan. 2009 VA Fact Sheet). In delivering medical care alone, VA operates \152 hospitals; 800 community based outpatient clinics; 126 nursing home care units; and 35 domiciliaries.\ http://www.va.gov/about_va/vahistory.asp (last visited Jan. 16, 2013). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: The VA Office of the General Counsel consists of seven professional groups dealing with such diverse legal questions as administrative claims and litigation under the Federal Tort Claims Act; legal services regarding education programs for veterans and their dependents; advice concerning programs of disability and death compensation and pension for Veterans and their survivors; and Federal life-insurance programs for servicemembers and veterans; advice in the areas of health-care eligibility and benefits, medical administration, medical research, labor-management relations, human resources, crimes and police matters, VA-affiliated nonprofit corporations, technology transfer and ethics; equal employment opportunity law, information law, appropriations/fiscal law, and intellectual property law; Government contracts, including procurement, bid protests, and contract litigation; real- and personal-property law; and environmental law. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: See Evaluating the U.S. Department of Veterans Affairs Office of General Counsel: Hearing Before the Subcomm. on Oversight and Investigations of the H. Comm. on Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: 111th Cong. (2010) (statement of Will Gunn, General Counsel, U.S. Dep\rquote t of Veterans Affairs). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: Ultimately, when an appellant does not follow instructions for properly filing a Notice of Appeal, he places a burden on the system that diverts resources from claims filed by his fellow veterans. In a sympathetic system, it is fair to require the Secretary to train employees in certain offices how to handle a misfiled Notice of Appeal. Beyond a certain point, however, large swaths of VA employees have no meaningful connection to appellate adjudication; training employees of these divisions to recognize a misfiled Notice of Appeal is unreasonable. The expenditure of resources involved in such training would far outstrip the benefit to the rare veteran who, contrary to express instruction, grossly misfiles a Notice of Appeal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: [that] a veteran who attempts to file a[n NOA] by completing a document that is clearly intended to serve as a[n NOA] and who has that document delivered to the [RO] from which the veteran\rquote s claim originated within the 120\u8211day statutory period for appeal is entitled to invoke the doctrine of equitable tolling.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: at 225 n. 7 (emphasis added)). My colleagues\rquote statement that they \decline to address\ a question that was not raised by the parties and which represents a significant departure from the Federal Circuit\rquote s established precedent certainly alludes to more impending hurdles being placed in the pro se veteran\rquote s path to judicial review. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 014 - Rickett v Shinseki.doc, Paragraph with 'Veteran: 2012 Department of Veterans Affairs Performance and Accountability Report (Nov. 15, 2012); http://www.va.gov/budget/report/. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 015 - Plasan North America Inc v United States.doc, Paragraph with 'Veteran: The SSA determined that although BAE did not meet its goals on the past contracts evaluated, it came very close on one, contracted to HUBZone and Veteran Owned Small Businesses on another, and showed significant efforts on a third contract, on which work was just beginning. AR 289\u821190. It therefore rated BAE as [* * *]. AR 290. With regard to Plasan, the SSA found that [* * *] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veteran brought pro se action in connection with disability rating given to him by Department of Veterans Affairs (VA). Government moved to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Court of Federal Claims does not have jurisdiction to review veteran benefit determinations; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: court lacked jurisdiction over claim that regulations violated statute governing payment of compensation for veterans\rquote service-connected disabilities; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: court was without jurisdiction to hear veteran\rquote s due process claims; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: court could not transfer to Board of Veterans\rquote Appeals claim seeking review of veteran\rquote s disability rating; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: transfer of claim that VA regulations violated statute governing payment of compensation for veterans\rquote service-connected disabilities was not in the interest of justice. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: To the extent that pro se plaintiff alleged claims against the United States Secretary of Veterans Affairs, in his individual capacity, claims had to be dismissed by Court of Federal Claims for lack of jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Court of Federal Claims does not have jurisdiction to review veteran benefit determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Court of Federal Claims lacked jurisdiction over veteran\rquote s claim that certain regulations of the Department of Veterans Affairs violated statute providing for United States to pay compensation to veteran with service-connected disability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Due Process Clause did not give rise to action for money damages, as required for Court of Federal Claims to have jurisdiction under Tucker Act to hear veteran\rquote s due process claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Claim by veteran that Department of Veterans Affairs (VA) fraudulently misrepresented its obligations under statute providing for United States to pay compensation to veteran with service-connected disability sounded in tort, and thus was outside subject matter jurisdiction of Court of Federal Claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Court of Federal Claims lacked jurisdiction to grant equitable injunctive relief requested by veteran in seeking to have court bar Department of Veterans Affairs (VA) from issuing and enforcing regulations allowing for 0% disability ratings for veterans\rquote service-connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Board of Veterans\rquote Appeals, which had exclusive jurisdiction to review final veteran benefit determinations by Secretary of Veterans Affairs, was not proper transferee forum under statute, and therefore Court of Federal Claims could not transfer to Board veteran\rquote s claim seeking review of his 0% disability rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Transfer to federal district court of veteran\rquote s claim that certain regulations of Department of Veterans Affairs (VA) violated statute providing for United States to pay compensation to veteran with service-connected disability was not in the interest of justice, even if district court had jurisdiction over claim, where veteran failed to articulate basis for his claim and to identify which regulations were being challenged. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: In challenging regulations of Department of Veterans Affairs (VA) on ground that they violated statute providing for United States to pay compensation to veteran with service-connected disability, veteran did not contend that VA violated statutory publication requirements or violated notice-and-comment procedures in rulemaking, so as to trigger statute providing for judicial review with respect to such rulemaking procedures, and therefore it was not in the interest of justice for Court of Federal Claims to transfer claim to Federal Circuit Court of Appeals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Court of Appeals for Veterans Claims (CAVC) was not proper transferee court under statute, and therefore Court of Federal Claims could not transfer veteran\rquote s due process claims to CAVC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Veteran did not offer any basis for his constitutional challenge to statute limiting review of decisions of Secretary of Veterans Affairs (VA) regarding veteran benefit determinations and other statutes, and therefore it was not in the interest of justice for Court of Federal Claims to transfer claims to federal district court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Transferring to another court, by Court of Federal Claims, of veteran\rquote s claim alleging fraudulent misrepresentation by Department of Veterans Affairs (VA) was not in the interest of justice, given absence of allegations that veteran presented his tort claim to VA or otherwise complied with Federal Tort Claims Act (FTCA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff is a veteran of the United States Army (Army). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Compl. \u182 8 (stating that plaintiff is a veteran); Pl.\rquote s Resp. 1 (indicating that he served in the Army). Plaintiff contends that the United States Department of Veterans Affairs (the VA or defendant) has \determined that Plaintiff has a presently existing disability that derives from military service, but Defendant, through [the] VA, withholds paying compensation.\ Pl.\rquote s Resp. 2. Plaintiff appears to contest the 0% disability rating given to him by the VA, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff also requests that the court \bar defendant from issuing and enforcing any and all regulations foisting upon service connected veterans 0% and noncompensable status of their disabilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: A. Veterans\rquote Benefits, Generally Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: permits the VA to award compensation to a veteran for a disability that was incurred during or was aggravated by military service (service-connected disability). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: 38 U.S.C. \u167 1110 (2006) (\For disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, ... the United States will pay to any veteran thus disabled ... compensation as provided in this subchapter....\). If the VA determines that a disability is service-connected, it uses a rating schedule to evaluate the degree of disability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: . The percentage rating of disability that the VA assigns ultimately determines the amount of compensation, if any, the veteran will receive for his or her service-connected disability. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: to any veteran disabled compensation. 0% is not compensation and, thus, [the] VA is in direct contravention of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff argues that when the VA determines that a veteran has a service-connected disability, the VA must compensate the veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: \u182 14 (\VA must rate and/or pay service[-]connected Plaintiff and other service [-]connected veterans compensation under the law.\). Plaintiff maintains that \Congress did not contemplate \u8216non compensable\u8217 disabilities ... but rather explicitly Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: compensation to veterans/others with service[-]connected disabilities.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Pl.\rquote s Resp. 2 (\VA\rquote s only duty is to grant or deny service connection and thereafter rate the veteran under a percentage ranging from 10% to 100%.\ (capitalization and emphasis omitted)). Plaintiff claims that VA regulations that authorize the VA to assign a 0% rating are \unlawful[,] exceed[ ] VA authority and willfully contravene[ ] Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff further argues that, by not compensating veterans with service-connected disabilities, the VA has committed \gross intentional misrepresentation\ and \fraud,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: 1. This Court Lacks Jurisdiction over Any Claim by Plaintiff Seeking Review of VA Veteran Benefit Determinations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Section 511(a) of title 38 provides that the decisions of the Secretary of the VA (the Secretary) regarding veteran benefit determinations Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: The Secretary shall decide all questions of law and fact necessary to a decision by the Secretary under a law that affects the provision of benefits by the Secretary to veterans or the dependents or survivors of veterans. Subject to subsection (b), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: are \subject to one review on appeal to the Secretary,\ and \[f]inal decisions on such appeals shall be made by the Board [of Veterans\rquote Appeals (Board) ].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: \u167 7104(a). The Veterans Judicial Review Act of 1988 (VJRA), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: ), gives exclusive jurisdiction to review final decisions of the Board to the United States Court of Appeals for Veterans Claims (CAVC), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: . This court, therefore, does not have jurisdiction to review veteran benefit determinations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Block v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: \does not provide this Court with jurisdiction to hear claims relating to veterans benefits determinations.\ Def.\rquote s Reply 2. Defendant is correct. Although Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: provides that \the United States will pay [compensation] to any veteran\ with a service-connected disability, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: particular statute that mandates payment of money, that review is restricted to a court other than [the Court of Federal Claims.] This is the case for veterans\rquote disability ... benefits.\u8217 \ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: \u182\u182 15 (referring to defendant\rquote s \fraud and deception\), 17 (claiming that plaintiff has been prejudiced as a result of defendant\rquote s \fraud\). Plaintiff also claims that defendant\rquote s contention that the \VA does not have to pay compensation so long as it rates veterans such as Plaintiff 0% ... is a material falsehood and gross intentional misrepresentation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff requests that the court \bar defendant from issuing and enforcing any and all regulations foisting upon service[-]connected veterans 0% and non[-]compensable status of their disabilities.\ Compl. 4. Defendant argues that plaintiff\rquote s request for injunctive relief is equitable in nature and that this court lacks the jurisdiction to grant such relief. Def.\rquote s Mot. 5. Defendant is correct. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: 1. Transfer of Any Claim by Plaintiff Seeking Review of VA\rquote s Veteran Benefit Determinations Is Not Appropriate Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Plaintiff recognizes that he can appeal veteran benefit determinations to the Board. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: Preminger v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: , does not preclude federal courts from reviewing constitutional challenges to veterans\rquote benefits legislation). Plaintiff concedes that his Complaint did not challenge the constitutionality of any statutes. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: The caption of plaintiff\rquote s First Complaint (Complaint or Compl.), Docket Number (Dkt. No.) 1, names as defendants \The United States; Eric K. Shinseki[,] Secretary of Veterans[ ] Affairs.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: (\The Tucker Act grants the [United States] Court of Federal Claims jurisdiction over suits against the United States, not against individual federal officials.\). To the extent that plaintiff is alleging claims against the United States Secretary of Veterans Affairs in his individual capacity, such claims must be dismissed for lack of jurisdiction. However, as a pro se litigant, Mr. Kalick is entitled to the liberal construction of his pleadings, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 024 - Kalick v United States.doc, Paragraph with 'Veteran: The Complaint indicates that the United States Department of Veterans Affairs (the VA or defendant) initially denied plaintiff\rquote s application for service-connected disability status. Compl. \u182 5 (referring to the VA\rquote s \initial denial of service connection\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 030 - Rack And Ballauer Excavating Co Inc v City of Cincinnati.doc, Paragraph with 'Veteran: 2. CMC 320\u82117 requiring bidders to pay ten cents per hour per worker into an MSDGC fund 701 for a Pre\u8211Apprenticeship program that ensures that a majority of its trainees are women, people of color, residents of low-income communities, and/or veterans; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Contractor that was apparent lowest responsible bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) challenged decision of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) that it did not meet the status requirements for a SDVOSB concern and was therefore ineligible for the award. The contractor sought to be reinstated to the VA\rquote s Veterans First Contracting Program and to be awarded the underlying contract. Both parties moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Contractor that was apparent lowest responsible bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) had sufficient \direct economic interest\ in winning the contract to have standing to challenge decision of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) upholding bid protest on ground that contractor did not meet the status requirements for a SDVOSB concern and was therefore ineligible for the award; to hold that contractor\rquote s de-listing from roster of approved SDVOSB entities prevented it from having an interest would preclude any qualified concern from seeking a judicial remedy in response to an adverse decision from the OSDBU. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Operating agreement of limited liability corporation, which was apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB), did not restrict qualified veteran\rquote s ownership interest, so as to prevent corporation from satisfying regulatory \unconditional ownership\ qualification for SDVOSB status, to extent operating agreement afforded the corporation, or the remaining members of the corporation if the corporation declined, the first opportunity to purchase a member\rquote s shares, should a member decide to sell; such right of first refusal was not presently executory, was a standard provision used in normal commercial dealings, and did not burden the veteran\rquote s ownership interest unless he chose to sell some of his stake. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: In considering protest to apparent low bidder\rquote s status as qualified service-disabled veteran-owned small business (SDVOSB), the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) could consider grounds not specifically raised by the contracting officer or protester, and expand the protest to encompass low bidder\rquote s general compliance with verification requirements, provided the low bidder was afforded basic due process protections of notice of alleged defect and opportunity to respond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: The Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) contravened the minimal requirements for informal adjudication set forth in the Administrative Procedure Act (APA) when it terminated contractor\rquote s status as qualified service-disabled veteran-owned small business (SDVOSB), rendering contractor ineligible for SDVOSB solicitation set-aside, on grounds other than those raised by contracting officer or bid protester, without notifying contractor about its self-initiated \unconditional ownership\ examination or giving contractor opportunity to respond. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) was prejudiced by errors of the Department of Veterans Affairs\rquote (VA) Office of Small and Disadvantaged Business Utilization (OSDBU) in interpreting unconditional ownership requirement for SDVOSB status and in interpreting procedural requirements for bid protests, as required to obtain relief from administrative decision upholding protest; but for OSDBU\rquote s errors, low bidder would have remained eligible and would have had a substantial chance of receiving the award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Apparent low bidder on a solicitation set-aside for qualified service-disabled veteran-owned small businesses (SDVOSB) was entitled to injunctive relief requiring the Department of Veterans Affairs\rquote (VA) to restore low bidder to roster of approved SDVOSB entities and to consider its apparent low bid on solicitation, as remedy for errors by the Office of Small and Disadvantaged Business Utilization (OSDBU) in ruling in bid protest matter that low bidder was ineligible for SDVOSB status; low bidder would suffer irreparable harm to extent it could not bid on SDVOSB projects, VA would not be harmed in being required to consider the bid, and public had a strong interest in preserving the integrity of the procurement process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Pre-award bid protest; disparate intra-agency decisions regarding the unconditional nature of a service-disabled veteran\rquote s ownership of a small business; evidence of \ownership\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: This pre-award bid protest is before the court on plaintiff\rquote s motion for judgment upon the administrative record and the government\rquote s motion to dismiss, or in the alternative, cross-motion for judgment. On March 5, 2012, plaintiff, Miles Construction, LLC (\Miles\), had obtained a determination from the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) that it was a qualified service-disabled veteran-owned small business (\SDVOSB\) concern eligible to participate in VA\rquote s Veterans First Contracting Program, which accords priority to SDVOSBs and veteran-owned small businesses (\VOSBs\) for contracting opportunities. Nonetheless, after Miles was the apparent lowest responsive and responsible bidder for a solicitation set aside for SDVOSBs, an agency protest by the second-lowest bidder resulted in a decision by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) that Miles \d[id] not meet the status requirements of a SDVOSB concern\ and was therefore ineligible for awards under the Veterans First Contracting Program. AR 19\u8211267 (Letter from Thomas Leney to Morgan Slizofski (Aug. 27, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Miles is a limited liability corporation organized under the laws of the Commonwealth of Pennsylvania. Compl. \u182 8. Mr. Morgan Slizofski, a service-disabled veteran, owns 51 percent of the company, with [* * *] owning the remaining 49 percent. Compl. \u182\u182 11\u821112. On January 19, 2011, Miles first applied for inclusion in the VA VetBiz Vendor Information Pages (\VIP\) Verification Program as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Pl.\rquote s Mem. .... in Support of Pl.\rquote s Mot. for Judgment on the Admin. Record (\Pl.\rquote s Mem.\) at 4. CVE conducted a thorough investigation of Miles, performing an on-site examination of the company\rquote s premises and a review of documents. AR 74\u8211778 to \u821193 (Report of Harry Armstrong, CVE Examiner (Mar. 21, 2011)). After discussions between representatives for CVE and Miles, Miles altered its operating agreement of companies eligible for Veterans First Contracting Program projects. AR 93\u82111003 (SDVOSB Approval (Mar. 5, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: AR 12\u8211246 to \u821147 (Abstract of Offers). On June 25, 2012, the second-lowest bidder, Veteran Construction & Utility Services, Inc. (\Veteran\), challenged Miles\rquote eligibility as a SDVOSB and lodged a protest with the Solicitation\rquote s contracting officer. AR 14\u8211249 to \u821156 (Veteran Protest (June 25, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: In the protest letter, Veteran alleged a \[c]ontrol and ownership violation\ because it believed Miles and a non-SDVOSB, [* * *], had common ownership and control, thus rendering Miles ineligible for SDVOSB status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: AR 14\u8211250. Veteran alleged that [* * *] was using the service-disabled veteran status of Miles\rquote owner, Mr. Slizofski, as a \pass thru\ from Miles to [* * *]. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: After a delay of more than six weeks, VA\rquote s contracting officer forwarded the protest to OSDBU\rquote s Executive Director. AR 18\u8211262 to \u821163 (Notice to OSDBU of Veteran Protest (Aug. 9, 2012)). OSDBU notified Miles of the protest on August 15, 2012, asking Miles to \respond directly to the allegations made in the status protest.\ AR 104\u82111028 (E-mail from Amy Endicott to Slizofski (Aug. 15, 2012)). In a subsequent e-mail sent the same day, OSDBU noted that it would \review the protest against [Miles] as well as complete another review of ... company documentation to ensure [Miles] meet[s] the requirements of 38 C.F.R. Part 74 as a valid SDVOSB.\ AR 104\u82111027 (E-mail from Endicott to Slizofski (Aug. 15, 2012)). OSDBU gave Miles only one week to respond, \due to the time-sensitive nature of the Status Protest program.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: AR 105\u82111029 to \u821135 (Miles\rquote Response to Veteran Protest (Aug. 15, 2012)). On August 27, 2012, OSDBU stated that it had investigated Veteran\rquote s claims and did not see evidence that Miles served as a pass through for [* * *] or that Mr. Slizofski did not possess the requisite control over the company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: (pertaining to \SDVOSB/VOSB Small Business Status Protests\) and 38 C.F.R. Part 74 (setting out VA\rquote s \Veterans Small Business Regulations\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . Part 74 specify the standards for CVE\rquote s evaluation of applicants for VOSB status and the eligibility for inclusion in the Veterans First Contracting Program, and those standards are explicitly incorporated by reference in the VAAR provisions governing SDVOSB and VOSB small business status protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: The statutory predicate for the Veterans First Contracting Program is the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: ). This Act provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . To implement this Act, VA established the Veterans First Contracting Program in 2007, directing VA to consider SDVOSB and VOSB entities as first and second priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: clarified the responsibilities of the Secretary of the Department of Veterans Affairs in addressing and verifying applications for inclusion in the database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: 38 C.F.R. \u167\u167 74.3 (ownership), 74.4 (control). In answer to the question \Who does [CVE] consider to own a veteran-owned small business?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: dictates that 51 percent of a concern must be \unconditionally and directly owned by one or more veterans or service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: (3) If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . Pl.\rquote s Mem. at 18. Miles argues that because the issuance of the VAB itself was procedurally improper, OSDBU\rquote s alleged reliance on the VAB in finding that Miles was not unconditionally owned by a service-disabled veteran was arbitrary and capricious. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . at 19\u821120. The government counters that VABs are \not new rules or regulations;\ rather, they \are intended to be educational material for use by veterans, in order to assist veterans in determining whether their business model fits the requirements of 38 C.F.R. Part 74.\ Def.\rquote s Mot. at 29. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: The particular VAB at issue sets out Sections 74.3 and 74.4 of the regulations and then lists six bullet points, the third of which states that \requiring approval of other shareholders/members or a right of first refusal to purchase the Veteran\rquote s shares/interest for the Veteran owner to transfer his shares/interest\ \will prevent an applicant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs, available at http://www.va.gov/osdbu/docs/vapVabTransferRestrictions.pdf (last accessed February 6, 2013). Miles represents, and the government does not controvert, that the VAB was issued on or about November 23, 2011, five days after Miles submitted its second application for verification as a SDVOSB. Pl.\rquote s Mem. at 6. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . AR 19\u8211266. Two of those articles are beside the point. Article X simply states that owners cannot transfer their ownership interests in contravention of the Operating Agreement. AR 71\u8211737. Article XII addresses transfers of ownership in the event of incapacity or death. AR 71\u8211740 to \u821141. VA\rquote s regulation itself contains provisions specifically allowing transfer upon the death or incapacity of a veteran owner without contravening the unconditional-ownership requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: In the Matter of: Veterans Constr. Servs., Inc., Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Veterans Construction, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: determined that a service-disabled veteran did not unconditionally own a company within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: , which governs eligibility requirements for the SBA\rquote s Service\u8211Disabled\u8211Veteran\u8211Owned Small Business Concern program, because the operating agreement contained tag-along Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: , unconditional necessarily means there are no conditions or limitations upon an individual\rquote s present or immediate right to exercise full control and ownership of the concern. Nor can there be any impediment to the exercise of the full range of ownership rights. Thus, a service-disabled veteran: (1) Must immediately and fully own the company (or stock) without having to wait for future events; (2) Must be able to convey or transfer interest in his ownership interest or stock whenever and to whomever they choose; and (3) Upon departure, resignation, retirement, or death, still own their stock and do with it as they choose. In sum, service-disabled veterans must immediately have an absolute right to do anything they want with their ownership interest or stock, whenever they want. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: such as voting rights or the distribution of profits or losses, from falling into the hands of non-veterans, even as the company appeared to operate under the auspices of the veteran majority owner. Like the encumbrance of veteran-owned stock as collateral, inclusion of a standard right of first refusal in an operating agreement is a \normal commercial practice[ ],\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: , that does not hinder the veteran-owner\rquote s interest unless the veteran receives a bona fide offer and chooses to sell. Moreover, upon a sale, the company would not automatically retain its eligibility for the VIP database, because it may no longer be owned by a veteran who could qualify for the database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: 38 C.F.R. \u167 74.3(e)(4) (requiring CVE to verify that all eligibility requirements continue to be met by the concern and the new owners). In sum, the right of first refusal provision in Article XI is not presently executory, is a standard provision used in normal commercial dealings, and does not burden the veteran\rquote s ownership interest unless he or she chooses to sell some of his or her stake. As a result, Article XI, Paragraph 11.01 does not affect the veteran\rquote s unconditional ownership with regard to C.F.R. \u167 74.3(b). The decision by OSDBU to the contrary, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: by reviewing the veteran\rquote s unconditional ownership, a ground it contends was not raised by the Protest. Pl.\rquote s Mem. at 20. The regulation governing the protest process states that \the Executive Director ... [of OSDBU] shall decide all protests on service-disabled veteran-owned or veteran-owned small business status whether raised by the contracting officer or an offeror. Ownership and control shall be determined in accordance with 38 C[.]F[.]R[.] part 74.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: . The regulation further states that \[a]ll protests must be in writing and must state all specific grounds for the protest. Assertions that a protested concern is not a service-disabled veteran-owned or veteran-owned small business concern, without setting forth specific facts or allegations, are insufficient.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: provides that CVE \may cancel the \u8216verified\u8217 status button for good cause ... including [f]ailure by the participant to maintain its eligibility for program participation [or] [f]ailure by the participant for any reason ... to maintain ownership, management, and control by veterans, service-disabled veterans[,] or surviving spouses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: requires that the veteran participant be given notice of CVE\rquote s proposed grounds for removal and a thirty-day period within which it can respond. When read in concert, Miles argues, these regulations give CVE the responsibility for investigating whether a verified company has maintained its status, while OSDBU should only address verification allegations specifically raised in protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: In its protest letter, Veteran focused on the allegation that Miles Construction was a \pass thru\ for another construction company, AR 14\u8211249, whose owner is a minority owner of Miles, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: AR 105\u82111033. Veteran asserted that the two companies were affiliated by their common ownership, meaning that Miles did not meet the standard requiring \at least 51 percent of each class member interest [to] be unconditionally owned by one or more veterans or service[ ]disabled veterans.\ AR 14\u8211250 (quoting Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: ). Veteran neither mentioned nor addressed restrictions on Mr. Slizofski\rquote s ownership interest beyond these contentions that Mr. Slizofski\rquote s Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: assigns responsibility to the Executive Director of OSDBU to \decide all protests on service-disabled veteran-owned or veteran-owned small business status whether raised by the contracting officer or an offeror.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: Miles\rquote verified eligibility to participate in VA\rquote s Veterans First Contracting Program shall be extended by 164 days, to August 16, 2013, to take account of the days it was wrongfully removed from eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: The Veterans Affairs Acquisition Regulation System (\VAAR\), codified at 48 C.F.R. Parts 801\u8211873, permits offerors to challenge another offeror\rquote s SDVOSB status through an agency-level protest considered by OSDBU. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: CS\u8211360, LLC v. United States Dep\rquote t of Veteran Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: http://www.va.gov/osdbu/veteran/vapVab.asp Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: (last accessed Feb. 6, 2013). The other five VABs shown are entitled \Board Governance,\ \Trusts,\ \Joint Ventures,\ \Full Time Control,\ and \Community Property.\ The website states that VABs have been provided \to assist applicants in obtaining Verification for the Veterans First [P]rogram.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 031 - Miles Construction LLC v United States.doc, Paragraph with 'Veteran: The government\rquote s \streamlined process\ argument in this particular case is severely undercut by the fact that VA\rquote s contracting officer waited six weeks to forward Veteran\rquote s protest to OSDBU for action. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Disappointed bidder filed pre-award bid protest, challenging Department of Veterans Affairs\rquote (VA) determination that bidder did not satisfy status requirements of service-disabled veteran-owned small business (SDVOSB), under Veterans Benefits, Health Care, and Information Technology Act, so was ineligible for contract awards under Veterans First Contracting Program that gave priority to veteran-owned small businesses (VOSBs) and SDVOSBs. Bidder moved for preliminary injunction setting aside VA\rquote s removal of bidder from program as VOSB and barring VA from awarding contracts on solicitations on which bidder had submitted proposals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: The priority contracting preferences for service-disabled veteran-owned small business (SDVOSBs) and veteran-owned small businesses (VOSBs), under Veterans Benefits, Health Care, and Information Technology Act, apply only to procurements by the Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Disappointed bidder\rquote s pre-award bid protest of decision of Department of Veterans\rquote Affairs (VA), disqualifying bidder from contract awards under Veterans First Program due to ineligibility as service-disabled veteran-owned small business (SDVOSB), was within Tucker Act jurisdiction, since bidder claimed that VA contravened its regulations governing veteran-owned small business (VOSB) eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Department of Veterans\rquote Affairs (VA) Office of Small and Disadvantaged Business Utilization\rquote s (OSDBU) determination that contractor could not meet regulatory requirements of control standard for eligibility as veteran-owned small business (VOSB), thereby disqualifying him from contract award under Veterans First Contracting Program as service-disabled veteran-owned small business (SDVOSB), was not reasonable, where contractor was physically present for nearly half year in Rhode Island in which his contracting business was located, he spent remainder of his time in Florida in same time zone as Rhode Island, he electronically kept track of day-to-day business in Rhode Island while he was in Florida, he typically performed one job at a time and mostly while he was in Rhode Island, he traveled from Florida to Rhode Island for any important business meeting, he had ample construction management experience, and he maintained no other jobs or positions so he could focus solely on his contracting business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Bidder would likely suffer irreparable harm from lost profits in absence of preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where VA\rquote s removal of bidder from program already caused loss of $1.5 million contract that bidder was previously awarded, loss of future work as VOSB would likely result in bidder\rquote s ultimate demise as viable business, and reverification as VOSB would take six months to one year during which time bidder would lose substantial business and income. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Balance of hardships favored preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where bidder would suffer irreparable harm from lost profits in absence of relief, and bidder had substantial likelihood of success on merits of claim that VA\rquote s disqualification decision was unreasonable. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Public interest supported preliminary injunction setting aside decision of Department of Veterans\rquote Affairs (VA) disqualifying bidder as veteran-owned small business (VOSB) eligible for award of contracts under Veterans First Program, where setting aside VA\rquote s disqualification decision would ensure bidder\rquote s opportunity to compete fairly in VOSB procurements and serve strong public interest in preserving integrity of procurement status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: , Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C. Of counsel were Dennis Foley, Counselor to the Assistant General Counsel, and Aleia Barlow, General Attorney, Office of the General Counsel, United States Department of Veterans Affairs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Pre-award bid protest; motion for preliminary injunction; disparate intra-agency decisions regarding the level of control exercised by a veteran owning a small business; evidence of \control\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Pending before the court is plaintiff\rquote s motion for a preliminary injunction in this pre-award bid protest. On February 7, 2012, plaintiff, KWV, Inc. (\KWV\), had obtained a determination from the Department of Veterans Affairs\rquote (\VA\rquote s\) Center for Veterans Enterprise (\CVE\) that it was a qualified veteran-owned small business (\VOSB\) concern eligible to participate in VA\rquote s Veterans First Contracting Program, which accords priority to VOSBs and service-disabled veteran-owned small businesses (\SDVOSBs\) for contracting opportunities. Nonetheless, after KWV had ostensibly won an award of a contract as a VOSB, an agency protest by a losing bidder resulted in a decision by VA\rquote s Office of Small and Disadvantaged Business Utilization (\OSDBU\) that KWV \d[id] not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: meet the status requirements of a SDVOSB concern\ and was therefore ineligible for awards under the Veterans First Contracting Program. AR 570 (Letter from Thomas Leney to James Maron (Oct. 24, 2012)). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: KWV challenges that decision and seeks both to be reinstated into the Program and to obtain an injunction barring VA from awarding contracts upon solicitations on which KWV had submitted bids. After a hearing held on December 20, 2012, the court granted a temporary restraining order constraining VA\rquote s action on certain solicitations until KWV\rquote s protest was resolved, and after a hearing on January 4, 2013, that temporary restraining order was extended. The second temporary restraining order temporarily set aside VA\rquote s delisting of KWV as a firm qualifying for participation in the Veterans First Contracting Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: . Compl. \u182 17. James Maron, a veteran of the United States Army Corps of Engineers, owns 60 percent of the issued and outstanding shares of the company, with the remaining shares being split between his two sons and one granddaughter. Compl. \u182 18. Mr. Maron has more than 50 years experience in construction and more than 30 years of experience as a contractor, Compl. \u182\u182 15\u821117, and he now focuses solely on KWV, which he formed in 2008 as a VOSB after enactment of the Veterans Benefits, Health Care, and Information Technology Act of 2006 (\Veterans Benefits Act\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: AR 513. That Act, signed into law on December 22, 2006, directs the Secretary of Veterans Affairs in procurements using contracting preferences to \give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Mr. Maron led that firm\rquote s operations until he retired and his children took over management. AR 162. On October 31, 2008, however, he incorporated KWV, a new company, to operate as a VOSB. Compl. \u182\u182 16\u821117. At that time, the Veterans First Contracting Program functioned on a self-certification basis, and KWV won and performed two or three projects as a self-certifying concern. AR 508\u821109, 540. A verification program was established by VA in 2010, and on January 14, 2011, KWV applied for inclusion in the VA VetBiz Vendor Information Pages (\VIP\) Verification Program as a VOSB. Compl. \u182 19. KWV\rquote s application was initially denied on September 22, 2011, because KWV\rquote s incorporation documents indicated Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: that the company was controlled by a board comprised primarily of non-veteran directors, rather than by Mr. Maron as the majority shareholder. AR 451. KWV then amended its corporate documents to reflect Mr. Maron\rquote s control and requested reconsideration by VA on October 12, 2011. AR 455\u821194. CVE conducted a thorough investigation of plaintiff, performing a site visit, interviews, and review of documentary submissions from the company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: AR 495\u8211515.2. Subsequently, on February 7, 2012, CVE approved KWV as a VOSB and added it to the database of companies eligible for Veterans First Contracting Program projects. AR 516\u821117. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: On August 4, 2012, Alares, LLC (\Alares\), a disappointed bidder, filed a formal protest with VA, alleging that Mr. Maron did not in fact control KWV. AR 518. This protest posited that Mr. Maron\rquote s two non-veteran sons, David and Thomas Maron, were the true controlling owners of KWV, evidenced in part by the fact that Mr. Maron resides in Florida for a substantial part of the year. AR 519. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: OSDBU did not conduct a site visit during this investigation, and did not conduct any interviews with Mr. Maron or other KWV employees. Compl. \u182 53. On October 24, 2012, OSDBU sustained the protest and disqualified KWV from participation in the Veterans First Contracting Program. AR 568\u821171. The decision was framed in terms of whether KWV qualified as a valid SDVOSB, a designation which was neither claimed by KWV nor contested by Alares. AR 568. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: AR 571 (\[KWV] cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under [38 C.F.R. Part 74], as applicable, unless it demonstrates to VA\rquote s Center for Veterans Enterprise that it has overcome the reasons for the determination of ineligibility, if it is able, by applying for and receiving verified status in accordance with 38 C.F.R. Part 74.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: and 38 C.F.R. Part 74 (setting out VA\rquote s \Veterans Small Business Regulations\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: . Part 74 specifies the standards for CVE\rquote s evaluation of applicants for VOSB status and the eligibility for inclusion in the Veterans First Contracting Program, and those standards are explicitly incorporated by reference in the VAAR provisions governing SDVOSB and VOSB small business status protests. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: The statutory predicate for the Veterans First Contracting Program is the Veterans Benefits Act, which provides in pertinent part that \[i]n procuring goods and services pursuant to a contracting preference under this title or any other provision of law,\ VA \shall give priority to a small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: owned and controlled by veterans,\ provided that the business is included in a small business database maintained by VA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: . To implement this Act, VA established the Veterans First Contracting Program in 2007, directing its contracting officers to consider SDVOSB and VOSB entities as first and second priority. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: clarified the responsibilities of the Secretary of the Department of Veterans Affairs in addressing and verifying applications for inclusion in the database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: C.F.R. \u167\u167 74.3 (ownership), 74.4 (control). In answer to the question \Who does CVE consider to control a veteran-owned small business?\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: (3) If the Executive Director sustains a service-disabled veteran-owned or veteran-owned small business status protest and the contract has already been awarded, then the contracting officer cannot count the award as an award to a VOSB or SDVOSB and the concern cannot submit another offer as a VOSB or SDVOSB on a future VOSB or SDVOSB procurement under this part, as applicable, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: OSDBU afforded Mr. Maron an opportunity to respond to the protest but did not follow up with any questions or concerns it may have had. Much of the OSDBU decision is taken up by a word-for-word recitation of regulations found in Parts 819 and 74. AR 568\u821171. The findings themselves give few clues as to how OSDBU reached its decision, stating merely that \[b]ecause construction requires the direct supervision of the work to be performed, the location of the [veteran] is Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: in determining whether the [veteran] controls an applicant construction company.\ AR 570 (emphasis added). This statement is followed by a citation to a decision by the Small Business Administration\rquote s (\SBA\rquote s\) Office of Hearings and Appeals (\OHA\) and a summary of Alares\rquote bid protest allegations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: \), is instructive for what it decides as well as for what it does not decide. The decision concludes that a service-disabled veteran did not control the applicant construction firm. The veteran resided in Visalia, California, while the construction company was based in Chillicothe, Ohio. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: ruling was made simply \because [the veteran] lived thousands of miles from the [company\rquote s] headquarters.\ AR 570. In actuality, SBA explicitly rejected the proposition that distance alone could determine control. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: manage a job that is 2000 miles away from its headquarters.\ (emphasis added)). Rather, SBA took into account additional factors that included the veteran\rquote s seemingly full-time residence three time zones away from the company\rquote s situs, the lack of a long-distance management infrastructure, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: the absence of management experience on the part of the veteran, and the circumstance that the veteran was simultaneously self-employed at two other jobs, both of which were located in California. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: Mr. Maron, unlike the veteran in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: For the foregoing reasons, KWV\rquote s motion for a preliminary injunction is GRANTED. OSDBU\rquote s decision dated October 24, 2012, rendering KWV ineligible for awards of contracts as a VOSB, is set aside. VA shall restore KWV to its roster of approved VOSB entities. KWV\rquote s verified eligibility to participate in VA\rquote s Veterans First Contracting Program shall be extended by 72 days, to April 22, 2013, to take account of the days it was wrongfully removed from eligibility. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: (\The Veterans Benefits Act is a specific mandate to the Department, and only to the Department, to grant first priority to SDVOSBs and VOSBs in the awarding of contracts.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 037 - KWV INC v United States.doc, Paragraph with 'Veteran: 48 C.F.R. Parts 801\u8211873 constitute the Veterans Affairs Acquisition Regulation System (\VAAR\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 040 - Grooms v United States.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 040 - Grooms v United States.doc, Paragraph with 'Veteran: \Approximate balance of positive and negative evidence,\ so as to trigger the application of the benefit of the doubt rule in favor of the service member on a claim for veterans\rquote benefits, exists only when the evidence on each side is almost exactly or nearly equal, or too close to call. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 040 - Grooms v United States.doc, Paragraph with 'Veteran: Navy Physical Examination Board\rquote s (PEB\rquote s) requirement of specific evidence of \Regulation of Activities\ was not contrary to law, thus precluding service member\rquote s claim that he was improperly denied retirement pay and benefits on those grounds; mere fact that regulation providing schedule of ratings for endocrine system did not explicitly require service member to provide such evidence did not bar PEB from making such requirement, especially in light of general regulatory requirement of \accurate and fully descriptive medical examinations\ emphasizing limitations of service member\rquote s activity due to disabling condition, reasonableness of requiring some foundation for considering physician\rquote s letter, and consistency with Veterans Affairs Schedule for Rating Disabilities (VASRD). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 040 - Grooms v United States.doc, Paragraph with 'Veteran: ), which provides the Secretary of each branch of the armed services the authority to determine whether service members are fit for duty and to retire those members who are not. Service members who have served for at least twenty years or who have been assigned a disability rating of \at least 30 percent under the standard schedule of rating disabilities in use by the Department of Veteran Affairs\ are entitled to disability retirement pay under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 040 - Grooms v United States.doc, Paragraph with 'Veteran: at 44\u821146. In June 2007, the Department of Veteran Affairs (\VA\) examined Mr. Lamey and rated his Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: Offeror brought pre-award bid protest action, challenging refusal of Department of Veterans Affairs (VA) to accept its quotation for blanket purchase agreement. Parties cross-moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: Defendant, regrettably, has injected an Alice\u8211in\u8211Wonderland quality into this preaward bid protest case. In this case, Laboratory Corporation of America (LabCorp) protests the refusal of the U.S. Department of Veterans Affairs (the VA) to accept its quotation for a blanket purchase agreement. According to the solicitation, the quotation was due on May 31, 2012, at 2:00 p.m. Central Standard Time (CST), which both parties took to mean 2:00 p.m. Central Daylight Time Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: On May 1, 2012, the VA issued Solicitation VA255\u821112\u8211Q\u82110268 (solicitation or RFQ) for establishing a Blanket Purchase Agreement to provide laboratory testing services to the Veteran Integrated Services Network\rquote s fifteen medical centers located in Kansas, Missouri, and Illinois. The solicitation described the due date for submitting a quotation in a box which indicated: \OFFER DUE DATE/LOCAL TIME 05\u821131\u82112012 2:00 pm CST.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: 2. Defendant, acting by and through the Department of Veterans Affairs, is hereby Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: from evaluating quotations received, and making an award, under solicitation VA255\u821112\u8211Q\u82110268, unless the Department of Veterans Affairs makes provision to accept a quotation from LabCorp and evaluate it on the same terms as other quotations already received (or amended quotations to be received). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: 3. Alternatively, defendant, acting by and through the Department of Veterans Affairs, may conduct a new procurement for the services described in solicitation VA255\u821112\u8211Q\u82110268. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 043 - Laboratory Corp of America v United States.doc, Paragraph with 'Veteran: White Oak Telecomm., Inc. v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 045 - Dellew Corporation v United States.doc, Paragraph with 'Veteran: Military Order of the Purple Heart v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: In particular, Relator alleges Hendry Corp. is not at least 51% owned by either a veteran or a service-disabled veteran, and, as a result, Defendants falsely represented Hendry Corp. as a Veteran Owned Business (\VOB\) and as a Service\u8211Disabled Veteran\u8211Owned Business Concern (\SDVO SBC\) in violation of the FCA. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: Relator further alleges Marine Construction and Gulf Marine are not at least 51% owned and controlled by a service-disabled veteran, and, as a result, Defendants falsely represented these concerns as SDVO SBCs in violation of the FCA. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: Defendants insist the \Second Amended Complaint is simply a rehash of the First Amended Complaint ... which was properly dismissed by this Court since it did not allege any objectively false representations of SDVO SBC status.\ (Mot.4\u82115). Defendants go on to argue the Second Amended Complaint \continues to be based on an incorrect recitation of the law,\ namely, that the owner and controller of a concern must possess documentation proving that he or she is a service-disabled veteran in order to represent the concern as an SDVO SBC. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: Oct. 1 Order 15, 16 (\[A]n adverse finding as a result of a bid protest due to lack of documentation is not necessarily the equivalent of a fraudulent misrepresentation of SDVO SBC status.... A concern must self-represent that its owner and controller is a service-disabled veteran, not that it has the supporting documentation to prove it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: the concerns represented as SDVO SBCs were, in fact, not at least 51% owned and controlled by a service-disabled veteran. For FCA purposes, determining whether a concern was owned and controlled by a service-disabled veteran is a factual inquiry that goes beyond the inquiry performed by the SBA in a bid protest and does not turn on whether an individual possessed documentation at the time of representing SDVO SBC status. Indeed, while \[n]either SBA nor OHA have [sic] the statutory or regulatory authority to evaluate veteran eligibility nor does SBA or OHA have the capacity or expertise to evaluate a claim of disability,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: determination as to whether an owner and controller of a concern was a service-disabled veteran, even if such individual did not have documentary proof at the time representations of SDVO SBC status were made. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: Nonetheless, on a motion to dismiss the Court cannot disregard the allegations in the Second Amended Complaint. Relator alleges the following: \Hendry Corporation is not at least 51% owned by a veteran or service-disabled veteran\ (2d Am. Compl. \u182 35 (emphasis omitted)); \[a]t no time relevant herein did a veteran or service-disabled veteran own and control at least 51 % of Hendry Marine Industries, LLC\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: ); \[Marine Construction] is not at least 51 % owned by a veteran or service-disabled veteran\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: (emphasis omitted)); \Marine Industries, LLC is not at least 51% owned and controlled by a service-disabled veteran\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: ); \[a]t no time relevant herein did a veteran or service-disabled veteran own and control at least 51 % of [Marine Construction]\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: ); \[a]t all times relevant herein, [Gulf Marine] was not at least 51% owned and controlled by a veteran\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: (emphasis omitted)); and \[a]t all times relevant herein, [Gulf Marine] was not at least 51% owned and controlled by a service-disabled veteran\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 046 - A1 Procurement LLC v Hendry Corp.doc, Paragraph with 'Veteran: The Court further notes the Second Amended Complaint makes no mention of the United States Department of Veteran Affairs\rquote December 21, 2011 letter [ECF No. 26\u82111] (the \VA Verification\), which verifies Mr. Hendry is a service-disabled veteran. Defendants suggest the Court should consider the VA Verification because Relator previously placed it in the record of this case. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: A service-disabled veteran-owned small business brought bid protest claim seeking injunctive relief compelling Department of Veterans Affairs (VA) to comply with Veterans Benefits, Health Care, and Information Technology Act of 2006, alleging that the VA conducted procurements in violation of Act by failing to set aside those procurements for veteran-owned small businesses or service-disabled veteran-owned small businesses. Cross-motions were filed for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: as a matter of first impression, VA\rquote s interpretation of Act as not requiring it to comply with Act\rquote s set-aside procedures for veteran-owned small businesses or service-disabled veteran-owned small businesses, and allowing it to retain discretion to procure goods and services from the FSS was reasonable and entitled to deference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Under Competition in Contracting Act, Government Accounting Office (GAO) decisions are only recommendations and not binding on Department of Veterans Affairs (VA). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Veterans Benefits, Health Care, and Information Technology Act was ambiguous as to its application to Federal Supply Schedule (FSS), pursuant to which contractors agree to provide supplies and services at stated prices for given periods of time on the FSS permitting agencies to buy supplies directly from the FSS, rather than holding a publicly-advertised full and open competition, requiring Court of Federal Claims, under Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: analysis, to determine whether agency\rquote s interpretation of statute as allowing Department of Veterans Affairs (VA) to retain its discretion to procure goods and services from the FSS in light of set-aside procedures set forth in Act was entitled to deference; when construed in light of Act\rquote s goal-setting provisions, it was at best ambiguous as to whether Act mandated a preference for service-disabled veteran-owned small businesses and veteran-owned small businesses for all VA procurements, Act was silent as to relationship between its set-aside provision and the FSS, and legislative history of Act undermined bid protester\rquote s claim that Act was unambiguous. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) interpretation of Veterans Benefits, Health Care, and Information Technology Act as not requiring it to comply with Act\rquote s set-aside procedures for veteran-owned small businesses or service-disabled veteran-owned small businesses, and allowing it to retain discretion to procure goods and services from the Federal Supply Schedule (FSS), was reasonable and entitled to deference; VA\rquote s interpretation had remained consistent over time and reflected a uniform approach on agency\rquote s part, VA\rquote s interpretation was not directly in conflict with the Act or Veterans Affairs Acquisition Regulations (VAAR), and VA\rquote s interpretation was consistent with legislative history of the Act. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (VA) decision not to set aside a contract for an emergency notification service for VA medical centers and associated outpatient clinics the procurement for veteran-owned small businesses or service-disabled veteran-owned small businesses and instead procure the services from the Federal Supply Service was not arbitrary, capricious, or contrary to law; Veterans Benefits, Health Care, and Information Technology Act did not require the VA to comply with the Act\rquote s set-aside procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Bid Protest; Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: ; Veteran\u8211Owned Small Business Set\u8211Asides; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Plaintiff Kingdomware Technologies, Inc. (\plaintiff\), a service-disabled veteran-owned small business, brings this bid protest claim seeking injunctive relief compelling the Department of Veterans Affairs (\VA\) to comply with the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: (\the 2006 Act\ or the \Act\). Plaintiff filed an amended complaint on July 18, 2012, alleging that VA conducted three procurements in violation of the 2006 Act by failing to set aside those procurements for veteran-owned small businesses (\VOSBs\) or service-disabled veteran-owned small businesses (\SDVOSBs\), such as plaintiff. For the purposes of the pending cross-motions for judgment on the administrative record, the parties have stipulated to the facts in regard to one of the three procurements at issue. The parties\rquote cross-motions focus only on the legal question of whether VA failed to comply with the 2006 Act in conducting this procurement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: (implementing in part the 2006 Act at issue here). VA\rquote s unique acquisition regulations are referred to as the Veterans Affairs Acquisition Regulations (\VAAR\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: such as plaintiff, pursuant to the Veterans Benefit Act of 2003, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Congress enacted the Veterans Benefits, Health Care, and Information Technology Act as Sections 502 and 503 of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: \u8212(1) In order to increase contracting opportunities for small business concerns owned and controlled by veterans and small business concerns owned and controlled by veterans with service-connected disabilities, the Secretary shall\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans who are not veterans with service-connected disabilities in accordance with paragraph (2); and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: establish a goal for each fiscal year for participation in Department contracts (including subcontracts) by small business concerns owned and controlled by veterans with service-connected disabilities in accordance with paragraph (3). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: The goal for a fiscal year for participation under paragraph (1)(B) shall be not less than the Government-wide goal for that fiscal year for participation by small business concerns owned and controlled by veterans with service-connected disabilities under section 15(g)(1) of the Small Business Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: \u8212For purposes of meeting the goals under subsection (a), and in accordance with this section, in entering into a contract with a small business concern owned and controlled by veterans for an amount less than the simplified acquisition threshold (as defined in section 134 of title 41[currently, $100,000), a contracting officer of the Department may use procedures other than competitive procedures. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: \u8212For purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department may award a contract to a small business concern owned and controlled by veterans using procedures other than competitive procedures if\u8212 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: \u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: stating that a contracting officer must have \a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price\ is often referred to as the \Rule of Two.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans with service\u8211connected disabilities. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Contracts awarded pursuant to subsection (b), (c), or (d) to small business concerns owned and controlled by veterans that are not covered by paragraph (1). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: \u8212In procuring goods and services pursuant to a contracting preference under this title or any other provision of law, the Secretary shall give priority to a small business concern owned and controlled by veterans, if such business concern also meets the requirements of that contracting preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: The VAAR implementing the 2006 Act can be principally found at 48 C.F.R. (\VAAR\) Part 819. The regulations acknowledge the goal-setting provision of the Act in VAAR \u167 819.201: \The Secretary shall establish goals for each fiscal year for participation in Department contracts by SDVOSBs and VOSBs.\ The VAAR further state that \Sections 502 and 503 of the Veterans Benefits, Health Care, and Information Technology Act of 2006 ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: ), created an acquisition program for small business concerns owned and controlled by service-disabled veterans and those owned and controlled by veterans for VA.\ VAAR Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, 74 Fed.Reg. 64,619, 64,624 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: The GAO also found that FAR Part 8\rquote s provision that FSS procurements are exempt from FAR Part 19 set-asides only pertains to SDVOSB set-asides under the Veterans Benefit Act of 2003\u8211which applies government-wide\u8211and not to the 2006 Act, which relates only to VA procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: . In distinguishing the two acts, the GAO further found that, in contrast to the 2006 Act, the language in the Veterans Benefit Act of 2003 used the permissive \may\ rather than Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: The following facts have been stipulated to by the parties. In January 2012, VA determined that it needed to procure an Emergency Notification Service (\ENS\) for the Veterans Integrated Service Network 5, a grouping of four VA medical centers and associated outpatient clinics. The purpose of an ENS is to rapidly deliver messages to VA personnel with critical information and notices in an emergency situation, such as a natural disaster. The proposed contract was intended to provide ENS services only until a VA-wide notification system is implemented, which is anticipated to occur during fiscal year 2012. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: analysis, the court must first determine whether Congress has spoken directly to the issue of whether VA must first determine if the \Rule of Two\ is satisfied\u8211that is, whether the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States\u8211before ordering against the FSS. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: contracts on the basis of competition restricted to small business concerns owned and controlled by veterans ....\ (emphasis added). Plaintiff argues that the use of the phrase \shall award\ in this instance\u8211in contrast to the use of \may award\ in subsections (b) and (c) of \u167 8127\u8211unequivocally establishes a mandatory set-aside. Pl.\rquote s Mot. at 12 (citing Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: VA would be allowed to award non-competitive contracts to small businesses owned and controlled by veterans when the amount of the contract is below the simplified acquisition threshold as defined in section 4 of the Office of Federal Procurement Policy Act ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: ). Further, contracting officers would be allowed, but not required, to award sole source contracts to small businesses owned and controlled by veterans to meet the annual goal set by the Secretary for contracts above the simplified acquisition threshold but below $5,000,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Contracting officers would retain the option to restrict competition to small businesses owned and controlled by veterans Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: if the contracting officer has an expectation that two or more such businesses owned by veterans will submit offers for the contract including all contracts exceeding $5,000,000. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: ] in the Compromise Agreement is to emphasize the importance of meeting the contracting goals for veteran and service-disabled veteran-owned businesses by giving those competitive parity with other set-aside categories. The Committees also seek Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: to give contracting officers the tools to meet veteran and service-disabled veteran\u8211owned business set-aside goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: including giving \preference\ to veteran or service-disabled veteran-owned businesses. The goals for veteran and service-disabled veteran owned businesses Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Further, the legislative history of the Act undermines plaintiff\rquote s interpretation of the 2006 Act. The Joint Explanatory Statement accompanying the 2006 Act states that VA contracting officers \would retain the option to restrict competition to small businesses owned and controlled by veterans\ if the \Rule of Two\ is met, and that the Act was meant to give VA the \tools\ to meet its SDVOSB and VOSB set-aside goals, but not to the detriment of other set-aside goals. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled VeteranOwned Small Businesses, 74 Fed.Reg. 64,619, 64,624 (Dec. 8, 2009) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: veteran-owned small business, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns.\) (emphasis added), although no separate VOSB program like the set-aside program for SDVOSBs is found in FAR Part 19. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: The Veterans Benefit Act of 2003 states, in part: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: In accordance with this section, a contracting officer may award contracts on the basis of competition restricted to small business concerns owned and controlled by service-disabled veterans if the contracting officer has a reasonable expectation that not less than 2 small business concerns owned and controlled by service-disabled veterans will submit offers and that the award can be made at a fair market price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: where the GAO held that because FAR Part 19\rquote s SDVOSB set-aside provision was created as a government-wide program by the Veterans Benefit Act of 2003, \the exception in the FAR that permits agencies to award task and delivery orders under the FSS without regard to government-wide small business programs ... does not govern, or apply to, the SDVOSB set-aside program created by the Veterans Benefits, Health Care, and Information Technology Act of 2006.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: . While the Veterans Benefit Act of 2003 and the 2006 Act do create distinct setaside programs, the 2006 Act itself is silent as to the relationship between its set-aside provision and the FSS. Therefore, the agency retained its discretion to determine whether and how the 2006 Act\rquote s set-aside procedures apply to FSS procurements, and, as discussed Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Legislation has since been proposed in the House of Representatives to \clarify the contracting goals and preferences of the Department of Veterans Affairs with respect to small business concerns owned and controlled by veterans.\ H.R. 4048, 112th Cong. \u167 2 (2012). That bill proposes to amend Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: , Follow-up on the U.S. Department of Veterans Affairs Service\u8211Disabled Veteran\u8211Owned Small Business Certification Process: Hearing Before the Subcomm. on Oversight and Investigations and Subcomm. on Economic Opportunity of the H. Comm. on Veterans\rquote Affairs, 1 12th Cong. 19 (Nov. 30, 2011) (question of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 050 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: VA Acquisition Regulation: Supporting Veteran\u8211Owned and ServiceDisabled Veteran\u8211Owned Small Businesses, 73 Fed.Reg. 49,141, 49,144 (Aug. 20, 2008) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 051 - Systems Application And Technologies Inc v United States.doc, Paragraph with 'Veteran: LTC Daniels went on to say, \[w]e were originally led to believe that disabled veterans, some employed by the incumbent contractor, would meet AbilityOne\rquote s definitions and remain employed after vetting, counting towards the final goal.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 051 - Systems Application And Technologies Inc v United States.doc, Paragraph with 'Veteran: On July 20, 2012, the Committee again voted to add the YTC contract to the Procurement List. Nine members voted in favor, one was undecided, and three disapproved. AR 2566. The three dissenting members of the Committee expressed doubts as to the propriety of awarding this contract through AbilityOne. They were concerned because the principal behind the incumbent contractor was a disabled person who employed service disabled and other veterans, the work did not seem safe for severely disabled individuals, Skookum was allowed a long phase in period and a low goal for the percentage of severely disabled individuals employed, and Skookum had not presented a plan for transporting severely disabled individuals 33 miles to and from YTC. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 051 - Systems Application And Technologies Inc v United States.doc, Paragraph with 'Veteran: Jeff Dolven: Scurrilous accusations. (laughter) I don\rquote t know what to say to that. What we are trying to do is to express our intent which we\rquote d go in and talk to the incumbent workforce, you know. We haven\rquote t talked to these folks. We\rquote re not exactly on speaking terms, but we need to first seek to understand, right. So Jim, what we are trying to say is that we are going to go in, talk to them you know, their president said I have veterans with disabilities, okay let\rquote s talk to them. I am skeptical and was skeptical at the time that they would have a definite ... you know, severe enough disability to count. But, you know I don\rquote t want to categorically say no. But, that\rquote s not typically what we find. If you find someone who is working for a large company then almost by definition they\rquote re employable unless there\rquote s some accommodations in place that are being made, and that happens. There are companies that have a social conscience to do this kind of stuff. But, out of ignorance I am not going to categorically deny them the opportunity; to talk to our HR folks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'Veteran: As relevant to this bid protest, Section L.6 of the solicitation states that the \Government anticipates an overall Small Business goal of 40 percent,\ and that \[w]ithin that goal, the government anticipates further small business goals of: [ (1) ] Small, Disadvantaged business[:] 14.5 percent; [ (2) ] Woman Owned[:] 5 percent; [ (3) ] HUBZone[:] 3 percent; [ (4) ] Service Disabled, Veteran Owned[:] 3 percent.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'Veteran: percent small business subcontracting goal. The relevant section of the solicitation, L.6 (Proposal Submission Requirements), states that the \Government anticipates an overall Small Business goal of 40 percent,\ and that \[w]ithin that goal, the government anticipates further small business goals of: [ (1) ] Small, Disadvantaged business[:] 14.5%; [ (2) ] Woman Owned [:] 5 percent; [ (3) ] HUBZone[:] 3 percent; [ (4) ] Service Disabled, Veteran Owned[:] 3 percent.\ AR at Tab 4, p. 175\u821176. Further: Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'Veteran: It is the policy of the Government to provide maximum practicable opportunities in its acquisitions to small business, veteran-owned small business, service-disabled veteran small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns. Such concerns must also have the maximum practicable opportunity to participate as subcontractors in the contracts awarded by an executive agency, consistent with efficient contract performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'Veteran: And, under subsection (5), when evaluating subcontracting potential, the contracting officer must also take into account \the known availability of small business, veteran owned small business, service-disabled veteran-owned small business, HUBZone small business, small disadvantaged business, and women-owned small business concerns in the geographical area where the work will be performed, and the potential contractor\rquote s long-standing contractual relationship with its suppliers.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 052 - FirstLine Transp Sec Inc v US.doc, Paragraph with 'Veteran: The Court heeds this rule, and the limits of its authority, well in this instance, as it likely would have structured the challenged solicitation differently had it done so as an original proposition. However, the Court finds that the 40 percent goal is a rational expression of the Government\rquote s policy of affording small business concerns\u8212and in particular certain types of small businesses, such as veteran- or women-owned\u8212\the maximum practicable opportunity to participate as subcontractors in the contracts awarded by an executive agency, consistent with efficient contract performance.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 057 - Res-Care Inc v US.doc, Paragraph with 'Veteran: Although the sources sought notice was not limited to small businesses, DOL \encourage[d] firms that qualify under the Small Business Programs mentioned in Federal Acquisition Subpart 19, including 8(a), HUBZone and Service Disable Veteran Owned Small Business to respond,\ AR 1, with a \capabilities statement.\ AR 4. Potential contractors were asked to include in the capabilities statement their prior experiences running comparable facilities, providing similar services, and operating with comparable financial resources. AR 2\u82113. DOL also asked potential bidders to indicate on the cover letter of the capabilities statement whether they participate with a small business program. AR 1. DOL reserved \the right to compete any acquisition resulting from this survey among small businesses based on the responses received.\ AR 1. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: The government, recognizing that it had done too little to assist service-disabled veterans, began the Service\u8211Disabled Veteran\u8211Owned Small Business Concern (\SDVO SBC\) Program to promote business between the United States and service-disabled veterans who own small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: note, Veterans Entrepreneurship and Small Business Development Act of 1999, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: , \u167 101(3). In order to further promote service-disabled veterans doing business with the United States, Congress enacted the Veterans Benefits Act of 2003, which gave contracting officers the ability to award sole source and set-aside contracts to SDVO SBCs. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Am. Compl. \u182 68); Veterans Benefits Act of 2003, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (\The Veterans Act establishes the Procurement Program for Small Business Concerns Owned and Controlled by Service Disabled Veterans (SDVOSBC), which permits a contracting officer to award contracts on the basis of competition restricted to \u8216small business concerns owned and controlled by service-disabled veterans.\u8217 Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: \u182\u182 50, 59). Defendants\rquote eligibility to represent Hendry Corp., Gulf Marine and Marine Construction as SDVO SBCs depends on Mr. Hendry\u8217s eligibility to represent himself as a service-disabled veteran. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Although Mr. Hendry received a letter from the U.S. Department of Veteran Affairs (\VA\) on December 21, 2011 verifying he is a service-disabled veteran (\VA Verification\) [ECF No. 26\u82111], he did not have a service-connected disability determination from the VA at the time Defendants represented their status as SDVO SBCs to the federal government. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: ). In further support of their allegation that Mr. Hendry was ineligible to represent his status as a service-disabled veteran, Relators allege the Department of Justice (\DOJ\) attorney assigned to this action confirmed \Mr. Aaron Hendry was not a service-disabled veteran at the time the original complaint was filed in this action.\ ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: [ECF No. 26\u82113] ). Finally, a representative of Hendry Corp. stated Mr. Hendry had never served in the military and was not a veteran. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: \u182 61). Relators allege each representation of SDVO SBC status was false and fraudulent because Mr. Hendry was ineligible to represent himself as a service-disabled veteran at the time of the representations. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Relators\rquote argument goes as follows. Before Mr. Hendry received a written determination of having a service-connected disability, he was not a service-disabled veteran under the SBA regulations. Because Mr. Hendry was not a service-disabled veteran, Hendry Corp., Gulf Marine and Marine Construction were not SDVO SBCs. Because they were not SDVO SBCs, when Defendants represented the concerns as SDVO SBCs, they knowingly misrepresented their status in violation of the FCA. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Regulations set forth important definitions for the Service\u8211Disabled Veteran\u8211Owned Small Business Concern Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (1) Not less than 51% of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51% of the stock of which is owned by one or more service-disabled veterans; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (2) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a service-disabled veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran; and Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: \u167 125.8(g). A service-disabled veteran is defined as \a veteran with a disability that is service-connected.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . In other words, under the SBA regulations, a service-disabled veteran is a veteran of the armed forces who has a disability that was incurred or aggravated in the line of active duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Significantly, the SBA\u8217s definition of a service-disabled veteran does not specifically require a written disability determination, although definitions promulgated by other agencies do. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (\Service-disabled veteran is a veteran with a disability that is service-connected\) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (\Service-disabled veteran is a veteran who possesses either a disability rating letter issued by the Department of Veterans Affairs, establishing a service-connected rating between 0 and 100 percent, or a disability determination from the Department of Defense.\). The only mention that documentation may be necessary to assert SDVO SBC status, other than for a veteran asserting he is a \Service\u8211Disabled Veteran with a Permanent and Severe Disability\ within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: (a) Status. In cases where the protest is based on service-connected disability, permanent and severe disability, or veteran status, the Director, Office of Government Contracting will only consider a protest that presents specific allegations supporting the contention that the owner(s) cannot provide documentation from the VA, DoD, or the U.S. National Archives and Records Administration to show that they meet the definition of service-disabled veteran or service disabled veteran with a permanent and severe disability as set forth in Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: did require a concern to certify it had appropriate documentation proving the veteran\u8217s service-connected disability at the time it submitted its bid to the government, Relators have not alleged that Defendants could not provide such documentation. Instead, Relators allege Mr. Hendry was ineligible to represent himself and consequently Defendants were ineligible to represent Hendry Corp., Gulf Marine or Marine Construction as SDVO SBCs because Mr. Hendry did not possess a VA determination. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Relators do allege their attorney received confirmation from a DOJ attorney that \Mr. Aaron Hendry was not a service-disabled veteran at the time the original complaint was filed.\ (Am. Compl. \u182 23). However, what the underlying affidavit actually states is that the DOJ attorney \confirmed that Defendant \u8216Aaron Hendry was not a service-disabled veteran\u8217 at the time the original complaint was filed in this action, and that Mr. Aaron Hendry was first determined to be a service-disabled veteran by the Dept. of Veterans Affairs in December of 2011.\ (Storms Aff. \u182 2 [ECF No. 26\u82112] ). Here the more specific exhibit explains the statement that Mr. Hendry was not a service-disabled veteran is actually based on Mr. Henry\u8217s lack of VA documentation. The exhibit governs over the contrary allegation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . Because there are other avenues by which Mr. Hendry could prove his status as a service-disabled veteran, Relators have not sufficiently alleged Mr. Hendry was ineligible to represent himself as a service-disabled veteran even if such documentation was required. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: makes clear that the SBA\u8217s service-disabled veteran eligibility determination \is not an assessment of [a bidder\u8217s] disability, but it is based on a lack of documentation.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . This is reasonable because \[n]either SBA nor OHA have [sic] the statutory or regulatory authority to evaluate veteran eligibility nor does SBA or OHA have the capacity or expertise to evaluate a claim of disability.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: In a bid protest, the SBA is not determining that a lack of documentation means the bidder is not a service-disabled veteran, but rather that the SBA was presented insufficient evidence to verify such a disability, and it is unable to independently verify such status. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . Under the SBA\u8217s regulations as applied to this case, a small business concern is an SDVO SBC if it is owned and controlled by a veteran who has a disability that was incurred or aggravated in the line of active duty. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: . A concern must self-represent that its owner and controller is a service-disabled veteran, not that it has the supporting documentation to prove it. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: Am. Compl. \u182\u182 3, 22). Instead, Relators now attach Mr. Hendry\u8217s VA Verification, essentially conceding that he is, in fact, a veteran with a service-connected disability. ( Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 066 - A1 Procurement LLC v Hendry Corporation.doc, Paragraph with 'Veteran: [ECF No. 26\u82111] ). Relators have not alleged that Mr. Hendry was not a service-disabled veteran within the meaning of Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 080 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: Plaintiff Kingdomware Technologies, Inc. (\plaintiff\), a service disabled veteran owned small business, filed an amended complaint in this bid protest case on July 18, 2012, alleging that the Department of Veterans Affairs (\VA\) conducted three procurements, in which plaintiff was involved, in violation of the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 080 - Kingdomware Technologies Inc v United States.doc, Paragraph with 'Veteran: (\the 2006 Act\) by failing to set aside those procurements for service disabled veteran owned small businesses. Plaintiff also seeks declaratory and injunctive relief compelling the VA to conduct all future procurements in compliance with the 2006 Act. Plaintiff has agreed to dismiss plaintiff\rquote s additional claim for bid protest costs. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 083 - DynaLantic Corp v US Dept of Defense.doc, Paragraph with 'Veteran: small businesses, service disabled veterans, socially and economically disadvantaged individuals, and women. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 089 - DGR Associates Inc v US.doc, Paragraph with 'Veteran: Coal. for Common Sense in Gov\rquote t Procurement v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder who was a service-disabled veteran-owned small business (SDVOSB), filed post-award bid protest challenging Department of Veterans Affairs (DVA) award of software and internet technology (IT) contracts. After the Court of Federal Claims, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Plaintiff is a privately held, Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) that \provid[es] telecommunications integration, support services and financial systems support exclusively\ to the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: (alteration in original) (quoting Administrative R. (\AR\) Tab 23, at 33422) (internal quotation marks omitted). Plaintiff submitted a proposal in response to the Department of Veterans Affairs (\DVA\) Request for Proposals (\Solicitation\) for its Transformation Twenty\u8211One Total Technology (\T4\) Program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: (alteration in original) (quoting AR Tab 3, at 163) (internal quotation marks omitted). The Solicitation guaranteed that at least four contracts would be awarded to SDVOSBs, like plaintiff, and at least three to Veteran\u8211Owned Small Businesses (\VOSB\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\7, File: 090 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: The Solicitation set forth five factors that would be used in evaluating an offeror\rquote s proposal: (1) technical, (2) past performance, (3) veterans involvement, (4) small business participation commitment, and (5) price. The technical factor was considered the most important factor, and \criteria one through four were viewed as \u8216significantly more important\u8217 than criterion five, price.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'Veteran: Nat\rquote l Org. of Veterans\rquote Advocates, Inc. v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 011 - CBY Design Builders v US.doc, Paragraph with 'Veteran: Coal. for Common Sense in Gov\rquote t Procurement v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 012 - Burney v United States.doc, Paragraph with 'Veteran: Those categories are: veteran-owned, HUB Zone, woman-owned, other small business, and Ability One. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 015 - Andersen v US Dept of Housing and Urban Development.doc, Paragraph with 'Veteran: Irwin v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'Veteran: AR 9 (Acquisition Docs.) (identifying CSI as the current contractor for logistics support services at Fort Riley). CSI\rquote s Proposal stated that CSI was certified as a Service Disabled Veteran Owned Small Business Concern (SDVOSBC), AR 1166 (Proposal), and that its corporate headquarters\u8212Junction City, Kansas\u8212was located in a HUBZone, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 026 - Contract Services Inc v US.doc, Paragraph with 'Veteran: , plaintiff claims that these clauses contain several paragraphs that simply \require[ ] the offeror to certify either affirmatively or negatively, about their status as to numerous small disadvantaged business categories, such as whether the company is a veteran-owned [SBC].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 027 - HP Enterprise Services LLC v US.doc, Paragraph with 'Veteran: Dep\rquote t of Veterans Affairs\u8211\u8211Reconsideration, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 032 - May v US.doc, Paragraph with 'Veteran: Augustine v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with 'Veteran: Contractor, as Native American Indian, service-disabled veteran owned and certified small disadvantaged business, filed pre-award bid protest challenging rejection of contractor\rquote s proposal, as late, for solicitation to provide intelligence analysis support to Defense Intelligence Agency (DIA) missions. Parties cross-moved for judgment on agency record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with 'Veteran: EOR is a Native American Indian, Service\u8211Disabled Veteran Owned, and Certified Small Disadvantaged Business that provides a variety of products and services to the Department of Defense and uniformed military branches of the Government. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 038 - Horn And Associates Inc v US.doc, Paragraph with 'Veteran: Harris v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 038 - Horn And Associates Inc v US.doc, Paragraph with 'Veteran: Harding v. Dep\rquote t of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: CS-360, LLC v. U.S. Dept. of Veteran Affairs, 846 F.Supp.2d 171 (2012) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: U.S. DEPARTMENT OF VETERAN AFFAIRS, Defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Company brought action against Department of Veteran Affairs (VA), alleging that denial by VA of company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program violated Administrative Procedure Act (APA) and Due Process Clause, and that VA was without statutory authority to issue regulations at issue. Company moved for summary judgment and VA moved to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: VA acted within its powers by enacting regulations to enforce statutory command to verify that each small business was owned and controlled by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Department of Veteran Affairs (VA) did not provide satisfactory contemporaneous explanation for its decision to deny company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program on basis that veteran did not exercise sufficient control over company, as required to avoid finding that such action was arbitrary and capricious, in violation of Administrative Procedure Act (APA); it was not clear from VA\rquote s final decision whether it intended to retain, abandon, or modify grounds for denying application that were articulated in its initial determination, grounds cited by VA as basis for denying application were described in generalized and ambiguous terms, VA offered new explanations for its grounds for denying application that were not articulated at administrative level, and VA did not explain why it was reasonable to conclude that company\rquote s attempts to speak to agency\rquote s concerns within 12 days of ineligibility determination evinced intent solely to bring company within letter of regulation as opposed to having real meaning or purpose. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Veterans\rquote administration, boards, and officers Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Veterans\rquote Benefits Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Veterans\rquote administration, boards, and officers Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Company failed to state claim against Department of Veteran Affairs (VA) for violation of Fourteenth Amendment, inasmuch as VA was federal actor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Company failed to allege that it had cognizable property interest in being designated as business eligible to participate in Department of Veteran Affairs\rquote (VA) veteran-owned small business program, as required to state claim against VA for violation of due process under Fifth Amendment, where company\rquote s complaint was devoid of any allegation that company was ever licensed or certified as business eligible to participate in program. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Company was afforded all process it was due under Fifth Amendment in applying to be included in Department of Veteran Affairs\rquote (VA) online database of businesses eligible to participate in veteran-owned small business program, where VA afforded company opportunity to engage with VA representative face-to-face during onsite examination, company was advised of basis for initial determination by VA in written decision, company was afforded opportunity to request reconsideration and to submit additional materials in support of that request, company was advised of basis for final decision by VA in written decision, and VA provided written explanation for its final decision. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Department of Veteran Affairs\rquote (VA) decisions denying company\rquote s application to be included in online database of businesses eligible to participate in veteran-owned small business program did not deprive company of property or liberty to enjoy rights which it would otherwise enjoy, as would support claim for violation of due process under Fifth Amendment, despite company\rquote s contention that decisions contained inflammatory language which constituted such a deprivation; VA decisions did not actually contain any inflammatory language. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Department of Veteran Affairs (VA) acted well within its powers by enacting regulations seeking to enforce statutory command to, in course of creating and maintaining database of veteran-owned businesses, verify that each small business was owned and controlled by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Plaintiff CS\u8211360, LLC (\CS360\) brings this action against the U.S. Department of Veteran Affairs (the \VA\), asserting three claims that, in one way or another, all challenge the VA\rquote s decision to deny CS360\rquote s application to be included in an online database of businesses eligible to participate in a veteran-owned small business program managed by the VA. Count I of the [1] Complaint alleges that the VA violated the Administrative Procedure Act because its denial of CS360\rquote s application was arbitrary and capricious. Count II alleges that the VA violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution by failing to permit applicants to appeal application decisions to an independent decision-maker and by using \inflammatory language\ in the decision to deny CS360\rquote s application. Count III alleges that the VA is without statutory authority to issue the regulations at issue in this case. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: A. Service\u8211Disabled Veteran\u8211Owned Small Businesses and the VA\rquote s VetBiz Vendor Information Pages Database Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Congress enacted the Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: ), to increase contracting opportunities for small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . To this end, Congress conferred upon the VA the authority to set aside certain government contracts for service-disabled veteran-owned small businesses (\SDVOSBs\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Responding to this statutory command, the VA maintains the VetBiz Vendor Information Pages (\VIP\) database, an online \database of businesses eligible to participate in [the] VA\rquote s Veteran-owned Small Business Program,\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: By statute, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the small business concern are listed in the Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: database of veteran-owned businesses maintained by the Secretary [of the VA].\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: The Center for Veterans Enterprise (the \CVE\), a subdivision of the VA\rquote s Office of Small and Disadvantaged Business Utilization (the \OSDBU\), is charged with evaluating applications by small businesses seeking to be included in the VetBiz VIP database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . To qualify for inclusion, a small business \must be unconditionally owned and controlled by one or more eligible veterans, service-disabled veterans or surviving spouses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . On January 29, 2010, the fourth lowest bidder on the Lexington Contract filed a protest challenging CS360\rquote s SDVOSB eligibility. VA00034\u821100036. The essential thrust of the protest was that CS360 was controlled not by a service-disabled veteran but instead by a non-veteran-owned entity\u8212specifically, a company called B & R Constructions Services (\B & R\). VA00035. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . On March 3, 2010, the OSDBU formally notified CS360 of the protest and directed CS360 to submit evidence demonstrating that it is unconditionally owned and controlled by a service-disabled veteran. VA00058\u821100061. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: On March 9, 2010, CS360 responded with a written submission and supporting documentation. VA00069\u821100179. At the time of CS360\rquote s submission, two service-disabled veterans, Walter A. Davis (\Davis\) and James A. Blanco (\Blanco\), were designated as CS360\rquote s sole Managing Members and each held a 25.5% individual interest in the company for a combined 51% interest. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: VA00092, VA00131. Meanwhile, six non-veterans held interests that combined to reflect the remaining 49%-namely, William R. Britt (\Britt\), David P. Vocci (\Vocci\), Edward E. Meadows (\Meadows\), Dana M. Borowy (\Borowy\), Benjamin L. Cox (\Cox\), and Gabriel R. Velicu (\Velicu\). VA00131. In its written submission, CS360 argued that it met the ownership requirement for SDVOSB eligibility because Davis and Blanco collectively held a majority interest in the company. VA00069. Similarly, CS360 argued that it met the control requirement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: because Davis held the highest position in CS360 and because Davis and Blanco could together guide the decisions of the company under the terms of CS360\rquote s Operating Agreement. VA00070. At that time, Section 4.01(a) of CS360\rquote s Operating Agreement provided that a five-person Executive Committee comprised of two service-disabled veterans (Davis and Blanco) and three non-veterans (Britt, Meadows, and Vocci) would manage and direct the company by majority vote. VA00103. However, Section 4.01(a) also contemplated that Davis and Blanco could override the will of the three non-veterans on the Executive Committee, providing that \in cases in which the Managing Members are in agreement the decision of the Managing Members shall govern.\ VA00103. Finally, CS360 denied that it had an improper relationship with B & R, claiming that any \developmental assistance\ provided by B & R to CS360 was in \strict compliance\ with a Mentor\u8211Prot\u233g\u233 Agreement approved by the U.S. Department of Homeland Security (\DHS\). VA00070. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Also included in the contractor\rquote s onsite examination report is a summary of statements made by the four interviewees. According to the report, Davis stated that he made no capital contribution to CS360 and characterized his contribution as his \expertise.\ VA00382. Similarly, Vocci reportedly stated that Davis and Blanco\rquote s contributions to the company were their status as service-disabled veterans. VA00381. In addition, Meadows indicated that CS360 was formed to solicit contracts from the VA and other agencies that were unavailable to B & R because it was not Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: On April 30, 2010, the OSDBU issued its final determination sustaining the third-party protest. VA00383\u821100387. Although that determination is not directly challenged in this action, it sets the scene for later administrative action. Based on the totality of the evidence, the OSDBU found that CS360 had failed to establish its eligibility for SDVOSB status. VA00383. The basis for the OSDBU\rquote s decision was narrow. As an initial matter, the OSDBU conceded that CS360 had submitted evidence supporting its contention that Davis and Blanco met the ownership requirement because they held a majority interest in the company. VA00386. However, the OSDBU concluded that CS360 failed to show that Davis and Blanco met the control requirement for a single reason. VA00386. Specifically, the OSDBU concluded that Section 4.01(a) of the Operating Agreement could allow non-veterans to control the decisions of CS360 because the three non-veteran members of the Executive Committee could join with either Davis or Blanco to override the will of the other. VA00387. For this reason, the OSDBU found that CS360 failed to demonstrate its eligibility and informed the company that its profile would be removed from the VetBiz VIP database. VA00387. From that point forward, CS360 has been prohibited from submitting offers set aside for SDVOSBs until \it demonstrates that it has overcome the reasons for the determination of ineligibility.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: VA00523. From that point forward, Davis has held a 51% ownership interest in CS360, with six non-veterans (Borowy, Britt, Cox, Meadows, Velicu, and Vocci holding the remaining 49%). VA00522. Under Section 4.01(a) of the Second Amended Operating Agreement, Davis, as the sole Managing Member, \shall exercise all powers of the Company in accordance with [the] Agreement and do such lawful acts and things as are not by law or by [the] Agreement directed or required to be exercised or done by the Members.\ VA00495. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: As an initial matter, the CVE conceded that the concern that led the OSDBU to sustain the third-party status protest\u8212namely, that Section 4.01(a) of the Operating Agreement could allow non-veterans to control the decisions of CS360 because the three non-veteran members of the Executive Committee could join with either Davis or Blanco to override the will of the other\u8212\at least on paper, ha[d] been corrected.\ VA00533. In particular, the CVE acknowledged that because the Second Amended Operating Agreement eliminated the Executive Committee and designated a single service-disabled veteran as the sole Managing Member, there was no longer a concern that \non-[v]eterans could act in concert with one [service-disabled veteran] to override the other [service-disabled veteran].\ VA00533. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Nonetheless, the CVE proceeded to identify four factors that it concluded prevented it from finding that a service-disabled veteran sufficiently controlled CS360. First, the CVE claimed that Section 4.01(c) of the Second Amended Operating Agreement \provides that \u8216Managing Members shall not be required to devote any particular amount of time to the performance of their duties and may delegate their responsibilities as provided in this agreement.\u8217 \ VA00533. According to the CVE, this ran afoul of regulations \requir[ing] that one or more service-disabled [v]eterans who manage the firm must devote full-time to the applicant or participant during normal working hours of firms in the same or similar line of business.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Third, turning to the results of the onsite examination, the CVE found that \deeper organizational structural flaws [were] fatal to the application.\ VA00533. Although it is not entirely clear from the face of the Initial Determination, it appears that the \structural flaws\ the CVE had in mind relate to the extent of CS360\rquote s economic dependence on B & R. By regulation, the CVE may conclude that a small business fails to comply with the control requirement when \[b]usiness relationships exist with non-veterans or entities which cause such dependence that the applicant cannot exercise independent business judgment without great economic risk.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Fourth, noting that its review extends beyond \formalities\ and examines the \practical realities of how the applicant concern is actually run on a daily basis,\ the CVE concluded that CS360 was created as a \sham\ entity designed to solicit contracts set aside for SDVOSBs on B & R\rquote s behalf. VA00533\u821100534. In support of this conclusion, the CVE cited the following: (1) B & R is \co-located\ with CS360; (2) CS360\rquote s \minority owners\ were \all employees of B & R\; (3) Davis was CS360\rquote s \only paid employee\; (4) \B & R provided all the financing for starting up\ CS360; (5) Davis \provided no capital\ in the formation of CS360; and (6) during the onsite examination, Vocci indicated that Davis\rquote \contribution to [CS360] was [his] [service-disabled veteran] status\ and that \B & R would furnish all the people necessary to do work for CS360.\ VA00533\u821100534. Based on this record, the CVE found that \[t]he purpose for creating CS360 was solely to bring to life a SDVOSB for B & R to seek work from VA and possibly other agencies on SDVOSB set-asides.\ VA00534. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: operation of the prot\u233g\u233\; (2) the site examination indicated that \no training is provided as all the employees work for B & R and Mr. Davis evidently does not require training as he was selected to be the [service-disabled] veteran because of his expertise\; (3) B & R charged CS360 for all of the resources provided with the exception of a rent-free apartment used by Davis; and (4) there was no evidence that CS360 was \separately developing a business operation.\ VA00535 (emphasis in original). On this basis, the CVE concluded that \B & R [was] solely funding [CS360] and then paying itself back for the use of these resources,\ thus \evidenc[ing] a sham transaction and organization.\ VA00536. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Fourth, CS360 responded to the CVE\rquote s claim that it was formed solely as a \sham\ to permit B & R to obtain contracts set aside for SDVOSBs. CS360 sought to refute several of the grounds cited by the CVE for reaching this conclusion. Without disputing that the minority non-veteran owners of CS360 were also employees of B & R, CS360 asserted that only three of the six non-veterans that made capital contributions to CS360 (Britt, Meadows, and Vocci) held an actual membership interest in B & R and that other individuals holding a membership interest in B & R held no interest whatsoever in CS360. VA00533. More broadly, it disputed the CVE\rquote s assertion that B & R provided all the financing for the formation of CS360, noting that \B & R [itself] provided no capital to, and has no ownership interest in, CS360.\ VA00543 (capitalization omitted). Similarly, CS360 contested the suggestion that Davis made no contribution to the firm simply because he made no capital contribution, noting that he \took a substantial financial risk in leaving [his] previous provision [sic]\ and harbored \the additional risk associated with being a principal in a construction company, including potential risks associated with bonding and letter of credit requirements.\ VA00542. In any event, CS360 took the position that capital contributions have \no impact\ on the control of CS360 because the Second Amended Operating Agreement makes it clear that Davis controlled the decisions of the company regardless of capital contributions. VA00542. On this point, CS360 emphasized that Section 3.06 of the Second Operating Agreement states that \no Member shall have the right ... [to] the repayment of its Capital Contributions.\ VA00542, VA00567. Furthermore, as described above, CS360 claimed that, instead of employing one full-time employee, it had two full-time employees and past and present arrangements with consultants and that B & R\rquote s contributions would be limited to \administrative and technical assistance\ provided under the parties\rquote Mentor\u8211Prot\u233g\u233 Agreement and would not include Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Ultimately, the CVE \conclude[d] that [CS360\rquote s] arguments and exhibits fail to substantiate [its] claim that [a service-disabled veteran] controls both the day-to-day management and administration of business operations and strategic policy setting of [CS360].\ VA00703. The CVE characterized an unidentified universe of remarks regarding CS360\rquote s claims to eligibility as \conclusory\ and suggested, without further explanation, that \[t]he results of the site examination of [CS360] and the statements made by B & R/CS360 owners/employees on April 26, 2010, bolster CVE\rquote s conclusions.\ VA00701, VA00703. On these grounds, the CVE denied CS360\rquote s application for inclusion in the VetBiz VIP database and informed CS360 that its \profile [would] remain out of public view.\ VA00703. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: CS360 asserts three claims in this action, each of which challenges, in one way or another, the VA\rquote s decision to deny CS360\rquote s application to be included in the VetBiz VIP database identifying businesses eligible to participate in the veteran-owned small business program managed by the VA. Count I of the [1] Complaint alleges that the VA violated the Administrative Procedure Act because the CVE\rquote s denial of CS360\rquote s application was arbitrary and capricious. Count II alleges that the VA violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Count III alleges that the VA is without statutory authority to issue the regulations at issue in this case. On Count I, the Court finds that the VA has failed to provide a satisfactory contemporaneous explanation for its decision to deny CS360\rquote s application and concludes that the best course is to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: By Congressional design, \[a] small business concern may be awarded a contract [set aside for SDVOSBs] only if the small business concern and the veteran owner of the small business concern are listed in the [VetBiz VIP] database.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . To be eligible for inclusion in the database, a business must be both \owned\ and \controlled\ by a service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . In this case, in denying CS360\rquote s application for inclusion in the VetBiz VIP database, the VA\rquote s CVE determined that CS360 had established the ownership prong of the eligibility analysis, but found that it had not established that Davis exercised sufficient \control\ over the company. VA00532, VA00703. Under the control prong, when the applicant is a limited liability company like CS360, a service-disabled veteran must control \both the day-to-day management and long-term decision-making authority\ for the company. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Notably, when it sustained a third-party protest as to CS360\rquote s status on April 30, 2010, the OSDBU raised a concrete concern about how Section 4.01(a) of the Operating Agreement could allow non-veterans to control the decisions of CS360 because the three non-veteran members of the Executive Committee could join with either Davis of Blanco to override the will of the other. VA00387. CS360 acted promptly in responding to this concern, modifying its Second Amended Operating Agreement twelve days later, on May 12, 2010. VA00480\u821100523. The speed with which CS360 responded is perhaps unsurprising because the VA\rquote s own regulations prohibited CS360 from submitting offers on contracts set aside for SDVOSBs until it \demonstrate[d] that it has overcome the reasons for the determination of ineligibility.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: Meanwhile, there are aspects of the capital contribution problem that are left unaddressed by the CVE in its written decisions. For example, Section 4.01(a) of the Second Amended Operating Agreement allocates to Davis the responsibility of managing the affairs of CS360, while Section 3.06 provides that \no Member shall have the right ... [to] repayment of its Capital Contributions.\ VA00542, VA00567. Contrary to what the CVE appears to imply, the interaction of these two provisions does not necessarily mean that the non-veteran members relinquished any meaningful financial interest in CS360. For instance, Section 5.03 of the Second Amended Operating Agreement provides that \all funds of the Company which are available for distribution may from time to time at the discretion of the Managing Member be distributed pro rata to all Members in accordance with their respective Distribution Percentages.\ VA00501. The CVE has failed to provide an explanation as to why no \rational person\ would be willing to fund a start-up company with the expectation of receiving distributions in the future, even where distribution decisions are entrusted to the discretion of the managing member. To the extent the CVE intends to suggest that investment generally must be accompanied by some level of control over a company\rquote s affairs, it must explain why it believes that to be the case and indicate how it applies to CS360. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: , requires only that ... the VA simply verify that each small business concern listed in the database is owned and controlled by veterans\ and \[t]here is nothing in the statute that requires or authorizes the VA to be the entity that actually certifies the SDVOSBs.\ Compl. \u182 53. To the contrary, when Congress authorized the VA to set aside contracts for eligible veteran-owned small businesses, it was clear that the VA\rquote s authority could be exercised \only if the small business concern and the veteran owner of the small business concern are listed in [a] database of veteran-owned businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . Congress also made it clear that it expected the VA, in the course of creating and maintaining the VetBiz VIP database, to \verif[y] that ... the small business concern is owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: by reference). However, through a separate and subsequent enactment, Congress independently authorized the VA to set aside contracts for veteran-owned small businesses and provided that the VA may award such contracts \only if the small business concern and the veteran owner of the small business concern are listed in [a] database of veteran-owned businesses.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . To this end, Congress expressly and unambiguously required the VA to \maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: . In so doing, Congress made it absolutely clear that it expected the VA to \verif[y] that ... the small business concern is owned and controlled by veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: in support of the proposition that \the amount of critical financial support provided by a non-veteran is a legitimate cause for concern about the veteran\rquote s actual control.\ Def.\rquote s MSJ Opp\rquote n at 5. However, the provision relied upon by the VA allows the VA to consider whether Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: \[a] non-veteran or entity, having an equity interest in the applicant or participant, provides critical financial or bonding support ... Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: which directly or indirectly allows the non-veteran significantly to influence business decisions of the participant Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 048 - CS-360 LLC v US Dept of Veteran Affairs.doc, Paragraph with 'Veteran: (emphasis added). In other words, the VA\rquote s regulations appear to suggest that the magnitude of non-veterans\rquote equity interest in a company is relevant to control insofar as it is accompanied by the ability to \influence business decisions.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 053 - Kaw Nation of Oklahoma v US.doc, Paragraph with 'Veteran: Preminger v. Sec\rquote y of Veterans Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 078 - BayFirst Solutions LLC v US.doc, Paragraph with 'Veteran: Veteran Solutions, Inc., Intervenor-defendant. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 078 - BayFirst Solutions LLC v US.doc, Paragraph with 'Veteran: BayFirst Solutions, LLC (BayFirst) filed its post-award bid protest complaint on August 15, 2011. In its complaint, BayFirst challenges the April 25, 2011 award of a contract by the United States Department of State (Agency) to Veteran Solutions, Inc. (VSI), pursuant to Solicitation No. SAQMMA10\u8211R\u82110331. The contract is for \Diplomatic Security Protection Management Services,\ Compl. \u182 1, and consists of the provision of contractor personnel to assist in the program management of personal security in overseas operations of the Agency. BayFirst seeks a permanent injunction and declaratory relief. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 078 - BayFirst Solutions LLC v US.doc, Paragraph with 'Veteran: from obtaining performance from Veteran Solutions, Inc. on Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 092 - Orion Technology Inc v US.doc, Paragraph with 'Veteran: the solicitation required bidders to be included in a database of service-disabled veteran-owned small businesses prior to award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: Excluded bidder for Department of Veterans Affairs\rquote (VA) multiple-award contract to provide information technology (IT) services to the VA and other federal agencies filed pre-award bid protest. Excluded bidder moved for preliminary injunctions and government moved to dismiss complaint for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: Bidder that had been placed on Excluded Parties List System (EPLS) lacked standing to file bid protest action concerning Department of Veterans Affairs\rquote (VA) multiple-award contract to provide information technology (IT) services to the VA and other federal agencies; bidder who was barred from all federal contracting could not demonstrate that it was an interested party with a direct economic interest in the outcome of the protested procurement, was not an actual or potential awardee inasmuch as it did not possess the necessary contract, and had not been injured or harmed by the government\rquote s decision to set the task order competition aside for service-disabled veteran-owned small business concerns (SDVOSBs) under the required contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: Excluded bidder for Department of Veterans Affairs\rquote (VA) multiple-award contract to provide information technology (IT) services to the VA and other federal agencies waived any challenges to procurement of protested task order under technology improvement program by failing to raise such challenges before the due date for bids, where such claimed errors were clear on the fact of the contract solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: Performance Work Statement Number TAC\u821112\u821103198 (PWS), under the Transformation Twenty\u8211One Total Technology (T4) Multiple\u8211Award Contract by the United States Department of Veterans Affairs (VA). MED Trends argues that the procurement of these requirements under the T4 Multiple\u8211Award Contract, and the alleged failure of the VA to limit the competition for these requirements to service-disabled veteran-owned small business concerns (SDVOSBs), violate applicable statutes and regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: As noted by plaintiff, the competition for the T4 master contracts was not limited to SDVOSBs. Indeed, the solicitation for the contracts indicated that as many as eight of the fifteen master contracts might be awarded to businesses not owned by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: at AR2683\u8211AR2684. The PWS noted that the successful offeror would provide operations and maintenance support services for the continuing redesign of the Veterans Benefits Management System\u8212Rating (VBMS\u8211R) software, a web-based application designed to assist the VA in processing and rating disability claims submitted by veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: MED Trends is not a T4 contractor, but it does have a multiple-award contract with the United States General Services Administration (GSA), the Veterans Technology Services Government\u8211Wide Acquisition Contract (VETS GWAC), Contract No. GS\u821106F\u82110542Z, which expires in February 2012. Compl. \u182 3. MED Trends is currently performing Task Order No. VA118\u821111\u8211F\u8211009 (GWAC task order) for the VA under that contract. Plaintiff\rquote s Motion for a Preliminary Injunction (Pl.\rquote s 1st Mot.) \u182 E. The GWAC task order expires on December 12, 2011. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: The court held an initial telephonic status conference with counsel for the parties on October 28, 2011. During the teleconference, counsel for defendant stated that the VA had issued requests for information (RFIs) to all T4 contractors in an effort to determine whether the competition for the work contemplated under the PWS might be limited to SDVOSBs or to veteran-owned small business concerns (VOSBs). Upon being informed of the foregoing, counsel for plaintiff stated that \depending on what the [government\rquote s] decision is this coming Friday, the 4th of November, if they decide to go forward Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: \u8212Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and controlled by veterans if the contracting officer has a reasonable expectation that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: In this case, as noted by defendant, the government\rquote s decision to set aside the protested procurement for small business concerns owned by veterans with service-connected disabilities under the T4 contract resulted in no harm to plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: The solicitation for the T4 contracts did not state that the competition for those contracts would be limited to SDVOSBs. In fact, the solicitation expressly noted that up to eight of the fifteen contracts might be awarded to non-SDVOSBs. Def.\rquote s Mot. Ex. 1 at AR414 (\The Government intends to award up to 15 contracts, which will include awards of at least four contracts to Service\u8211Disabled Veteran\u8211Owned Small Businesses (SDVOSB) and at least three contracts to Veteran\u8211Owned Small Businesses (VOSB). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: \has been written to accommodate the breadth of the Department of Veterans Affairs IT requirements[,]\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 093 - MED Trends Inc v US.doc, Paragraph with 'Veteran: Defendant argues that plaintiff lacks standing for the additional reason that it is not listed as an SDVOSB on the public list of such small business concerns maintained by the Secretary of Veterans Affairs pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Disappointed bidder who was a service-disabled veteran-owned small business (SDVOSB), filed post-award bid protest challenging Department of Veterans Affairs (DVA) award of software and internet technology (IT) contracts. After intervention by three awardees, plaintiff, DVA, and one awardee moved for judgment on the administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: plaintiff waived challenge that solicitation violated Veterans First Program (VFP), by failing to raise issue before close of bidding process; but Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (DVA) solicitation for software and internet technology (IT) contracts, which provided that only offerors whose proposals received no less than an \acceptable\ rating for \all technical sub-factors\ would be considered for award, permitted DVA to award contract to offeror who had received \unacceptable\ rating on one of three subtasks within a sub-factor; sub-factor consisted of three sample tasks, and offeror\rquote s overall average for the tasks was \acceptable,\ based on individual ratings of \good,\ \acceptable,\ and \unacceptable\ on the three subtasks. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: By failing to raise issue before close of bidding process, disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) waived its challenge that solicitation violated Veterans First Program (VFP), which required procuring entity to give service-disabled veteran-owned small business (SDVOSB) concerns priority over Veteran-Owned Small Business (VOSB) concerns. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Even if disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) had not waived its challenge that solicitation violated Veterans First Program (VFP), DVA properly gave disappointed bidder priority under the program, as a service-disabled veteran-owned small business (SDVOSB), over another bidder which was a Veteran-Owned Small Business (VOSB); disappointed bidder was awarded \full credit\ for veterans involvement factor in solicitation, while other bidder was awarded only \partial credit\ as a VOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) properly made business judgment as to whether higher price of offer on contract for software and internet technology (IT) was worth the technical benefits its acceptance would afford, where offers compared were essentially equal in technical quality; offerors had comparable ratings in all non-price factors combined, even though individual ratings varied slightly. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Source selection authority (SSA) insufficiently documented two best-value tradeoff analyses, in violation of federal acquisition regulations (FAR), when awarding Department of Veterans Affairs (DVA) contract for software and internet technology (IT) where SSA provided no explanation when determining that unsuccessful bidder\rquote s proposal did not warrant higher price; while decision alluded to chart in source selection decision (SSD), SSA stated only that she had considered factors presented to her by others, and made only short, conclusory statements about unsuccessful bidder\rquote s proposal, never delving into analysis of proposals, nor explaining why higher-priced proposals did not exhibit sufficient superiority in non-price factors, even though unsuccessful bidder had been ranked higher in technical factor than other offerors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) acted within its authority under Competition in Contracting Act (CICA), in holding award made on software and internet technology (IT) contract in abeyance pending resolution of bid protests filed with Government Accountability Office (GAO), where award held was similar to one under protest and DVA properly informed all offerors of its decision to do so. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) did not improperly evaluate past performance factor for all offerors in competitive range, when awarding contract for software and internet technology (IT), even though it used fairly broad, somewhat vague definitions in doing so; DVA used broad rating of \low risk\ when there was little doubt that offeror could perform the proposed effort, \moderate risk\ when some doubt existed, and \high risk\ when there was significant doubt, and decision not to use a more nuanced system of rankings was one within discretion of DVA. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) conducted meaningful discussions with bidder on its solicitation for software and internet technology (IT) contract, as required by federal acquisition regulation; even though DVA failed to specifically notify bidder that its price proposal might be too high and could result in its failure to receive award, it directed bidder to concerns about the fairness and reasonableness of its price proposal which was sufficient to lead bidder to area of proposal encompassing price, and although DVA told other bidders their proposals were unrealistically low, that issue was governed by an entirely different evaluative factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (DVA) assessment of disappointed bidder\rquote s small business participation commitment (SBPC) in proposal for software and internet technology (IT) contract, which indicated that factor presented a \moderate to high degree of risk\ to bidder\rquote s ability to meet goals of solicitation, was not tantamount to a finding of \significant weakness\ as would trigger federal acquisition regulation (FAR) requirement to conduct discussion with bidder concerning the weakness; in awarding factor, DVA analyzed proposal as having one significant strength, four strengths, and no weaknesses, significant weaknesses, or deficiencies, so nothing indicated that SBPC factor contained a flaw that appreciably increased risk of unsuccessful contract performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs\rquote (DVA) rating of disappointed bidder\rquote s small business participation commitment (SBPC) in proposal for software and internet technology (IT) contract, as \acceptable\ was not arbitrary or capricious; DVA determined that proposal provided a minimal level of detail, was minimally feasible, presented a moderate to high degree of risk, demonstrated a minimal commitment to small business participation, and DVA had consistently rated other offerors as acceptable under same conditions, so disappointed bidder\rquote s mere disagreement with rating was alone not sufficient to establish impropriety. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Unsuccessful bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) was prejudiced, as required to prevail in bid protest, when source selection authority (SSA) failed to conduct legally sufficient best-value tradeoff analyses, since given the small number of bidders, more thoroughly reasoned and documented best-value tradeoff analyses would have created a substantial chance that bidder would have received award. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Unsuccessful bidder was entitled to injunctive relief requiring Department of Veterans Affairs (DVA) to conduct new best-value tradeoff analyses for award of contract for software and internet technology (IT) where bidder had been prejudiced in agency\rquote s prior determination, bidder suffered irreparable harm in that it was deprived of contracting opportunity with no adequate remedy at law, balance of hardships favored relief, since agency could readily obtain needed IT services as it had done in the past, pending best-value tradeoff analyses, and it was in public\rquote s interest to ensure that government followed established procurement regulations. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: , Staff Attorney, Desiree DiCorcia, Staff Attorney, Frank V. DiNicola, Staff Attorney, Colin Nash, Staff Attorney, Department of Veterans Affairs, Eatontown, N.J., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Plaintiff Standard Communications, Inc. filed a complaint against the United States alleging that the Department of Veterans Affairs (\DVA\) improperly evaluated the proposal submitted by plaintiff in response to DVA\rquote s Request for Proposals (\RFP\ or \Solicitation\), No. VA\u8211118\u821110\u8211RP\u82110052, and in so doing acted in a manner that was arbitrary, capricious, an abuse of discretion, and in violation of the Federal Acquisition Regulation (\FAR\) and the terms of the Solicitation. Compl. (docket entry 1, Aug. 24, 2011); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Administrative R. (\AR\) Tab 23, at 33310. It is a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) that \provid[es] telecommunications integration, support services and financial systems support exclusively to the U.S. Government.\ AR Tab 23, at 33422. In August 2010, plaintiff submitted a proposal in response to DVA\rquote s Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity, Multiple Award Task Order contract with a five-year period of performance (\the T4 contract\). AR Tab 3, at 164. The RFP provided for a maximum selection of fifteen awardees, with at least four contracts being awarded to SDVOSBs and at least three being awarded to Veteran\u8211Owned Small Businesses (\VOSB\). AR Tab 3, at 250. The ceiling value of the T4 Program is $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: The Solicitation explained that \[a]ny awards to be made will be based on the best overall (i.e., best value) proposals that are determined to be the most beneficial to the Government.\ AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five criteria: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each criterion, the Solicitation provided that Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: \[t]he Technical factor is significantly more important than the Past Performance factor, which is slightly more important than the Veterans Involvement factor, which is of equal importance to the SBPC factor, which is slightly more important than the Price factor.\ AR Tab 3, at 250. Additionally, when combined, criteria one through four were viewed as \significantly more important\ than criterion five, price. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Veterans Involvement and SBPC Criteria Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Under the veterans involvement criterion, evaluation credit was assigned to \an offeror (prime contractor) which [wa]s a[n SDVOSB] or a [VOSB].\ AR Tab 3, at 253. Offerors that were not such entities could receive evaluation credit if they Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Plaintiff Waived Its Argument that DVA Violated the Veterans First Program When It Awarded a Contract to Adams, a VOSB, over Plaintiff, an SDVOSB Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Plaintiff contends that DVA violated the Veterans First Program, which, when applicable, requires that a procuring entity give SDVOSB concerns priority over VOSB concerns. Pl.\rquote s Mot. for J. on AR 13\u821114; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Veterans Affairs Acquisitions Regulation (\VAAR\) 819.7004. Plaintiff, an SDVOSB, argues that it should have been given priority over Adams, a VOSB. Pl.\rquote s Mot. for J. on AR 13\u821114. Therefore, plaintiff submits that DVA did not properly follow the mandates of law and regulation when it awarded a contract to Adams and not plaintiff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Plaintiff\rquote s argument is properly characterized as a challenge to the Solicitation, which explained how DVA planned to evaluate the proposals, detailing the way in which DVA would award credit to SDVOSBs and VOSBs under the veterans involvement factor pursuant to VAAR 852.215\u821170. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Therefore, it was plain from the language of the Solicitation that priority was to be given to SDVOSB and VOSB concerns through the veterans involvement factor. Plaintiff was aware of DVA\rquote s process when it submitted its proposal. Accordingly, because plaintiff did not raise the issue of priority as between the two types of offerors before the close of the biding process, the challenge is untimely and plaintiff has effectively waived this issue. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Even absent a waiver and assuming the Veterans First Program applied to the Solicitation, the Court concludes that plaintiff would lose on the merits of this argument. Under the system DVA developed for this Solicitation, \full credit\ was awarded when the \[o]fferor [was] a prime and [was] properly registered in the Vendor Information Pages as an SDVOSB.\ AR Tab 279, at 83021. DVA awarded \partial credit\ to a proposal when the \[o]fferor [was] a prime and [was] properly registered in the Vendor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Additionally, an offeror could receive \minor\ or \no\ credit for the veterans involvement factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Here, plaintiff was awarded \full credit\ for the veterans involvement factor because of its status as an SDVOSB. AR Tab 279, at 83023. Adams was only awarded \partial credit.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Therefore, plaintiff was, in fact, given \priority\ over Adams with regard to the veterans involvement factor. Accordingly, even if there had been no waiver, plaintiff\rquote s position on the priority issue is unpersuasive on the merits. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: According to the SSEB briefing provided to the SSA, the findings of which are reflected in the table in the SSD document, plaintiff and offerors 1 (7 Delta, Inc.), 20 ( [* * *] ), and 49 (Information Innovators, Inc.) all received ratings of \good\ for the technical factor, AR Tab 279, at 82926\u821127, 82940\u821141, 82952\u821153, 82960\u821161; \low risk\ for the past performance factor, AR Tab 279, at 82976\u821177, 82990\u821191, 83002\u821103, 83010\u821111; and \full credit\ for the veterans involvement factor, AR Tab 279, at 83023. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: With regard to the other non-price factors\u8212namely past performance, SBPC, and veterans involvement\u8212plaintiff fared well when compared to the other three offerors. All four offerors were rated \low risk\ with regard to the past performance factor. AR Tab 279, at 82978\u821179, 82984\u821185, 83010\u821111, 83016\u821117. Under the veterans involvement factor, plaintiff, offeror 9 (By Light Professional IT Services, Inc.), and offeror 95 (Technatomy Corporation) received \full credit,\ and offeror 3 (Adams) received \partial credit.\ AR Tab 279, at 83021\u821123. Under the SBPC factor, offeror 3 (Adams) received a rating of \outstanding,\ and plaintiff and offerors 9 (By Light Professional IT Services, Inc.) and 95 (Technatomy Corporation) received a rating of \acceptable.\ AR Tab 279, at 83071. Accordingly, plaintiff and offerors 3 (Adams), 9 (By Light Professional IT Services, Inc.), and 95 (Technatomy Corporation) were equal in the past performance factor; plaintiff was equal to two and better than one in the veterans involvement factor; plaintiff was equal to two, but ranked lower than one in the SBPC factor; and plaintiff was ranked higher than all the offerors with respect to the technical factor, the most significant evaluative factor of the five according to the Solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: Indeed, plaintiff and offeror 37 (FirstView Federal TS) were both rated \acceptable\ in the SBPC factor, AR Tab 279, at 83071; awarded \full credit\ in the veterans involvement factor, AR Tab 279, at 83023; and deemed \low risk\ in the past performance factor, AR Tab 279, at 82992\u821193, 83010\u821111. Accordingly, the only non-price factor in which they differed was the technical factor, for which offeror 37 (FirstView Federal TS) was rated \acceptable\ and plaintiff was rated \good.\ AR Tab 279, at 82942\u821143, 82960\u821161. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: D. Plaintiff Waived Its Argument With Regard to the Issue of Whether D VA Violated the Veterans First Program When It Allegedly Gave Priority to Non\u8211Veteran Owned Companies Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 095 - Standard Communications Inc v US.doc, Paragraph with 'Veteran: . Plaintiff argues that the latter exception applies here, stating that \it is unclear how Congress intended the Veterans First Program contracting preferences to apply.\ Pl.\rquote s Mot. for J. on AR 26. Plaintiff\rquote s argument is unpersuasive. The Court finds that the issue in question is not one of such \widespread interest\ as to warrant making an exception to the important and efficient waiver rule as adopted by the Federal Circuit. If the issue was of such grave concern, plaintiff had all the more reason to raise it during the bidding process. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Disappointed bidder filed post-award bid protest challenging Department of Veterans Affairs (DVA) award of software and internet technology (IT) contracts. After intervention by awardees, all parties moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: DVA properly evaluated factor of veterans involvement in awarding bid; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) properly evaluated bidder\rquote s proposed small business participation commitment (SBPC) in its proposal for government contract for software and internet technology (IT); disappointed bidder\rquote s mere disagreement with DVA\rquote s evaluation as to whether its rating should have been \significant strength\ rather than \strength\ was not a sufficient basis to overturn DVA\rquote s rating. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) did not introduce a new evaluation factor for small business participation commitment (SBPC) when rating proposals for software and internet technology (IT) contract, which had not been set forth in original solicitation, as would result in an arbitrary or capricious bid award; solicitation provided that DVA would consider \extent of commitment to use\ small business firms, and that \enforceable commitments will be weighted more heavily than non-enforceable ones Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Disappointed bidder on Department of Veterans Affairs (DVA) contract for software and internet technology (IT) waived its challenge to terms of solicitation by failing to object until after contract had been awarded; although bidder took issue with fact that solicitation did not define bilateral or unilateral contracts within context of small business participation commitment (SBPC), or better explain how DVA would take into consideration the type of teaming agreement bidders had with small businesses in determining bidders\rquote level of commitment to small business participation, it failed to raise issue at time of bid. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) did not conduct disparate evaluation of disappointed bidder\rquote s proposal for software and internet technology (IT) contract, with regard to bidder\rquote s small business participation commitment (SBPC) and coordination, and thus award was not arbitrary or capricious, since bidder had failed to include information addressing the SBPC criteria in the correct portion of its proposal; DVA was not required to search entire proposal for additional information to assist bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) properly evaluated disappointed bidder\rquote s veterans involvement in its proposal for software and internet technology (IT) contract, despite bidder\rquote s claim that it should have received more than \minor credit\ for the factor; solicitation explained that, while Service\u8211Disabled Veteran\u8211Owned Small Business (SDVOSB) and Veteran\u8211Owned Small Business (VOSB) firms could receive \full credit\ or \partial credit,\ respectively, for veterans involvement, non-SDVOSB and non-VOSB firms, like bidder, could only receive \some consideration.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Source selection authority\rquote s (SSA) best\u8211value determinations conducted in rating proposals to Department of Veterans Affairs (DVA) solicitation for software and internet technology (IT) contract did not give undue weight to price, as would support disappointed bidder\rquote s claim that award was arbitrary or capricious, instead, SSA compared bidders\rquote small business participation commitment (SBPC), past performance, and veterans involvement and assigned ratings in accord with their relative importance as listed in solicitation. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Source selection authority\rquote s (SSA) findings regarding technical superiority and equality of bidders, in best-value determination conducted on proposals to Department of Veterans Affairs (DVA) solicitation for software and internet technology (IT) contract, were rational and adequately documented; even though SSA stated in a conclusory fashion that she compared all proposals, and although she failed to make even a conclusory statement of technical equality with respect to disappointed bidder\rquote s and one other offeror\rquote s proposals, SSA alluded to highly detailed color-coded table comparing the bids, she identified the ratings of the 21 proposals in the final competitive range for the technical factor, sample tasks technical sub-factor, individual sample tasks, management technical sub-factor, past performance factor, mall business participation commitment (SBPC) factor, and veterans involvement factor, and she referred to certain briefing documents that contained greater detail relating to the final evaluation reports. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA) conducted meaningful discussions with bidder on its solicitation for software and internet technology (IT) contract, as required by federal acquisition regulation, even though DVA failed to discuss significant weaknesses in bidder\rquote s sample tasks, since solicitation specifically prohibited DVA from discussing sample tasks with any bidder. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: , Staff Attorney, Desiree DiCorcia, Staff Attorney, Frank DiNicola, Staff Attorney, Colin Nash, Staff Attorney, Department of Veterans Affairs, Eatontown, N.J., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Plaintiff IBM Corporation, U.S. Federal (\IBM\) filed a complaint against the United States alleging that the Department of Veterans Affairs (\DVA\) improperly evaluated the proposal submitted by IBM in response to DVA\rquote s Request for Proposals (\RFP\ or \Solicitation\), No. VA\u8211118\u821110\u8211RP\u82110052, and in so doing acted in a manner that was arbitrary, capricious, an abuse of discretion, and contrary to law (docket entry 1, Aug. 24, 2011). For the following reasons, the Court Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity (\IDIQ\), Multiple Award Task Order contract with a five-year period of performance. AR Tab 3, at 164. The RFP provided for a maximum selection of 15 awardees, with at least 4 contracts being awarded to Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\) firms and at least 3 being awarded to Veteran\u8211Owned Small Business (\VOSB\) firms. AR Tab 3, at 250. The ceiling value of the T4 Program was $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five factors: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each factor, the Solicitation provided that \[t]he [t]echnical factor is significantly more important than the [p]ast [p]erformance factor, which is slightly more important than the [v]eterans [i]nvolvement factor, which is of equal importance to the SBPC factor, which is slightly more important than the [p]rice factor.\ AR Tab 3, at 250. Additionally, when combined, factors one through four were viewed as \significantly more important\ than factor five. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Veterans Involvement Factor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Under the veterans involvement factor, evaluation credit was assigned to an offeror that was an SDVOSB or a VOSB firm. AR Tab 3, at 253. Offerors that were not such entities could receive evaluation credit if they \agree[d] to subcontract 10% or more of the contract value to SDVOSB concerns or 12% or more of the contract value to VOSB concerns.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: AR Tab 3, at 233\u821149. For example, section L.5 indicated that while SDVOSB and VOSB firms could receive \full credit\ and \partial credit\ for veterans involvement, respectively, non-SDVOSB and non-VOSB firms could only receive \some consideration.\ AR Tab 3, at 236. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Veterans Involvement Factor Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: The SSEP indicated that the ratings for veterans involvement were \full credit,\ \partial credit,\ \minor credit,\ and \no credit.\ AR Tab 2, at 133. \Minor credit\ meant that \[t]he Offeror is neither a[n] SDVOSB nor [a] VOSB but has provided an acceptable subcontracting plan in which SDVOSB or VOSBs are subcontracted 10% and 12% respectively or more of the contract value.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Here, IBM\rquote s proposal received \minor credit\ for veterans involvement because IBM was not an SDVOSB or a VOSB firm, but had agreed to subcontract [* * *] percent of the total contract value to SDVOSB firms and [* * *] percent to VOSB firms, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: With respect to veterans involvement, the table indicated the amount of credit a proposal Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: On August 24, 2011, IBM filed the instant action. In its complaint, IBM alleges that DVA (1) conducted an unreasonable evaluation of IBM\rquote s proposed SBPC, Compl. \u182\u182 34\u821151; (2) conducted an unreasonable evaluation of IBM\rquote s proposed veterans involvement, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: B. DVA Properly Evaluated IBM\rquote s Proposed Veterans Involvement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: IBM strenuously challenges DVA\rquote s only affording IBM \minor credit\ in evaluating the veterans involvement factor, despite the fact that \IBM\rquote s veteran subcontracting totals amounted to approximately [* * *] of the entire contract value.\ Pl.\rquote s Mot. 20. Nonetheless, section L explained that, while SDVOSB and VOSB firms could receive \full credit\ or \partial credit,\ respectively, for veterans involvement, non-SDVOSB and non-VOSB firms could only receive \some consideration.\ AR Tab 3, at 236. \Some consideration\ was described as \minor credit\ in the SSEP. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: AR Tab 2, 133. Thus, DVA properly evaluated IBM\rquote s veterans involvement proposal. Moreover, to the extent IBM is challenging the terms of the Solicitation, such as the term limiting credit to \minor credit\ for non-veteran offerors, that challenge is waived pursuant to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: The SSA Did Not Conduct Improper Evaluations of SBPC and Veterans Involvement Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: To the extent IBM seeks to overturn the SSA\rquote s selection of any of the awards at step one of the source selection process based on its claims that DVA improperly evaluated SBPC and veterans involvement, the Court has previously rejected those contentions. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: The Court rejects IBM\rquote s argument that undue weight was given to price in these two best-value analyses for a number of reasons. The best-value analyses attached to the SSD document with respect to proposals from IBM and offerors 8 (Booz Allen) and 41 (Harris) compared their SBPC, past performance, and veterans involvement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: Part I.G, identifying the ratings of the 21 proposals in the final competitive range for the technical factor, sample tasks technical sub-factor, individual sample tasks, management technical sub-factor, past performance factor, SBPC factor, and veterans involvement factor. The SSD document also appears to refer to certain briefing documents that contained greater detail relating to the final evaluation reports. AR Tab 280, at 83097; Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: IBM argues that if the SSA had looked beyond the adjectival ratings for SBPC and the amount of credit for veterans involvement the SSA would have found that IBM\rquote s proposal was technically superior to the proposals from offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), 45(HP), 81 ( [* * *] ), 90 (Systems Made Simple), and 91 (SRA International). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: IBM\rquote s remaining challenge is that DVA failed to inform IBM that it \(1) [would] g[i]ve great weight to \u8216bilateral\u8217 agreements, an undefined term that is not included as an evaluation factor in the solicitation; and (2) ... would use pass/fail evaluation criteria for all non-veteran[-]owned businesses.\ Pl.\rquote s Mot. 33\u821134. IBM has merely recast its previously rejected claims that the SSA engaged in disparate treatment with respect to the SBPC factor and improperly introduced a new factor into the evaluation of veterans involvement as claims with respect to discussions. For the reasons stated earlier, the Court rejects those claims. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: IBM concedes that offeror 90 (Systems Made Simple), which was an SDVOSB firm, may have proposed greater small business and veterans involvement than did IBM. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 098 - IBM Corp v US.doc, Paragraph with 'Veteran: IBM\rquote s proposal received \minor credit,\ for veterans involvement, as did proposals from offerors 7 (ASM Research), 10 (CACI), 15 (CCSI), 45(HP), 81 ( [* * *] ), and 91 (SRA International). The proposal from offeror 90 (Systems Made Simple), an SDVOSB firm, received \full credit.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 099 - United Space Alliance LLC v Solis.doc, Paragraph with 'Veteran: Vietnam Veterans v. Sec\rquote y of Navy, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 099 - United Space Alliance LLC v Solis.doc, Paragraph with 'Veteran: Vietnam Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 099 - United Space Alliance LLC v Solis.doc, Paragraph with 'Veteran: Vietnam Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 099 - United Space Alliance LLC v Solis.doc, Paragraph with 'Veteran: Vietnam Veterans, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\8, File: 100 - Gonzales-McCaulley Inv Group Inc v US.doc, Paragraph with 'Veteran: GMIG is a government contractor incorporated under the laws of California and maintains its principal place of business there. Compl. \u182 1, May 9, 2011. GMIG is a service disabled veteran-owned, minority-owned business, and is certified by the Small Business Administration as a Section 8(a) Program Participant and a Small Disadvantaged Business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Corporation that bid on information technology contract brought bid protest action against government, alleging Department of Veterans Affairs (DVA) improperly evaluated plaintiff\rquote s proposal in violation of Federal Acquisition Regulations (FAR) and its own solicitation. Both parties moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Independent government cost estimate (IGCE), which was created and applied by Department of Veterans Affairs (DVA) to analyze, through price realism analysis, labor costs associated with bids for information technology contract, properly relied on contemporaneous records which identified a number of assumptions on which IGCE was based. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Independent government cost estimate (IGCE), which was created and applied by Department of Veterans Affairs (DVA) to analyze, through price realism analysis, labor costs associated with bids for information technology contract, was not based on irrational assumptions or critical miscalculations; documents containing DVA\rquote s explanations regarding IGCE were not post-hoc rationalizations, but constituted further explanations of selection process used by agency. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA), in rejecting corporation\rquote s bid for information technology contract, properly evaluated corporation\rquote s management techniques and controls to recruit and retain required workforce for contract, and reasonably found them to be inadequate. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA), in rejecting corporation\rquote s bid for information technology contract, evaluated corporation\rquote s management proposal in accordance with bid solicitation\rquote s evaluation criteria and did not add new, unstated determinative criterion as to apportionment of hours between prime contractor and subcontractors; consideration of number of hours to be worked was fairly implied by request for proposal (RFP), and solicitation instructed bidders to address approach to assigning work between prime contractor and subcontractors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Determination of Department of Veterans Affairs (DVA), in rejecting corporation\rquote s bid for information technology contract, that corporation would have difficulty recruiting and retaining adequate workforce for contract was consistent with remainder of evaluation; DVA considered corporation\rquote s controls and techniques and found they failed to provide sufficient specificity as to how its subcontractors would recruit and retain required workforce, DVA rationally and thoroughly explained its finding with respect to difficulty in recruiting and retaining an adequate workforce, and finding was not inconsistent with DVA\rquote s conclusions regarding corporation\rquote s management proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA), in rejecting corporation\rquote s bid for information technology contract, did not conduct misleading or inadequate discussions with corporation; the contracting officer, through proper use of discretion and fulfillment of her obligations under Federal Acquisition Regulations (FAR), clearly apprised corporation of deficiencies and weaknesses in its proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Department of Veterans Affairs (DVA), in rejecting corporation\rquote s bid for information technology contract, did not hold unequal discussions, in violation of Federal Acquisition Regulations (FAR), with various offerors included in initial competitive range for contract; DVA conducted its discussions with offerors in manner that addressed specifics of each proposal. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: , Staff Attorney, Desiree DiCorcia, Staff Attorney, Colin Nash, Staff Attorney, Department of Veterans Affairs, Eatontown, N.J., of counsel. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Plaintiff D & S Consultants, Inc. (\D & S\ or \DSCI\) filed a complaint against the United States alleging that the Department of Veterans Affairs (\DVA\) improperly evaluated the proposal submitted by plaintiff in response to DVA\rquote s Request for Proposals (\RFP\ or \Solicitation\), Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: The agency anticipated entering into an Indefinite Delivery/Indefinite Quantity, Multiple Award Task Order contract with a five-year period of performance. AR Tab 3, at 164. The RFP provided for a maximum selection of fifteen awardees, with at least four contracts being awarded to Service\u8211Disabled Veteran\u8211Owned Small Businesses (\SDVOSB\) and at least three being awarded to Veteran\u8211Owned Small Businesses (\VOSB\). AR Tab 3, at 250. The ceiling value of the T4 Program was $12 billion, with a minimum $50,000 guaranteed to each awardee. AR Tab 3, at 158. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: The Solicitation explained that \[a]ny awards to be made will be based on the best overall (i.e., best value) proposals that are determined to be the most beneficial to the Government.\ AR Tab 3, at 250. To evaluate the proposals under this standard, the RFP set forth five criteria: (1) technical, consisting of two sub-factors: (a) sample tasks and (b) management; (2) past performance; (3) veterans involvement; (4) small business participation commitment (\SBPC\); and (5) price. AR Tab 3, at 250\u821151. With regard to the weight to be assigned to each criterion, the Solicitation provided that \[t]he Technical factor is significantly more important than the Past Performance factor, which is slightly more Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: important than the Veterans Involvement factor, which is of equal importance to the SBPC factor, which is slightly more important than the Price factor.\ AR Tab 3, at 250. Additionally, when combined, criteria one through four were viewed as \significantly more important\ than criterion five. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Veterans Involvement and SBPC Criteria Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: Under the veterans involvement criterion, evaluation credit was assigned to \an offeror (prime contractor) which [wa]s a[n SDVOSB] or a [VOSB].\ AR Tab 3, at 253. Offerors that were not such entities could receive evaluation credit if they \agree[d] to subcontract 10% or more of the contract value to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: AR Tabs 181\u8211202. The agency\rquote s report regarding plaintiff indicated a \low risk\ rating for the past performance factor, AR Tab 189, at 78513, and an \[* * *]\ rating for the SBPC factor. AR Tab 189, at 78517. It assigned plaintiff \[* * *]\ for the veterans involvement factor. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 06 - D And S Consultants Inc v US.doc, Paragraph with 'Veteran: The veterans involvement factor partially overlapped with the SBPC factor, which also considered veterans involvement along with other sub-factors. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 12 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with 'Veteran: (applying the plain language of EAJA and holding that the statute did not cover an \unsupervised nonlawyer practicing in the Court of Veterans Appeals\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Two disappointed bidders filed post-award bid protests, challenging blanket purchase agreement (BPA) awarded by Department of Veterans Affairs (VA) to provide pharmacist and pharmacy technician staffing services at seven VA mail order pharmacy facilities. Following consolidation and intervention by awardee as defendant, parties cross-moved for judgment on administrative record. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Bid protestor whose rating on non-price evaluation factors was no better than eighth among eleven evaluated bidders, for blanket purchase agreement (BPA) awarded by Department of Veterans Affairs (VA) to provide pharmacist and pharmacy technician staffing services, was not \interested party,\ within meaning of Tucker Act requirements for standing in protest by bidder whose direct economic interest would be affected by contract award, since protestor lacked economic interest due to no substantial chance of receiving contract award, as protestor would have had to overtake six other bids to be in contention for award, but had not contested VA\rquote s evaluation of those six other bidders. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Supplementation of administrative record with documents relating to past performance of awardee of blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services for Department of Veterans Affairs (VA) was warranted in bid protest, on grounds that addition of documents would permit effective judicial review, since documents allowed parties to address accuracy of contracting officer\rquote s (CO) representation that she had considered all past performance information, and documents existed when CO signed price negotiation memorandum so could have been considered in evaluating awardee\rquote s past performance. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Supplementation of administrative record with declarations of president of disappointed bidder and president of awardee of blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services for Department of Veterans Affairs (VA) was not warranted in bid protest, on grounds that addition of declarations was not necessary for effective judicial review, where declarations related to wage determination issue that had no bearing on outcome of bid protest, hearsay telephone conversation with representative of another bidder, and explanation of importance of contract to disappointed bidder\rquote s business. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Although Department of Veterans Affairs\rquote (VA) technically accurate information as to evaluation factor weights in solicitation for blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services could have been more clearly stated, disappointed bidder was not prejudiced by that information in solicitation or by weights actually used in evaluating bids, on grounds that more clearly stated information would not have affected VA\rquote s decision not to award contract to disappointed bidder, where bidder had same information that all other bidders had, solicitation\rquote s weighing method did not violate any law or regulation, and bidder received highest rating possible for technical excellence and same past performance rating as awardee, so ratings offset each other regardless of weight applied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Contracting officer\rquote s (CO) past performance rating of \very good\ for awardee of blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services for Department of Veterans Affairs (VA) was reasonable, where CO found that small set of negative customer remarks about awardee\rquote s performance at three locations were more than offset by favorable information about awardee\rquote s performance at same locations and other large VA facilities, and CO did not disregard any negative past performance information including labor and civil rights charges against awardee that were dismissed, plea agreements by awardee\rquote s employee that did not include any wrongdoing by awardee, and billing irregularity about which awardee immediately notified CO and terminated offending manager. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Contracting officer\rquote s (CO) best value analysis, in which awardee was considered best offeror for each of seven locations, for blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services for Department of Veterans Affairs (VA), did not demonstrate unstated preference for award to single bidder, rather than awards to multiple bidders for all seven locations, where disappointed bidder was only competitor with non-price evaluation ratings identical to contract awardee at one location, but awardee had significantly lower price, no competing bidder had non-price ratings that were as good as awardee\rquote s ratings at other six locations, and single award proposition was not even mentioned by any individual VA evaluators, consensus evaluations, or CO\rquote s comparative analyses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: Awardee of blanket purchase agreement (BPA) to provide pharmacist and pharmacy technician staffing services for Department of Veterans Affairs (VA) was not ineligible for award due to allegedly expired federal supply schedule (FSS) contract required by solicitation for BPA, even though awardee\rquote s president failed to sign FSS modification until one year after CO signed, since awardee\rquote s signature on unilateral modification was not necessary to create binding extension of awardee\rquote s FSS contract. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: In this post-award bid protest, two disappointed offerors, Seaborn Health Care, Inc. (\Seaborn\) and Top Echelon Contracting, Inc. (\Top Echelon\), challenge a Blanket Purchase Agreement (\BPA\) awarded by the Department of Veterans Affairs (\VA\) to Teamstaff Government Solutions, Inc. (\Teamstaff\). The BPA is for pharmacist and pharmacy technician staffing services at seven VA mail order pharmacy facilities in the United States. The VA conducted the procurement as a Federal Supply Schedule (\FSS\) purchase under Federal Acquisition Regulation (\FAR\) Subpart 8.4. The VA evaluated proposals on a \best value\ basis, taking into account each offeror\rquote s technical excellence, past performance, socioeconomic status, and price. The VA reserved the right to make separate awards for each of the seven facilities, but instead it made one award for all of the facilities to Teamstaff. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 13 - Seaborn Health Care Inc v US.doc, Paragraph with 'Veteran: On August 17, 2010, the VA issued Request for Quotation VA\u8211797M\u821110\u8211RQ0212/GSA E\u8211Buy RFQ 496494 to establish BPAs for the staffing of six VA Consolidated Mail Order Pharmacy (\CMOP\) facilities. The six CMOP facilities are located in Charleston, South Carolina; Hines, Illinois; Lancaster (Dallas), Texas; Leavenworth, Kansas; Murfreesboro, Tennessee; and Tucson, Arizona. The solicitation also included the staffing of a \Meds by Mail\ facility in Dublin, Georgia. (AR 14.) The CMOP facilities prepare and dispense prescriptions and medical products by mail to military veterans and other patients. (AR 15.) Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Service-disabled veteran-owned small business (SDVOSB) filed complaints seeking, inter alia, a declaration that General Services Administration (GSA) and Defense Logistics Agency (DLA) unlawfully bundled procurement contracts without the requisite notice and market research and failed to include any mechanism to encourage participation by small business concern (SBCs) and SDVOSBs. Government filed motion to dismiss for lack of subject matter jurisdiction. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: offeror\rquote s failure to obtain SDVOSB certification rendered moot its contention that procuring agency improperly included a Department of Veterans Affairs (VA) procurement in a contract bundle that did not comply with the procedures required for VA procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Because offeror had to be certified as a service-disabled veteran-owned small business (SDVOSB) to be eligible for a Department of Veterans Affairs (VA) procurement like that in challenged solicitation, offeror\rquote s failure to obtain such certification rendered moot its contention that procuring agency improperly included a VA procurement in a contract bundle that did not comply with the procedures required for VA procurements. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Because offeror was not a verified service-disabled veteran-owned small business (SDVOSB), and thus was not eligible for a solicitation containing a Department of Veterans Affairs (VA) procurement, offeror was ineligible to bid for the contract, and consequently, its suit challenging procuring agency\rquote s alleged failure to encourage participation by SDVOSBs was moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Service-disabled owner did not control the \day-to-day management and long-term decisionmaking\ of offeror, and thus offeror did not satisfy requirements for self-certifying itself as a service-disabled veteran-owned small business (SDVOSB) for purposes of federal agency\rquote s procurement process; additionally, because service-disabled veteran did not directly own offeror, but rather, owned offeror\rquote s parent corporation, which indirectly owned offeror through one of its wholly-owned subsidiaries, requirement that the service-disabled veteran directly own the small business concern was also not satisfied. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Offeror did not satisfy the \control\ requirement for self-certifying itself as a service-disabled veteran-owned small business (SDVOSB) for purposes of federal agency\rquote s procurement process because offeror\rquote s board of directors could take decisive action in the absence of the service-disabled veteran, and therefore was not controlled by the service-disabled veteran. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Although the parties briefed the issue whether plaintiff\rquote s failure to submit complete proposals deprived plaintiff of standing, mootness came into play when plaintiff\rquote s eligibility to propose as a service-disabled veteran-owned small business was withdrawn by the United States Department of Veterans Affairs (the \VA\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: BlueStar Energy Services, Inc. (\plaintiff\), alleges that it is a service-disabled veteran-owned small business (\SDVOSB\) in the electricity-supply industry. Plaintiff protests the General Services Administration\rquote s (\GSA\) Request for Proposal (the \RFP\) designated Solicitation No. GS\u821100P\u821111\u8211BSD\u82110822 that sought proposals for electric power supply to federal and non-federal accounts in Maryland (\PEPCO MD\) and the District of Columbia (\PEPCO DC\). PEPCO MD is a bundle of thirty-four federal accounts, and PEPCO DC is a bundle of 153 federal accounts. The Washington, DC VA Medical Center account is contained in the PEPCO DC bundle. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: On March 23, 2011, GSA released its presolicitation for the RFP. The deadline to submit pricing proposals for PEPCO DC and PEPCO MD was May 3, 2011. Before the May 3 deadline, plaintiff submitted an agency-level bid protest to the Government Accountability Office (the \GAO\), alleging that (1) the RFP constitutes an improper bundling of smaller contracts, imposing unnecessary contractual requirements to the exclusion of SDVOSBs; (2) GSA did not make any attempt to encourage SDVOSB participation in the RFP; and (3) as to the PEPCO DC bundle, GSA impermissibly bundled a United States Department of Veterans Affairs (\VA\) procurement with other procurements that are not subject to Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: On August 2, 2011, defendant moved to dismiss both complaints for lack of jurisdiction because plaintiff does not qualify as an \interested party\ with respect to either Solicitation. On August 26, 2011, defendant filed a Notice of Department of Veterans Affairs Ineligibility Determination that had been issued on July 15, 2011, reflecting the VA\rquote s conclusion that plaintiff does not qualify as a SDVOSB. On August 30, 2011, this court heard oral argument on defendant\rquote s motion to dismiss. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: The Veterans Benefits, Health Care, and Information Technology Act of 2006, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: ), was enacted to increase contracting opportunities for SDVOSBs and veteran-owned qualified small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\[T]he Secretary shall maintain a database of small business concerns owned and controlled by veterans and the veteran owners of such business concerns.\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: ( \A small business concern may be awarded a contract under this section only if the small business concern and the veteran owner of the small business concern Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: are listed in the database of veteran-owned businesses maintained by the Secretary under subsection (f).\); Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\Prior to January 1, 2012, all ... SDVOSBs must be listed in the VIP database, available at http:// www.vetbiz.gov, and also must be registered in the Central Contractor Registration (CCR) (see 48 CAR subpart 4.11) to receive contract awards under VA\rquote s Veteran-owned Small Business prime contracting and subcontracting opportunities program.\). Also until December 31, 2011, an applicant can self-represent its status as a SDVOSB in the VIP database. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\After December 31, 2011, all ... SDVOSBs, must be listed as verified in the VIP database, and also must be registered in the CCR to be eligible to participate in order to receive new contract awards under this program.\). The VA Center for Veterans Enterprise (the \CVE\) evaluates applications for inclusion in the VIP database to verify whether an applicant satisfies the eligibility requirements to be listed as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\The Director, Center for Veterans Enterprise, is authorized to approve or deny applications for VetBiz VIP Verification. The CVE will receive, review and evaluate all VetBiz VIP Verification applications.\). \Once an application, a request for reconsideration, or an appeal to a cancellation notice, as applicable, has been denied, the applicant or participant shall be required to wait for a period of 6 months before a new application will be processed by CVE.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: 38 C.F.R. Part 74 and FAR Part 819, when read together, establish a comprehensive regulatory scheme to ensure verification of SDVOSB status in order to prevent unscrupulous offerors from misrepresenting their veteran or service-disabled ownership status. In so doing, the VA is fulfilling its verification obligation according to congressional mandate, as prescribed by Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\In maintaining the database, the Secretary shall carry out at least the following two verification functions: (A) Verification that each small business concern listed in the database is owned and controlled by veterans. (B) In the case of a veteran who indicates a service-connected disability, verification of the service-disabled status of such veteran.\). Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: , in turn, lists \the eligibility requirements for VIP verification.\ VA Acquisition Regulation: Supporting Veteran\u8211Owned and Service\u8211Disabled Veteran\u8211Owned Small Businesses, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: On August 26, 2011, defendant filed a notice to the effect that plaintiff is neither certified as nor qualified to be a SDVOSB. Def.\rquote s Br. filed Aug. 26, 2011, at 1. The actual letter from the CVE denied plaintiff\rquote s application for inclusion in the VIP database. The CVE letter explained that plaintiff is a wholly-owned subsidiary of BSE Holdco, LLC, a holding company that itself is a wholly-owned subsidiary of BlueStar Energy Holdings, Inc., a corporation owned 75% by a service-disabled veteran. Given this chain of ownership, the entity owned by the service-disabled veteran is BlueStar Energy Holdings, Inc., not plaintiff. Plaintiff, therefore, is unable to satisfy the \direct ownership\ requirement for certification as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: The CVE letter also announced that plaintiff is unable to satisfy the \control\ requirement even though the service-disabled veteran sits on plaintiff\rquote s Board of Directors. Plaintiff\rquote s bylaws provide that it is managed and governed by a Board of Directors (the \Board\) that can act when a quorum\u8212a majority of directors\u8212is present. Given that plaintiff\rquote s Board consists of five directors, three must be present to constitute a quorum. Consequently, because the Board can act in the absence of the service-disabled veteran, it cannot be said that the service-disabled veteran has control of the Board and/or plaintiff. Failure to meet the control requirement for a SDVOSB therefore prevented plaintiff from qualifying as a SDVOSB. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (requiring small business concern and veteran owner to be listed in database in order to be eligible for award of VA procurement); 38 C.F.R. pt. 74 (establishing verification procedures for SDVOSBs). Because plaintiff did not qualify for inclusion in the VIP, it was not eligible Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: Plaintiff contends that it can salvage these claims by self-certifying itself as a SDVOSB. Self-certification, it argues, is acceptable because the DLA Solicitation does not contain a VA procurement and thus does not require that an offeror be listed as a verified SDVOSB in any database. Although self-certification may be acceptable, it is not available in this case. To be considered a SDVOSB, a small business concern \must be at least 51 percent unconditionally and directly owned by one or more veterans or service-disabled veterans.\ Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: . As explained in the CVE letter, the service-disabled veteran does not directly own plaintiff; rather, the service-disabled veteran owns BlueStar Energy Holdings, Inc., which indirectly owns plaintiff through one of its wholly-owned subsidiaries. This does not satisfy the requirement that the service-disabled veteran directly own the small business concern. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\An applicant or participant owned principally by another business entity ... that is in turn owned by one or more veterans or service-disabled veterans does not meet th[e] [direct ownership] requirement.\). The CVE letter also indicated that plaintiff does not satisfy the \control\ requirement because plaintiff\rquote s Board of Directors could take decisive action in the absence of the service-disabled veteran. The CVE\rquote s finding is accurate and does prevent plaintiff from satisfying the control requirement. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 17 - BlueStar Energy Services Inc v US.doc, Paragraph with 'Veteran: (\An applicant or participant\rquote s management and daily business operations must be conducted by one or more veterans or service-disabled veterans.\). Because these decisions can be made without any involvement by the service-disabled veteran, plaintiff cannot be deemed to be controlled by the service-disabled veteran. Plaintiff, therefore, cannot in good faith certify that it qualifies as a SDVOSB. Consequently, Counts II and III of the DLA Complaint are dismissed as moot. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 19 - MED Trends Inc v US.doc, Paragraph with 'Veteran: MED Trends challenges a procurement made pursuant to the Veterans Technology Services Government\u8211Wide Acquisition Contract (\VETS GWAC\). The VETS GWAC is a government-wide contract between the General Services Administration (\GSA\) and a pool of pre-qualified contractors, all of which are small businesses owned by service-disabled veterans. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: These consolidated appeals are taken from orders of the Court of Federal Claims in a bid protest case. Plaintiff Totolo/King Joint Venture, a general contractor that was registered as a Service\u8211Disabled Veteran\u8211Owned Small Business (\SDVOSB\), responded to a \sources sought notice\ relating to a construction contract for the Department of Veterans Affairs (\DVA\). Although the solicitation was initially designed to be restricted to qualifying small businesses, the contracting officer made a determination that there were not enough qualifying small businesses to warrant restricting the solicitation and therefore issued a presolicitation notice announcing that the DVA planned to procure the construction services through an unrestricted bidding process that would be open to all offerors. Totolo/King then filed this action in the Court of Federal Claims, claiming that the contract should have been set aside for limited competition. The Court of Federal Claims denied relief and dismissed a subsequent motion for relief from judgment as moot. Totolo/King has appealed both orders to this court. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 53 - TotoloKing Joint Venture v US.doc, Paragraph with 'Veteran: While the appeal from the bid protest action was pending, William Totolo died. Mr. Totolo was the disabled veteran who provided the Totolo/King Joint Venture with its status as a SDVOSB. The government argues that, based on Mr. Totolo\rquote s death, the Totolo/King Joint Venture now lacks standing to contest the DVA\rquote s failure to set the procurement aside for qualifying small businesses. Totolo/King resists the suggestion of mootness. Although it acknowledges that it has lost its status as a SDVOSB, it contends that the action is not moot because (1) it is entitled to an award of attorney fees and costs; (2) it is entitled to unspecified damages; and (3) the action should continue for the benefit of other SDVOSBs that might be subject to similar treatment in the future. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 59 - Hallmark-Phoenix 3 LLC v US.doc, Paragraph with 'Veteran: Rapides Reg\rquote l Med. Ctr. v. Sec\rquote y, Dept. of Veterans\rquote Affairs, Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 80 - ICP Northwest LLC v US.doc, Paragraph with 'Veteran: The solicitations provide that BPAs will first be offered to HUBZone small business concerns and Service Disabled Veteran Owned Small Business (\SDVOSB\) concerns. AR 35(\u167 B). If not enough offers are received from either HUBZone or SDVOSB concerns, additional awards will be made to small businesses. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 83 - Crewzers Fire Crew Transport Inc v US.doc, Paragraph with 'Veteran: The agency chose to satisfy its needs through a Simplified Acquisition Procedure requesting from interested vendors firm fixed-price quotations for the buses. Interested vendors were required to submit their quotations online through the Virtual Incident Procurement (VIPR) system. AR 445. The BPAs were awarded on the basis of a \cascading set-aside procedure,\ whereby preference would be given to eligible HUBZone small business concerns and Service Disabled Veteran Owned Small Business concerns, and then to other responsible small business concerns. Solicitation \u167 B (Method of Award). Orders issued against awarded BPAs were to be made using the same order of preference. Dir: C:\Users\muc574\Bid Protest\WestLaw Data\Data\9, File: 85 - K-Lak Corp v US.doc, Paragraph with 'Veteran: , a small business challenged an agency\rquote s issuance of a BPA against an FSS contract. The agency had previously issued a solicitation using service-disabled veteran-owned small business (\SDVOSB\) procedures and subsequently cancelled the SDVOSB solicitation in favor of acquiring the relevant services via the successful vendor\rquote s FSS contract. The Comptroller General stated:
import os
import pandas as pd
# Step 1: Loop each '.doc' file under all subdirectories
root_dir = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
doc_files = []
for subdir, dirs, files in os.walk(root_dir):
for file in files:
if file.endswith('.doc'):
doc_files.append([subdir, file])
# Step 2: Produce a dataframe that includes [subdir (excluding filename), filename]
df_doc_files = pd.DataFrame(doc_files, columns=['Subdir', 'Filename'])
df_doc_files['veteran'] = 0 # By construction, set 'veteran' to zero
# Step 3: Check if [Subdir, Filename] exist in [Subdir, Filename] of 'paragraphs_with_regex_veteran.xlsx'
df_veteran = pd.read_csv('paragraphs_with_regex_vet.csv')
df_doc_files['veteran'] = df_doc_files.apply(lambda row: 1 if any(
(df_veteran['Subdir'] == row['Subdir']) & (df_veteran['Filename'] == row['Filename'])) else 0, axis=1)
# Step 4: Count the unique number of [Subdir, Filename] in 'paragraphs_with_regex_veteran.xlsx'
unique_veteran = df_veteran[['Subdir', 'Filename']].drop_duplicates().shape[0]
print(f"Unique [Subdir, Filename] in paragraphs_with_regex_veteran.xlsx: {unique_veteran}")
# Step 5: Count the sum of variable 'veteran'
sum_veteran = df_doc_files['veteran'].sum()
print(f"Sum of 'veteran': {sum_veteran}")
Unique [Subdir, Filename] in paragraphs_with_regex_veteran.xlsx: 353 Sum of 'veteran': 353
df_doc_files
| Subdir | Filename | veteran | |
|---|---|---|---|
| 0 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 001 - PDS Consultants Inc v United States.doc | 1 |
| 1 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 002 - Veterans Contracting Group Inc v United ... | 1 |
| 2 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 003 - Q Integrated Companies LLC v United Stat... | 0 |
| 3 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 004 - In re Global Computer Enterprises Inc.doc | 0 |
| 4 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\1 | 005 - AT And T Corp v United States.doc | 0 |
| ... | ... | ... | ... |
| 3400 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 95 - Nilson Van And Storage v US.doc | 0 |
| 3401 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 96 - L-3 Communications Integrated Systems LP ... | 0 |
| 3402 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 97 - Acrow Corp of America v US.doc | 0 |
| 3403 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 98 - Fulcra Worldwide LLC v US.doc | 0 |
| 3404 | C:\Users\muc574\Bid Protest\WestLaw Data\Data\9 | 99 - Washington Consulting Group Inc v Raytheo... | 0 |
3405 rows × 3 columns
df_doc_files.describe()
| veteran | |
|---|---|
| count | 3169.000000 |
| mean | 0.106027 |
| std | 0.307921 |
| min | 0.000000 |
| 25% | 0.000000 |
| 50% | 0.000000 |
| 75% | 0.000000 |
| max | 1.000000 |
import os
def save_paragraphs_with_dollar_sign_to_csv(root_dir, csv_filename='paragraphs_with_dollar.csv'):
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['subdir', 'Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
file_path = os.path.join(subdir, filename)
if ".doc" in filename:
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if 'contract' in paragraph and '$' in paragraph and 'cost' in paragraph:
print(f"File: {filename}, Paragraph with $: {paragraph}") # Keep printing as requested
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_dollar_sign_to_csv(root_directory)
File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with $: . Q Integrated sought $145,464.92 in bid costs in its initial application, specifically seeking to recover $71,384.52 in direct labor costs, $42,354.00 in indirect labor costs, $28,894.99 in consultant costs, and $2,831.41 in other costs related to travel, copying, printing, and shipping with regard to the procurement. Pl.\rquote s Reckoning at 4\u8211\'3f6. In addition to its objections regarding the allocation of these costs across multiple contract areas in the procurement, the government specifically objected to labor costs incurred prior to HUD\rquote s issuance of the solicitation, the per-hour labor rate applied by Q Integrated for its two principals, Michael Ognek and Christopher Ognek, the rate used to calculate indirect labor costs as a percentage of direct labor costs, certain consulting fees, and certain travel and shipping costs. File: 003 - Q Integrated Companies LLC v United States.doc, Paragraph with $: In sum, Q Integrated has incurred reasonable bid costs of $70,414.90 respecting its proposals for ten contract areas. Pl.\rquote s Appl. Reply at 6. Applying a rate of 30% to properly allocate these costs to the three areas at issue in this case, Q Integrated is awarded $21,124.47 in bid costs. File: 005 - AT And T Corp v United States.doc, Paragraph with $: ). The Agency estimated that the cost for the contractor to perform during the override is $1.5 million. AR 906. There is no further explanation or breakdown of the $1.5 million cost in the D & F, indicating to the Court that the Agency did not conduct a significant analysis of the cost and benefits of proceeding with the override. For example, the Agency did not consider the additional costs should GAO sustains plaintiff\rquote s protest. The Agency includes no reasoning to demonstrate that the benefits of the override outweigh the costs of proceeding with the CICA stay in place. Thus, the cost-benefit analysis cannot be said to weigh in favor of the override. File: 017 - A Squared Joint Venture v United States.doc, Paragraph with $: Any delay in the effective date of the ABSS2 contract will cause substantial harm to the U.S. Government. Potential savings of the ABSS2 contract over the ABSS1 contract are estimated to be between $12,364.78 per day and $13,998.17 per day, which will result from reduced fully burdened labor rates under the ABSS2 contract. In other words, the cost to the U.S. Government of retaining Al\u8211\'3fRazaq after the ABSS2 contract\rquote s effective date would be approximately $13,000 per day. In light of the expected savings to the U.S. Government, I have determined that it is in the best interest of the U.S. Government to award the ABSS2 contract in the most expeditious manner possible. File: 033 - i3 Cable And Harness LLC v United States.doc, Paragraph with $: According to the initial Price Evaluation Report, prepared by the Source Selection Evaluation Board (SSEB) and issued November 30, 2016, the evaluated prices for IKs and Spares for each of the five offerors were determined by multiplying the prices provided in the offerors\rquote Attachment J\u8211\'3f3 templates by government-estimated quantities of 150 units for each of the three base years and seven option years and by 75 units for the six month extension. The initial Price Evaluation Report makes no mention of how these government-estimated quantities were determined. After reviewing each of the five proposals, the SSEB determined that ACE had the lowest Total Evaluated Price (TEP) with $484,913,135.56, Tabet had the second lowest with $492,476,512.38, and i3 had the fourth lowest with $612,179,182.05. The \u8220\'3findependent government cost estimate\u8221\'3f (IGCE) determined in the initial Price Evaluation Report was $487,062,977.44. Because the SSEB also found that Ace\rquote s proposal met the requirements of the Solicitation\rquote s Technical/Management Factor, the SSEB recommended that the award under the Solicitation be made to Ace. On December 15, 2016, a contracting officer called Ace to advise it of the government\rquote s decision to make an award to Ace and followed up with an email stating that Ace was the apparent awardee of contract number HC1028\u8211\'3f17\u8211\'3fD\u8211\'3f0002. File: 039 - SupplyCore Inc v United States.doc, Paragraph with $: Plaintiff\rquote s final evaluated price was $4,007,180,003 which represented only $35,000,003 of contractor controlled costs and a fixed cost of $3,972,180,000. SupplyCore was the lowest offeror. File: 039 - SupplyCore Inc v United States.doc, Paragraph with $: Intervenor\rquote s final total evaluated price was $4,010,103,446. Of which, $37,923,446 was controlled by the contractor and $3,972,180,000 was fixed by the government. Intervenor was thus the second lowest price. Comparing only contractor-controlled costs, it was roughly three million dollars or 8.35 percent higher than SupplyCore. File: 039 - SupplyCore Inc v United States.doc, Paragraph with $: Plaintiff\rquote s citation to its difference in price expressed as a percentage of only contractor-controlled is unavailing. Although that is not irrelevant, the agency was plainly aware of it and was not operating under any misconceptions with regard to price. Although the vast majority of the cost of the contract was fixed by the government, the agency considered the approximately $3 million savings, which it expressed as a 0.73% of the total cost, as insufficient to outweigh the additional confidence provided by S & K\rquote s proposal. Whether the price difference is expressed as 0.73% or 8.35%, as plaintiff urges that it should have been, the fact remains that the agency understood the difference in absolute dollars between the two proposals. The Air Force chose the more expensive of the two because it viewed that proposal as more likely to succeed in contract performance based on the past performance evaluation. It also specifically noted that the price difference was particularly small when considered over the life of a 15\u8211\'3fyear contract. This was not irrational or contrary to law. File: 057 - Breen v Chao.doc, Paragraph with $: The FAA then submitted the technical and cost team evaluations to the Source Selection Evaluation Board, which the FAA tasked with issuing a recommendation to the ultimate selection official. Def. Facts \u182\'3f\u182\'3f 88, 90; Kansier Decl. \u182\'3f 16; Def. MSJ at 27. Kansier and contracting officer Donald King chaired the board, which also consisted of both technical and cost experts. Def. Facts \u182\'3f\u182\'3f 88, 90; Kansier Decl. \u182\'3f 16. The Board rejected two findings of weaknesses and one of costliness associated with the MEO proposal, but ultimately concluded that Lockheed had the best technical solution and \u8220\'3fclearly provided the greatest benefit to the Government.\u8221\'3f Def. Facts \u182\'3f\u182\'3f 91\u8211\'3f92; Neill Opinion at 100. One Board official, Dennis DeGaetano, concurred with the Board\rquote s recommendation because Lockheed had the best bid, even though it cost slightly more than one other proposal. Def. Facts \u182\'3f 94. Kansier later stated that the Board did not consider age in making its decision. Kansier Decl. \u182\'3f 26. DeGaetano also said that he did not consider age in making the decision. Def. MSJ, Ex. 58 at 98 [Dkt. 256\u8211\'3f59]; Def. MSJ, Ex. 36 \u182\'3f 8 [Dkt. 256\u8211\'3f37]. The FAA estimated that the Lockheed contract would save taxpayers about $2.1 billion over the ten-year life of the contract. Def. MSJ at 28. The FAA ultimately announced the decision to award the contract to Lockheed on February 1, 2005. File: 057 - Breen v Chao.doc, Paragraph with $: Pl. Supp. Br. at 10. The Court finds that there are genuine issues of material fact concerning cost savings as a possible legitimate, nondiscriminatory reason for the RIF. The original estimate for how much the FAA would save by outsourcing FS was $12 billion over 10 years. Def. MSJ, Ex. 29 at P00582 [Dkt. 256\u8211\'3f30]. But after choosing Lockheed as the winning bidder, the FAA then estimated that it would save only $2.1 billion over the ten-year life of the contract. Def. MSJ at 28. And John Hennigan\u8212\'3fthe deputy CFO\u8212\'3fsaid in his deposition that the FAA did not actually know the costs of running the FS function. Pl. MSJ, Ex. 12A at 56\u8211\'3f58 [Dkt. 265\u8211\'3f9]. Resolving such conflicting inferences from the evidence in the record is \u8220\'3fprecisely the type of function we leave to the [factfinder], not to a judge ruling on a summary judgment motion.\u8221\'3f File: 075 - Idaho Stage LLC v United States.doc, Paragraph with $: According to plaintiff, Idaho Stage\rquote s proposal, which was accepted by the government, for the contract award, assumed that the project superintendent also could serve as the SSHO. Only after the contract was awarded to plaintiff, and after a preconstruction conference was held, plaintiff submitted a request for information to defendant which indicated that \u8220\'3fIdaho Stage planned for the Project Superintendent serve [sic] as the SSHO.\u8221\'3f Plaintiff explained to defendant that it understood that the contract specifications did not preclude the project superintendent from serving as the SSHO nor, according to plaintiff, did the contract specifications dictate that the SSHO could have no other duties on the project. In its post-award request for information, plaintiff explained that \u8220\'3f[g]iven the project size and scope, it is very reasonable to have a Superintendent that also serves as an SSHO.\u8221\'3f In response to plaintiff\rquote s request for information, defendant explained that the project superintendent and the SSHO shall not be the same person and that the SSHO should be an individual with no other responsibilities on the project. After defendant ordered plaintiff to have two separate individuals fill the two responsibilities, plaintiff submitted a certified claim for a request for equitable adjustment seeking $155,713.00 in estimated costs that would be incurred during contract performance as a result of \u8220\'3fthe Government\rquote s direction to have a full time SSHO on the project, with no other responsibilities.\u8221\'3f According to plaintiff, defendant\rquote s requirement that the project superintendent and the SSHO should not be the same person constituted a change under the changes clause of the contract. The contracting officer denied plaintiff\rquote s certified claim seeking an equitable adjustment in the amount of $155,713.00 in full. Subsequently, plaintiff filed its complaint in this court seeking $155,713.42, as well as for interest and costs. File: 097 - Government Services Corp v United States.doc, Paragraph with $: Contractor filed suit against United States, seeking $183,788.86 in damages under Contract Disputes Act (CDA) for breaches of contract by alleged cardinal change and constructive change to contract solicited by Customs and Border Protection (CBP) to supply gasoline tankers at airports and estimated 40,000 gallons of fuel at each airport with capability of dispensing fuel into CBP employees\rquote personal vehicles in response to declared state of emergency after Super Storm Sandy, and also claiming implied-in-fact contract requiring compensation under principles of quantum meruit and breach of duty of good faith and fair dealing. Government counterclaimed alleging that contractor\rquote s entire complaint should be forfeited under Special Plea in Fraud, that contractor violated False Claims Act (FCA), and that contractor was liable under CDA for at least $183,788.86 in damages plus cost of reviewing fraudulent claim. Parties cross-moved for summary judgment. File: 097 - Government Services Corp v United States.doc, Paragraph with $: Customs and Border Protection (CBP) contracting officer\rquote s (CO) denial of contractor\rquote s certified claim seeking $176,193.60 for costs incurred in complying with alleged changes to CBP\rquote s solicitation posted in online reverse auction, including $4,800 as fee for host of online reverse auction, was not breach of duty of good faith and fair dealing; contractor\rquote s certified claim did not represent reasonable expectation as to fruits of no-cost contract to supply gasoline tankers at two airports, with capability of dispensing fuel directly into CBP employees\rquote personal vehicles, that was formed by parties\rquote series of e-mails upon CBP\rquote s rejection of terms initially offered by contractor via auction, since contractor was not paid anything by File: 097 - Government Services Corp v United States.doc, Paragraph with $: In this case, Plaintiff\rquote s certified claim did not represent a \u8220\'3freasonable\u8221\'3f expectation as to the fruits of the contract, because Plaintiff was not paid anything by CBP. Gov\rquote t App\rquote x at A30 (11/5/12 6:02 PM e-mail providing terms of \u8220\'3fno-cost\u8221\'3f contract between the parties). In addition, it was not \u8220\'3freasonable\u8221\'3f for Plaintiff to claim $4,800 as a FedBid fee, when FedBid had never assessed any fee from Plaintiff. Am. Compl. Att. 6 (4/17/14 Certified Claim requesting \u8220\'3fthe fee rightly due FedBid Inc., which has been estimated at $4,800\u8221\'3f); File: 015 - Bona Fide Conglomerate Inc v US.doc, Paragraph with $: Requiring unsuccessful bidder on government contract, who had received temporary restraining order (TRO) prohibiting government from permitting performance of contract, to post bond in amount of $50,000 would provide sufficient security to successful bidder for its inability to commence performance of services until contract award dispute could be resolved; successful bidder had office already established at site of contract and staff in place so $50,000 would cover costs it would incur of approximately $2,000 per day of delay. File: 031 - Linc Government Services LLC v US.doc, Paragraph with $: This is not to say that consideration of absolute cost is unimportant; after all, any procuring agency must operate within budgetary constraints. Here, the Army\rquote s budget for the AAA contract was $189 million for the maximum performance period of two years. AR 600, 716. Among the seven offerors with technically acceptable (Go-rated) proposals, the highest Total Amount for all CLINs\u8212\'3fi.e., the estimated total cost of the contract\u8212\'3fwas $[number redacted] million, well within the Army\rquote s budget. File: 031 - Linc Government Services LLC v US.doc, Paragraph with $: Plaintiff\rquote s estimate that the cost-reimbursement component amounted to $33 million, or roughly 15% of the value of the AAA contract, is based upon a fictional calculation. File: 044 - Infiniti Information Solutions LLC v US.doc, Paragraph with $: . Infiniti seeks to recover fees at a rate of $325 per hour for attorneys Janine S. Benton, Kathy C. Potter, and James DelSordo and of $175 per hour for attorney Rosanne Stafiej, arguing that special factors are present that justify an award in excess of the statutory cap. Specifically, Infiniti argues that, \u8220\'3f[d]ue to the complex nature of the procurement law at issue ..., Infiniti required counsel with significant experience and knowledge of government contracts law.\u8221\'3f Pl.\rquote s Mot. at 3. In the alternative, Infiniti requests that the court apply a cost of living adjustment (\u8220\'3fCOLA\u8221\'3f) to the EAJA maximum rate. File: 046 - Chenega Management LLC v US.doc, Paragraph with $: Lt. Col. E.\rquote s September 28, 2009 Declaration was consistent with Ms. Cooper\rquote s description of his role in the procurement. AR Tab 10, at 1924\u8211\'3f25. Lt. Col. E. and Mr. S., however, acknowledge being friends and admitted that on January 21, 2009, Mr. S. purchased two Super Bowl tickets for Lt. Col. E. AR Tab 10, at 1925, 1927. Mr. S. and Lt. Col. E. both stated, however, that immediately after Mr. S. purchased the tickets, Lt. Col. E. reimbursed Mr. S., in cash, for the full cost of the tickets, at $800 each, plus a $50 service charge. AR Tab 10, at 1925, 1927. Lt. Col. E. further stated that Mr. Vuckovich was aware of this information. AR Tab 10, at 1925. In addition, Lt. Col. E. was a friend of Mr. Vuckovich and the two previously attended Arizona Cardinals football games together. AR Tab 10, at 1926. Lt. Col. E., however, denied telling Mr. Vuckovich that Offeror 3 was going to win the contract and characterized this statement as a \u8220\'3fdeliberate lie,\u8221\'3f but admitted that he told Mr. Vuckovich that he thought it was illegal for CTSC to advise employees that submitting resumes to competitors was a ground for termination. AR Tab 10, at 1925\u8211\'3f26. Lt. Col. E. also confirmed that he advised Mr. Vuckovich to provide his resume to every company competing for the Contract, because the winner likely would hire experienced employees from the incumbent contract. AR Tab 10, at 1926. Lt. Col. E. denied telling Mr. Vuckovich that he was required to submit his resume to Offeror 3. AR Tab 10, at 1926. File: 052 - Tri-State Contractors Inc v Fagnant.doc, Paragraph with $: On April 18, 2006, three bids were presented, and the bids were opened and read aloud. Tri\u8211\'3fState Contractors submitted the lowest bid, at $1,163,845, along with a certified check in the amount of $58,192 serving as the bid bond. Nevertheless, no bids were accepted at that time. Appellant Mike Archibald, Kemmerer City Administrator, spoke to both Tri\u8211\'3fState and the city council about Tri\u8211\'3fState\rquote s bid, informing all parties that the bids were substantially over the city\rquote s allocated budget. Archibald proposed \u8220\'3fvalue engineering\u8221\'3f the project\u8212\'3fmeaning that the involved parties, owner, contractor, and engineer, all agreed to revisit the project and look for ways to cut costs\u8212\'3fand both the city council and Tri\u8211\'3fState agreed. The option to value engineer the project was given only to Tri\u8211\'3fState as the lowest bidder. Tri\u8211\'3fState\rquote s bid bond was not returned. File: 053 - Mobile Medical Intern Corp v US.doc, Paragraph with $: The price quotes by competitors [deleted] and Gerling were significantly lower than the one submitted by MMIC, indicating that in an open competition other offerors likely would have undercut MMIC\rquote s total offered cost. Gerling\rquote s quote was $[deleted], and the quote offered by [deleted] was $[deleted]. Furthermore, the contracting officer stated that several other FSS contractors had pricing similar to Gerling\rquote s for similar trailers. MMIC was not price competitive. Indeed, the contracting officer stated, \u8220\'3fMMIC wanted [deleted]% deposit, and would take an average of 9\u8211\'3f11 months to build the MSU\rquote s [mobile surgical units]. A red flag went up that there were obvious issues to just sole sourcing this requirement to MMIC. Once, the meeting [with MMIC and the program office] concluded I informed the program office that a sole source award could not be made to MMIC[.]\u8221\'3f The contracting officer also stated, in response to plaintiff\rquote s GAO protest, that \u8220\'3f[i]t is felt that MMIC would have been high risk, based on the Supplier Risk Evaluation of [deleted], high cost and the [deleted]% deposit they were requiring.\u8221\'3f File: 064 - Morris-Griffin Corp v C And L Service Corp.doc, Paragraph with $: CLS continued its efforts to rein in MGC\rquote s costs in 2010. In 2010, CLS began requiring MGC \u8220\'3fto produce extensive documentation, to its satisfaction, as a precondition to receiving the monthly payments due\u8221\'3f under the Subcontract. (Compl. \u182\'3f 50.) On March 25, 2010, CLS informed MGC that it would henceforth limit reimbursement of MGC\rquote s costs and expenses at a fixed percentage amount. (Compl. \u182\'3f 52). Between January 2010 and April 2010, MGC submitted invoices in the amount of $2,459,695.95. CLS has only authorized payment for $1,866,000. The overall shortfall is now in the amount of $1,539,758.04. (Compl. Ex. 2). File: 069 - PAI Corp v US.doc, Paragraph with $: On August 29, 2008, DOE issued a final competitive contract solicitation to provide support services for OST. The solicitation would result in a single indefinite-delivery, indefinite-quantity cost-plus-award-fee type contract for a base period of two years and two eighteen-month option periods. The guaranteed minimum amount of designated services under the contract was $3 million and the maximum ordering limit was $95 million. File: 070 - FAS Support Services LLC v US.doc, Paragraph with $: This procurement protest litigation was initiated by the Complaint for Injunctive and Declaratory Relief filed by FAS Support Services, LLC on May 13, 2010. The relevant portion of the procurement commenced with the Solicitation (No. FA 5613\u8211\'3f08\u8211\'3fR\u8211\'3f5010), dated February 13, 2009, issued by a unit of the United States Air Force located in Kaiserslautern, Germany. (Administrative Record (\u8220\'3fAR\u8221\'3f) 000056.) The solicitation sought offers to perform base operation and maintenance services at six facilities located in Turkey and Spain\u8212\'3fthe Turkey/Spain Base Maintenance Contract (\u8220\'3fTSBMC\u8221\'3f). The estimated cost of the procurement approached $400,000,000. (AR 000403.) The procurement was designed to obtain operational efficiencies and savings by consolidating in one contract the functions then being performed under two separate contracts, the Turkey Base Maintenance Contract (\u8220\'3fTBMC\u8221\'3f) and the Spain Base Maintenance Contract (\u8220\'3fSBMC\u8221\'3f). (AR 00363.) The incumbent contractors were Vinnell Brown & Root, LLC (\u8220\'3fVBR\u8221\'3f) for the TBMC and Spain Agility First Support LLC (\u8220\'3fAFS\u8221\'3f) for the SBMC. (AR 000788, 001469.) File: 072 - K-Lak Corp v US.doc, Paragraph with $: The plaintiff, K\u8211\'3fLAK Corp. (\u8220\'3fK\u8211\'3fLAK\u8221\'3f) was an incumbent contractor providing credit reports at a cost of $3.80 each to the United States Department of the Air Force (\u8220\'3fAir Force\u8221\'3f) under a one-year contract (No. FA 3089\u8211\'3f08\u8211\'3fP\u8211\'3f0018, effective October 1, 2007 through September 30, 2008) awarded as a direct sole-source contract under the Small Business Association (\u8220\'3fSBA\u8221\'3f) 8(a) Business Development Program (\u8220\'3f8(a) program\u8221\'3f), File: 077 - Jay DeeMole Joint Venture v Mayor and City Council of Baltimore.doc, Paragraph with $: JDM submitted dozens of pages detailing its bid. JDM enclosed Statements of Intent between JDM and the M/WBEs\u8212\'3fincluding K\u8211\'3fO Construction, Inc. (\u8220\'3fK\u8211\'3fO\u8221\'3f) and R & R Utility Contractors, Inc. (\u8220\'3fR & R\u8221\'3f)\u8212\'3fwith whom it had agreed to subcontract to comply with Contract 839R\rquote s M/WBE requirements. JDM represented that its subcontract with K\u8211\'3fO would satisfy over ninety-five percent of the MBE requirement and that its subcontract with R & R would satisfy over ninety percent of the WBE requirement. All Statements of Intent required both JDM and the subcontractor to attest that they \u8220\'3fagree[d] to enter into a contract for the work/service indicated above for the dollar amount or percentage indicated....\u8221\'3f The K\u8211\'3fO Statement of Intent indicated that it would provide \u8220\'3fdrainage structures\u8221\'3f and \u8220\'3fsewer construction\u8221\'3f at a cost of $3,898,646. The R & R Statement of Intent indicated that it would provide \u8220\'3fsitework and utilities\u8221\'3f at a cost of $3,718,625.90. Notably, the \u8220\'3fMaterials/Supplies to be furnished by MBE or WBE\u8221\'3f section of R & R\rquote s Statement of File: 077 - Jay DeeMole Joint Venture v Mayor and City Council of Baltimore.doc, Paragraph with $: Previously, on June 16, 2008, JDM submitted a Claim Statement of Details with the City, asserting that it was entitled to $5,348,330.97: $467,863.99 for pre-termination contract costs, $70,959.98 for post-termination costs, and $4,809,507.00 for unrealized profits. (Pl.\rquote s Compl. \u182\'3f 39.) The City refused to pay JDM. (SUMF \u182\'3f 76.) File: 079 - Turner Const Co Inc v US.doc, Paragraph with $: The three offerors gave oral presentations to the Army on August 17\u8211\'3f18, 2009; the four HSMM employees, who were part of the TRB, attended these presentations but did not ask any questions. On August 24, 2009, after reviewing the SSEB report, cost estimates, and presentations, the Source Selection Authority determined that Turner represented the best value for the Army. On September 28, 2009, the Army awarded Turner the contract in the amount of $333,359,000. File: 079 - Turner Const Co Inc v US.doc, Paragraph with $: Under the third factor, the Court must balance the harms to the parties. As mentioned above, Turner will be denied the benefit of the contract. Furthermore, the Administrative Record shows that re-procurement of the contract could be quite costly; the South Atlantic Division of the Army Corps of Engineers estimated that re-procurement to McCarthy/Hunt or Harbert/Gorrie would likely incur additional costs of between $84 million and $125 million, as well as delay the project for 16 months. File: 080 - Coastal Intern Sec Inc v US.doc, Paragraph with $: sent a memorandum to Sumara Thompson\u8211\'3fKing, NASA\rquote s Chief Counsel for Procurement, recommending that NASA reopen discussions regarding launch and landing staffing at KSC. AR Tab 118, at 26117\u8211\'3f18. According to Mr. Hattaway, because WSI was the incumbent contractor at KSC, and one of the two members of the SGS Joint Venture, WSI understood the required launch and landing staffing at KSC and used that knowledge in preparing WSI\rquote s proposal. AR Tab 118, at 26118. CIS did not have this same information. Accordingly, after receiving the May 20, 2008 initial award, CIS had to adjust its baseline staffing level by adding 46 personnel. AR Tab 118, at 26118. Mr. Hattaway estimated that this would add $3.5 to $5.3 million to the cost of the NPS Contract. AR Tab 118, at 26118. Quoting from CIS\rquote s L & L TO proposal, Mr. Hattaway argued that CIS\rquote s proposal \u8220\'3fwould not work,\u8221\'3f because it relied on a \u8220\'3fflawed methodology[.]\u8221\'3f AR Tab 118, at 26120. Therefore, Mr. Hattaway urged NASA to inquire why launch and landing staffing at KSC was included in WSI\rquote s NPS Contract proposal, but not in CIS\rquote s. AR Tab 118, at 26118. Without this inquiry, Mr. Hattaway believed that WSI was placed at a price disadvantage, creating a risk for protest. AR Tab 118, at 26120 (\u8220\'3f[the 2009] SEB failure to seek clarification as to why WSI included L & L costs in the basic requirement could be considered a failure to conduct meaningful discussions and could lead to the conclusion that proposals from WSI and CIS were not evaluated equally.\u8221\'3f). File: 085 - DHT Transp Inc v Bobb.doc, Paragraph with $: Defendant counters that Plaintiff\rquote s alleged harm is not irreparable, but DPS would sufferable irreparable injury if an injunction issues. First, Defendants say DPS is effectively $500 million in debt and facing possible receivership. The new contract will save DPS several million dollars per year over its current costs. File: 085 - DHT Transp Inc v Bobb.doc, Paragraph with $: Defendants say the public has a strong interest in keeping DPS financially viable, and that cost reduction is a crucial part of making that possible. They say the new contract will save the cash-strapped school district approximately $30 million over the next five years. Hence, Defendants say an injunction will cause severe economic harm to DPS and the public. They say the public\rquote s interest in a viable school system predominates over the interests of a single disappointed bidder. File: 088 - Allied Technology Group Inc v US.doc, Paragraph with $: Any error in Department of Justice\rquote s (DOJ) failure to perform lowest overall cost analysis, in awarding blanket purchase agreement (BPA) to provide web-based automated recruiting system, was not prejudicial to incumbent contractor, since nothing in contractor\rquote s bid suggested that whatever cost-saving mechanism was offered in contractor\rquote s system would have offset $100 million price differential between contractor\rquote s bid and BPA awardee\rquote s bid. File: 088 - Allied Technology Group Inc v US.doc, Paragraph with $: In this case, given the substantial difference between Allied\rquote s and Monster\rquote s price quotations, Allied cannot reasonably show that it would have received the award in the absence of DOJ\rquote s errors. For evaluation purposes, the CO used CLIN 003 for 10,0001 to 15,000 ARS users to compare Monster\rquote s and Allied\rquote s pricing, using the prepayment discount Allied proposed in its quotation. AR 1038. At that CLIN level, Monster\rquote s price for the full five-year term of the contract, including transition costs as a non-incumbent contractor, was $3,204,351. File: 091 - Fireman's Fund Ins Co v US.doc, Paragraph with $: His testimony summarized the components of this total, as follows: (1) for additional labor and other costs incurred on account of concrete deficiencies, $3,731,649.00; (2) material costs, $447,455.00; (3) equipment costs, $26,819.00; (4) subcontractor costs, $646.00; (5) extended field overhead, $3,127,389.00; and (6) extended equipment, $598,753.00. The sum of these components, increased by home office overhead (at 2.34%, adding $185,625.00), then profit (at 9.82%, adding $797,221.00), yields $8,915,557.00. File: 091 - Fireman's Fund Ins Co v US.doc, Paragraph with $: are now $3,060,171.27, and extended equipment costs reduce from $598,753.00 to $588,239.47. PX 801 at 19. Adding to the aggregate the otherwise unaffected material ($447,455.00), equipment ($26,819.00), and subcontractor ($646.00) cost elements, the damages subtotal becomes $5,842,383.48. PX 801 at 24. With Mr. Fuchs\rquote s reasonable markups for home office overhead (at 2.34%, $136,711.77) and profit (at 9.82%, $587,147.15), the revised total damages for concrete mix design are $6,566,242.40. PX 801 at 24. File: 091 - Fireman's Fund Ins Co v US.doc, Paragraph with $: Unlike plaintiffs\rquote other claims, Mr. Fuchs did not present IHP\rquote s damages as discrete claims. Rather, Mr. Fuchs presented IHP\rquote s lump-sum damages divided by labor ($592,162.00) and equipment costs ($58,896.00). These totals were adjusted by adding field overhead (at 4%, $26,042.00), home office overhead (at 17%, $115,107.00), contractor profit (at 10%, $79,221.00), and general contractor markup (at 5%, $43,571.00). Plaintiffs seek a total amount of $915,001.00 in damages for IHP. File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with $: In conducting his best value analysis, the SSA observed that while both EDS and BAE had received overall non-price ratings of \u8220\'3fgood,\u8221\'3f \u8220\'3fBAE has a lower price.\u8221\'3f He noted that, without the adjustment associated with CLIN 006, BAE\rquote s price was \u8220\'3fsubstantially lower than EDS, by more than $49 million,\u8221\'3f and found that BAE\rquote s proposal was thus \u8220\'3fsuperior\u8221\'3f to EDS\rquote . The SSA indicated that he still felt that BAE\rquote s proposal was superior to that of EDS even if the CLIN 006 adjustments were made, stating that \u8220\'3feven if HW/SW costs for CLIN 006 were excluded for EDS altogether, BAE would still enjoy a price advantage of more then $[ ] million over EDS.\u8221\'3f Based on this analysis, the SSA concluded that BAE\rquote s proposal represented the \u8220\'3fbest value\u8221\'3f to the government, and, on that basis, awarded the contract to BAE. BAE began performing the IT IMS contract in July of 2009. File: 099 - Electronic Data Systems LLC v US.doc, Paragraph with $: But, how much lower\u8212\'3fand to what effect? In the court\rquote s view, any such differences would have been inconsequential. In fact, Treasury more than accounted for its error in failing to amend the RFP, by adjusting, in its best value analysis, EDS\rquote overall price to exclude all hardware and software costs from the latter\rquote s pricing proposal. Indeed, while the SSA subtracted $[ ] of these costs from EDS\rquote price, it did not reduce, at all, BAE\rquote s price for the $[ ] of software and hardware costs that the latter actually included in its worksheet. By virtue of this one-sided adjustment, the spread between the two competitors\rquote prices shrank considerably, from $49,125,129 to $[ ]. Yet, even when reweighing this much smaller differential, the SSA unhesitatingly concluded that BAE\rquote s proposal represented the best value to Treasury. Accordingly, this is not a situation where the court must speculate as to what a new award decision would be on remand or how such a decision would be rationalized by the agency. Rather, the source selection documents make clear that even under the best of scenarios\u8212\'3fone better than EDS could have dreamed to generate in revised proposals\u8212\'3fplaintiff would not have received the contract. File: 005 - ROK Bros Inc v Baltimore County Md.doc, Paragraph with $: The Baltimore County Purchasing Manual contains similar provisions. \u8220\'3fThe Purchasing Agent shall purchase all commodities and contractual services of an estimated cost in excess of $25,000 by formal bid process from the lowest responsive and responsible bidder following public notice inviting bids.\u8221\'3f Purchasing Manual \u167\'3f 6.1.1. The Solicitation at issue here also states that, while the County \u8220\'3freserves the right to reject, in whole or in part any and all bids received, and to make a whole award, multiple awards, a partial award, or no award, to best serve the public interest,\u8221\'3f Solicitation \u167\'3f 3.1, if an award is made, it File: 019 - Resource Conservation Group LLC v US.doc, Paragraph with $: . RCG sought recovery of bid preparation costs and fees in the amount of $500,000 for the breach of the implied contract. It appears that RCG was not challenging the actual award of the contract, but rather sought recovery for damages incurred due to the government\rquote s failure to timely apprise RCG that its interpretation of File: 021 - White Hawk Group Inc v US.doc, Paragraph with $: The plaintiffs\rquote proposal was consistently ranked last among the proposals. Its price was consistently 20 percent higher than the lowest bid. Over the contract\rquote s entire option period, plaintiffs\rquote performance would cost the government almost $20 million more than He & I and over $17 million more than the next best offer submitted by DMS\u8211\'3fAll Star. Furthermore, its technical/management proposal was deemed merely \u8220\'3fsatisfactory,\u8221\'3f whereas the proposals of its two competitors were rated \u8220\'3fgood.\u8221\'3f Under the technical evaluation scheme for this solicitation, a \u8220\'3fsatisfactory\u8221\'3f rating is defined in the following manner: File: 023 - Red River Holdings LLC v US.doc, Paragraph with $: On October 2, 2009, Sealift filed a Motion to Intervene [44] \u8220\'3fto seek appellate review of the jurisdiction of this Court as applied to bid protests related to admiralty and maritime contracts.\u8221\'3f On October 5, 2009, Red River and the government filed their Status Report [45], stipulating to bid preparation costs of $24,198.49. Red River filed its Opposition to Sealift\rquote s Motion to Intervene on October 6, 2009[46] and Sealift filed its Reply on October 19, 2009[47]. The government did not take a position on Sealift\rquote s Motion. By Order of October 22, 2009[48], the court granted Sealift\rquote s limited motion to intervene to contest subject matter jurisdiction, noting that the circumstances present were similar to those in File: 023 - Red River Holdings LLC v US.doc, Paragraph with $: Finally, Sealift asserts public interests would be served should the injunction be modified in that MSC would not have to spend some $6 million dollars. Again, the question of any such an expense is not currently before the court; the government did not respond to that assertion, has not contended that modification is warranted for that (or any other) reason, or expressed any concern about any reprocurement costs. As the resolicitation process is progressing, any savings in this proposed modification are questionable. Moreover, the public interest is best served when procurement errors are rectified and the award is made to the correct contractor in accord with the contract solicitations and the award criteria. MSC\rquote s solicitation action in this regard should include as much of the original award term as is feasible. File: 026 - Esterhill Boat Service Corp v US.doc, Paragraph with $: The contracting officer stated in his letter rejecting plaintiff\rquote s bid that \u8220\'3f[f]urther negotiations will be conducted only with those offerors who have met [the one-floor requirement.]\u8221\'3f Thus, Federated was placed in the competitive range by itself. Negotiations during the month of September resulted in the contracting officer\rquote s requesting a best and final offer from Federated, which proposed a ten-year term lease with an annual rent of $277,755. The Government would finance build-out costs over the ten-year period at $112,252 per year. Negotiations thereafter resulted in an agreement that would permit the Government to terminate after five years, but guarantee Federated that the VA would pay any build-out costs then remaining. File: 027 - DMS All-Star Joint Venture v US.doc, Paragraph with $: b. NOTICE: For the purpose of proposal evaluation only, offerors should base their proposals on a notional target cost of $20,000,000.00 for the base period. This figure is for proposal evaluation only and may not reflect the actual dollar amount of projects delivered during the contract period. File: 031 - Fisher Sand And Gravel Co v Clark County Nevada.doc, Paragraph with $: County\rquote s decision to summarily reject all bids by contractors for improvements to interstate highway and to scrap project as \u8220\'3fin the public interest\u8221\'3f constituted an impermissible circumvention of Nevada bidding laws. Because the estimated project cost exceeded $250,000, county was required to award public work contract to the \u8220\'3fbest\u8221\'3f bidder according to statutorily-defined parameters which county did not even attempt to determine. While county attempted to retain the ability to reject all bids in fine print of its invitation for bids, county could not create its own authority by attempting to retain an ability it never had. West\rquote s File: 031 - Fisher Sand And Gravel Co v Clark County Nevada.doc, Paragraph with $: a contract for a public work for which the estimated cost exceeds $250,000 to the contractor who submits the best bid.\u8221\'3f File: 037 - International Salt Co LLC v City of Boston.doc, Paragraph with $: On February 7, Daniel Thompson, vice president of government sales for International Salt, faxed a letter to Vincent Caiani, an Assistant Purchasing Agent for the City, informing him that an increase in ocean freight rates would cause International Salt to increase its price of salt from $36.42 a ton to $46.36 a ton, effective with any shipments above the 75,000 tons specified in the contract. That same day, Mr. Caiani telephoned Mr. Thompson to ask that International Salt provide the City with additional salt in excess of 75,000 tons, but at the contract price of $36.42 per ton. They disagreed over whether International Salt was obligated to provide it. The next day, Mr. Thompson spoke with William Hannon, the City\rquote s Purchasing Agent. Mr. Hannon said that the City was precluded by Massachusetts General Laws chapter 30B from agreeing to pay more than $36.42 per ton, and Mr. Thompson took the position that International Salt had fulfilled its obligations under the contract by supplying the City with 75,000 tons of salt and that it could not supply additional salt at the same price because shipping costs had increased. As these conversations were taking place, the City was applying salt to its streets, and its supply diminished by nearly 3000 tons in one day. File: 052 - Afghan American Army Services Corp v US.doc, Paragraph with $: The agency then developed an independent government estimate (\u8220\'3fIGE\u8221\'3f) by looking at historical data from the existing BPAs. AR Tab 179 at 2502; AR Tab 16 at 149\u8211\'3f50. The agency selected seven locations \u8220\'3fvarying in degree of risk\u8221\'3f and determined the per-day cost of each location under existing BPA contracts. AR Tab 223 at 3321. The per-day costs were averaged over five BPA vendors, applied to the hypothetical task orders, and then added to create an IGE of $3,466,050.00 that was used to compare to the offerors\rquote Total Evaluated Prices. File: 070 - Unisys Corp v US.doc, Paragraph with $: Evaluation of pricing based on the team discount without applying the discount to any of the underlying labor rates/products does not appear to offer best value to the buyer, GSA. For example[,] if contractor A has a program manager rate of $200 per hour and offers a 15% discount, the price to the buyer would be $170 per hour. If contractor B has a program manager rate of $100 per hour and offers a 10% discount, the price to the buyer would be $90 per hour, a much better deal for the buyer. However, evaluating only based on the discount rate would mean contractor A is evaluated higher than contractor B. Applying the discount rate to the labor rates and products and evaluating the cost at that point would appear to give a truer picture of the best value to the buyer. Please comment. File: 071 - PAI Corp v US.doc, Paragraph with $: In support of this mission, DOE issued a solicitation on August 29, 2008, to provide training support services to OST for a range of operational and administrative activities. The solicitation called for an indefinite-delivery, indefinite-quantity, cost-plus-award-fee type contract for a base period of two years, with two 18\u8211\'3fmonth option periods. The guaranteed minimum under the contract was $3 million with an estimated ceiling of $95 million. Although the incumbent contractor for the support services contract, Wackenhut, was a large business concern, DOE limited the instant procurement to small businesses. File: 071 - PAI Corp v US.doc, Paragraph with $: But plaintiff\rquote s proposed cost of $4,937,720, even without adjustments, is almost $1 million more than ITP\rquote s total probable cost, with DOE adjustments, of $3,993,889. Plaintiff, in other words, would not have been awarded the contract regardless of whether its proposed costs remained unaltered. File: 077 - NEQ LLC v US.doc, Paragraph with $: On August 22, 2008, NEQ was advised that L\u8211\'3fK had been selected for award. On September 2, 2008, NEQ filed a protest with the Government Accountability Office (GAO). It argued that the source selection document incorrectly inflated its price from $102,960,441 to $103,493,399 and had incorrectly stated that the RFP provided that all evaluation factors other than cost or price, when combined, were \u8220\'3fsignificantly\u8221\'3f more important than cost or price, despite the RFP not having used the quoted word. By letter dated September 15, 2008, the GAO advised that it had \u8220\'3fcarefully reviewed\u8221\'3f the issues raised in the protest and had \u8220\'3fconcluded that corrective action [was] appropriate.\u8221\'3f GAO dismissed NEQ\rquote s protest as moot, based on representations that the agency would undertake voluntary corrective action. EPA issued a second source selection document on or about September 25, 2008, reflecting the two changes previously identified by NEQ. Nonetheless, after reexamination, on October 23, 2008, the agency again awarded the contract to L\u8211\'3fK. File: 077 - NEQ LLC v US.doc, Paragraph with $: The panel has concluded that LATA\u8211\'3fKEMRON has the most thoroughly identified team subcontractor network, and the highest level of direct presence overall in the nine emergency response metropolitan areas. Having a thoroughly identified team subcontractor network and a higher level of direct presence in the emergency response metropolitan areas significantly benefits the EPA because response times are reduced. Note that the SOW 4\u8211\'3fhour arrival time requirement for these metropolitan areas is the LATEST permissible arrival time. Earlier arrival times mean earlier start of cleanup actions and less impact on human health and the environment. Another benefit to having personnel located within the metro area is significant[ ] savings on per diem expenses during a time critical response. Time critical responses, unlike emergency responses, are planned, but have similar requirements. For example, Region 5 has recently had several residential sites in Minneapolis, Detroit, and Chicago. Labor availability in these areas would have resulted in significant cost savings to the Government because per diem costs of approximately $200.00 per day would have been avoided. File: 078 - Weeks Marine Inc v US.doc, Paragraph with $: Group II, small business set-aside projects (2\u8211\'3f7 total MATOC contracts); Group III, shore-protection projects (2\u8211\'3f7 total MATOC contracts); and Group IV, other projects not listed in any of the other three categories (2\u8211\'3f7 total MATOC contracts). Each group has an estimated cost of between $440 million and $500 million for the full five-year period. That means that, assuming all four option years are exercised, the total cost of the procurement will be approximately $2 billion. The minimum task order amount is File: 078 - Weeks Marine Inc v US.doc, Paragraph with $: the Corps\rquote s procurement action lacked a rational basis. In making this argument, it contends that the court should not have dismissed the Corps\rquote s reasons for switching to a negotiated procurement scheme. The government argues, as it did in the Court of Federal Claims, that the IDIQ MATOCs will allow the Corps to (1) pick more qualified contractors because it will be able to rely on factors other than price; (2) reduce procurement time; (3) lower administrative costs by an estimated $1.45 million in the next two years; (4) reduce or eliminate the need for emergency procurements; (5) have greater coordination between individual districts of the South Atlantic Division; (6) facilitate the use of small businesses; and (7) promote national security through more timely execution of dredging near military bases. File: 078 - Weeks Marine Inc v US.doc, Paragraph with $: As far as administrative costs are concerned, the government notes that the South Atlantic Division spent $2,183,949 on procurement labor in 2006 and 2007, whereas under the new IDIQ MATOC approach, the Corps predicts it will spend $738,026 in the next two years on procurement labor. The Corps explained in the Acquisition Plan that these savings will be particularly important because \u8220\'3fworkload has significantly increased over the years while personnel staffing has either remained the same or decreased.... [The Corps] must implement more cost effective acquisition methods that reduce labor intensive procedures in contracting, operations, & engineering.\u8221\'3f Appellant\rquote s Br. 38. File: 078 - Weeks Marine Inc v US.doc, Paragraph with $: in relation to the total cost of procurement.\u8221\'3f In this case, Weeks states the total cost of dredging procurements is approximately $800 million for two years. Thus, Weeks posits that the savings which the Corps projects will arise from the solicitation ($1,445,923 in savings for an $800 million contract) will only amount to 0.18% of the two-year cost of the procurement\u8212\'3ffar below \u8220\'3fsubstantial\u8221\'3f savings. File: 092 - Gear Wizzard Inc v US.doc, Paragraph with $: 2. There has not been an adequate showing that injunctive relief is necessary to avoid causing plaintiff irreparable harm. Plaintiff has alleged approximately $10,000.00 of costs incurred in submitting its offers and its Alternative/Source Approval Request Package. These costs may be recovered as bid preparation costs should plaintiff prove that the DSCC did not act in good faith in considering its offers. If plaintiff\rquote s shifter fork is or should have been approved, plaintiff would be a qualified bidder and would stand to lose its profits on the subject contract, thereby establishing irreparable harm. File: 095 - Akal Security Inc v US.doc, Paragraph with $: Def.\rquote s Resp. 35; Def.\rquote s Resp. App. 144 (Declaration of Sally Arnold, Contracting Officer at FPS) (noting ramp-up costs to the government of $25,567.16). Additionally, should the court grant plaintiff\rquote s Motion, plaintiff, as incumbent contractor, will continue to provide service, and, according to defendant, those services will cost more than the contract payments to DECO or SCG, an extra cost to defendant estimated at more than $68,000 a month. File: 097 - Academy Facilities Management v US.doc, Paragraph with $: IAP has the best, most comprehensive and sophisticated proposal of all three offerors. The IAP World Services offer is complete, realistic, and reasonable. Their price of $186,673,244 is well below the IGE. It is [deleted] lower than the number two ranked offeror, AFM.... [T]he SSAB believes that the IAP technical proposal is better than the AFM proposal in terms of the sophistication of the approach and some of the additional services offered. As a result of the better IAP Technical Proposal and the lower cost of the IAP proposal, the SSAB conclusion is that the additional cost to award the contract to AFM did not represent a best value to the Government and thus was not justified. File: 098 - California Human Development Corp v US.doc, Paragraph with $: Government formed binding contract to forego claim against Head Start grantee for $1 million in disallowances of close-out costs representing overruns of grant amount expended on modular facility and leasehold improvements and to negotiate close-out costs with grantee in good faith, in exchange for grantee relinquishing grant, since parties had mutual intent to contract, grantee\rquote s unambiguous counteroffer was accepted by grants officer who had authority to bind government by ratification due to his actual knowledge and acceptance of contract and negotiation and award of close-out costs, and consideration consisted of relinquishment of grant in exchange for foregoing claim. File: 098 - California Human Development Corp v US.doc, Paragraph with $: Government\rquote s refusal to reimburse Head-Start grantee for additional close-out costs, representing overruns of grant amount expended on modular facility and leasehold improvements, was not lack of good faith negotiations, as required by contract in which government agreed to forego claim against grantee for $1 million in disallowances of close-out costs in exchange for grantee relinquishing grant, since government never agreed to compensate grantee for any particular close-out costs, did not engage in any improper tactics while negotiating by give and take resulting in increased award of nearly 43% to grantee for costs that were beyond scope of original grant and disallowed by contract, and had not prejudged grantee\rquote s claim. File: 098 - California Human Development Corp v US.doc, Paragraph with $: The disputed close-out costs constitute overruns of the grant amount which Plaintiff expended in connection with the modular facility, including construction consulting fees, litigation costs and improvements to the leased premises, as well as settlement costs related to Plaintiff\rquote s disputes with former employees. Plaintiff has not established entitlement to these costs under its contract. The extent of the parties\rquote agreement here was limited. In exchange for the Government foregoing a claim for some $1 million in disallowances of funds expended under the grant, Plaintiff voluntarily relinquished its Head Start grant, and the Government agreed to negotiate the grant closeout costs with Plaintiff. Because Plaintiff did not prove that the Government failed to negotiate in good faith in denying these claimed costs, it has not established a breach of contract. As such, the Court enters judgment for Defendant on liability. File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with $: Nevertheless, the contracting officer has a duty to make a reasonable effort in ascertaining information to assist in making this determination. The GAO found the inquiry made by the Air Force to be reasonable, considering that the Air Force is obligated to make an affirmative determination under the FAR and given that the contract was for a renovation project that had an estimated cost of $5 to $10 million. File: 100 - RhinoCorps Ltd Co v US.doc, Paragraph with $: The contract had a ceiling of over $17 million. It covered labor, supplies, hardware, materials, travel, and other direct costs associated with the Nuclear Weapons and Counterproliferation Agency. File: 007 - RhinoCorps Ltd Co v US.doc, Paragraph with $: The contract had a ceiling of over $17 million. It covered labor, supplies, hardware, materials, travel, and other direct costs associated with the Nuclear Weapons and Counterproliferation Agency. File: 008 - RhinoCorps Ltd Co v US.doc, Paragraph with $: The contract had a ceiling of over $17 million. It covered labor, supplies, hardware, materials, travel, and other direct costs associated with the Nuclear Weapons and Counterproliferation Agency. File: 019 - Muldrow v Davis.doc, Paragraph with $: Blue Chip has adequately alleged a policy of the City, a policy for obtaining contractors on projects having a cost of $100,000. The allegations about how this policy was implemented, and its generally adverse effect upon Blue Chip, are clear. That this adverse effect upon Blue Chip was due to racial discrimination is not clear, but that will be addressed ahead. This aspect of the motion to dismiss is without merit. File: 019 - Muldrow v Davis.doc, Paragraph with $: While this part of the motion to dismiss considers only the potential liability of the individual Defendants, the point, that the complaint fails to allege sufficient facts, is well-taken and applies to the City as well. The gist of the Blue Chip complaint is that the City has a new program, to establish the qualifications of five contractors who might do work of a cost less than $100,000 for the City in the next four year period, and then to award contracts only to those pre-qualified contractors. Blue Chip has alleged that it has done contracting work for the City in the past, but was not named as one of the five pre-qualified contractors, and thus has been excluded. Blue Chip has also alleged that none of the five pre-qualified contractors that were selected are owned by black persons. This simply sets forth the injury to Blue Chip (that a \u8220\'3fbarrier\u8221\'3f has been imposed), but that is not enough. It does not set forth facts from which one might plausibly conclude that Blue Chip did not win a place on the list of five pre-qualified contractors because Plaintiff Muldrow is an African\u8211\'3fAmerican. For example, Blue Chip does not compare the qualifications of the five contractors who won places on the list to the qualifications of Blue Chip. Surely it is not Blue Chip\rquote s claim that it should have been one of the five because Plaintiff Muldrow is an African\u8211\'3fAmerican. To say that the criteria were \u8220\'3fsubjective\u8221\'3f is conclusory and formulaic. Blue Chip does not allege any other facts from which an inference of intentional racial discrimination may arise. File: 021 - Chaklos v Stevens.doc, Paragraph with $: Illinois State Police employees\rquote letter, which protested award of a $750,000 no-bid contract for forensic training services to an out-of-state provider and proposed that employees could provide the training services themselves, at lower cost, through their own corporation, addressed a matter of public concern, for purposes of employees\rquote \u167\'3f 1983 free speech claim, even though letter partially advanced and was motivated in part by employees\rquote personal interest; letter protested inefficient spending of public funds on a service contract, contended that the state could save money by soliciting competitive bids, and indicated that employees could save the state roughly $200,000. File: 021 - Chaklos v Stevens.doc, Paragraph with $: Whether Illinois State Police employees\rquote letter, which protested award of a $750,000 no-bid contract for forensic training services to an out-of-state provider but proposed that employees could provide the training services themselves, at lower cost, through their own corporation, was entitled to free speech protections, was not clearly established at time of employees\rquote suspension for violating secondary employment policy, so as to entitle State Police defendants to qualified immunity from \u167\'3f 1983 immunity, in light of the dual nature of the letter, which touched on a matter of public concern but also included a proposal on the part of employees to provide the services themselves. File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with $: The evaluated (adjusted) prices in the draft final report for the three offerors were as follows: EPW at $[price redacted]; SCA at $[price redacted]; FRC at $[price redacted]. AR Ex. D at ES\u8211\'3f2. The plaintiff argues that each of these offers were well under the government\rquote s $350 million cost estimate, but the government counters that that estimate was made before the solicitation was amended and split into two separate CLINs. The government also argues that DOE\rquote s FFTF Decision Table reflected that the cost of finishing CLIN 1 and then going to surveillance and maintenance would be the same for either the incumbent contractor or the winning small business: $46 million per year from 2008\u8211\'3f2010. File: 029 - FFTF Restoration Co LLC v US.doc, Paragraph with $: With regard to the plaintiff\rquote s argument that the small business offerors would have been more cost effective because their proposals were priced lower than the government\rquote s $350 million estimate, the court agrees with the government that the $350 million estimate, which was developed before the solicitation was amended to consist of two separate CLINs, AR 3, cannot meaningfully be compared to the proposals submitted in response to the amended solicitation. Moreover, the FFTF Decision Table reflects that the cost of completing only CLIN 1 would have been the same for a small business offeror as for the incumbent contractor: $46 million per year from 2008\u8211\'3f2010. AR 12. File: 032 - SP Systems Inc v US.doc, Paragraph with $: \u8221\'3f RFP at 119, AR Tab 7 at 000523. A \u8220\'3fsignificant subcontractor\u8221\'3f is \u8220\'3fany subcontract[or] and/or teaming partner whose proposed subcontract value exceeds $2M of the total proposed cost.\u8221\'3f RFP at 100, AR Tab 7 at 000504. The team partner whom SP Systems challenges, [* * *], was to perform services worth more than $2 million, and qualified as \u8220\'3fsignificant\u8221\'3f under the RFP. The RFP does not indicate that the past performance evaluation will be weighted based upon the percentage of the work to be performed, or whether the subcontractor\rquote s work is central to the overall contract. While the FAR states that a past performance evaluation \u8220\'3f File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: Labor cost recovery of $289,887.31 for aircraft company that brought successful post-award bid protest action, stemming from failed bid for Air Force contract to perform maintenance on tanker fleet, would be reasonable and allocable under Tucker Act; recovery would not include costs incurred while company was subcontractor, prior to time that it contemplated developing its own bid proposal. File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: Alabama Aircraft seeks to recover $1,343,569.77 it expended in labor costs in preparing its bid proposal for KC\u8211\'3f135 PDM contract. Pl.\rquote s Application at 3; Pl.\rquote s Reply at 1 n. 1. The declaration of Randall Shealy, Chief Financial Officer and Treasurer of Alabama Aircraft, explains how the company calculated its labor costs. Decl. of Randy Shealy at 3 (Oct. 28, 2008) (\u8220\'3fShealy Decl.\u8221\'3f). As the government notes, the exhibits attached to support and document Alabama Aircraft\rquote s labor costs are not \u8220\'3fcontemporaneous records of actual hours worked or costs actually incurred in this project.\u8221\'3f Def.\rquote s Resp. at 14. Due to the failure of Alabama Aircraft to submit contemporaneous records substantiating its request for bid preparation and proposal costs, the government requested that the Defense Contract Audit Agency (\u8220\'3fDCAA\u8221\'3f) audit Alabama Aircraft\rquote s application. File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: Specifically, Alabama Aircraft seeks to recover $491,774.62 in burdened labor costs for 2005, $561,907.41 in costs for 2006, and $289,877.31 in costs for 2007. Pl.\rquote s Application, Shealy Decl. Ex. B (Total Labor Costs); Walker Decl. at 3. Alabama Aircraft asserts that it began to work on the KC\u8211\'3f135 PDM contract \u8220\'3fin the second half of 2005,\u8221\'3f when it was a subcontractor on Boeing\rquote s proposal, \u8220\'3fand ended in the first half of 2007.\u8221\'3f Shealy Decl. at 2. Despite working as a subcontractor for Boeing, Alabama Aircraft contends that it \u8220\'3fwas responsible for preparing substantial portions of the ... joint proposal.\u8221\'3f Walker Decl. at 2. File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: As discussed previously, costs that Alabama Aircraft sustained when it was working as a subcontractor for Boeing are not properly recoverable as bid preparation and proposal costs. The government does not have to reimburse Alabama Aircraft for any \u8220\'3finternal expenses\u8221\'3f that it incurred prior to June 2006, when it began to develop its own individual proposal. Thus, Alabama Aircraft cannot recover the $52,498.01 of internal expenses that it incurred in 2005. File: 037 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: Alabama Aircraft cannot recover the $14,323.32 it paid Shipley Associates to attend the writing workshop because it is unable to demonstrate that the cost was \u8220\'3fincurred specifically for the contract.\u8221\'3f File: 038 - RhinoCorps Ltd Co v US.doc, Paragraph with $: The contract had a ceiling of over $17 million. It covered labor, supplies, hardware, materials, travel, and other direct costs associated with the Nuclear Weapons and Counterproliferation Agency. File: 049 - Wackenhut Services Inc v US.doc, Paragraph with $: Protester, which demonstrated success on the merits regarding specific issues in bid protest action, established that it would suffer irreparable harm if court did not grant injunction requiring federal agency to reevaluate the offerors\rquote proposals in accordance with Administrative Procedure Act (APA) requirements and applicable Federal Acquisition Regulations (FAR); without injunctive relief, protester would be deprived of the opportunity to compete fairly and equally for a $1.186 billion contract that could be extended to ten years in total at a potential cost of $1.62 billion. File: 049 - Wackenhut Services Inc v US.doc, Paragraph with $: In this case, the Government has awarded a $1.186 billion contract for a ten-year term that may be extended to ten years in total at a potential cost of $1.62 billion. File: 056 - Lumetra v US.doc, Paragraph with $: In their final revised proposals, submitted on July 24, 2008, Lumetra decreased its proposed QIO contract costs from $46,795,194 to $46,632,082, and HSAG increased its costs from $30,178,129 to $31,102,514. AR 90A\u8211\'3f4922 (Statement of the Contracting Officer). The TEP reviewed both proposals and assigned HSAG a mean technical score of 593.34, and Lumetra a score of 542.67. AR 72\u8211\'3f4633 (HSAG Score Sheet); AR 74\u8211\'3f4648 (Lumetra Score Sheet). File: 056 - Lumetra v US.doc, Paragraph with $: In its evaluation of the offerors\rquote proposed costs, the FMS found that HSAG had underestimated the costs of direct labor, subcontractors/consultants, travel, and other direct costs, AR 70\u8211\'3f4618 (Business Proposal Evaluation\u8211\'3fHSAG), while Lumetra had underestimated direct labor costs and overestimated travel and other direct costs. AR 69\u8211\'3f4605 (Business Proposal Evaluation\u8211\'3fLumetra). Despite these miscalculations, the FMS found only a slight difference between the two offerors\rquote proposed and projected actual costs: Lumetra would have to spend an estimated $714,518 more than initially proposed, File: 056 - Lumetra v US.doc, Paragraph with $: Given HSAG\rquote s higher technical score, HSAG\rquote s lower estimated cost, and the two offerors\rquote comparably realistic cost proposals, the lead for the FMS and the chairperson for the TEP recommended to the contracting officer that the ninth SOW contract for California be awarded to HSAG. 78\u8211\'3f4666 (Memo to Naomi Haney\u8211\'3fCeresa from Annette Kussmaul and David Russo, Award Recommendation (July 28, 2008)). This final recommendation noted that \u8220\'3fthe HSAG proposal was of higher technical merit. It would not otherwise benefit the government to spend the additional $15 million that Lumetra proposes to accomplish the work of the 9th SOW QIO File: 056 - Lumetra v US.doc, Paragraph with $: Consequently, CMS\rquote contracting officer determined that \u8220\'3fthe contractor proposal was underestimated by $448,273\u8221\'3f on direct labor costs, and adjusted HSAG\rquote s proposed costs to add that amount. AR 82\u8211\'3f4760 (Price/Cost Negotiation Memorandum). File: 065 - Alabama Aircraft Industries Inc-Birmingham v US.doc, Paragraph with $: This price differential was slightly over one percent of the projected $1.2 billion cost of the contract over its term, including option years. File: 002 - NCLN20 Inc v US.doc, Paragraph with $: The Audit reported that: NCLN20 returned certain contract items for credits in the amount of $16,408; leases of contract vehicles were terminated and the leased vehicles returned, reducing the net cost for the leases to $3,000; and that NCLN20 incurred a net cost of $46,856 in commencing the Michigan Guard Contract. File: 011 - International Salt Co LLC v City of Boston.doc, Paragraph with $: 13. The following day, February 8, 2005, William Hannon, the City Purchasing Agent, spoke by telephone with Thompson. Hannon told Thompson that the City was prohibited by the Massachusetts public bidding law from paying more than the contract price of $36.42 per ton. Thompson stated that ISCO\rquote s contractual obligations to the City would end once it had completed delivery of 75,000 tons of salt. Thompson insisted that because of increased shipping costs, ISCO could not agree to provide additional salt to the City at the $36.42 price. File: 024 - Serco Inc v US.doc, Paragraph with $: Under the Alliant Solicitation No. TQ2006MCB0001 (the Solicitation), individual task orders could range as high as $1 billion in value; successful offerors, however, are guaranteed a minimum take of only $2,500. Alliant offers a wide range of contract types, including fixed-price, cost reimbursement, labor-hour and time and material. File: 040 - Medical Matrix LLP v US.doc, Paragraph with $: On February 23, 2007, the VA awarded the contract to SXC, with performance to commence on March 1, 2007. In explaining this award, the VA found the two bidders roughly equal in their \u8220\'3ftechnical approach and past performance,\u8221\'3f noting that \u8220\'3f[t]here are no major strengths offered by either that vastly exceed the other. Both have the technical capability to perform the contract requirements. Both have demonstrated full understanding of the contract\rquote s requirements.\u8221\'3f Ultimately, the decision came down to the \u8220\'3fsignificant\u8221\'3f savings to the government offered by SXC\rquote s $60 million lower total price. The evaluator noted that the technical and past performance factors were \u8220\'3fessentially equal and thus cost became the most important factor[,]\u8221\'3f File: 043 - Masai Technologies Corp v US.doc, Paragraph with $: AR 140. Though the contracting officer has conceded that he used a dollar amount of $25,000 for the travel CLINs, in lieu of $75,000, this dollar figure was applied equally to both quotations, which resulted in an increased evaluated price for MTC (which had no dollars allocated for travel expenses) and a decreased evaluated price for Denysys (which had $60,000 allocated for travel expenses). In doing so, the contracting officer was following the evaluation criteria for the price proposals, as set forth in Amendment 0003. In making this limited adjustment to the travel CLINs, the contracting officer did not impermissibly adjust the firm-fixed-price portion of the quotations. Thus, MTC\rquote s argument that the award decision was based on improperly adjusted prices relating to travel costs must fail. File: 043 - Masai Technologies Corp v US.doc, Paragraph with $: The SSEB stated that \u8220\'3f[a]lthough the cost proposal for DENYSYS shows an annual increase of 3% as opposed to MTC showing an annual decrease of 3% the SSEB feels that the total package provided by DENYSYS outweighs the difference in cost over the possible three year life of the contract.\u8221\'3f AR 730. The SSA, in his Decision Memorandum, stated that \u8220\'3f[t]hus, the MTC proposal is $290,896.08 or 7.12% less than the Denysys proposal over the potential three-year performance period.\u8221\'3f AR 732. File: 044 - GASA Inc v US.doc, Paragraph with $: It is therefore requested that CT terminate the subject contract. The $100,000 obligated for this contract should be sufficient to cover the termination costs. File: 044 - GASA Inc v US.doc, Paragraph with $: On July 31, 2000, plaintiff sent another letter to the Corps that stated: \u8220\'3fAs discussed today, we are incurring expenses of $500,000.00 per month awaiting the Notice to Proceed. We were assured the notice was immediately forthcoming in June. To suspend or terminate the contract at this time will cost in excess of $3,000,000.00 due to equipment leasing commitments.\u8221\'3f File: 044 - GASA Inc v US.doc, Paragraph with $: We have involved the subject contractor in discussions on potential actions to delay or terminate the contract. We estimate that termination or delay will have a price tag in excess of $1.5 million. This is a significant loss on a construction contract with a base cost estimate of $6.4 million and an awardable option of $1.3 million. In addition, I would anticipate litigation with any proposal to terminate. File: 044 - GASA Inc v US.doc, Paragraph with $: In an April 28, 2006 letter, the contracting officer sought clarification of plaintiff\rquote s claims, DPFUF \u182\'3f 113, including when precisely plaintiff incurred the $284,417.20 in direct costs, Third Am. Compl. Ex. E at 6. Plaintiff provided the requested clarification in a May 16, 2006 letter, DPFUF \u182\'3f 114, including a confirmation that it incurred the requested direct costs between April 20, 2000, and August 14, 2000, Third Am. Compl. Ex. E at 9. The contracting officer rejected plaintiff\rquote s April 12, 2006 certified claim in its entirety on July 7, 2006. DPFUF \u182\'3f 115. File: 044 - GASA Inc v US.doc, Paragraph with $: Renewed Mot. Summ. J. 10\u8211\'3f13. Plaintiff presented its claim for $284,417.20 in direct costs to the contracting officer in its April 12, 2006 certified claim, indicating that \u8220\'3f[t]he amount represents costs associated with motorized equipment, equipment subcontractors, consulting fees, other rental costs, legal fees, miscellaneous expenses, communication expenses, and gas and oil costs.\u8221\'3f Third Am. Compl. Ex. E at 3; File: 044 - GASA Inc v US.doc, Paragraph with $: Mr. Moscatiello subsequently indicated that he did not remember who told him that the issuance of the NTP \u8220\'3fwas immediately forthcoming in June,\u8221\'3f but was certain that it was not Mr. Thomas. DPFUF \u182\'3f 39. Mr. Moscatiello also indicated, after-the-fact, that the $500,000.00 figure for incurred monthly expenses was a \u8220\'3fballpark figure\u8221\'3f and that the $3,000,000.00 figure for contract termination or suspension costs also was a \u8220\'3fballpark figure\u8221\'3f that included \u8220\'3fanticipated profits and expense incurred at that point\u8221\'3f and \u8220\'3floss of opportunities.\u8221\'3f File: 044 - GASA Inc v US.doc, Paragraph with $: Def.\rquote s App. 21. Pursuant to the contract, plaintiff could only recover the following direct costs: $47,721.00 for the reimbursement of the payment and performance bonds and $250,000.00 for mobilization and demobilization costs. File: 047 - L-3 Communications Integrated Systems LP v US.doc, Paragraph with $: In this post-award bid protest, L\u8211\'3f3 Communications Integrated Systems, L.P. (L\u8211\'3f3) challenges the Air Force\rquote s award of two contracts to Lockheed Martin Aeronautics Company (Lockheed Martin) to modernize the C\u8211\'3f5 Galaxy aircraft (C\u8211\'3f5 AMP) and seeks its bid preparation and proposal costs of $2,564,397. File: 053 - Weeks Marine Inc v US.doc, Paragraph with $: \u8220\'3funacceptable based on the cost and time requirements and limitation of resources within SAD to execute the magnitude of these contracts in a timely manner to meet our customers\rquote needs.\u8221\'3f AR 52. The Acquisition Plan, however, fails to support this conclusion with any findings or evidence. For example, SAD fails to cite any instances where the use of sealed bidding resulted in untimely project completion. With regard to administrative costs, the record shows that SAD incurred $2,183,949 using sealed bidding during the past two years, representing .29 percent of the $750 million in total procurement dollars. File: 053 - Weeks Marine Inc v US.doc, Paragraph with $: SAD asserts that IDIQ task order contracting will result in a forecasted savings of $1,445,923 in agency administrative costs for a two-year period. AR 18. The Administrative Record, however, contains no evidence of how this savings is calculated or how it will occur. SAD alleges that its workload \u8220\'3fhas significantly increased over the years\u8221\'3f and concludes that \u8220\'3fin order to achieve the mission\u8221\'3f it must reduce administrative costs. File: 053 - Weeks Marine Inc v US.doc, Paragraph with $: SAD calculates its estimated savings by alleging that each Invitation for Bids (\u8220\'3fIFB\u8221\'3f) costs the agency $15,489, while each task order will cost the agency only $4,366. AR 18. The agency calculates these numbers by using hours and rates for contract specialists and contracting officers. File: 053 - Weeks Marine Inc v US.doc, Paragraph with $: Even if the alleged $1,445,923 in administrative savings is accepted, this relatively modest dollar amount is not a sufficient justification for a change to IDIQ task order contracting. Defense FAR Supplement (\u8220\'3fDFARS\u8221\'3f) \u182\'3f 207.170\u8211\'3f3(ii) states that: \u8220\'3f[s]avings in administrative or personnel costs alone do not constitute a sufficient justification for the consolidation of contract requirements unless the total amount of the cost savings is expected to be substantial in relation to the total cost of procurement.\u8221\'3f SAD\rquote s alleged cost savings of $1,445,923 for two years represents roughly .18 percent of the $800 million in estimated procurement costs for a comparable period, far below the \u8220\'3fsubstantial\u8221\'3f cost threshold set forth in the regulation. Defendant\rquote s characterization of the administrative savings as \u8220\'3fsignificant\u8221\'3f is not credible. Def.\rquote s Motion at 19. File: 059 - Geo-Seis Helicopters Inc v US.doc, Paragraph with $: (\u8220\'3f[O]verhead costs, including workers\rquote compensation and fringe benefits, have been awarded as bid preparation costs when shown to be reasonable and allocable to the contract.\u8221\'3f). As the amounts sought are both reasonable and allocable, Geo\u8211\'3fSeis is awarded $56,526.66 for labor costs. File: 064 - Westech Intern Inc v US.doc, Paragraph with $: Plaintiff first asserts that the NNSA erred by making upward adjustments to its proposed costs in the amount of $2,843,725. Pl.\rquote s Mot. 15. Specifically, plaintiff claims that five areas were adjusted over the length of the contract by the NNSA without a rational basis: (1) an increase of [ ] for adding 0.8 FTE File: 064 - Westech Intern Inc v US.doc, Paragraph with $: Plaintiff\rquote s Motion notes that the total of these five increases is approximately $196 less than the NNSA\rquote s total probable cost for Westech\rquote s proposal, AR 1853, and the difference is likely the result of the NNSA\rquote s use of a higher overhead rate for contract year 2007 than for the remaining years of the contract. Pl.\rquote s Mot. 18 n. 6; File: 066 - HWA Inc v US.doc, Paragraph with $: Similarly, FPS obtained past performance information on four contracts performed by HWA. AR 540. According to the FPS evaluation summary, the National Archives and Records Administration rated HWA\rquote s performance on a contract worth $917,964 per year as [* * *] and the Federal Emergency Management Agency gave HWA a rating of \u8220\'3f[* * *] in \u8216\'3fthe ability to alert Government of unforeseen costs before they occur\u8217\'3f \u8221\'3f on a contract worth $392,282. File: 066 - HWA Inc v US.doc, Paragraph with $: The third factor evaluated by FPS was price. As part of this evaluation, an independent government cost estimate was prepared, with a total estimate of a reasonable contract price of $[* * *]. AR 507\u8211\'3f11, 543. The price in WSI\rquote s proposal was $85,067,300.51, the second-lowest of the eight proposals received. File: 066 - HWA Inc v US.doc, Paragraph with $: In addition, HWA identified two additional contracts for which it suggested FPS obtain information regarding its past performance, one for the National Archives and Records Administration (\u8220\'3fNARA\u8221\'3f) at the Harry S. Truman Library in Independence, Missouri, and one for the Federal Emergency Management Agency (\u8220\'3fFEMA\u8221\'3f) in Bothell, Washington. AR 1061\u8211\'3f62. HWA did not submit completed questionnaires for these contracts, but FPS contacted HWA\rquote s references and determined that \u8220\'3f[o]n a $917,964 [per year] effort, NARA rated HWA as [* * *] throughout,\u8221\'3f and that \u8220\'3f[o]n a $392,282 effort, FEMA rated HWA as [* * *] in \u8216\'3fthe ability to alert Government of unforeseen costs before they occur.\u8217\'3f \u8221\'3f AR 540. File: 066 - HWA Inc v US.doc, Paragraph with $: In addition, the statement at AR 546\u8211\'3f47 regarding HWA\rquote s past performance is entirely rational and reasonable. The independent government cost estimate of the work to be performed under RFQ 62949 was over $[* * *] million, or $[* * *] million per year. HWA\rquote s own price quotation was for $[* * *] million, or approximately $[* * *] million per year. The past performance information HWA supplied was for contracts of $400,000 per year, $900,000 per year, $3.5 million per year, and $12 million per year. Three of these amounts are clearly \u8220\'3fsignificantly smaller\u8221\'3f than the $[* * *] million or $[* * *] million per year involved in the contract at issue. File: 073 - Professional Services Group Inc v Town of Rockland.doc, Paragraph with $: City was entitled to damages from water treatment company who secured contract to operate city wastewater treatment facility for alleged unfair and deceptive procurement practices under Massachusetts law in the amount of $116,250, the cost to conduct a new procurement and the cost of the forensic audit; conducting an audit and a new procurement was reasonable once the collusion was discovered. File: 073 - Professional Services Group Inc v Town of Rockland.doc, Paragraph with $: Second, Sause proposed a provision that would require all firms to bid a minimum of $400,000 for the labor component of the contract. The labor rebate account was one of four accounts totaling $590,000\u8212\'3fnearly five times the rebatable money under the 1994 contract. I will discuss \u8220\'3frebate accounts\u8221\'3f later. Sause knew that this provision (unprecedented in the industry) would stifle competition by requiring a minimum bid for labor, the single largest cost of operating the plant. Concerned that competitors would question the provision, Sause told Thomson that they should get the advance blessing of the Inspector General\rquote s Office. Thomson agreed. Significantly, Sause also discussed the minimum labor bid idea with his boss, Steve Kruger, before it was put into the RFP. Kruger approved the idea although he knew it would stifle competition in the bidding process. Sause drafted a letter in Thomson\rquote s name seeking clearance for the minimum labor bid, claiming (falsely) that the plant needed ten workers. An agreement with the Department of Environmental Protection provided that the plant only needed eight workers. The plant has never had ten workers (up until the time of trial, or since). Thomson signed the letter and sent it on Sewer Commission stationery. The proposal was approved by the Inspector General. File: 073 - Professional Services Group Inc v Town of Rockland.doc, Paragraph with $: As a result of the Inspector General\rquote s recommendation, and what the forensic accountant had reported to it, the Town terminated the contract with PSG, which it did by letter dated April 9, 2004. An engineering firm, Camp Dresser & McKee, was hired to conduct a new procurement in place of the 1997 procurement. The contract to operate the sewer plant was subsequently awarded to another company, Aquarion. The new procurement cost the Town $80,000. File: 077 - Chaklos v Stevens.doc, Paragraph with $: ISP follows the State of Illinois Department of Central Management Services (CMS) procedures for determining whether a contract for services should be opened for competitive bids or \u8220\'3fsole sourced.\u8221\'3f These procedures call for competitive bidding unless the Procurement Officer determines that there is only one economically feasible source able to meet the requirements of the contract. Craig Allen (Allen), ISP\rquote s Procurement Officer believed that the training contract should be competitively bid. Nevertheless, on or about March 22, 2004, Allen was informed that the Director of ISP, on the recommendation of the forensic science command, had decided that the contract would be sole sourced to NFSTC, rather than put up for bid. The cost to the State of Illinois for the contract would be nearly $750,000. Allen, as an ISP officer, was bound to follow the Director\rquote s order. However, Allen and purchasing and accounting section manager, Michael Yokley (Yokley), were concerned about Sheppo\rquote s possible conflict of interest arising from his position with NFSTC. Yokley forwarded his concerns up the chain of command. File: 082 - CHE Consulting Inc v US.doc, Paragraph with $: The supplement to the Administrative Record contains a cost benefit analysis, weighing the potential cost savings from splitting the maintenance work into two contracts against the perceived risks of two contracts. NAVO and GSA determined that the additional costs of acquiring a single contract for both hardware and software maintenance would be $[* * *] annually, or $[* * *] per day. AR 404\u8211\'3f08. The analysis concluded that \u8220\'3f[i]f the center is down more than [* * *] year, the loss to the center would exceed any potential cost savings of a split approach.\u8221\'3f AR 406. Moreover, the agencies noted that any increased risk of injury or loss of life that might arise from increased downtime would not be in the Government\rquote s best interests even with a cost savings. File: 084 - Scott v US.doc, Paragraph with $: Affidavit of Margaret A. Jones, July 26, 2007, at 1. Ms. Jones concludes that the remaining Solicitation provisions call for approximately 275 employees, many with specialized skills and experience and a security clearance, and would cost the contractor approximately $38.5 million over a twelve month duration. File: 084 - Scott v US.doc, Paragraph with $: Plaintiff\rquote s showing does not establish that he has a substantial chance of contract award, even if the allegedly illegal provisions are removed from the Solicitation. The Solicitation involves a complex undertaking, requiring expertise in operation in a foreign locale thousands of miles distant from the United States; specific types of equipment and personnel; and an ability to finance much of the startup costs without the benefit of an advance payment, which was not authorized by the Solicitation. Plaintiff does not adduce any history of experience completing any of the required tasks in the Solicitation, nor does he show that he has the ability effectively to finance this endeavor. At present he is performing two contracts, which he values at $140,000.00 and $27,000.00, for domestic work that involves furnishing of PC technicians and site-improvement installments, including a shade structure and fence. File: 090 - Wright v Foreign Service Grievance Bd.doc, Paragraph with $: (\u8220\'3f[A] claim is not for money merely because its success may lead to pecuniary costs for the government or benefits for the plaintiff.\u8221\'3f). Plaintiff in this case seeks only a declaratory judgment invalidating his government contract, which might later result in an award of back pay. Although the Court of Federal Claims possesses exclusive jurisdiction over contract actions by federal employees seeking damages over $10,000 from the United States, the Court of Federal Claims cannot order equitable relief in a contract action\u8212\'3fsuch as rescission\u8212\'3fmerely because such relief might lead to some monetary recovery. As the Supreme Court has explained, courts must distinguish \u8220\'3fbetween an action at law for damages\u8212\'3fwhich are intended to provide a victim with monetary compensation for an injury to his person, property, or reputation\u8212\'3fand an equitable action for specific relief\u8212\'3fwhich may include an order providing for the reinstatement of an employee with back pay.\u8221\'3f File: 092 - Geo-Seis Helicopters Inc v US.doc, Paragraph with $: As of May 30, 2007, of the $[* * *] expended, Presidential had only billed the Sealift Command for $[* * *] because Presidential\rquote s compensation under the contract is based in part on the number of hours the helicopters fly and Presidential bills the Command at the end of each month after tallying the monthly flight hours. Tr. 96:12 to 97:9 (Test. of Phillips) (May 30, 2007). Presidential thus has pre-funded sunk costs that are recovered gradually over the course of its contract with the Sealift Command. File: 006 - Barr Inc v Town of Falmouth.doc, Paragraph with $: Where amount-in-controversy requirement for diversity jurisdiction was satisfied at time of filing of complaint, by unsuccessful bidder\rquote s prayer for relief seeking to enjoin execution of $6 million public construction contract, diversity jurisdiction was not lost when injunctive relief claim was mooted and bidder amended its complaint to seek $16,400 in bid preparation costs. File: 034 - Brown And Pipkins LLC v US.doc, Paragraph with $: the SLA\rquote s offer of $40,723,007, which reflects only a 2% increase over the incumbent\rquote s total estimated contract cost, is considered reasonable and award is authorized in accordance with the RSA preference established in the solicitation. File: 034 - Brown And Pipkins LLC v US.doc, Paragraph with $: The Plaintiff has not challenged the IGE, nor has it made any argument that the price of $41.7 million, in and of itself, is an unreasonable cost for the services provided. Nowhere in Plaintiff\rquote s papers is there the suggestion that the contracting officer\rquote s reliance on the IGE, and on the incumbent\rquote s price, as factors in determining reasonableness, was arbitrary and capricious. File: 034 - Brown And Pipkins LLC v US.doc, Paragraph with $: [The] SLA\rquote s proposed pricing was unclear and its proposal was defective because the SLA: (1) did not total proposed hours; (2) apparently did not include contractor furnished material costs of $1,200,000 in the total proposal amount; and (3) did not show the computation of fee in its summary breakdown per year or by building. As a result, the Army could not tell what the SLA\rquote s proposed price really was (other than to know it was at least $5.67 million higher than B & P\rquote s.) B & P believes that such errors in a proposal render the proposal non-responsive. File: 046 - Idea Intern Inc v US.doc, Paragraph with $: The Court also must consider as part of the public interest that DoDEA has paid ICATT nearly $1.6 million under the contract to date. If the Court were to enjoin further performance of ICATT\rquote s contract, the agency would need to negotiate a price with IDEA for the remainder of the school year, or conduct an expedited resolicitation, either of which likely would cost the Government significantly more than ICATT\rquote s current contract price. By completing the ICATT contract, the Government will realize a savings. File: 056 - RJB Properties Inc v Board of Educ of City of Chicago.doc, Paragraph with $: Between 1993 and 2000, the Board awarded RJB more than $18 million in milk contracts to provide milk to the Chicago Public Schools (CPS). On January 31, 2000, the Board\rquote s Office of the Inspector General (OIG) interviewed Blackstone, specifically inquiring about RJB\rquote s role as a prime contractor and as a minority business enterprise (MBE) subcontractor for Nick\rquote s Dairy Service, another one of the Board\rquote s milk providers. According to the OIG\rquote s interview summary, Blackstone admitted that his company was not a dairy, owned no milk delivery trucks, milk drivers, or milk storage facilities, and merely acted as a broker for other companies. To bid on milk contracts, Blackstone said that he contacted Chicago-area dairies, obtained a quote for milk, and contacted a distributer to determine a price for shipping costs. Based on these price quotes, he calculated and submitted a bid price. File: 066 - Daewoo Engineering and Const Co Ltd v US.doc, Paragraph with $: Daewoo\rquote s requests for equitable adjustments appear to be based on the difference between the amount plaintiff allegedly thought the job would cost and what it might cost at some time in the future. The contractor hired an expert after having certified and filed its claims. The expert changed Daewoo\rquote s method of calculating damages to a \u8220\'3fmeasured mile\u8221\'3f approach and reduced the amount of the certified claim by approximately $22 million. In other words, plaintiff asked an expert to review its claim and make recommendations. The expert used a different method of calculating the claim and reduced it by almost one-third. Daewoo did not amend its claims or its complaint, however, or notify the contracting officer of the changes. File: 066 - Daewoo Engineering and Const Co Ltd v US.doc, Paragraph with $: The \u8220\'3fpart of [the] claim\u8221\'3f that is fraudulent without question is $50,629,855.88. Plaintiff\rquote s authorized official certified this claim and presented it to the contracting officer as costs \u8220\'3fto be incurred after December 31, 2001.\u8221\'3f The certifying official, Mr. Kim, testified that he submitted the claim to get the Government\rquote s attention. He wanted the Corps to know how much it would cost the Government if Mr. Morrison did not approve the new compaction method that plaintiff preferred. Plaintiff\rquote s counsel acknowledged that Daewoo\rquote s purpose was to insure that the Corps would approve the new method sooner rather than later. \u8220\'3fDaewoo\rquote s suggestion that the Government expedite a previously approved and validated alternative embankment placement method is a reasonable request that served the projects best interests....\u8221\'3f Daewoo used a certified claim to \u8220\'3fsuggest\u8221\'3f that the Government change the method of compaction required by the contract that plaintiff bid on and won, to save plaintiff money. File: 066 - Daewoo Engineering and Const Co Ltd v US.doc, Paragraph with $: As discussed elsewhere, the total amount of the claim has been a moving target. Page 9, \u182\'3f 32 of the Complaint recites the damages included in its March 29, 2002 claim to the contracting officer \u8220\'3fwherein it requested damages for the added costs incurred from October 13, 2000 through December 31, 2001, in the amount of $13,348,793.07 and for the added costs incurred File: 066 - Daewoo Engineering and Const Co Ltd v US.doc, Paragraph with $: Paragraph 32 of the complaint recites the damages included in its March 29, 2002 certified claim to the contracting officer. The complaint effectively incorporates the claim by reference, describing the claim as having \u8220\'3frequested damages for the added costs incurred from October 13, 2000 through December 31, 2001, in the amount of $13,348,793.07 and for the added costs incurred and to be incurred after December 31, 2001, in the amount of $50,629,855.88, for a total monetary damage claim of $63,798,648.95.\u8221\'3f Daewoo\rquote s claim also included a request for an additional 928 calendar days to complete the contract work \u8220\'3fresulting from delays beyond Daewoo\rquote s control and without its fault or negligence.\u8221\'3f File: 074 - Automation Technologies Inc v US.doc, Paragraph with $: , J., held that cost savings estimated at $103,196.27 per month between September 1 and November 20, 2006, was an insufficient basis to support override of automatic stay of contract performance. File: 074 - Automation Technologies Inc v US.doc, Paragraph with $: Customs\rquote D & F in the present case estimates that proceeding with task orders under the DTI contract, rather than awaiting the GAO\rquote s decision, would save $103,198.27 per month. This is about the same cost savings deemed insufficient to support an override by the court in File: 074 - Automation Technologies Inc v US.doc, Paragraph with $: This court, however, does not conclude that cost savings and other improvements can never be a sufficient basis to support an override. Override cases are necessarily fact dependent. Customs\rquote estimated $103,196.27 per month cost savings, between September 1 and November 20, 2006, in the context of an anticipated five-year, $49,500,00.00 contract, with options, is an insufficient basis to support an override, given the other facts of the case before the court. File: 079 - KSD Inc v US.doc, Paragraph with $: \u8221\'3f (emphasis in original). In addition, Mr. Griffin requested information concerning \u8220\'3fpotential sources seeking qualification prior to any option exercise.\u8221\'3f On April 3, 2001, three weeks later, Ralph Massey, an SBA Procurement Center Representative, sent a memorandum to Mr. Griffin which stated that the \u8220\'3fFat Boy\u8221\'3f contract would result in the Army \u8220\'3ffor all practical purposes, be using this sole source buy to repay Boeing/McDonnell [somewhere between $15M and $20M] for their Non\u8211\'3fRecurring Engineering costs for both the development and qualification testing File: 079 - KSD Inc v US.doc, Paragraph with $: from Ralph Massey, the Small Business Administration\rquote s Procurement Center Representative. In the 2001 memorandum, Mr. Massey stated, concerning the \u8220\'3fFat Boy\u8221\'3f procurement: \u8220\'3fIt appears that the Army will, for all practical purposes, be using this sole source buy to re-pay Boeing/McDonnell [somewhere between $15M and $20M] for their Non\u8211\'3fRecurring Engineering costs for both the development and qualification testing of the new strap assembly.\u8221\'3f (bracketed language in original). Thus, KSD argues that the government, and a SBA official, acknowledged that Boeing did not develop the \u8220\'3fFat Boy\u8221\'3f at private expense, \u8220\'3fand that Boeing was to be paid for the development costs after AMCOM issued the sole source contracts to Boeing.\u8221\'3f The government, however, dismisses the Massey memorandum, stating: \u8220\'3fGiven his [Mr. Massey\rquote s] responsibilities, it is hardly surprising to learn that AMCOM\rquote s representative for small business concerns would oppose implementation of a commercialization initiative in a case where a large firm is willing to risk substantial sums of money on its own research and development.\u8221\'3f Additionally, the government argues that Mr. Massey overestimated the price for the \u8220\'3fFat Boy\u8221\'3f strap pack to be $15,000.00, when it was actually [deleted]. Finally, the government argues that even if Mr. Massey believed that the MDHC sole source contract was inappropriate, he nevertheless approved the procurement of the \u8220\'3fFat Boy\u8221\'3f strap packs through sole source procurement in 2001 and again in 2005. File: 079 - KSD Inc v US.doc, Paragraph with $: In arguing that the contracting officer violated CICA by certifying that the J & A was accurate, KSD summarily argues that \u8220\'3fAMCOM knew it was \u8216\'3fusing this sole source buy to re-pay Boeing/McDonnell [somewhere between $15M and $20M] for their Non\u8211\'3fRecurring Engineering costs for both the development and qualification testing of the new strap assembly.\u8217\'3f \u8221\'3f (bracketed language in original). KSD argues that the contracting officer\rquote s certification that Boeing developed the \u8220\'3fFat Boy\u8221\'3f strap pack completely at private expense is contrary to what AMCOM acknowledged the case to be. KSD argues, therefore, that the contracting officer\rquote s actions violated File: 090 - Fort Carson Support Services v US.doc, Paragraph with $: Contracting agency adequately articulated basis for its contract award in its source selection decision document when it explained that contract awardee\rquote s substantially better past performance and experience more that offset losing bidder\rquote s slightly better management subfactor proposal, and that $11 million dollar difference between proposed costs of awardee and losing bidder was mostly attributable to losing bidder\rquote s understaffing, which it considered detrimental; moreover, agency articulated the benefits it received in return for a higher price. File: 090 - Fort Carson Support Services v US.doc, Paragraph with $: AR Tab 78. Five days later, the Army Contracting Agency approved the award. AR Tab 79. Pre-award notification letters were sent to the unsuccessful offerors on August 26, 2004. AR Tab 81. On September 1, 2004, the contract was awarded to FCSS. AR Tab 85. That same day, post-award notification letters, which also served as written debriefings, were sent to the unsuccessful offerors. AR Tab 87 (letter to KIRA), Tab 88 (letter to TGG). Each letter briefly informed the unsuccessful offeror of the strengths, significant weaknesses, and deficiencies of that offeror\rquote s proposal and revealed its MPC. The letters also explained that FCSS\rquote s \u8220\'3fproposal received significantly higher ratings in the Quality factor, showing greater understanding of the requirements, better attention to detail, and more innovations than any of the other proposals.\u8221\'3f AR Tabs 87, 88. Perhaps most significantly, the letters revealed FCSS\rquote s MPC of $204,301,121, and identified FCSS\rquote s proposed cost to be $165,766,025. File: 090 - Fort Carson Support Services v US.doc, Paragraph with $: Even though the base period for the contract was shortened from one year to four months, the Most Probable Cost of the FCSS proposal, as calculated by the Army, increased by $ 4.3 million over the prior determination. The bulk of this increase was due to the treatment of \u8220\'3fOther Direct Costs,\u8221\'3f a category of costs that had been completely removed for all offerors in the first round. File: 090 - Fort Carson Support Services v US.doc, Paragraph with $: \u167\'3f M.2.3.6.1 AR Tab 7 at 51. The variance of FCSS was calculated to be $32.7 million over the life of the contract, and 15.7% of the FCSS proposal\rquote s probable cost\u8212\'3fmuch higher than the other two offerors. File: 093 - Advanced Systems Development Inc v US.doc, Paragraph with $: The direct costs savings, $462,054 per month, reaped by WHS through performance of the consolidated contract during the override period pending GAO\rquote s decision and, if necessary, the time required to reevaluate the proposals, significantly outweighs the potential termination for convenience costs. This net positive cost savings coupled with the enhanced performance benefits for the IT systems supporting the Secretary of Defense and other Pentagon-based agencies make it in the nation\rquote s best interests to continue contract performance pending the ASD protest. File: 093 - Advanced Systems Development Inc v US.doc, Paragraph with $: Quite apart from the procedural and legal infirmities of this after-the-fact expansion of the original justification, we have problems with the math. First, as Plaintiff points out, the calculation of the monthly savings of $462,000 is based on facts not found in the administrative record\u8212\'3fthat is, the cost of the individual contracts. The agency\rquote s projected costs of re-transition, in the event of a successful protest, are between $28,000 and $58,000. This wide-ranging figure is also not explained or referenced in the administrative record; we have only the conclusory statements of Mr. Cox in a single paragraph of his declaration. Cox Decl. at \u182\'3f 14. In contrast, there is no figure provided for the projected contract termination costs. In estimating the potential cost of an override in the event the GAO protest is successful\u8212\'3fand the KENROB contract is necessarily terminated for the convenience of the Government\u8212\'3fWHS must calculate the exposure to compensate KENROB. File: 008 - Comprehensive Health Services Inc v US.doc, Paragraph with $: AR 607. Consequently, the SEB estimated that CHS\rquote s probable cost would be approximately $200,000 more than Wyle\rquote s probable cost over the ten year contract. File: 027 - CIGNA Government Services LLC v US.doc, Paragraph with $: The override decision asserts that the delay will cost Defendant over $5 million in anticipated savings for FY 2006. However, the untitled document in the AR which Defendant and Intervenors cite as support for the savings shows $5 million in savings for a switch from the DMERC contractors to the DME MAC contractors for the File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: WMATA estimated the cost for this contract at $47,282,000. It also set two periods of performance for the distinct parts of the contract: Part I was slated for 1000 days after receipt of the NTP for the project, while Part II was set for 1190 days after receipt of the NTP for that part of the contract. SAF No. 112. After opening the bidding on February 12, 1986, WMATA received the lowest responsive bid from M/P. SAF No. 113. Thus, on April 1, 1986, WMATA awarded this contract to M/P for the firm-fixed price of $44,298,000. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: M/P did not submit a cost proposal for CPN 002 until November 20, 1986, requesting a contract price adjustment of almost $1.12 million and a 92-day time extension. Def. Ex. 240. In that proposal, M/P claimed $192,246 in inefficiency costs (non-direct), Def. Ex. 62, at 47, which M/P described as \u8220\'3fcosts which arose from working in the smaller work areas necessary to maintain 4 lanes of traffic in Rhode Island Avenue.\u8221\'3f SAF No. 607. These included inefficiencies in installing soldier piles and decking and relocating the S-3 sewer, the W-2 and W-4 watermains, and the E-5, E-4, and E-2 electrical ductbanks. Def. Ex. 62, at 52. M/P also claimed almost $60,153 in direct costs of maintenance of traffic activities associated with additional traffic switches under Rhode Island Avenue. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On July 5, 1988, the Contracting Officer issued Modification No. 16, which covered only PCO 031/CPN 035 for the grouting under Peoples Drug Store during the inbound tunneling operations. Pl.Ex. 225. While this modification acknowledged a change in the contract in the amount of $183,256, it did not change the contract time. Despite the January 1988 agreement between M/P Business Manager Mr. Bradford and WMATA negotiators that M/P would reserve the right to claim additional costs due to impact, inefficiency, time, and extended performance, the modification included language that stated that the terms \u8220\'3fconstitute a full accord and satisfaction for all costs and time of performance.\u8221\'3f File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Despite these negotiations, M/P filed the present lawsuit on April 18, 1989. M/P\rquote s complaint alleged that WMATA had materially breached the Shaw Station contract by failing to take action to resolve over $7 million in claims and the requests to extend the schedule for the subject construction contract. With regard to CPN 002 on Shaw, M/P alleged that WMATA never negotiated with M/P over the costs asserted in that claim for which all additional work and costs were incurred between November 1985 and June 1986. On CPN 139, M/P alleged that no negotiations had been scheduled. Based on these alleged breaches by WMATA, M/P claimed the right to stop work on the Shaw Station contract and sought direct and consequential damages of $18.5 million, even though it had submitted only $7 million in claims. M/P made no allegations of breach with respect to WMATA\rquote s processing of claims for the U Street Station job. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: At the next meetings on August 16 and 18, 1989, the parties continued their discussions on and revisions to the revised schedule. M/P\rquote s Mr. Diehl reviewed each milestone date for achievability, approving a final set of milestone dates. Mr. Bradford also distributed a disbursement plan at the August 18th meeting, which included the installment dates for the $4.3 million payment and identified what portions of the installments would be allocated by M/P to payroll, equipment, suppliers, subcontractors, debt service, and other items. The plan also anticipated that the first full payment for work performed under the new schedule would be received by October 1, 1989, at which time regular contract payments would cover the cost of the remaining work, augmented by periodic additional payments as past claims and proposals are resolved. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: This revenue forecast showed $13,556,527.40 remaining in the two contracts and an estimated cost to complete of $19,565,274.40, leaving a revenue shortfall of approximately $6 million (exclusive of past due payables). This shortfall was caused in part by the number of work items in the M/P schedule that were underfunded. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: As of May 1990, very little of the restoration work had been performed and there was still a great deal of money already in the contract to continue funding the Fort Myer work as performed. Retr. 10/3/2001, at 2018-19, 2023. M/P had not used most of the money included in its cost-loaded schedule for restoration work at the two project sites, spending no more than $660,000 of the $2.15 million for Shaw Station and none of the $1.1 million for U Street Station. Pl.Ex. 512. After receiving a permit for the full block closure on 7th Street between R and S Streets, M/P initially made some progress but lapsed into inactivity and was a long way from completion at the time of termination. Tr. 12/16/1991, at 59-60. Regardless, WMATA allowed and approved the funding of Fort Myer work using contract funds as the work was actually performed. Indeed, due to the lack of progress, WMATA never had to obtain board approval to increase the total contract price to continue to fund the restoration work being performed by Fort Myer. Tr. 12/2/1991, at 170-72, 174-75. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: WMATA never determined a specific amount to increase the funding of the overall contract due to the nature of M/P\rquote s proposal, which included improper efforts to inflate the amount of money it was owed. For example, M/P was to set forth the amount in its bid for the work, and the contract would be increased to reflect the delta between that bid price and the cost of having Fort Myer do the work. However, M/P\rquote s proposal for the work incorporated Fort Myer\rquote s bid price and inappropriately added an additional profit and various indirect costs to increase the delta. P.Ex. 617, at 4. In addition, as revealed by a WMATA audit, M/P appears to have misstated its own bid, using a figure to represent its \u8220\'3fbid\u8221\'3f that was far lower than the actual bid price set forth in M/P\rquote s conformed bid and showed that M/P had always intended to subcontract the work. Def. Ex. 1317, at 1; D. Ex. 1320, at 1, 6. The total audit adjustments were $621,994 on the total proposed \u8220\'3fdelta\u8221\'3f claimed by M/P of $1,114,967. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On November 6, 1989, WMATA agreed that a change to the contract was warranted and assigned the PCO number. Pl.Ex. 606, at 14. M/P submitted a time and cost claim for $478,863 in late December, which included a delay of 50 work days and approximately $24,000 in direct costs. While WMATA did pay M/P\rquote s direct costs associated with this PCO, Def. Ex. 1830, its internal time analysis recommended no time extensions to Part I and Part II completion milestones despite acknowledging a total work day delay of 80 days. Pl.Ex. 606, at 6. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: PCO 090 involved concrete gutters for the Shaw Station job, work that could have proceeded concurrently with the expanded restoration work, Tr. 1/17/1992, at 136, and that was known by the parties before the August 1989 Agreement was formed. Def. Ex. 1271, at 113-14. The installation of concrete gutters is additional work performed side-by-side as part of the sequence of other restoration work on the block, requiring additional operations at the site without adding to the total time needed to complete the work. Retr. 10/3/2001, at 2028-30. M/P now claims entitlement to an additional extension of time, amounting to $327,000. Retr. 9/28/2001, at 1460. However, M/P never submitted a separate PCO 090 proposal during the contract term. The direct costs for the Shaw Station concrete gutters were actually submitted as part of PCO 071. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Finally, PCO 025 involved concrete gutters and granite curbs for the U Street Station project, Pl.Ex. 562, work that M/P never began. Retr. 9/21/2001, at 903-04. M/P did submit this proposal, claiming a total direct cost of the work of $134,644 in subcontract payments to Fort Myer. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: at 3. Mergentime and INA agreed to this stipulation as well. Def. Ex. 1392, at 1. Perini completed the contracts more than a year and a half later and at an additional cost to WMATA of over $16 million. Def. Exs.1981A, 1982A. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Further, the \u8220\'3fFort Myer premium\u8221\'3f issues provided no excuse defending M/P from default termination. As an initial matter, this argument is irrelevant to M/P\rquote s failure to apply \u8220\'3fbest efforts\u8221\'3f or to proceed with diligence. Given that the \u8220\'3fpremium\u8221\'3f was not an affirmative contract requirement-it was a proviso to the August 1989 final completion dates-the added payments for restoration work had no relationship to the interim completion dates to which M/P failed to apply its best efforts or with its obligation of diligent performance. Moreover, WMATA took the extraordinary step of funding the work performed by Fort Myer at the subcontractor\rquote s rate as that work was actually performed. Thus, as the record reflects, M/P\rquote s untimely performance was unrelated to Fort Myer\rquote s work given that WMATA footed the bill. For PCO 085, WMATA paid direct costs then estimated at less than $25,000, covering the out-of-pocket cost. The bulk of the hypothetical claim at retrial for $685,000 purported to be for extended overhead based on the assertion that this change would have delayed final completion of the Shaw Station contract. The job records reveal that M/P personnel admitted such delay was due to their own error. Thus, M/P\rquote s failure to perform was unrelated to this issue as well. In any event, even had M/P proven any of these hypothetical claims for future payments, they would not justify M/P\rquote s existing defaults in performance at the time of termination. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: In the first trial, M/P claimed damages on this total cost basis, asserting entitlement to the entire difference between its total costs on the Shaw Station and U Street Station contracts and the payments received from WMATA. On this basis, M/P claimed damages of $23,010,393 for the Shaw Station project and $22,339,223 for the U Street Station project, for a total of $45,349,617. Pl.Ex. 742, at 3. However, given that M/P has failed to satisfy the required elements of a total cost claim as chronicled above, the Court cannot use this method as the basis of determining M/P\rquote s damages. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The Court finds that WMATA is entitled to much of the damages it seeks under the contracts. To summarize the following discussion, WMATA suffered excess reprocurement costs totaling $8,093,548 for Shaw Station and $8,356,620 for U Street Station (for a total of $16,450,168), credits for unperformed work and overpayments amounting to $3,259,034 for Shaw Station and $148,972 for U Street Station ($3,408,006 in total), credits for other items equaling $1,163,835, and damages to system-wide contractors of $234,815. The grand total of WMATA damages is $21,256,824, File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Retr. 10/24/2001, at 3310-36. This methodology revealed that $10,716,746 in costs were paid to Perini for the Shaw Station base contract work. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The remaining contract balance for the Shaw Station Contract at the time of termination, based upon the final pay estimate to M/P, was $2,724,160, Def. Ex.1961; Retr. 10/24/2001, at 3337-39. Thus, the amount recoverable by WMATA in excess cost of reprocurement pursuant to General Provision 5 of the Shaw contract is $8,093,548. Def. Ex.1981A; Retr. 10/24/2001, at 3339; File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: For the U Street Contract, the costs paid for base contract work under the Perini Contract were $14,022,731. Def. Ex.1963A, at 3; Retr. 10/24/2001, at 3393-94. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The remaining contract balance for U Street Station work, based upon the final pay estimate, was $5,666,111. Def. Ex.1962; Retr. 10/24/2001, at 3395. Therefore, the amount owed to WMATA for excess costs of reprocurement under the U Street Station contract is $8,356,620. Def. Ex.1982A; Retr. 10/24/2001, at 3395-96; File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: M/P also attempts to reduce back-chargeable amounts of the Perini Contract by deducting several items that allegedly do not represent base contract work. Pl.Ex. 1563, at 1. In addition to contract modifications and disputed items, Perini deducted termination costs for Shaw Station ($645,051) and U Street Station ($545,696), general and administrative expenses by Perini ($1,408,900), \u8220\'3fPerini General Conditions\u8221\'3f ($2,637,501), and additional costs from subcontractors ($782,000). However, though Mr. Hammond asserted that extra termination costs were incurred by Perini because the contract was terminated and the projects were shut down before Perini resumed work, he admitted that these costs arose because of termination and restart. Retr. 10/25/2001, at 3485-86. In addition, despite claimed additional subcontractors costs for premiums to induce subcontractors to resume working after the termination (allegedly needed in light of WMATA\rquote s bad treatment of subcontractors as a result of not processing change orders that included subcontractor work), Mr. Hammond had no personal knowledge about such disgruntlement and admitted hearing that subcontractors had threatened and caused work stoppage due to M/P\rquote s failure to make routine payments. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: at 3482-83. Also, he could not explain the $4 million deduction for \u8220\'3fGeneral & Administrative\u8221\'3f expenses and \u8220\'3fGeneral Conditions\u8221\'3f from the base contract amount, admitting that these costs came from the \u8220\'3flegal staff,\u8221\'3f while conceding that these costs were properly charged to the Perini Contract in accordance with the terms of that agreement. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Accordingly, the Court agrees with WMATA\rquote s contentions regarding its reprocurement costs. WMATA is entitled to payments for completion of the projects after termination of $8,093,548 for the Shaw Station contract and $8,356,620 for the U Street contract, for a total of $16,450,168. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Among the credits sought, WMATA claims entitlement to a repayment of $1.6 million for an advance to M/P for Part I modifications issued against M/P\rquote s CPN 002 and CPN 139 claims in February and March 1990. These modifications were issued to compensate M/P for impacts on unchanged work stemming from the events associated with CPNs 002 and 139, and were expressly conditioned on M/P providing and identifying current and accurate cost and pricing supporting data for all payment made for the claims and change orders under the Shaw Station contract. Retr. 10/24/2001, at 3346-47. Further, the parties agreed to the tentative nature of these advances, and that a Part II modification would be subsequently issued for final settlement of the equitable adjustment to the contract. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Retr. 10/24/2001, at 3406-08. In addition, WMATA also paid for a review of the draft reprocurement contract drawings and other documents prior to award of the reprocurement contract to Perini, an effort resulting in a cost of $16,018. Def. Ex.1968. These costs are chargeable to M/P. File: 033 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Tr. 1/23/1992, at 11-13; Retr. 10/24/2001, at 3411-12. These extra costs were the subject of change orders issued to the contracts for the automatic train control subcontractor, communications subcontractor, traction power substation subcontractor, and track work subcontractor. WMATA made no claims for costs paid to these contractors for M/P\rquote s delays because such costs would be duplicative of WMATA\rquote s liquidated damages claim. The claimed costs total $1,378,601. Def. FOF \u182\'3f 1093. File: 037 - Mills v US.doc, Paragraph with $: Gov\rquote t App. at 2\u8211\'3f6 (Nov. 12, 2004 Final Decision). Plaintiff was awarded $2,640.00 for labor and equipment costs incurred in connection with the contract\rquote s delay, but Plaintiff\rquote s other claims were denied, because they were determined not to constitute out-of-pocket expenses, within the meaning of \u167\'3f CT6.01 of the Contract. File: 049 - HDM Corp v US.doc, Paragraph with $: The COB contract was awarded to defendant-intervenor GHI on November 1, 1999. AR Tab 13 at 720. As awarded, the contract was a \u8220\'3fhybrid\u8221\'3f contract, consisting of a cost-plus-award-fee component and an Indefinite Delivery/Indefinite Quantity (\u8220\'3fIDIQ\u8221\'3f) component. AR Tab 13 at 721. The estimated price over the life of the contract for the items awarded on a cost-plus-fee basis was $[* * *], of which $[* * *] was allocated to the COBA portion of the contract. File: 049 - HDM Corp v US.doc, Paragraph with $: at 722. The IDIQ portion of the contract was limited to a maximum of $[* * *] over the life of the contract, exclusive of costs and fees. File: 049 - HDM Corp v US.doc, Paragraph with $: Defendant-intervenor has presented evidence that the cost of the crossover consolidation is no more than 10% of the cost of COBA portion of the contract, and that the cost of the COBA portion of the contract is no more than 15% of the cost of the COB contract as a whole. Decl. of Peter Moore \u182\'3f 14. However, even if the $[* * *] figure cited by plaintiff were accurate, plaintiff has not presented evidence of a cardinal change. Defendant stated that the total cost of the COB contract was in excess of $[* * *] over five years. File: 049 - HDM Corp v US.doc, Paragraph with $: Tr. at 56. Based upon defendant\rquote s estimate of the total contract cost, even if the crossover consolidation added $[* * *] for fiscal year 2005, this would represent just a 3% increase in the cost of the contract overall. Accordingly, plaintiff has also failed to present evidence of a cardinal change through an increase in cost between the original COB contract and the COB contract as modified. File: 049 - HDM Corp v US.doc, Paragraph with $: In defendant\rquote s filings, defendant stated that the total cost of the contract was in excess of $[* * *]. Def.\rquote s Mot. For Partial J. Upon the Administrative Record at 31. At the October 28, 2005 argument before the Court, counsel for defendant represented that amount had increased to $[* * *]. Tr. at 56. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: WMATA estimated the cost for this contract at $47,282,000. It also set two periods of performance for the distinct parts of the contract: Part I was slated for 1000 days after receipt of the NTP for the project, while Part II was set for 1190 days after receipt of the NTP for that part of the contract. SAF No. 112. After opening the bidding on February 12, 1986, WMATA received the lowest responsive bid from M/P. SAF No. 113. Thus, on April 1, 1986, WMATA awarded this contract to M/P for the firm-fixed price of $44,298,000. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: M/P did not submit a cost proposal for CPN 002 until November 20, 1986, requesting a contract price adjustment of almost $1.12 million and a 92\u8211\'3fday time extension. Def. Ex. 240. In that proposal, M/P claimed $192,246 in inefficiency costs (non-direct), Def. Ex. 62, at 47, which M/P described as \u8220\'3fcosts which arose from working in the smaller work areas necessary to maintain 4 lanes of traffic in Rhode Island Avenue.\u8221\'3f SAF No. 607. These included inefficiencies in installing soldier piles and decking and relocating the S\u8211\'3f3 sewer, the W\u8211\'3f2 and W\u8211\'3f4 watermains, and the E\u8211\'3f5, E\u8211\'3f4, and E\u8211\'3f2 electrical ductbanks. Def. Ex. 62, at 52. M/P also claimed almost $60,153 in direct costs of maintenance of traffic activities associated with additional traffic switches under Rhode Island Avenue. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On July 5, 1988, the Contracting Officer issued Modification No. 16, which covered only PCO 031/CPN 035 for the grouting under Peoples Drug Store during the inbound tunneling operations. Pl.Ex. 225. While this modification acknowledged a change in the contract in the amount of $183,256, it did not change the contract time. Despite the January 1988 agreement between M/P Business Manager Mr. Bradford and WMATA negotiators that M/P would reserve the right to claim additional costs due to impact, inefficiency, time, and extended performance, the modification included language that stated that the terms \u8220\'3fconstitute a full accord and satisfaction for all costs and time of performance.\u8221\'3f File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Despite these negotiations, M/P filed the present lawsuit on April 18, 1989. M/P\rquote s complaint alleged that WMATA had materially breached the Shaw Station contract by failing to take action to resolve over $7 million in claims and the requests to extend the schedule for the subject construction contract. With regard to CPN 002 on Shaw, M/P alleged that WMATA never negotiated with M/P over the costs asserted in that claim for which all additional File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: work and costs were incurred between November 1985 and June 1986. On CPN 139, M/P alleged that no negotiations had been scheduled. Based on these alleged breaches by WMATA, M/P claimed the right to stop work on the Shaw Station contract and sought direct and consequential damages of $18.5 million, even though it had submitted only $7 million in claims. M/P made no allegations of breach with respect to WMATA\rquote s processing of claims for the U Street Station job. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: At the next meetings on August 16 and 18, 1989, the parties continued their discussions on and revisions to the revised schedule. M/P\rquote s Mr. Diehl reviewed each milestone date for achievability, approving a final set of milestone dates. Mr. Bradford also distributed a disbursement plan at the August 18th meeting, which included the installment dates for the $4.3 million payment and identified what portions of the installments would be allocated by M/P to payroll, equipment, suppliers, subcontractors, debt service, and other items. The plan also anticipated that the first full payment for work performed under the new schedule would be received by October 1, 1989, at which time regular contract payments would cover the cost of the remaining work, augmented by periodic additional payments as past claims and proposals are resolved. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: This revenue forecast showed $13,556,527.40 remaining in the two contracts and an estimated cost to complete of $19,565,274.40, leaving a revenue shortfall of approximately $6 million (exclusive of past due payables). This shortfall was caused in part by the number of work items in the M/P schedule that were underfunded. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: As of May 1990, very little of the restoration work had been performed and there was still a great deal of money already in the contract to continue funding the Fort Myer work as performed. Retr. 10/3/2001, at 2018\u8211\'3f19, 2023. M/P had not used most of the money included in its cost-loaded schedule for restoration work at the two project sites, spending no more than $660,000 of the $2.15 million for Shaw Station and none of the $1.1 million for U Street Station. Pl.Ex. 512. After receiving a permit for the full block closure on 7th Street between R and S Streets, M/P initially made some progress but lapsed into inactivity and was a long way from completion at the time of termination. Tr. 12/16/1991, at 59\u8211\'3f60. Regardless, WMATA allowed and approved the funding of Fort Myer work using contract funds as the work was actually performed. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: WMATA never determined a specific amount to increase the funding of the overall contract due to the nature of M/P\rquote s proposal, which included improper efforts to inflate the amount of money it was owed. For example, M/P was to set forth the amount in its bid for the work, and the contract would be increased to reflect the delta between that bid price and the cost of having Fort Myer do the work. However, M/P\rquote s proposal for the work incorporated Fort Myer\rquote s bid price and inappropriately added an additional profit and various indirect costs to increase the delta. P.Ex. 617, at 4. In addition, as revealed by a WMATA audit, M/P appears to have misstated its own bid, using a figure to represent its \u8220\'3fbid\u8221\'3f that was far lower than the actual bid price set forth in M/P\rquote s conformed bid and showed that M/P had always intended to subcontract the work. Def. Ex. 1317, at 1; D. Ex. 1320, at 1, 6. The total audit adjustments were $621,994 on the total proposed \u8220\'3fdelta\u8221\'3f claimed by M/P of $1,114,967. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On November 6, 1989, WMATA agreed that a change to the contract was warranted and assigned the PCO number. Pl.Ex. 606, at 14. M/P submitted a time and cost claim for $478,863 in late December, which included a delay of 50 work days and approximately $24,000 in direct costs. While WMATA did pay M/P\rquote s direct costs associated with this PCO, Def. Ex. 1830, its internal time analysis recommended no time extensions to Part I and Part II completion milestones despite acknowledging a total work day delay of 80 days. Pl.Ex. 606, at 6. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Finally, PCO 025 involved concrete gutters and granite curbs for the U Street Station project, Pl.Ex. 562, work that M/P never began. Retr. 9/21/2001, at 903\u8211\'3f04. M/P did submit this proposal, claiming a total direct cost of the work of $134,644 in subcontract payments to Fort Myer. Now M/P\rquote s proposal amounts to $447,027, the bulk of which was a claim for a 57\u8211\'3fday extension priced using a daily overhead rate of $4135 per day. Pl.Ex. 562. However, as described above in connection with PCO 090, this type of work was extra and could be performed concurrently with other restoration work. Thus, the claim for any extension for this work was similarly problematic because the work would be concurrent with the extended restoration limits. The Court also concurs with WMATA\rquote s audit, which found M/P\rquote s daily rate inflated and the claim \u8220\'3fsubject to technical evaluation as to entitlement.\u8221\'3f Def. Ex. 1319, at 6. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: at 3. Mergentime and INA agreed to this stipulation as well. Def. Ex. 1392, at 1. Perini completed the contracts more than a year and a half later and at an additional cost to WMATA of over $16 million. Def. Exs.1981A, 1982A. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: from default termination. As an initial matter, this argument is irrelevant to M/P\rquote s failure to apply \u8220\'3fbest efforts\u8221\'3f or to proceed with diligence. Given that the \u8220\'3fpremium\u8221\'3f was not an affirmative contract requirement\u8212\'3fit was a proviso to the August 1989 final completion dates\u8212\'3fthe added payments for restoration work had no relationship to the interim completion dates to which M/P failed to apply its best efforts or with its obligation of diligent performance. Moreover, WMATA took the extraordinary step of funding the work performed by Fort Myer at the subcontractor\rquote s rate as that work was actually performed. Thus, as the record reflects, M/P\rquote s untimely performance was unrelated to Fort Myer\rquote s work given that WMATA footed the bill. For PCO 085, WMATA paid direct costs then estimated at less than $25,000, covering the out-of-pocket cost. The bulk of the hypothetical claim at retrial for $685,000 purported to be for extended overhead based on the assertion that this change would have delayed final completion of the Shaw Station contract. The job records reveal that M/P personnel admitted such delay was due to their own error. Thus, M/P\rquote s failure to perform was unrelated to this issue as well. In any event, even had M/P proven any of these hypothetical claims for future payments, they would not justify M/P\rquote s existing defaults in performance at the time of termination. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: In the first trial, M/P claimed damages on this total cost basis, asserting entitlement to the entire difference between its total costs on the Shaw Station and U Street Station contracts and the payments received from WMATA. On this basis, M/P claimed damages of $23,010,393 for the Shaw Station project and $22,339,223 for the U Street Station project, for a total of $45,349,617. Pl.Ex. 742, at 3. However, given that M/P has failed to satisfy the required elements of a total cost claim as chronicled above, the Court cannot use this method as the basis of determining M/P\rquote s damages. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The Court finds that WMATA is entitled to much of the damages it seeks under the contracts. To summarize the following discussion, WMATA suffered excess reprocurement costs totaling $8,093,548 for Shaw Station and $8,356,620 for U Street Station (for a total of $16,450,168), credits for unperformed work and overpayments amounting to $3,815,649 for Shaw Station and $148,972 for U Street Station ($3,964,621 in total), credits for other items equaling $1,163,835, and damages to system-wide contractors of $234,815. The grand total of WMATA damages is $21,813,439, Def. Ex.1983A, plus prejudgment interest on its damages at the statutory rate. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Retr. 10/24/2001, at 3310\u8211\'3f36. This methodology revealed that $10,716,746 in costs were paid to Perini for the Shaw Station base contract work. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The remaining contract balance for the Shaw Station Contract at the time of termination, based upon the final pay estimate to M/P, was $2,724,160, Def. Ex.1961; Retr. 10/24/2001, at 3337\u8211\'3f39. Thus, the amount recoverable by WMATA in excess cost of reprocurement pursuant to General Provision 5 of the Shaw contract is $8,093,548. Def. Ex.1981A; Retr. 10/24/2001, at 3339; File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: For the U Street Contract, the costs paid for base contract work under the Perini Contract were $14,022,731. Def. Ex.1963A, at 3; Retr. 10/24/2001, at 3393\u8211\'3f94. The remaining contract balance for U Street Station work, based upon the final pay estimate, was $5,666,111. Def. Ex.1962; Retr. 10/24/2001, at 3395. Therefore, the amount owed to WMATA for excess costs of reprocurement under the U Street Station contract is $8,356,620. Def. Ex.1982A; Retr. 10/24/2001, at 3395\u8211\'3f96; File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: M/P also attempts to reduce back-chargeable amounts of the Perini Contract by deducting several items that allegedly do not represent base contract work. Pl.Ex. 1563, at 1. In addition to contract modifications and disputed items, Perini deducted termination costs for Shaw Station ($645,051) and U Street Station ($545,696), general and administrative expenses by Perini ($1,408,900), \u8220\'3fPerini General Conditions\u8221\'3f ($2,637,501), and additional costs from subcontractors ($782,000). However, though Mr. Hammond asserted that extra termination costs were incurred by Perini because the contract was terminated and the projects were shut down before Perini resumed work, he admitted that these costs arose because of termination and restart. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: at 3482\u8211\'3f83. Also, he could not explain the $4 million deduction for \u8220\'3fGeneral & Administrative\u8221\'3f expenses and \u8220\'3fGeneral Conditions\u8221\'3f from the base contract amount, admitting that these costs came from the \u8220\'3flegal staff,\u8221\'3f while conceding that these costs were properly charged to the Perini Contract in accordance with the terms of that agreement. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Accordingly, the Court agrees with WMATA\rquote s contentions regarding its reprocurement costs. WMATA is entitled to payments for completion of the projects after termination of $8,093,548 for the Shaw Station contract and $8,356,620 for the U Street contract, for a total of $16,450,168. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Among the credits sought, WMATA claims entitlement to a repayment of $1.6 million for an advance to M/P for Part I modifications issued against M/P\rquote s CPN 002 and CPN 139 claims in February and March 1990. These modifications were issued to compensate M/P for impacts on unchanged work stemming from the events associated with CPNs 002 and 139, and were expressly conditioned on M/P providing and identifying current and accurate cost and pricing supporting data for all payment made for the claims and change orders under the Shaw Station contract. Retr. 10/24/2001, at 3346\u8211\'3f47. Further, the parties agreed to the tentative nature of these advances, and that a Part II modification would be subsequently issued for final settlement of the equitable adjustment to the contract. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Retr. 10/24/2001, at 3406\u8211\'3f08. In addition, WMATA also paid for a review of the draft reprocurement contract drawings and other documents prior to award of the reprocurement contract to Perini, an effort resulting in a cost of $16,018. Def. Ex.1968. These costs are chargeable to M/P. File: 060 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Tr. 1/23/1992, at 11\u8211\'3f13; Retr. 10/24/2001, at 3411\u8211\'3f12. These extra costs were the subject of change orders issued to the contracts for the automatic train control subcontractor, communications subcontractor, traction power substation subcontractor, and track work subcontractor. WMATA made no claims for costs paid to these contractors for M/P\rquote s delays because such costs would be duplicative of WMATA\rquote s liquidated damages claim. The claimed costs total $1,378,601. Def. FOF \u182\'3f 1093. File: 073 - Transatlantic Lines LLC v US.doc, Paragraph with $: The Record includes a declaration from the vice-president of TransAtlantic stating that the cost of owning a tug boat and employing its crew, instead of chartering one, exceeds $[REDACTED INFORMATION] per year. The Government argued at the hearing that Strong Vessel did not say that it intended to time-charter its boat. The contracting officer conceded that time-chartering was a part of Strong Vessel\rquote s proposal, however. File: 075 - Group Seven Associates LLC v US.doc, Paragraph with $: AR 515. The transition period staffing option was the only contract line item as to which CACI offered options. By choosing option \u8220\'3fa,\u8221\'3f the agency would have paid $17.4 million for the base year and four option years. By choosing different staffing levels during the transition period, costs would have gone up incrementally. File: 080 - Greenleaf Const Co Inc v US.doc, Paragraph with $: HUD anticipated the contract would cost the agency well over $100,000,000. File: 086 - SKJ And Associates Inc v US.doc, Paragraph with $: On March 5, 2003, SKJ submitted its claim for $22,851.44 to the contracting officer for costs in pursuing the protest. According to defendant, the claim did not include either a claim or an amount for bid preparation costs. The government further states that SKJ did not present a claim for bid preparation costs to the contracting officer prior to filing the complaint. File: 092 - Strates Shows Inc v Amusements of America Inc.doc, Paragraph with $: As injury, plaintiff claims that it was damaged by the failure to award the Sky Ride leases and 2002 midway contracts to plaintiff, both of which, plaintiff claims, would have been awarded to it, but for the unlawful conduct of defendants. \u182\'3f 126, 143. Second, plaintiff claims that, due to the illegal acts of defendants, plaintiff incurred over $10,000 in costs in preparation and submission of its Sky Rides proposals and 2002 midway bid proposal. \u182\'3f\u182\'3f 125, 142, 188. Third, plaintiff claims that it incurred legal fees and costs in pursuing the bid protest at OAH. \u182\'3f 188. Finally, plaintiff claims as damages the legal campaign contributions File: 001 - Tecom Inc v US.doc, Paragraph with $: Pl.\rquote s Ex. 46, the Air Force requested that the DCAA perform an audit of the $ 724,504 claimed\u8212\'3fwhich consisted of $ 617,480 in costs for Fleetpro and $ 107,024 in costs for Tecom. Pl.\rquote s Ex. 47. Among other things, the DCAA was asked \u8220\'3fto provide a comprehensive analysis of proposed costs expended for \u8216\'3fchanged\u8217\'3f and \u8216\'3fadded\u8217\'3f work to the subject contract\u8221\'3f and an \u8220\'3fassessment of the claimant\rquote s methodology for developing the File: 007 - Conner Brothers Const Co Inc v US.doc, Paragraph with $: Government contract for ductwork involved in hospital renovation was not rendered commercially impracticable, entitling contractor to equitable adjustment, because of added costs to remove and demolish existing ductwork, where contractor was seeking $245,954 as additional compensation for the overrun, which was a 3.3% increase from its bid of $7,270,637. File: 007 - Conner Brothers Const Co Inc v US.doc, Paragraph with $: On October 17, 1997, the Corps advised Conner that if it desired to submit a claim pursuant to the contract, Conner should certify its claim. On November 7, 1997, Conner provided its certified claim to the Corps in the amount of $245,954 on behalf of Phenix for alleged increased costs related to the installation of replacement diffusers and grilles in the Hospital\rquote s HVAC system. File: 007 - Conner Brothers Const Co Inc v US.doc, Paragraph with $: Conner claims that the government is responsible for $245,954 in costs which were allegedly incurred by Phenix during performance of the contract. Conner alleges that during performance of the contract, Phenix encountered conditions in above-ceiling space that were different from those represented in the contract specifications and drawings. Specifically, Conner alleges that during the demolition and installation of ceilings in the Hospital, and during removal and replacement of HVAC diffusers and grilles (referred to by the parties as \u8220\'3fD & Gs\u8221\'3f), Phenix performed work not contemplated by the File: 007 - Conner Brothers Const Co Inc v US.doc, Paragraph with $: (same). Conner purportedly negotiated the diffusers and grilles reconnection cost issue with Ken Bright of the Corps. The uncontroverted evidence indicates that Mr. Bright did not possess authority to bind the government to a contractual modification in excess of $100,000. Def.\rquote s App. at 100; Def.\rquote s Supp.App. at 183, p. 36. Because the modification sought by Conner was for approximately $400,000, Mr. Bright would have been acting outside of the scope of his authority to approve the proposed modification. Def.\rquote s Supp.App. at 184, p. 38. Furthermore, from the parties\rquote submissions to the court, the contracting officer made no representations that Conner would be compensated for the additional ductwork. The government admits that a pre-change agreement on unit prices for various types of unusual work was sought by Conner. Def.\rquote s App. at 148. However, the government never formally agreed to any modification with regard to the extra compensation being sought by Conner. File: 012 - Hospital Klean of Tex Inc v US.doc, Paragraph with $: \u8221\'3f potentially inflicted on the Government by the improvident grant of a restraining order would constitute increased costs of performance under the bridge contract for the period of the 20\u8211\'3fday TRO as well as the costs the Government would owe Integrity in conjunction with terminating its performance, amounting to $2,674. Tr. (Apr. 29, 2005) at 8\u8211\'3f12. File: 014 - University Research Co LLC v US.doc, Paragraph with $: The Government\rquote s treatment of the third offeror in the competitive range, Danya, demonstrates that it could not have believed at the time that copying costs were expected to be the same for all potential contractors. This offeror initially proposed $[XXXXX] in reproduction costs, was told to come down to $[XXXXX], and obliged. Admin. R. 421. The Government was apparently content to allow Danya to propose copying costs that were over $[XXXXX] more than the IGCE it was using in May, 2004. File: 014 - University Research Co LLC v US.doc, Paragraph with $: Wanted to give you a heads-up in light of the pending award for the SAMHSA Health Information Network contract. During negotiations, there was a mathematical error made with regard to guidance provided to all three of the offerors on the cost of reprographics. The CO of record was advised of this problem and he advised that the correction should be made at a later time rather than reopen negotiations. [\u182\'3f] Regardless of which offeror receives the contract award, the successful offeror must increase their reprographics costs to a minimum of $[XXXXX]. [\u182\'3f] Please advise as to whether you would like to correct this at the time of award or in the future? Thank you. File: 021 - LABAT-Anderson Inc v US.doc, Paragraph with $: The Agency used the same software that it uses regularly to perform cost comparisons. It considered personnel costs, supply and material costs, overhead, and other \u8220\'3fspecifically-attributable costs\u8221\'3f to reach the in-house estimate against which to compare LABAT\rquote s offer of $425,000 per month. This yielded a twelve-month total cost of $4,835,696. The Agency discounted overhead costs because they would have been attributable to the Government regardless of who performed the contract work. The cost for twelve months of in-house performance was $4,385,706, or $365,475.50 per month. File: 023 - CEMS Inc v US.doc, Paragraph with $: . Plaintiff alleges that it is entitled to an award of attorney fees and expenses under EAJA. More specifically, plaintiff argues that (1) the contracting officer assigned to this case at the Department of Transportation Federal Highway Administration (FHA), Western Federal Lands Highway Division \u8220\'3fsurrendered his or her authority to make decisions\u8221\'3f during the administration of the contract; (2) that the contracting officer also \u8220\'3fsurrendered to others adjudication of claims submitted by CEMS;\u8221\'3f and (3) that the government was not substantially justified in proceeding to trial on those claims on which CEMS ultimately prevailed. Plaintiff also alleges that the government should have recognized the \u8220\'3fcore failings of [the agency contracting officer] to administer the project or determine the claims...[and] should have earlier and more actively sought a global solution, but instead it compelled CEMS to adjudicate its claims at a cost that was overwhelming.\u8221\'3f Plaintiff seeks $221,701.56 in EAJA attorney fees. After careful consideration of the record before the court and the applicable law, the court finds that the defendant is liable to the plaintiff for $57,058.64 in EAJA fees. File: 024 - Watts v Day.doc, Paragraph with $: By letter of November 1, 2000, Day proposed to Antkoviak that the parties sign a 2001 contract with the same terms as were included in the 2000 agreement. The attorneys responded on December 15 with a counteroffer that included a cost-of-living increase raising the $175,000 compensation amount to $201,000 for 2001 and $221,000 for 2002. File: 027 - Orca Northwest Real Estate Services v US.doc, Paragraph with $: As discussed above, the contract at issue arose from a best value procurement in which technical evaluation factors were given \u8220\'3fsignificantly more importan[ce] than price.\u8221\'3f AR 255. At the time of the June 2004 award, ORCA\rquote s proposal had an evaluated cost of * * * and an \u8220\'3fExcellent\u8221\'3f technical rating. HMBI\rquote s proposal, which was only rated \u8220\'3fGood,\u8221\'3f had an evaluated price of $83,408,615. Despite ORCA\rquote s higher rating, the agency concluded that HMBI\rquote s cheaper proposal was a better value. In fact, however, as ORCA concedes, its initial proposal was mis-priced. The correct value of its bid was * * *. The difference between the two bids therefore was actually * * *, making ORCA\rquote s bid approximately * * *% higher. File: 034 - Blackstone Consulting Inc v US.doc, Paragraph with $: The plaintiff filed a claim with Sando for $251,763.06, representing lost costs and profit for two years of directed subcontract work, on August 16, 2002. The claim was denied on November 20, 2002. The plaintiff filed this suit for breach of contract on November 26, 2002, arguing that the settlement agreement obligated the government to direct a subcontract for the first two years of the File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with $: In sum, NOAA and Fluor opted for a cost-plus-fixed-fee level-of-effort contract because the scope of services that Fluor would provide and the scope of the WFO modernization project were both broad and undefined. This form of contract selected for Fluor\rquote s undertaking was a reflection of the fact that, at the outset of the contract, neither NOAA nor Fluor were able to identify just how expansive the WFO modernization project would be. Consistent with Fluor\rquote s broad role in the WFO modernization project, its contract with NOAA contemplated other professional services to accommodate that role besides just project planning services, including architectural and engineering services, construction management, and construction inspection services. Pl.\rquote s Compl., Ex. 9 at 8. The A & E services to be performed under the contract were only part of all services Fluor was to perform; they were, however, not an insignificant component of the contract. Fluor ultimately received $42,531,626 for all of its services, of which the contracting officer determined that $5,551,549 applied to A & E services. File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with $: would limit the A & E contractor\rquote s allowable costs and fixed fee to no more than $120,000 (6% of $2 million is $120,000). However, if the estimated costs of the A & E contractor\rquote s services\u8212\'3fthose actual costs for which the contractor would be reimbursed under the cost-plus-fixed-fee scenario File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with $: \u8212\'3fwere only $80,000, then the fixed fee that the contractor would receive could be no more than $8,000 because the 10% fee limitation applicable to all cost-plus-fixed-fee contracts under File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with $: Under that scenario, the A & E contractor\rquote s total fee, including both his reimbursable costs and his fixed-fee, would be no more than $88,000. This total fee would not run afoul of the 6% fee limitation because it is less than $120,000. On the other hand, if the same A & E contractor\rquote s estimated costs were not $80,000, but instead were $115,000, the maximum fixed-fee that the A & E contractor could receive would be $5,000. Even though 10% of $115,000 (the reimbursable costs) is $11,500, the 6% fee limitation would restrict the A & E contractor to no more than $120,000 for both reimbursable costs and fixed-fee. File: 036 - Fluor Enterprises Inc v US.doc, Paragraph with $: There is no indication in this case that the contracting officer attempted to recover costs attributable to the myriad professional services that Fluor provided independent of it\rquote s A & E undertakings. Indeed, payments made to Fluor over the life of the contract totaled $42,531,626, but it was only those payments attributable to A & E type services, which the contracting officer calculated to be $5,551,549, that came under scrutiny for overpayment in violation of File: 037 - Arch Chemicals Inc v US.doc, Paragraph with $: Where government was required to pay incumbent contractor a lump sum of $8,513,000 in \u8220\'3fplant shutdown related costs\u8221\'3f for the shutdown and dismantling of its facility for production of hydrazine fuels, and such shutdown-related costs would be incurred if contract for supply of hydrazine fuel under new solicitation were awarded to any other contractor, contracting agency had no rational basis for excluding such costs from price evaluation methodology as a price-related factor. File: 037 - Arch Chemicals Inc v US.doc, Paragraph with $: Under the terms of Arch\rquote s hydrazine production contract, Contract No. F09603\u8211\'3f01\u8211\'3fD\u8211\'3f0135, the Government is required to pay Arch a lump sum of $8,513,000 in \u8220\'3fplant shutdown related costs\u8221\'3f for the shutdown and dismantling of Arch\rquote s Lake Charles Facility. Admin. R. Tab 6, at 2\u8211\'3f3; File: 037 - Arch Chemicals Inc v US.doc, Paragraph with $: 2. The United States, including the Defense Energy Support Center, its Contracting Officer, and its other officers, agents, servants, employees, and representatives, and all persons acting in concert and participating with them respecting the subject procurement, be and they are hereby PERMANENTLY RESTRAINED AND ENJOINED from awarding a contract under Solicitation No. SP0600\u8211\'3f03\u8211\'3fR\u8211\'3f0308, using a price evaluation method that fails to add, as one of the \u8220\'3fother price related factors\u8221\'3f of clause M2.11.100(c)(2), the $8,513,000 in plant shutdown-related costs for plaintiff\rquote s Lake Charles Facility, to the price of offerors other than the plaintiff. File: 039 - Manson Const Co v US.doc, Paragraph with $: low and did not reflect the market, which, as of September 29, 2004, was charging an average of $1.45 per gallon. Because the cost of diesel was an important cost center for the contract, this single revision increased the Corp\rquote s estimate of the cost of the contract from $4,998,392.00 to $5,951,076.00. File: 044 - Portfolio Disposition Management Group LLC v US.doc, Paragraph with $: After discussions, final evaluated prices for each of the proposals were established. The technical merit and risk factors for each proposal were weighed against the cost of each. The offerors proposals were evaluated against each other and against an independent government cost estimate (\u8220\'3fICGE.\u8221\'3f) This figure \u8220\'3fwas based on historical data and market research of like services, and was also considered to be the Government objective.\u8221\'3f Price Negotiation Memorandum, Brenda Y. Thomas, Contracting Officer (April 15, 2004) at 5. Only one offeror-HMBI-was capable of performing the contract for less than the ICGE of $66,009,394. File: 045 - International Resource Recovery Inc v US.doc, Paragraph with $: No. 02\u8211\'3f0089A (Nov. 7, 2003), Pl.\rquote s Mot. Jud. AR, Ex. 1. Plaintiff withheld payment from Horizon for work performed under the contract due to disputes as to which party was liable for paying state excise taxes and whether funds due to Horizon should have been redirected to unexpected start-up costs of the Industrial Subcontract. Pl.\rquote s Mot. Jud. AR, Ex. 1, at 3. The arbitrator found that Plaintiff was not justified in withholding payment from Horizon, and ordered Plaintiff to pay Horizon $456,381.19 plus interest. File: 048 - Kropp Holdings Inc v US.doc, Paragraph with $: 1, or award AVCARD a sole-source \u8220\'3fbridge\u8221\'3f contract from April 1 to April 12, 2005. Alternatively, DESC can override the stay and continue the 90\u8211\'3fday transition, with performance by MSC to begin January 1, 2005. Overriding the stay and allowing MSC to continue its transition efforts would cost less than further extending AVCARD\rquote s contract on January 1, 2005 for an additional three and a half months ... to allow for the contractual transition period to a new contractor. The cost to the Government of further extending AVCARD\rquote s contract through April 12, 2005 is $[ ] and this only includes AIR Card services, without providing any coverage for the SEA Card. By contrast, continuing the transition and allowing MSC\rquote s contract performance to begin January 1, 2005 for the same period will cost approximately $[ ] and will provide both AIR and SEA Card services[.] File: 052 - US ex rel Bettis v Odebrecht Contractors of Cal Inc.doc, Paragraph with $: Bettis claims that Odebrecht\rquote s reaffirmations were fraudulent because Odebrecht was aware that its costs were rising during the protest period. Bettis argues that, despite this knowledge that costs were rising, with each renewal Odebrecht \u8220\'3freaffirmed the costs and expenses, and underlying assumptions contained in the initial bid\u8221\'3f and represented that \u8220\'3fit was capable of performing the contract at the stated price.\u8221\'3f Br. for Appellant at 40, 18. Bettis also points out that Odebrecht\rquote s bid preparer testified that he did not amend the bid because it was his understanding that if the costs changed he could file a change order. Indeed, Bettis notes, Odebrecht ultimately did request an equitable adjustment of $7.9 million to cover escalation of costs attributable to the delay. File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with $: AR at 236. SI\u8211\'3fNOR\rquote s increased cost, from $[ ] to $[ ] for all years of the contract, was $[ ] above the low bidder Blue Dot for the five year contract. File: 059 - Blue Dot Energy Co Inc v US.doc, Paragraph with $: AR at 235\u8211\'3f36. The contracting officer also noted that Selrico\rquote s overall cost of $[ ] would require major negotiations for it to be competitive. File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: an internal independent estimate of the appropriate cost of the contract. The independent government estimate (\u8220\'3fIGE\u8221\'3f), dated January 23, 2003, was for $6,586,983.00 excluding two contract line items (\u8220\'3fCLINs\u8221\'3f). These two line items were to be inserted into the contract along with figures which the cost of the CLINs, if inserted, were not to exceed. All of the offerors were determined responsive and all, with the exception of one contractor who withdrew from the competition, were considered for award. File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: Modification P00004, dated August 15, 2003, increased the quantity of service required for the men\rquote s and women\rquote s locker rooms. It also added cleaning of the spinning room and lobby and weekend service at the base Gymnasium/Fitness Center, including the Health and Wellness Center. This modification increased the total annual cost of the contract by $183,689.98. The Price Negotiation Memorandum for the Modification states, in relevant part, as follows: File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: It is also undisputed that on September 1, 2003, Cardinal was awarded Order No. SPN\u8211\'3fB\u8211\'3fSOX\u8211\'3f400 for cleaning the GSA store on the Hickam AFB. The contract was for $24,804.00. Cardinal contends that if all modifications to the Navales contract and additional contracts are considered, then the total cost to the government for custodial services at Hickam AFB increased by nearly eighty percent from the original contract price. File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: in comparison to the awarded contract amount.\u8221\'3f AR at 4871 (emphasis added). It was for this reason that, \u8220\'3feach additional requirement was reviewed to determine if it was possible to remove them from the [contract] and award them separately. For instance, in the case of the Child Development Center (CDC), it was mutually agreed ... that this was possible.... Therefore, the CDC requirement will be removed and negotiated as a sole source 8a contract.\u8221\'3f AR at 4871\u8211\'3f72. It is not disputed that the Air Force reduced Navales\rquote contract by $31,000 to remove the CDC requirement and then provided Choe with a sole source 8a contract for over $250,000. Indeed, the government has increased the cost of the original contract by nearly eighty percent. File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: The court can fashion relief which will be of minimal disruption to the government, Navales, and Choe. The government has presented the court with a declaration of Gregory Frey, the contracting officer at Hickam AFB. Mr. Frey has stated that a resolicitation of the subject contracts will cost approximately $24,000. Frey Declaration of 10/29/2004. The government argues that this proves that the balance of the harms counsels against the granting of an injunction. File: 065 - Cardinal Maintenance Service Inc v US.doc, Paragraph with $: The government contends that the correct measure of the increase of the cost of the contract is only forty percent rather than eighty percent. The government reaches this number by arguing that the $250,000 sole source contract to Choe should not be included in the calculation of the change in cost. The government bases this argument on the allegation that the Choe contract included such an increase in services from the original Navales contract as to warrant an increase in price of approximately $220,000 from the original contract. The record does not support such an allegation. However, the court finds that even if the change in contract price was only 40% rather than 80%, in light of all the circumstances in this case, a 40% change in price constitutes a cardinal change. File: 072 - Chapman Law Firm Co v US.doc, Paragraph with $: While not expressly cited in the HUD override determination, the declaration of Joseph McCloskey, HUD Acting Deputy Assistant Secretary for Single Family Housing, submitted by defendant, asserts that continued performance by GFR during the GAO protest period would cause a monetary loss to HUD if the \u8220\'3fnew\u8221\'3f services were added. Mr. McCloskey notes that for a house valued at $100,000, GFR charges HUD ______ for current services while the HMBI Contract will cost HUD ______, which includes the \u8220\'3fnew\u8221\'3f services. Mr. Hotard responds that over the past six months the average net sales price (the number used for fee calculation) for a property in the Illinois and Indiana area was ______. Using this figure, GFR\rquote s fee under the incumbent contract would be approximately ______ per home and HMBI\rquote s fee under the new contract would be approximately ______ per home. The record does not support a finding that, from a financial standpoint, continued performance by HMBI would be in the best interests of the United States. It could well be true that any limited additional cost of adding whatever \u8220\'3fnew\u8221\'3f services are needed for the Chicago Project property, to support the launch of the Chicago Project, would be more than offset by fee savings due to continued GFR performance in the area covered by its current contract. File: 074 - Conscoop-Consorzia Fra Coop Di Prod E Lavoro v US.doc, Paragraph with $: on July 2, 2003 only via the Internet World Wide Web. The solicitation requests proposals regarding a contract for improvements to the main gate and renovation of garage/building 452 at the Naval Air Station in Sigonella, Italy. The \u8220\'3festimated cost\u8221\'3f of the project is listed as \u8220\'3fbetween $10,000,000 and $25,000,000 U.S. dollars.\u8221\'3f File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with $: Nominal damages of $100 for each corporate plaintiff, non-minority engineering firms, was appropriate for violation of their constitutional rights resulting from county\rquote s unconstitutional minority and women business enterprise (MWBE) programs, which established \u8220\'3fparticipation goals\u8221\'3f for minority and women business enterprises in awarding county architectural and engineering (A & E) contracts where plaintiffs did not present sufficient evidence, lay or expert, to substantiate their lost profits or \u8220\'3flost opportunity cost\u8221\'3f theories. File: 085 - Hershell Gill Consulting Engineers Inc v Miami-Dade County Fla.doc, Paragraph with $: value of the contracts in which an engineering firm was the prime, numbers taken from the testimony of Ms. Perez. The total \u8220\'3flost opportunity cost,\u8221\'3f under this theory, would be 15% of $8.7 million for Hershell Gill Consulting ($1.3 million) and 15 % of $9.8 million for Brill and Rodriguez ($1.47 million), taking into account not only what the plaintiffs would have realized from A & E contracts, but also the prestige and experience those contracts would have provided. File: 086 - Blue Dot Energy Co Inc v US.doc, Paragraph with $: Second, a comparison of the base year with option years 1\u8211\'3f4 does not evidence that the \u8220\'3fcost of the contract [is] fair and reasonable.\u8221\'3f AR at 776. The cost for the estimated base year April 1, 2004\u8211\'3fSeptember 30, 2004 is $[ ]. For October 1, 2004\u8211\'3fSeptember 30, 2005, however, the cost is estimated at $[ ], or an increase of [ ]%, for one year, even though the unit increase is only approximately 51%. File: 088 - Kirkpatrick v White.doc, Paragraph with $: In support of their argument that the submitted costs were within the contract SOW, the plaintiffs argue that (1) the Titan subcontract was made at the request of the government (Tiwari); (2) all of Mr. Hackett\rquote s contacts with members of Congress or their staff were at the direction of the government Program Manager (Tiwari) and were in support of an Army program that had fierce opponents and supporters; (3) Tiwari and Hackett\rquote s efforts resulted in $137 million of funding over several years; (4) Tiwari\rquote s supervisor, William C. Reeves believes the costs fall within the SOW provisions; and, (5) Tiwari was directed by the SMDC Commander to get the funds needed for his program any way he could or his job would be eliminated and other SMDC officials also requested that Tiwari contact members of Congress or their staffs to restore and fund the KE\u8211\'3fASAT program. (Doc. 89, pp. 7\u8211\'3f13). File: 090 - Gulf Group Inc v US.doc, Paragraph with $: . at 160\u8211\'3f68 (nine projects listed in descending order of size, from $3.02 million to $50,000). The rationality of this conclusion is further confirmed by the fact that the six offers submitted for the contract all were between $7 million and $9 million, and the Corps\rquote s estimate of the cost of the work was approximately $6.5 million. See Admin R at 26. File: 095 - Rothe Development Corp v US Dept of Defense.doc, Paragraph with $: As Rothe could no longer argue for an injunction as to that contract or be awarded that contract, those two claims were moot. In addition, Defendants tendered a payment of $10,000 to Rothe under the Tucker Act as payment for costs incurred in the original bid preparation and presentation which rendered that claim moot. The only remaining substantive claim seeks prospective injunctive and declaratory relief. File: 097 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with $: Def.\rquote s Supp. Resp. at 2, plaintiff filed briefing seeking $84,900 in bid preparation and proposal costs. Pl.\rquote s B & P Claim at 4. Defendant initially challenged plaintiff\rquote s claim on the ground that the majority of the costs claimed \u8220\'3fare represented by the unpaid 1999 invoices of proposed subcontractors that had prepared various proposal sections, relating to particular base services covered by the consolidated contract.\u8221\'3f Def.\rquote s B & P Resp. at 2. Defendant argued that under the doctrine articulated in File: 097 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with $: at 2. Pointing to Garufi\rquote s submitted bid and proposal costs of $84,900, Mr. Considine opines that the claimed costs \u8220\'3fare slightly less than 0.6% of the Garufi\rquote s submitted [bid] price of $14,700,000 for this contract ... [and, therefore,] are well within th[e] standard range\u8221\'3f for bid preparation costs. File: 098 - First Enterprise v US.doc, Paragraph with $: the remaining bids were over the maximum amount the agency could spend on the construction portion of the contract. This comports with two agency restrictions limiting the amount it could spend. First, the agency only had approximately $3,551,000 it could allocate for the construction\u8212\'3f$3,916,584 less $366,000 already spent on the design. Second, the agency could not conduct any procurement involving a total project cost of more than $4,000,000, except pursuant to project-specific authorizing legislation. File: 098 - First Enterprise v US.doc, Paragraph with $: , the agency simply was not permitted to award a contract at a price in excess of the \u8220\'3famount available in an appropriation or fund for the expenditure or obligation.\u8221\'3f Although plaintiff\rquote s bid was the lowest of the remaining bids, its offer of $3,680,895 for alternate bid item 5 exceeded the available funds for construction, and when coupled with the design costs already incurred, exceeded the $4,000,000 maximum for minor construction projects. Hence, the contracting officer properly concluded that all the remaining bids were \u8220\'3funreasonable\u8221\'3f and converted the IFB to an RFP. Admin. R. at 79. File: 098 - First Enterprise v US.doc, Paragraph with $: . Plaintiff\rquote s bid for alternate bid item 5 coupled with the design cost of $366,00 would total $4,046,895. Therefore, the agency could not lawfully award the contract to plaintiff for its bid on alternate item 5 without seeking additional congressional approval. File: 098 - First Enterprise v US.doc, Paragraph with $: $3,551,000 is the approximate amount of funds remaining for construction after subtracting the actual design costs of $366,000 from the agency\rquote s original allocation of $3,916,584. Note that the actual design costs were less than the original estimate of design costs at $406,394. The excess from the design portion of the contract could be allocated to the construction portion of the project. Admin. R. at 164 (11:18:20 to 11:19:10). File: 100 - Dismas Charities Inc v US.doc, Paragraph with $: [T]he Source Selection Authority (SSA) must determine if the highest overall rated proposal of Dismas Charities, with the highest price, has perceived benefits which merit the additional cost.... It is the opinion of the SSA that the offer submitted by Bannum, Incorporated is the most advantageous to the government as it meets or exceeds the minimum requirements of the contract at the lowest proposed price. A review of the strengths and weaknesses of the proposals, reveals that the services Dismas Charities is offering do not warrant paying the premium or difference of $[* * *] in cost over the life of the contract which consists of a two year base and three option periods of one year each. As outlined in Section M.3 of the solicitation, \u8220\'3fShould evaluations result in substantially \u8216\'3ftechnically equal\u8217\'3f scores, cost will be a major factor in the selection for contract award.\u8221\'3f File: 100 - Dismas Charities Inc v US.doc, Paragraph with $: The SSDD expressly states that \u8220\'3fa review of the strengths and weaknesses, of the proposals reveals that the services Dismas Charities is offering do not warrant paying the premium or difference of $[* * *] in cost over the life of the contract ....\u8221\'3f AR 4074. While the SSDD could, perhaps, have been more artfully crafted, it complies with the requirements of File: 002 - Gentex Corp v US.doc, Paragraph with $: We question the entire $306,031 of the fee included on the contractor\rquote s statement of B & P costs. Fee is not considered a cost. File: 014 - Filtration Development Co LLC v US.doc, Paragraph with $: that (1) the kits would substantially reduce engine deterioration, (2) Sikorsky was the only contractor that could complete the assignment within the requisite time frame, and (3) \u8220\'3f[s]ince these operations began, 400 engines have been removed/replaced at an approximate cost of $300 [million].\u8221\'3f File: 019 - JCN Const Co Inc v US.doc, Paragraph with $: Divergence between past performance ratings assigned by bidder\rquote s references and those assigned by contracting agency\rquote s technical evaluation team did not constitute significant procurement error; bidder\rquote s focus on projects costing more than $500,000 could legitimately taken into account by agency\rquote s technical evaluation team (TET) as a negative element in making its evaluation for project costing less than $500,000. File: 019 - JCN Const Co Inc v US.doc, Paragraph with $: This post-award bid protest is before the Court on plaintiff\rquote s motions for a preliminary injunction and for judgment upon the administrative record and defendant\rquote s cross-motion for judgment upon the administrative record. Plaintiff, J.C.N. Construction Company, Inc. (\u8220\'3fJCN\u8221\'3f), challenges the government\rquote s awards to five other offerors of contracts under a multiple award construction contract (\u8220\'3fMACC\u8221\'3f). This MACC encompassed a range of projects to be constructed at Navy installations in the Northeastern United States over a five-year period, with such projects individually expected to range in cost from $25,000 to $1.7 million. The request for proposals (\u8220\'3fRFP\u8221\'3f or \u8220\'3fsolicitation\u8221\'3f) called for submissions particularly related to a \u8220\'3fseed project\u8221\'3f which the contracting agency, the United States Naval Facilities Engineering Command (\u8220\'3fNavy\u8221\'3f), said it would use as the basis for evaluating all proposals. The Navy designated five awardees, with the seed project specifically awarded to Patel Construction Company, Inc. (\u8220\'3fPatel\u8221\'3f), the intervening defendant in this case. Subsequent task orders under the MACC were to be subject to competition among the five contractual awardees. JCN filed a protest of the awards before the General Accounting Office (\u8220\'3fGAO\u8221\'3f), but GAO denied relief. After JCN\rquote s complaint was filed in this Court, the Navy agreed to withhold the issuance of task orders under the MACC other than the seed project until April 16, 2004. File: 023 - Great Lakes Dredge And Dock Co v US.doc, Paragraph with $: , prohibits the Corps from awarding a dredging contract for an amount more than 25% greater than a fair and reasonable estimate of a well-equipped contractor\rquote s cost of performing the work. Because the lowest bid, GLDD\rquote s $65,893,464, was more than 100% greater than the Original GE, the Corps was unable to award the contract. File: 023 - Great Lakes Dredge And Dock Co v US.doc, Paragraph with $: During the November 22 meeting, GLDD explained to the Corps why its bid was reasonable, and the Original GE and the ECDT\rquote s estimate were too low. GLDD also provided the Corps with an estimate of what it would cost a well-equipped dredging contractor to perform the work. At that meeting, GLDD informed the Corps that a well-equipped contractor could perform the work for about $87 million \u8220\'3fplus risk.\u8221\'3f AR Tab 25 at 567. The Government has focused on the \u8220\'3fplus risk\u8221\'3f statement and concluded that the specifications caused the bidders to impermissibly incorporate risk into their bids. The Government\rquote s reliance on GLDD\rquote s statement to support its theory is unwarranted because there is no evidence in the administrative record that any of the bidders \u8220\'3fincorporated higher risk\u8221\'3f into the bids. File: 023 - Great Lakes Dredge And Dock Co v US.doc, Paragraph with $: The only bidder for which the Corps had cost data was GLDD. That information was provided to the Corps on December 4, 2002, in connection with GLDD\rquote s protest of the Original GE. AR Tab 30. Thus, the Contracting Officer had that information when she decided to cancel the solicitation on December 24, 2002. GLDD\rquote s bid was $65.9 million, which is significantly lower than the cost of a \u8220\'3fwell-equipped dredging contractor\u8221\'3f quoted by GLDD at the November 22 meeting. File: 027 - Blue Water Environmental Inc v US.doc, Paragraph with $: The BSA source selection official reviewed the technical and cost evaluation results and the proposals were ranked in descending order. The top-ranked proposal was again submitted by Envirocon. Envirocon had both the highest technical score and the lowest cost. On February 23, 2004, Envirocon was awarded the contract by BSA for $6.06 million. The contract between BSA and Envirocon provides that \u8220\'3f[t]his Contract does not bind nor purport to bind the Government of the United States.\u8221\'3f File: 040 - US ex rel Bettis v Odebrecht Contractors of California Inc.doc, Paragraph with $: Relator failed to show that contractor fraudulently induced government to award the contract to it by making promises at the time it submitted its bid regarding cost-saving devices it never intended to use, failing to follow industry practices for preparing its bid, or by reaffirming its bid during the period of the bid protest or submitting a false request for equitable adjustment (REA) after the contract was awarded; contractor\rquote s REA, which ultimately resulted in a $6.9 million contract adjustment, reflected a contract dispute, not a false claim within the meaning of the False Claims Act. File: 040 - US ex rel Bettis v Odebrecht Contractors of California Inc.doc, Paragraph with $: Despite the fact that this dispute was resolved through settlement with COE after it had been thoroughly aired before a mediator and researched by COE\rquote s lawyers, relator persists in claiming that defendant\rquote s bid reaffirmation was fraudulent, and that its post-contract claim for a delay-related price adjustment constituted a false claim. First, relator argues that defendant reaffirmed its bid price knowing that it could not complete the contract at that price, and that this amounted to a false bid. Relator, however, fails to cite any authority for the proposition that a contractor may not reaffirm its bid despite rising costs or that a contractor is required to recalculate its bid when it knows that its costs have escalated. Nor can relator demonstrate that defendant made a false representation when it agreed to reaffirm its bid. By reaffirming its bid, defendant agreed to continue to be bound by its bid and the contract; it did not represent that its costs had not increased, and it did not promise that it would not seek equitable adjustments for increased costs irrespective of the justification for the increases. Finally, by reaffirming its bid, OCC put itself in the position of jeopardizing its profits by committing itself to a bid that was too low with little real prospect for recouping its losses. So one must again question relator\rquote s strained logic, for why would a contractor choose to fraudulently reaffirm its bid if the result would be to reduce its profit margin, or, as happened here, to incur a loss of over $30 million on the contract? File: 043 - Industrial Property Management Inc v US.doc, Paragraph with $: In 1998, shortly after the base was closed, IPM won a competitive small business set-aside contract for base operations, maintenance and support services at SAEP. The contract type was \u8220\'3fcost plus fixed-fee\u8221\'3f for a base year period from October 1, 1998 through September 30, 1999, and three options to renew the contract for one year each, all of which the Army exercised. The final option to renew, therefore, was set to expire on September 30, 2002. The total award under IPM\rquote s contract was $18,816,607. File: 046 - Siemens Bldg Technologies Inc v Jefferson Parish.doc, Paragraph with $: Then, only seventy-two hours before the bidding deadline, Jefferson Parish issued Addendum No. 5, which purported to create a closed proprietary specification in favor of JCI Metasys System. This addendum indicated a fixed price of $292,721.00 for the materials and proprietary labor that would be supplied by JCI. Addendum No. 5 also specified that the installation cost for the proprietary materials, and for the installation and supply of all non-proprietary materials, was not included in the lump sum to be given to JCI by the contractor. File: 048 - Overstreet Elec Co Inc v US.doc, Paragraph with $: The SSA observed that awarding Boldt the Randolph AFB contract \u8220\'3fwill result in an additional cost to the Government of $201,118,\u8221\'3f and conducted a trade-off analysis to determine if it was in the USAF\rquote s best interest \u8220\'3fto pay an extra 10 percent more in order to award to an exceptional performer.\u8221\'3f File: 050 - Gentex Corp v US.doc, Paragraph with $: f. A stay in contract performance of 90 days will cause a 6\u8211\'3fmonth schedule slip at a cost of $2.5M to the program (contractor costs, increased government costs, and test costs). Additionally, a 7% increase in production costs is expected due to shifting of FY buy profiles. This cost information was derived from the program cost estimate and from Scott Aviation (Atch 2). If the stay were overridden, continuing contract performance would result in a cost avoidance of $7.76M. Based upon Scott Aviation\rquote s contracted effort, the Government has concluded the termination cost at the 30\u8211\'3fday mark would be $400K and $1.6M at the GAO-scheduled decision point of 31 March 2003. File: 053 - Sierra Military Health Services Inc v US.doc, Paragraph with $: ....\u8221\'3f AR 15. In estimating the cost to the government for four months of health care services under the current MCSCs compared to the new contracts, the Director relied on a cost comparison calculation that estimated the new contracts would save approximately $10.5 million per month. AR 26\u8211\'3f30; Second File: 053 - Sierra Military Health Services Inc v US.doc, Paragraph with $: TMA\rquote s decision was based on a memorandum evaluating Health Net\rquote s costs and concluding that \u8220\'3fGovernment costs should Sierra win the protest will be minimal. This is in comparison to the potentially much larger Government costs associated with negotiating extensions ... or for Terminating for Convenience existing contracts where full option periods must be exercised.\u8221\'3f AR 2. Although plaintiff disagrees with TMA\rquote s analysis of the cost to the government if its protest is sustained, the record demonstrates that TMA considered such costs and included them in its override decision. Faced with reliable evidence that the government would incur savings of over $40 million and that extensions of existing contracts would result in termination for convenience costs, the Director\rquote s override decision is supported by the record. Accordingly, it is concluded that Mr. Richards\rquote decision as to the operational impact of a stay of transition performance, the impact on beneficiaries of a stay of transition performance and the cost impact of a stay is found to have a rational basis. File: 058 - US ex rel Sanders v Allison Engine Co.doc, Paragraph with $: requires Allison to certify its cost or pricing data when any change involves a price adjustment expected to exceed $500,000 over the life of the contract. File: 059 - DynCorp Information Systems LLC v US.doc, Paragraph with $: The parties bilaterally agreed to a price of $28.1 million for AUTODIN services in CY 1990. The contracting officer unilaterally definitized years 1991\u8211\'3f1993 at approximately $19 million, $21 million, and $18 million, respectively. Plaintiff\rquote s projected costs for those years were $26.9 million, $27.7 million, and $28.3 million. File: 059 - DynCorp Information Systems LLC v US.doc, Paragraph with $: An earlier Audit Report, issued April 22, 1993, stated that \u8220\'3fcosts relating to asset write-ups in accordance with GAAP are generally allowable for contracts entered into before 23 July 1990.\u8221\'3f For contracts entered into after July 22, 1990, \u8220\'3fwhich is our interpretation of the events surrounding this [Letter] contract, the amount of amortization, depreciation, and cost of money associated with business combinations accounted for under the purchase method of accounting is limited to the amount that would have been allowable had the combination never taken place.\u8221\'3f Accordingly, the DCAA \u8220\'3fquestioned the proposed amount of $51,502,165 in usage fees.\u8221\'3f Plaintiff, however, observes that each not-to-exceed (\u8220\'3fNTE\u8221\'3f) amount for Option Years 1\u8211\'3f3 totaled approximately $30 million and points to an August 1993 meeting with DECCO\rquote s Rates Analysis Division personnel indicating that the Government considered paying the full NTE amount as a legitimate option for negotiating a fair and reasonable price. File: 059 - DynCorp Information Systems LLC v US.doc, Paragraph with $: Plaintiff urges that the price for AUTODIN service in CY 1991\u8211\'3f93, implemented by the contracting officer after the parties failed to agree, was not \u8220\'3ffair and reasonable,\u8221\'3f as the contract required. Plaintiff points out that defendant\rquote s price analysts stated in 1993 that recovery of annual depreciation was reasonable. The $28.1 million price for CY 1990 was reduced to $19 million, $21 million, and $18 million in subsequent calendar years. Defendant accounts for these variations by the differences in plaintiff\rquote s price proposals and the differences in services provided. Plaintiff then indicates that the definitized price was lower than costs projected at a government meeting in March and much lower than the Not\u8211\'3fTo\u8211\'3fExceed prices previously agreed to by DOD. File: 059 - DynCorp Information Systems LLC v US.doc, Paragraph with $: Plaintiff lists: 1) The discrepancy between the CY 1990 price of $28.1 million and subsequent prices for CY 1991\u8211\'3f1993 of $19 million, $21 million, and $18 million, respectively; 2) a memorandum by Harry Perkins, Chief DMS Networks Engineering Division noting projected CY 1991\u8211\'3f1993 costs between $26.9 million and $28.3 million; 3) DOD\rquote s agreement to pay plaintiff the NTE price of approximately $30 million at various times; and 4) the request of the contracting officer to develop a price including stepped-up asset depreciation. File: 064 - Kohl Partners LLC v City of Manchester.doc, Paragraph with $: Finally, this is hardly the usual competitive bidding case, in which a disappointed low bidder protests the award of a contract to a higher bidder. Plaintiffs have not suggested how the public may have been harmed by the City\rquote s decision to negotiate a contract for $38 million less than the cost of plaintiffs\rquote proposal. File: 070 - Conti Enterprises Inc v Southeastern Pennsylvania Transp Authority.doc, Paragraph with $: The balance of equities, including harm to the taxpayers, SEPTA, SEPTA riders, and the residents and business owners who live along the Blue Line dictates that I deny injunctive relief here. Conti is correct that the taxpayers will be harmed if the contract is awarded to MSC because its bid is $1 million more expensive than Conti\rquote s bid. However, where an additional one month delay in the award of this contract could result in a six month delay in project completion and an associated increase in construction costs and inconveniences to neighboring residents, businesses and SEPTA riders, the public will benefit if the Stations Project is not delayed by further litigation. File: 071 - Williams Alaska Petroleum Inc v US.doc, Paragraph with $: ] decision involved [DESC\rquote s] largest program, the $4 billion per year Bulk Fuel Division. Without an interim deviation authorizing use of ... EPA provisions, [DESC] fuels contracting will be in disarray, forced to use EPA provisions based either on cost of crude oil, which would not be reflective of the market prices of the refined products [DESC] purchases, or on a contractor\rquote s own price postings, which may not always be reliable or available. File: 072 - PGBA LLC v US.doc, Paragraph with $: The nakedness of this assumption, in turn, undercuts other critical findings made by the Director. For example, in asserting that awaiting the GAO decision would be prohibitively costly, the Director stated that there would be net savings of $5.27 million per month under the new contract. \u8220\'3fOver the course of four months,\u8221\'3f he asserted, \u8220\'3fthe savings would be approximately $21.1 million.\u8221\'3f But, this calculation again assumes a four-month across-the-board delay of the full system, including regions not due to become operational until October 2004. Plaintiff points out that if, in fact, only Region 11 were delayed by the protest, the cost impact would be much less because that region, as defendant admits, involves only 2 percent of the claims in the entire system. File: 075 - Marketing and Management Information Inc v US.doc, Paragraph with $: MMI submitted a proposal to DCA in August 1995. A.C. Nielsen Company (\u8220\'3fNielsen\u8221\'3f), Information Resources, Inc. (\u8220\'3fIRI\u8221\'3f) and Management Science Associates, Inc. (\u8220\'3fMSA\u8221\'3f) also submitted proposals. MMI\rquote s proposal offered, in consideration for DCA product movement data, to provide category management support services at no cost and to pay the agency at least 15% of MMI\rquote s gross proceeds from selling the product movement data. MMI proposed a guaranteed payment to DCA of $6.659 million over the three year base term. DCA awarded the contract to MMI on October 26, 1995. File: 081 - Hermes Consol Inc v US.doc, Paragraph with $: All said and done, the final fixed price was actually about $34.5 million after the Navy and AT & T agreed to several price adjustments during the course of performance. AT & T, however, sued claiming that it actually incurred costs upwards of $91 million, and sought to have the contract restructured accordingly. File: 088 - Nicon Inc v US.doc, Paragraph with $: formula to calculate its unabsorbed home office overhead damages. After negotiation, Nicon was awarded $184,757 in direct costs, related overhead, and profit. However, the contracting officer denied Nicon\rquote s claim for $387,513 in unabsorbed home office overhead for the 288\u8211\'3fday alleged delay period. File: 097 - Mannarino v Morgan Tp.doc, Paragraph with $: App. at 29. Following a bench trial, the Court ruled that plaintiffs\rquote action was timely filed and that defendants failed to comply with Section 3 of the Housing and Urban Development Act, which requires that, to the greatest extent feasible, opportunities for training and employment be given to business concerns that provide economic opportunities to low and very low income persons residing in the non-metropolitan county in which the assistance is expended. The Court held that plaintiffs, who are residents of the non-metropolitan county, are members of the class intended to benefit by Section 3 of the Act, while Community Preservation, to whom the contract was awarded, was not and that plaintiffs were qualified to be awarded the contract. The Court concluded that plaintiffs were entitled to $16,225 for loss of income and thereafter entered a judgment awarding plaintiffs these damages, together with costs. Defendants timely appealed. File: 001 - Halter Marine Inc v US.doc, Paragraph with $: to \u8220\'3fdesign, build, outfit, deliver, and provide prescribed levels of follow-on support for a multi-purpose Great Lakes Ice Breaker.\u8221\'3f The solicitation included a liquidated damages clause that provided that the contractor would be liable in place of actual damages, if performance was not completed within the timeframe specified in the contract, in the amount of $9000.00 per calendar day of delay. In the event the contractor delayed delivery beyond June 30, 2006, an additional $15,000.00 per day would be added to the amount of liquidated damages to cover the direct costs of keeping the USCGC Mackinaw in commission. File: 001 - Halter Marine Inc v US.doc, Paragraph with $: The Administrative Record includes the Source Evaluation Board\rquote s Final Report (Final Report), dated October 3, 2001. The Final Report explained that the upon completing the initial evaluation, the Source Evaluation Board determined that both offerors possessed excellent Past Performance, but neither of the proposals demonstrated a clear superiority on the basis of the Technical/Management evaluation. The Source Evaluation Board recommended, and the contracting officer concurred, a competitive range of two. Written and verbal discussions were held with both offerors, and following those discussions, final revised proposal were received from both offerors on September 10, 2001. Halter\rquote s proposal price was $103,694,113.00. Marinette\rquote s proposal price was $84,575,913.00, and the Coast Guard\rquote s evaluated most probable cost to the government for Marinette\rquote s proposal was $87,630,128.00. Marinette\rquote s proposed price of $84,575,913.00 was $19,118,200.00 less than Halter\rquote s proposed price and the Coast Guard\rquote s evaluated most probable cost of Marinette\rquote s proposal was $16,063,985.00 less than Halter\rquote s proposed price. File: 008 - US v Government of Virgin Islands.doc, Paragraph with $: The parties agree that the actual cost of the referenced allowance items may exceed the costs contained herein. The Contract Sum may be adjusted by change order to reflect the difference between actual costs and the allowances. The allowances provided herein are contained in the total contract price of $7,929,912. File: 008 - US v Government of Virgin Islands.doc, Paragraph with $: The parties agree that the actual cost of the referenced allowance items may exceed the costs contained herein. The Contract Sum may be adjusted by change order to reflect the difference between actual costs and the allowances. The allowances provided herein are contained in the total contract price of $7,929,912. File: 008 - US v Government of Virgin Islands.doc, Paragraph with $: next to which Andrews had written \u8220\'3f$3,637,150.\u8221\'3f (Ex. 20, Unmarked Fax (italics in original, rest of printed memo is cut off).) A hand-written edit by Andrews replaced the word \u8220\'3fdid\u8221\'3f with \u8220\'3fcould\u8221\'3f in the last line. (Cf.Ex. 19.) Testifying during the status hearing on February 13, 2003, Bornman recognized this as an attempt by Andrews to incorporate in the GRM contract the same kind of change order provision that Andrews had successfully included in the contract of another of his companies, C & C/Manhattan, for refurbishing Government House on St. Croix, a project notorious for its change orders and massive cost overruns. File: 008 - US v Government of Virgin Islands.doc, Paragraph with $: The parties agree that the actual cost of the referenced allowance items may exceed the costs contained herein. The Contract Sum may be adjusted by change order to reflect the difference between actual costs and the allowances. The allowances provided herein are contained in the total contract price of $7,929,912.00. File: 008 - US v Government of Virgin Islands.doc, Paragraph with $: The parties agree that the actual cost of the referenced allowance items may exceed the costs contained herein. The Contract Sum may be adjusted by change order to reflect the difference between actual costs and the allowances. The allowances provided herein are contained in the total contract price of $7,929,912.00. File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with $: Government contractor failed to establish that reformation on the grounds of mutual mistake was warranted because the parties were mistaken about the same fact, that is \u8220\'3fthe contract was susceptible of performance at a cost less than the fair market value of $900,000 and/or the Government\rquote s estimate of $771,000\u8221\'3f; even if parties were mistaken, they were not mistaken about the same fact inasmuch as complaint alleged that contractor was mistaken as to the reduction in its contract price, while the contracting agency was mistaken about performance within 700 days at the negotiated price. File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with $: In November of 1994, the VA notified the Small Business Administration (\u8220\'3fSBA\u8221\'3f) that the contract at issue was eligible for a set-aside under the SBA\rquote s Section 8(a) program with an estimated cost between $500,000 and $1,000,000. The A & E contract was completed in early June of 1995, and estimated the cost of the VAMC project to be $771,690. The VA adopted the A & E estimate as its project cost estimate and established a fair market price of $900,000 for the fire alarm system project. On June 30, 1995, final solicitation specifications and drawings were forwarded to GEGC and the SBA. On July 25, 1995, GEGC submitted its first detailed cost proposal to the VA in an amount totaling $1,369,418. Over the next several days, GEGC and the VA discussed variances between the estimates and negotiated reductions in the scale and scope of the project. On August 1, 1995, GEGC submitted its best and final offer in the amount of $900,000. File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with $: . The assistance, however, is not absolute, and the government has promulgated safeguards to ensure that contracts are awarded in an efficient and cost-effective manner. For instance, plaintiff\rquote s claim that the government violated VAAR \u167\'3f 819.900(d) by failing to perform a pre-award audit is unavailing, because as VAAR \u167\'3f 15.805\u8211\'3f5(c)(1) states an audit should not be requested when \u8220\'3finformation available to the contracting officer is considered adequate to determine the reasonableness of the proposed cost or price.\u8221\'3f The language of the regulation provides the contracting officer, not the Section 8(a) contractor or the SBA, with the discretion as to whether or not to conduct a pre-award audit. Here, after GEGC made its initial offer of $1.3 million the government clarified certain specifications and eliminated the removal of the existing fire alarm system from the contract. Therefore, it does not appear that the contracting officer violated VAAR \u167\'3f\u167\'3f 819.900(d) & 15.805\u8211\'3f5, and even if they were violated, the regulations are internal operating procedures designed to protect the File: 009 - DV Gonzalez Elec And General Contractors Inc v US.doc, Paragraph with $: In Count VIII, plaintiff alternatively asserts that reformation on the grounds of mutual mistake is warranted because the parties were mistaken about the same fact, that is \u8220\'3fthe contract was susceptible of performance at a cost less than the fair market value of $900,000 and/or the Government\rquote s estimate of $771,000.\u8221\'3f Pl.\rquote s Opp. to Def.\rquote s Motion to Dismiss at p. 22. A party seeking reformation upon the ground of mutual mistake must establish that (1) the parties were mistaken in their belief regarding a fact; (2) the mistaken belief constituted a basic assumption underlying the contract; (3) the mistake had a material effect on the bargain; and (4) the contract did not put the risk of the mistake on the party seeking reformation. File: 010 - United Payors And United Providers Health Services Inc v US.doc, Paragraph with $: In its initial proposal, CRA estimated that the total cost to the Government for full performance of the contract by CRA would be $221,541,235. HHS later revised that estimate to $* * *. File: 010 - United Payors And United Providers Health Services Inc v US.doc, Paragraph with $: UP & UP estimated that the total cost to the Government for full performance of the contract by UP & UP would be $227,532,203. Therefore, UP & UP\rquote s proposal estimated costs that were $* * * higher than those estimated by CRA, as revised by HHS. File: 010 - United Payors And United Providers Health Services Inc v US.doc, Paragraph with $: UP & UP and CRA used two distinctly different methods to arrive at their respective proposal estimates, especially with regard to claims processing. CRA proposed to subcontract the claims processing work to * * *, and charge the Government a flat rate of $* * * per claim processed. CRA premised its entire proposal on its assumption that \u8220\'3f[t]he number of claims to be processed annually equals [* * *].\u8221\'3f (Admin. R., at 323.) CRA\rquote s proposal contained a line item for \u8220\'3f[* * *] Claims Office\u8221\'3f for a total of $* * *, calculated by multiplying the $* * * per-claim rate by * * * claims per year by five years. In addition to the $* * * * * * Claims Office charge, CRA proposed five-year totals of $* * * for other direct costs (\u8220\'3fODCs\u8221\'3f) and $* * * for \u8220\'3f[* * *] Utilization Management,\u8221\'3f expressly stating that each proposed amount was for capacity of \u8220\'3fup to [* * *] claims.\u8221\'3f (Admin. R., at 344.) CRA also proposed to add * * *% of total costs for general and administrative (\u8220\'3fG & A\u8221\'3f) expenses, and fees of * * *% for the first three years, and * * *% for the fourth and fifth years. File: 021 - Manuel Bros Inc v US.doc, Paragraph with $: I am in receipt of your letter dated June 28, 1995 in regards to additional utility exploration cost. This letter is the same as that received on February 21, 1995. Upon review around February 28th, you verbally agreed to provide the government with documents clearly indicating those utility lines which the contractor encountered which were not shown on the drawings. Secondly, it is my understanding that the agreed upon cost per utility line would be $289.00. If I am incorrect, please advise. I will await further documentation before proceeding with any actions on this matter. File: 021 - Manuel Bros Inc v US.doc, Paragraph with $: The plaintiff responded by letter dated July 10, 1995, stating that the contractor would reduce the costs of the additional utility exploration by deducting the cost for the electronic utility locator. In addition, the plaintiff stated that $289.00 per individual additional utility exploration was agreeable and the total additional utilities as of July 5, 1995, was eighty-six. On August 9, 1995, CO Ramsey conducted a meeting with the RE and plaintiff\rquote s representatives regarding all the problems, issues, and damages from the beginning of the project to date. The RE issued a change proposal request concerning the additional utilities as discussed at the August 9, 1995 meeting. The August 9, 1995 document titled change proposal request, stated that the contractor would receive $289.00 as the cost of exploration per utility location. File: 021 - Manuel Bros Inc v US.doc, Paragraph with $: The defendant\rquote s RE on the project responded to the June 28, 1995 letter on July 8, 1995, acknowledging the receipt of the plaintiff\rquote s letters and requesting documentation \u8220\'3findicating those utility lines which the contractor encountered which were not shown on the drawings. Secondly, it is my understanding that the agreed upon cost per utility line would be $289.00.\u8221\'3f Based on the correspondence between the parties, on August 9, 1995, the defendant, through the RE, issued Change Proposal Request No. 19, which stated the following: File: 021 - Manuel Bros Inc v US.doc, Paragraph with $: The plaintiff refused to sign Change Proposal Request due solely to a dispute over the amount of compensation for the cost of locating additional utilities and CO Ramsey subsequently issued a unilateral modification under the Changes clause of the contract. The purpose of the unilateral modification was to incorporate Change Proposal Request No. 19 into the contract. The contract price was increased by $26,299.00, a rate of $289.00 per additional utility. File: 026 - CW Over And Sons Inc v US.doc, Paragraph with $: \u8220\'3fa contract adjustment in the amount of $797,994.97 for costs incurred as a result of the Government\rquote s failure to advise [plaintiff] of a mistake in its coefficient for sales tax ....\u8221\'3f Plaintiff contended that the Government\rquote s reference in the solicitation to the tax exemption certificate \u8220\'3fwas extremely misleading\u8221\'3f and that plaintiff took the reference \u8220\'3fto mean that the contract was exempt from sales tax and consequently [plaintiff] did not include an allowance for sales tax in its coefficient.\u8221\'3f Because the Government \u8220\'3fhad ample opportunity\u8221\'3f to review plaintiff\rquote s proposal, and because the proposal explained that the coefficient did not include sales tax, the \u8220\'3fGovernment knew or had reason to know of [plaintiff\rquote s] mistake.\u8221\'3f Plaintiff claimed that \u8220\'3f[o]nce on notice, the Government was required to advise [plaintiff] of its mistake and request verification ...\u8221\'3f of the submitted coefficients. File: 026 - CW Over And Sons Inc v US.doc, Paragraph with $: $797,994.97 to cover the sales tax costs that it had absorbed under the contract. Plaintiff predicated its demand for this equitable adjustment on both the allegedly misleading information in clause G.3 regarding the project\rquote s tax status and the Government\rquote s failure to discover plaintiff\rquote s \u8220\'3fmistake\u8221\'3f regarding the components of the UPB prices. File: 026 - CW Over And Sons Inc v US.doc, Paragraph with $: involved plaintiff\rquote s contract with the Army Corps of Engineers to supply labor and materials for constructing and installing various additions to a North Dakota dam. The contract provided for payment based upon a cost calculation of $7.53 per 100 pounds of steel. When the contract was drafted, both parties believed that this figure reflected plaintiff\rquote s steel procurement costs; however, plaintiff discovered a few days after executing the contract that its procurement costs would be higher. Accordingly, the \u8220\'3fagreement, as written, conferred benefits upon the Government which neither party desired or intended.\u8221\'3f File: 026 - CW Over And Sons Inc v US.doc, Paragraph with $: The Court of Claims concluded that both parties intended that plaintiff be compensated based on its actual costs and that the $7.53 figure did not accurately reflect this intention. The contract thus was reformed to reflect plaintiff\rquote s actual costs. File: 028 - Will H Hall and Son Inc v US.doc, Paragraph with $: Plaintiff has provided inconsistent values for its intended bid throughout the course of this contract dispute. Plaintiff requested upward correction of its bid in the amount of $438,000 in its initial correspondence with the DOL in January 1996 (based on the Zack quote), $526,260 in its initial complaint to the this court (based on the CEI quote), $555,191.67 in its current complaint (adding 5.5% in markups to CEI\rquote s $526,260 for general conditions, bond, and profit), and $554,892 in its opposition to defendant\rquote s motion for summary judgment (adding 4% profit and 1.4% in cost of its bond). File: 029 - NVT Technologies Inc v US.doc, Paragraph with $: On August 30, 2001, the MEO responded to the appeal by adding a separate quality control position and providing a revised in-house cost estimate which reflected an overall increase of $949,489. On September 27, 2001, the AAA issued a final determination accepting the MEO\rquote s changes and denying the remainder of NVT\rquote s issues, including its allegations that the MEO had made an unreasonably low estimate to perform specified ceramic tile and other repairs throughout the facility over the life of the contract. File: 030 - Schickler v US.doc, Paragraph with $: based on GSA debarring the plaintiffs from government contracting, and seeking $253,515.52 in damages for lost profits; and (3) an EAJA claim, seeking damages totaling $18,794.28 for recovery of costs related to two trips to Washington, D.C., an uncollected business loan to TMD from Schickler, and office expenses. File: 030 - Schickler v US.doc, Paragraph with $: Although not a model of clarity, the Court distills four claims from the plaintiff\rquote s Complaint: (1) debarment of the plaintiff by the GSA was wrongful, resulting in lost profits and other business damages; (2) the GSBCA\rquote s award of $395 to TMD for breach of contract damages arising out of the 1992\u8211\'3f1993 tender agreement was insufficient; (3) the plaintiff is entitled to EAJA costs in connection with the 1996 GSBCA decision; and (4) negligence and wrongful acts of the GSA and its agents prevented the plaintiff from contracting with the Government, causing lost profits and other business damages. Each of the claims is addressed below in turn. File: 030 - Schickler v US.doc, Paragraph with $: The plaintiff seeks \u8220\'3f$18,794.28 EAJA equitable adjusted cost.\u8221\'3f (Compl. at 3.) The asserted costs allegedly arose in connection with TMD\rquote s appeal of the CO\rquote s 1994 decision on its breach of contract claim. The plaintiff sought the same EAJA costs in the District Court, which ruled that the EAJA claim was forever time barred due to the failure to file the EAJA claim with the GSBCA within 30 days after the GSBCA\rquote s October 31, 1996 decision became final. File: 032 - American Tel and Tel Co v US.doc, Paragraph with $: AT & T eventually performed the RDA contract at a cost of over $91 million, greatly in excess of the contract\rquote s adjusted final price of about $34.5 million. File: 032 - American Tel and Tel Co v US.doc, Paragraph with $: On remand the trial court did not consider the questions raised concerning the cost of performance of the contract. This highly advanced military system was successfully produced by AT & T, but at a cost several times the original estimate. AT & T said, and it was not disputed, that new technological problems cost millions of dollars to solve. Although no record was developed, my colleagues on this panel suggest that AT & T deliberately bid a cost that it knew was too low, and on this hypothesis my colleagues suggest that AT & T waived additional compensation. My colleagues stress that AT & T is a \u8220\'3fsophisticated\u8221\'3f contractor, apparently concluding that AT & T took the risk of a $50 million overrun and waived review of entitlement based on unforeseen technologic problems. None of these aspects was the subject of evidence or findings. File: 034 - Metcalf Const Co Inc v US.doc, Paragraph with $: ). Given the foregoing, the Navy challenges plaintiff\rquote s argument\u8212\'3fthat the singular terms \u8220\'3fbudget ceiling,\u8221\'3f \u8220\'3fthis amount,\u8221\'3f and \u8220\'3fcost limitation\u8221\'3f establish that elimination for exceeding the budget ceiling related to a single price of $48,480,000\u8212\'3fdoes not give reasonable meaning to all parts of the contract. File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: The RFP states that a fixed-price, indefinite quantity contract would be awarded for a five-year term consisting of one base year and four option years. The government\rquote s Independent Cost Estimate valued the proposed contract at $4,967,693.23. The record contains a detailed breakdown of the estimate, including the prices for each part required by the contract. Sections L.21 and L.22 of the RFP required PCT to submit cost and pricing data in support of its proposed price for each contract line item. File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: On January 22, 1996, PCT submitted a \u8220\'3fManufacturing Schedule\u8221\'3f pursuant to section L.0. However, the schedule extended only to May 1, 1996, the due date for the first shipment of the minimum quantity. PCT also submitted a revised cost proposal and cost data. However, PCT\rquote s revised price for a two-year contract was $3,421,708 for the base year and one option year. This figure was 175 percent higher than the government estimate of $1,954,332. Furthermore, PCT\rquote s revised cost data reflected a labor overhead rate of 330 percent, which the Army states was more than twice the rate used by other small companies similar to PCT, given the Army\rquote s experience with such firms. File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: On January 30, 1996, Army officials toured PCT\rquote s plant and met with PCT personnel. During the discussions, PCT provided the Army with a list of more than $110,000 worth of equipment PCT required to perform the contract. The cost of this equipment was not included in PCT\rquote s proposal, and PCT expected the government to pay for it. PCT also stated that it intended to hire eleven new employees for the contract. Finally, PCT stated that the contract would be managed by PCT\rquote s president and director of Federal contracts and business development and that one hundred percent of their salaries would be charged to the Army. File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: To illustrate this point: On January 8, 1996, the plaintiff submitted its initial proposal in the amount of $10,776,634.28, over twice the value of the Independent Government Cost Estimate. The plaintiff did not submit the requisite cost and pricing data along with its proposal. The contract specialist then File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: contacted PCT and stated that cost and pricing data was required. When PCT submitted some of the required data on January 10, 1996, its representative stated that he had forgotten to indicate on the proposal that if PCT\rquote s prices went up, the contract price would go up. The contract specialist then explained this was a firm-fixed-price contract and that once a price is negotiated, there is no change. AR at 395. Also, the contract specialist ultimately concluded that the data provided by the contractor was essentially unusable. For example, the government could not identify what the base hourly rates for the direct labor personnel were, or what elements constituted the labor overhead pool. The Cost/Price Analyst, using various other data, did manage to calculate the labor overhead rate to be 498%. Moreover, the data provided for items such as travel of $12,000 per year and legal expenses of $12,000 per year. This was despite the close proximity of the contractor to White Sands Missile Range. Although the government did anticipate some legal expenses connected to the procurement process, it saw no need for such extensive legal fees spanning the life of the contract. File: 040 - Process Control Technologies a Div of GMC Enterprises Inc.doc, Paragraph with $: During the same meeting held January 30, 1996, PCT\rquote s representative handed the contract specialist a sheet of paper setting forth a list of equipment that he stated the contractor needed in order to perform this contract. The total cost of this equipment exceeded $110,000 and was also in excess of costs included in the contractor\rquote s proposal. File: 049 - Lion Raisins Inc v US.doc, Paragraph with $: Bid protestor who sought $6,348.99 in employer taxes, $2,292.05 in workers\rquote compensation, and $687.86 in health insurance, as bid preparation costs, failed to meet its burden of proof, where protestor provided no basis by which to determine whether the amount requested reflects the appropriate share of total taxes and health insurance allocable to the contract. File: 051 - Aerojet Solid Propulsion Company v White.doc, Paragraph with $: After receiving those bids, Aerojet presented a nitroethane cost of $1.98/lb in its proposals to the United States. The parties used that cost to negotiate a final contract price of $18,462,235. Although the letter contract envisioned finishing negotiations by December 31, 1989, the parties did not agree on the final contract price until June 20, 1990. On that same day, Aerojet executed a certificate of current cost or pricing data. File: 051 - Aerojet Solid Propulsion Company v White.doc, Paragraph with $: Contract Audit Agency issued a post-award audit report in which it determined that Aerojet provided defective cost and pricing data by not revealing that it had solicited and received additional bids for nitroethane. As a result, the United States required Aerojet to remit $483,813 of the contract price, plus interest. This sum compensated the United States for the additional contract cost beyond the $1.45/lb nitroethane bid price. Aerojet complied by refunding $513,842 that accounted for interest, and, in turn, submitted against the United States its current claim for that amount plus interest. The premise of Aerojet\rquote s claim is that the additional bids did not constitute cost or pricing information subject to disclosure. File: 051 - Aerojet Solid Propulsion Company v White.doc, Paragraph with $: Aerojet and the United States may well have followed the chemical price trends. Aerojet knew it had more recent bids of which the United States was unaware. Even though the negotiation procedures prevented opening those bids until after close of negotiations, Aerojet may well have had expectations about the contents of those sealed bids. Based on those expectations, Aerojet may have sought more diligently to close negotiations before the scheduled opening of the sealed bids or may have sought to delay negotiations until after the scheduled opening. For example, if Aerojet expected (from examining market behavior) that the new bids for nitroethane would be for more than $1.98/lb, Aerojet may have sought to delay negotiations until after those bids were opened. Aerojet then could use that higher nitroethane price to negotiate from the United States a higher contract price. Likewise, Aerojet could act to hurry negotiations should it expect that the new bids would be for less than $1.98/lb. By hurrying negotiations to completion before the bid opening date, Aerojet could ensure that the United States would not come into possession of lower nitroethane cost data that the United States then could use to force a lower contract price. The Board clearly credited the government negotiators\rquote testimony that they would have used lower cost data to negotiate a lower contract price. Hence, the mere knowledge of the existence of the sealed bids and the June 21 bid opening date may have supplied Aerojet with an advantage in the negotiation process. Any prudent buyer or seller would recognize the existence of the bids as significant to price negotiations. File: 052 - JWK Intern Corp v US.doc, Paragraph with $: site overhead, G & A and profit. For example, as to on-site overhead costs, the PEB noted that JWK\rquote s proposal was for $367,836, as compared to a government estimate of $1,848,778. Commenting on this difference, the PEB report states that \u8220\'3fthe PEB believes that JWK has not considered all of the necessary requirements for managing and administering this contract.\u8221\'3f Overall, JWK\rquote s proposed price for the base year of the contract was 72 percent of the government estimate. File: 057 - CESC Plaza Ltd Partnership v US.doc, Paragraph with $: The original lease and amended lease state that there will be \u8220\'3freserved parking spaces for twenty-five (25) vehicles, all to be located on that certain parcel of real property.\u8221\'3f AR at 7081, 27. Regarding the townhouses, the original lease and amended lease state that \u8220\'3f[l]essor shall have the right at its sole cost and expense to construct 3\u8211\'3fstory office townhouses along John Carlyle Street and Elizabeth Lane backing up on the parking garages (and without direct access to such parking garages) and to lease such office townhouses to third-party tenants.\u8221\'3f AR at 7082. In neither contract does the GSA pay for the parking of all employees or visitors. Instead, PTO has entered into a separate lease to rent 3.561 parking spaces and the 77,000 rentable square feet of office space in the townhouses. The PTO parking/townhouse lease is for one year with 29 one-year options. The annual rent received by LCOR from PTO for parking and townhouses will be $6,558,040.08. The base rent portion of that amount is subject to a 3.5 percent annual escalation. AR at 1154, 1157. LCOR would expect to receive rental income for the use of this space, either from PTO or its employees. The guarantee of rental income is created by the PTO lease. It is therefore not a material change to the GSA/LCOR lease. File: 057 - CESC Plaza Ltd Partnership v US.doc, Paragraph with $: Plaintiffs allege that the amended lease includes design changes that equal a cost savings to LCOR of $30 to $60 million. Unfortunately plaintiffs do not point to any specific design changes that they allege are beyond the scope of the SFO or original contract. To support this allegation plaintiffs point to two documents. The first is a document titled \u8220\'3fPTO Status and Strategy\u8221\'3f dated February 1, 2001 and written by Rick Hendrick, Project Manager. AR at 10221\u8211\'3f22. [ ]AR at 10222. The second is a letter dated April 5, 2001 from Craig King, a government consultant. [ ]AR at 10177. [ ] File: 069 - JWK Intern Corp v US.doc, Paragraph with $: The Navy entered into discussions with both JWK and LTM about the respective weaknesses of their proposals. The Navy did not discuss cost with either bidder because both of their cost proposals were rated as adequate. When the final revised proposals were submitted, JWK received a rating of marginal for technical, and satisfactory for management, compared with LTM\rquote s satisfactory for technical, and highly satisfactory for management. The Navy applied a cost realism adjustment to both cost proposals, increasing JWK\rquote s cost to $167,191,517 and LTM\rquote s to $169,993,563. The Navy awarded the contract to LTM based upon its superior non-cost factor ratings. JWK filed a post-award bid protest in the United States Court of Federal Claims. The court granted the United States\rquote and LTM\rquote s motion for judgment upon the administrative record, and denied JWK\rquote s motions for judgment upon the administrative record, preliminary injunction, and injunction pending appeal. JWK appeals. File: 069 - JWK Intern Corp v US.doc, Paragraph with $: . The Navy had estimated that the contract would cost $164,206,050, and JWK\rquote s adjusted bid was $167,191,517. The contracting officer\rquote s judgment that a 1.79 percent difference in cost was not a weakness or deficiency, and his decision not to enter into cost discussions with JWK were neither in bad faith nor an abuse of discretion. File: 071 - Computer Sciences Corp v US.doc, Paragraph with $: On April 17, 2000, defendant issued Solicitation No. F42650\u8211\'3f99\u8211\'3fR\u8211\'3f7213 (hereinafter referred to as the \u8220\'3fSolicitation\u8221\'3f or \u8220\'3fRequest For Proposals (RFP)\u8221\'3f) for a cost-plus-award fee/award term contract. The Solicitation provided that defendant would award the Contract for a three-month transition period followed by a one-year base period and four option years, plus ten additional years of possible award term extensions. Thus, the Solicitation contemplated a potential contract duration of fifteen years with anticipated revenue for the unclassified portion of the procurement totaling $1,548,653,037. File: 076 - Nicon Inc v US.doc, Paragraph with $: On October 25, 1999, the COE\rquote s contracting officer issued his decision granting Nicon\rquote s claim in part and denying it in part. The contracting officer agreed to pay Nicon $187,757 in direct costs, related overhead, and profit, but denied Nicon\rquote s claims for delay damages. The contracting officer stated with respect to Nicon\rquote s claim of $387,513.86 for 291 days of alleged unabsorbed home office overhead: File: 081 - Building and Const Trades Dept AFL-CIO v Allbaugh.doc, Paragraph with $: Furthermore, even if Richmond could segregate its DOT funds, the loss of a PLA for the portion of the project covered by $1.7 million is still a sufficiently concrete and particularized injury to justify standing. The primary purpose of a PLA is to cover all of the contracts on a project. The loss of that uniformity is a specific and concrete injury. In addition, the cost and inconvenience to Richmond associated with segregating the DOT funds from the FEMA and HUD funds, and with writing a PLA for only 97 percent of the project, would in itself be economic injury sufficient to support standing to challenge File: 085 - Maintenance Engineers v US.doc, Paragraph with $: Between the two proposals rated Acceptable or above (i.e., of the two proposals which clearly meet or exceed the Government\rquote s minimal technical requirements), MLI\rquote s proposal offers the highest technical quality as explained above. Further, the quality advantages of the MLI proposal, as outlined above and as further detailed in the TEB report, are worth more than the additional $1.1 million dollar cost (approximately, over the five year maximum potential life of the contract) in comparision [sic] to the proposal of ME. Given MLI\rquote s exceptional technical quality and very competitive price, discussions are unnecessary. If the Government opened discussions with all offerors, the offerors whose prices are lower than Miranda would not be able to improve their technical proposals enough to displace Miranda as the overall best value to the Government; the gap in technical quality is simply too great. File: 090 - Corel Corp v US.doc, Paragraph with $: The agreement between DOL and GTSI gives DOL the right to place delivery orders with GTSI under the NIH contract over three years at a total cost of approximately $2.8 million. (AR Tab 3A at 13.) On July 8, 1999, DOL\rquote s Office of the Assistant Secretary for Administration and Management (\u8220\'3fOASAM\u8221\'3f) placed with GTSI a $350,000 delivery order for various Microsoft software licenses. File: 004 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with $: The union appellants represent Mr. Gately and Ms. Evans and other similarly situated federal employees. Pursuant to OMB A\u8211\'3f76, Appellants and EG&G submitted administrative appeals of the cost comparison decision to the DLA Appeal Authority. As a result of these appeals, the cost comparison was recalculated, but EG&G\rquote s bid remained lower than that of the MEO by about $2.2 million. Accordingly, the Appeal Authority upheld the tentative decision to award the contract to EG&G. File: 013 - SD Myers Inc v City and County of San Francisco.doc, Paragraph with $: Of course, the Ordinance affected Myers: the City decided not to contract with Myers after Myers refused to certify that it would comply with the Ordinance. On appeal and in the district court, Myers has relied solely on conclusory statements about the burden the Ordinance has on interstate commerce. For example, in response to an interrogatory asking Myers to provide an estimate of the cost to itself of implementing a benefits program for domestic partners of employees, Myers stated, \u8220\'3f[Myers] cannot offer an estimate specific to the contract that is at issue in this lawsuit, as it is not known if any of the employees who would have been assigned have, or would have acquired, \u8216\'3fdomestic partners.\u8217\'3f \u8221\'3f Myers did state that the cost of providing only family medical benefits was approximately $300 per month; however, this figure provides almost no indication of the economic impact of the Ordinance on interstate commerce. While we do not require a dollar estimate of the effect the Ordinance will have, we do require specific details as to how the costs of the Ordinance burdened interstate commerce. The Commerce Clause is concerned with the free flow of goods and services through the several states; it is the File: 018 - WorldTravelService v US.doc, Paragraph with $: WTS\rquote s final proposed prices are approximately $967,000 higher over the five year period of performance. The TEP, the Project Officer or [sic] the Contracting Officer, can not justify that the technical abilities of WTS are so superior to [Omega] that it warrants the exorbitant difference in proposed costs.... Omega\rquote s proposal clearly illustrated a comprehension and appreciation of [NIH\rquote s] requirements as shown by their proposed staffing levels and training, 24 hour a day/365 days a year immediate access, discussion of NIH peak travel periods, extensive patient related travel (St. Jude\rquote s), telephone accessible interpreters (143 languages with 24 hour a day access), existing off-site centralized facility, multiple CRS, Mega systems, management reports, and a dedicated web site for travelers.... In conclusion, [Omega] offers the best overall value for the Government. While their technical score is 18.5 [points] lower than WTS, the exorbitant difference in proposed cost of $967,000 over the five year period of performance can not be justified. Therefore, based on all evaluation factors, it is in the best interest of the Government to award a contract to [Omega] for the Travel Management Services at NIH. File: 020 - JWK International Corp v US.doc, Paragraph with $: Prior to receiving contract proposals the government had developed an Independent Government Estimate (\u8220\'3fIGE\u8221\'3f), based upon historical data, of the probable cost to the government over ten years for this contract and derived a total cost of $164,206,050.00. AR 2130. By comparing the Government Realized Position with the IGE, SSEB determined that LTM had submitted a cost proposal that was adequate for determining cost reasonableness and realism. AR 2131. File: 020 - JWK International Corp v US.doc, Paragraph with $: As discussed above, prior to receiving contract proposals the government had developed an historical IGE of $164,206,050.00 for this contract. AR 2130. By comparing the Government Realized Position with the IGE, SSEB determined that JWK had submitted a cost proposal that was adequate for determining cost reasonableness and realism. AR 2130\u8211\'3f31. File: 020 - JWK International Corp v US.doc, Paragraph with $: and others who may have useful and relevant information. Information will also be considered regarding any significant subcontractor (proposing cost of $1,000,000.00 or more) and key personnel records. File: 020 - JWK International Corp v US.doc, Paragraph with $: The portion of the solicitation describing proposal content requirements, directed each member of the offeror\rquote s team proposing costs in excess of $1,000,000.00 to submit a list of up to seven contracts currently ongoing or completed within the last three years. AR 150. Offerors were advised that in addition to questionnaires, to be completed by team members\rquote customers, for purposes of evaluating Offerors\rquote past performance, the government \u8220\'3freserve[d] the right to use past performance information obtained from sources other than those identified by the Offeror.\u8221\'3f AR 150. The Solicitation further advised Offerors that with regard to each relevant contract to be reviewed for past performance, they were to File: 020 - JWK International Corp v US.doc, Paragraph with $: By requiring that subcontractors with costs in excess of $1,000,000.00 fulfill the same requirements under the solicitation as the prime contractor, the record reflects that for purposes of award, the Navy intended to evaluate all offerors upon past performance as a team, consisting of a prime contractor and several subcontractors. AR 150. The JWK team included five subcontractors: [* *], [* *], [* *], [* *] and [* *]. File: 020 - JWK International Corp v US.doc, Paragraph with $: As foretold in the SSP, prior to receiving contract proposals, the government had developed an historical IGE and determined the probable cost to the government for this contract would be $164,206,050.00. JWK\rquote s proposed cost was $154,703,560.00 and LTM\rquote s proposed cost was $168,972,835.00. The Navy requested the advice of its experts, the DCAA, to assist in evaluating the offeror\rquote s proposals. File: 029 - Emery Worldwide Airlines Inc v US.doc, Paragraph with $: on the PwC Analysis, that \u8220\'3fthe Transportation Agreement is fair and achieves the USPS objectives.\u8221\'3f The report also confirmed that, over the seven-year contract period, PwC\rquote s Base Case Forecast showed projected savings of $1.358 billion over the costs projected on the present dedicated systems. File: 029 - Emery Worldwide Airlines Inc v US.doc, Paragraph with $: However, plaintiff\rquote s price per plane assumes that plaintiff would have the revenue from another 10\u8211\'3fyear ANET contract to offset the cost of replacement. In other words, a condition to plaintiff\rquote s ability to procure replacement aircraft for $7 million each was the continuation of a dedicated network. The USPS cannot be faulted for not estimating aircraft replacement costs based on the very network it was trying to eliminate solely in order to improve plaintiff\rquote s standing. Plaintiff\rquote s argument regarding aircraft costs is rejected. File: 029 - Emery Worldwide Airlines Inc v US.doc, Paragraph with $: Plaintiff\rquote s expert, Morris R. Garfinkle, estimates that defendant\rquote s crew costs are overstated by as much as $350 million. Declaration of Morris R. Garfinkle, Feb. 22, 2001, at 17. Defendant responds that this alleged error is \u8220\'3fimmaterial,\u8221\'3f noting that crew cost is \u8220\'3fone cost element\u8221\'3f and that intervenor\rquote s contract would still result in \u8220\'3flarge cost savings for the Postal Service.\u8221\'3f Def.\rquote s Br. filed Mar. 8, 2001, at 16. Although the court is troubled by a possible error that could amount to 25% of the projected $1.358 billion savings under the shared network, to declare the agency\rquote s decision to award the contract irrational would amount to judicial second-guessing. When the award was approved by the Board of Governors on January 9, 2001, JP Morgan\rquote s contemporaneous presentation revealed that the reasons in favor of the award were that the arrangement with intervenor File: 029 - Emery Worldwide Airlines Inc v US.doc, Paragraph with $: The balance does not tilt in favor of intervenor. Should the award decision be overturned, the amount of liquidated damages payable to intervenor is less than the costs to terminate the USPS\rquote s current contracts for mail transport via the network of dedicated carriers. Moreover, the first payment against the $100 million total will not be made to intervenor until March 31, 2001, so, should injunctive relief be proper, the time is at hand to upset contract performance and cause the least havoc with performance. File: 032 - American Federation of Government Employees AFL-CIO Local 1367 v US.doc, Paragraph with $: The AETC Source Selection Team, on May 17\u8211\'3f19, 2000, selected L21stCSC as the \u8220\'3fbest value\u8221\'3f for the BOS, and Phoenix Management, Inc. (\u8220\'3fPhoenix\u8221\'3f), as the \u8220\'3fbest value\u8221\'3f proposal for the airfield functions. Once these two private contractors were selected, their submitted cost estimates were combined and compared against the MEO\rquote s cost estimate. The comparison showed that the selected private contractors could perform the BOS and airfield functions for approximately $2.4 million less than the adjusted cost of MEO performance. File: 036 - SDS Intern v US.doc, Paragraph with $: Bid protestor did not establish that contract awardee\rquote s proposal was not reasonably priced based on comparison of awardee\rquote s total staffing of 13 at a price of $6.9 million with protestor\rquote s staffing at 11 and cost of $6.6 million, absent evidence that awardee\rquote s proposal to have two additional staff, at a cost of $300,000 more than protestor, was necessarily unreasonable. File: 036 - SDS Intern v US.doc, Paragraph with $: which set staffing at 11 and cost $6.6 million. AR at 2460. Plaintiff has offered no evidence that intervenor\rquote s proposal to have two additional staff, at a cost of $300,000 more than plaintiff, was necessarily unreasonable. Whether the price estimate was reasonable is a discretionary determination regarding which this court will not substitute its judgment for the contracting officer\rquote s unless the officer\rquote s judgment was unreasonable. File: 050 - Multimax Inc v FAA.doc, Paragraph with $: However, the revised Technical Evaluation Report completed by the IPT after the Factor 5 rescoring did not reflect the TET\rquote s consensus that Informatica still possessed a measurable and meaningful technical edge over its competitors. Instead, this report stated that \u8220\'3fthe overall technical ratings of each proposal are too close to identify the superior offeror, that each is capable of providing the services called for ... and for the purposes of this technical evaluation each is the equal of the other.\u8221\'3f The final Award Recommendation and Determination, prepared by Steelman, Ternay, and Ward, awarded the contract to Multimax. It stated that \u8220\'3fthere is insufficient demonstrated technical superiority on the part of Informatica to justify the additional expense of awarding the IT contract to that offeror. Over the life of the contract, Informatica would cost almost a million dollars more than Multimax. [$23,926,570.40 for [Informatica]; $22,960,852.00 for Multimax....]\u8221\'3f A contract with Multimax was executed on September 15, 1999. File: 055 - Giesler v US.doc, Paragraph with $: Giesler attempted, unsuccessfully, to renegotiate its contract with the government. After the date for delivery of the nuts had passed without performance, the contracting officer issued a \u8220\'3fshow cause notice,\u8221\'3f and on September 6, 1995, DLA terminated Central Park\rquote s contract for default. Soon thereafter, the government arranged a contract with a previous bidder, John B. Sanfillippo & Sons, Inc. Due to an increase in the market price of raw nuts since the start of the original bidding process, the government incurred added costs in the amount of $185,625.30 to procure the nuts from Sanfillippo. This amount appears to be undisputed. It also appears that the government did not make any progress payments to Central Park. File: 055 - Giesler v US.doc, Paragraph with $: On September 3, 1996, Central Park filed suit in the United States Court of Federal Claims. As stated in its second amended complaint, Central Park seeks, in the alternative: 1) damages in the amount of $185,625.30; 2) reformation of the contract; or 3) rescission of the contract. On June 29, 1998, the government counterclaimed for a judgment of $185,625.30 in excess reprocurement costs. File: 056 - Builders Ass'n of Greater Chicago v County of Cook.doc, Paragraph with $: One flooring subcontractor did a defective job and walked off rather than replace the flooring. Rudnick had to replace it at a cost of $20,000. A minority electrical subcontractor\rquote s quote was used for a bid Rudnick submitted, and, when Rudnick was awarded the job, the subcontractor refused to perform. Rudnick had to hire a different subcontractor to do the work at an additional cost of $168,000. In the case of a Hispanic drywall subcontractor, Rudnick had to advance him money during the job and then had to complete the job for an additional cost of $40,000. An Hispanic masonry subcontractor failed to complete a job, which cost Rudnick an extra $12,000 to complete. Also, the subcontractor did not pay the scaffolding supplier, and the supplier is now suing Rudnick for $13,000. File: 056 - Builders Ass'n of Greater Chicago v County of Cook.doc, Paragraph with $: The witness offered some comments about the success of the Target Group in locating qualified M/WBEs. Assuming that Mr. Williams\rquote s description of his success rate is correct, Dr. LaNoue regards the construction projects in question as atypical because the owners engaged Target, at a considerable cost to themselves, to produce M/WBEs. Target\rquote s fee can run $500\u8211\'3f600,000 for a big project, and, in Dr. LaNoue\rquote s opinion, the typical general contractor cannot spend this kind of money when it is successful on only 10\u8211\'3f15 percent of its bids. Dr. LaNoue believes that the Target data, therefore, is not a valid basis for estimating the availability of qualified M/WBEs. File: 056 - Builders Ass'n of Greater Chicago v County of Cook.doc, Paragraph with $: Another MBE contractor refused to do the work after Lombard had used its bid. Lombard found a replacement at an added cost of $400,000. File: 060 - Vanalco Inc v US.doc, Paragraph with $: (4) From 1998 to the present, Vanalco has been purchasing power that has cost it $35 million more than the power that it should have had the opportunity to purchase under the Amended Block Sale contract. File: 060 - Vanalco Inc v US.doc, Paragraph with $: (d) From 1998 to the present, Vanalco has been purchasing power that has cost it $35 million more than the power that it should have had the opportunity to purchase under the Amended Block Sale contract. File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with $: Plaintiff argues that because the subject procurement is a \u8220\'3f100% set aside for small businesses,\u8221\'3f defendant should have applied the 10 percent empirical rate attributable to small businesses in estimating home office overhead costs for this contract. Instead, defendant applied a 2 percent overhead rate, which is less than the empirical rate deemed typical for large contractors in the Corps\rquote Instructions. Plaintiff concludes that by failing to apply the appropriate home office overhead rate, defendant\rquote s cost estimate was unreasonable, arbitrary and capricious. Defendant counters by stating that the Corps\rquote cost estimator for this project, Gerald A. Brewer, applied a 2 percent overhead rate because a large amount of the contract work on this project is either to be performed by subcontractors or involves the procurement of materials. In his declaration, Mr. Brewer further indicated that he \u8220\'3fincluded 2% of home office overhead within the estimated rate of 15.8 per cent ($289,242) for all of the prime contractor\rquote s overhead costs, in addition to allowing the prime contractor 10 per cent ($126,116) as overhead on subcontractor work.\u8221\'3f File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with $: month duration of the contract work would increase the cost estimate by $9,000. File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with $: Defendant, for its part, responds by explaining that the $1,000 monthly rate included in the cost estimate was not meant to represent the \u8220\'3ffull-time costs of a quality control representative for the entire project.\u8221\'3f Rather, that figure was intended to represent \u8220\'3fonly the quality control effort necessary by the prime contractor to oversee its own work.\u8221\'3f Because a significant amount of the work would be subcontracted, Mr. Brewer\rquote s declaration explains that the prime contractor would not have to perform quality control continuously over the course of contract performance, \u8220\'3fthereby reducing both the time and extent of the prime contractor\rquote s quality control efforts.\u8221\'3f File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with $: Mr. Brewer further notes that the \u8220\'3festimated quality control costs with respect to the subcontractors\rquote work are not represented here, but are included and calculated within the category of the prime contractor\rquote s overhead on subcontractors\rquote costs, which the Corps estimated to be 10 per cent of the subcontractors\rquote costs ($126,116).\u8221\'3f File: 062 - Overstreet Elec Co Inc v US.doc, Paragraph with $: In claiming that subcontractor overhead and profit were taken into account, Mr. Brewer relies on a chart in the administrative record that reflects $909,859 for subcontractor work and $1,137,323 for subcontracts including indirect costs, the latter number being 25 percent greater than the first. File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: TPP\rquote s original proposal for the design of the Visitor Center and Parking Structure facilities included topographical survey work. In 1986, when TPP\rquote s contract with USBR was negotiated, the estimated construction cost for the facilities was $17.5 million. Design activity performed by TPP and its subcontractors for the Visitor Center and Parking Structure facilities ceased in 1988 and resumed in 1990. File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: PCL did not submit time impact evaluations for changes to the level 3A footings or the level 3A transition during contract performance or at any time thereafter. The total amount of direct costs paid to PCL for the Level 3A footing modifications was $89,266.00 and for the Level 3A transition was $167,899.00. File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: Although the court was trying liability and not quantum, the cost of the changes involved is one of the elements which may be relevant to assessing the significance and scope of the changes. The total direct cost to PCL of the vehicle ramp changes was approximately $25,000.00. PCL\rquote s real complaint is not that the design of the ramp was somehow defective, but that the vehicle ramp drawings were \u8220\'3fvague and unbuildable\u8221\'3f at the time of contract award. Although perhaps not commendable drawings, the record does not support the conclusion that the original vehicle ramp design drawings could not produce a functioning vehicle ramp. PCL produced a number of questions, but USBR was able to produce additional in-house drawings with clarifications premised on the original drawings and with changes required due to differing site conditions. It is the conclusion of the court that although the plaintiff did demonstrate that there were problems associated with the original vehicle ramp drawings provided with the contract, USBR was not responsible for PCL\rquote s difficulties in using the design drawings, because USBR used the exact same drawings to provide supplemental drawings as anticipated in Clause 00950.102 of the contract. Moreover, PCL never presented a time impact evaluation. File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: The total direct costs paid to PCL for the triangular bridge change (primarily remobilization of the drilling subcontractor) was $6,419.00. Moreover, the evidence presented did not establish that the original caisson configuration would not have been \u8220\'3fconstructible.\u8221\'3f File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: Moreover, PCL states in its post-trial brief that \u8220\'3f[c]osts associated with this damage totaled $122,907.05.\u8221\'3f PCL, itself, evidently viewed the impact of the blast damage as significant in time and cost, even in contemporaneous submissions PCL\rquote s current attempts to persuade the court otherwise are unavailing. Moreover, the contract provides File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: The expert reports and the fact witness did demonstrate to the court that there was some hindrance by the government, but also that there was culpability for delay on the part of PCL. The fact that PCL has neglected this conclusion undermines its breach of contract claim, which states \u8220\'3fthrough no fault of PCL, the facilities were not complete until May 11, 1995, at a cost to PCL of more than $61,000,000.\u8221\'3f At trial, the government presented ample evidence of PCL\rquote s own errors and delays to demonstrate the error in PCL\rquote s argument that all of its performance problems were attributable to the government, and to demonstrate the fact that PCL committed a number of errors on the job that impacted its work. File: 065 - PCL Const Services Inc v US.doc, Paragraph with $: (a fundamental change to the project resulting in a $6 million change to a $2 million contract was not a cardinal change). In sum, PCL has not demonstrated that the contract changes, which were in part even triggered by PCL\rquote s own performance difficulties, amounted to a cardinal change. Moreover, PCL has failed to demonstrate with specificity that its increased costs actually were the result of the government\rquote s change orders. File: 067 - Myers Investigative and Security Services Inc v US.doc, Paragraph with $: I am submitting the second revision of the cost proposal for the Ohio contract. I hope that it meets your concerns pertaining to the $3 million dollar threshold for this contract. This should be considered as our best and final offer.... File: 070 - MVM Inc v US.doc, Paragraph with $: . The Court further concludes that the Plaintiff does not qualify for an award of attorneys\rquote fees under the Equal Access to Justice Act (\u8220\'3fEAJA\u8221\'3f), and that attorneys\rquote fees are not available under a breach of implied contract theory. Accordingly, the Court orders the Defendant to pay bid preparation and proposal costs of $24,790. File: 071 - Associated Builders And Contractors of Rhode Island Inc v City of Providen.doc, Paragraph with $: On December 16, 1998, plaintiffs filed a Verified Complaint and Request for Injunctive Relief. The Complaint alleges that the City intends to establish similar tax treaties, in which tax stabilization is conditioned upon an agreement by the developer to execute and enforce a PLA with intervenor RIBCTC, on several proposed construction projects in the City of Providence with total contract costs that exceed $100 million. The Complaint, in addition to alleging state law violations, alleges that such a policy is preempted by the NLRA. Plaintiffs seek injunctive and/or declaratory relief prohibiting the City from including a PLA requirement in future tax treaties. Plaintiffs also seek damages and attorneys\rquote fees under File: 072 - Alfa Laval Separation Inc v US.doc, Paragraph with $: Of the six potential offerors, only two, plaintiff and Westfalia Separators, Inc. (\u8220\'3fintervenor\u8221\'3f), submitted proposals. Plaintiff submitted three proposals, the least expensive of which would have cost the Navy $19.4 million, a cost higher than that which caused the Navy to have the contract bid competitively. Intervenor\rquote s proposal came in at approximately $13.7 million. The Navy awarded the purifier contract to intervenor on July 3, 1997. File: 074 - Myers Investigative and Sec Services Inc v US.doc, Paragraph with $: I am submitting the second revision of the cost proposal for the Ohio contract. I hope that it meets your concerns pertaining to the $3 million threshold for this contract. This should be considered our best and final offer .... File: 079 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with $: Lastly, a lesser but still relevant harm would flow from the issuance of a preliminary injunction: the imposition of substantial additional costs on the taxpayer. Colonel Peyer emphasizes that if the Air Force is enjoined from awarding the Kirtland contract to Chugach, it will have to hire short-term employees to \u8220\'3fbackfill\u8221\'3f the civil-engineering positions which civilian employees have started to vacate. The Colonel estimates that the Air Force would incur an additional $477,000 per month in unbudgeted costs for such short-term hires. File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: To arrive at its own BAFO, GDS needed to \u8220\'3fscrub\u8221\'3f its own proposal to eliminate unnecessary costs and expenses. Mr. LaWare undertook this task. On May 31, 1988, GDS requested BAFOs from its subcontractors, like Aircraft Systems Division (\u8220\'3fASD\u8221\'3f), a sister division to GDS. On June 15, 1988, ASD submitted its BAFO to GDS for the shelters for the ATACC. ASD\rquote s BAFO for the prototype was $6,079,680.00, including a 10.8 percent profit, a price well in excess of the $4,350,000.00 BAFO that GDS wanted from ASD. In addition to reductions to the shelter costs, GDS secured reductions from other subcontractors\u8212\'3fincluding, among others, Digital Equipment Corp., Genisco, and SCI\u8212\'3fand made reductions to its own costs, although no documentation of these reductions was introduced into evidence. File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: On June 24, 1988, GDS submitted its BAFO on which it performed another LOC estimate. GDS estimated that 218,000 LOC would be necessary for its proposed ATACC. In its BAFO, GDS took no exception to the RFP, the ATACC SOW, or the ATACC contract. GDS\rquote s BAFO contained a target price of $23,267,207.00 and an identical ceiling price. This target price was a $3,198,706.00 reduction from GDS\rquote s proposal price. GDS\rquote s BAFO included copies of its May 2, 1988 responses to questions regarding cost and revisions to its proposal. File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: On January 17, 1990, the contracting officer sent a letter to GDS to notify it that subcontractor termination costs caused by ECP1 would be part of costs for definitization of ECP1. GDS reasonably took this notice to mean that definitization would exceed $2 million. On February 5, 1990, GDS submitted its first ECP1 cost proposal, prepared by Mr. Tomasulo. The cost proposal contains a target cost increase of $2,571,438.00, a target price increase of $3,179,119.00, and a ceiling price increase of $3,589,898.00. Termination costs were not contained in the February 1990 proposal because GDS had yet to discuss termination with subcontractors and obtain proposals from them. Mr. Glinka expected that total costs would be at least $2.5 million, plus termination costs. GDS personnel were of the opinion that GDS had an agreement to submit its vendor termination costs under a separate cover at a later date. At this point in time, Ms. Thornewell File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: On March 22, 1991, GDS submitted a revised ECP1 proposal in four volumes and a subcontractor termination proposal. The ECP1 proposal contained an SF1411 that requests a target cost increase of $3, 251,379.00, a target price increase of $3,910,431.00, and a ceiling price increase of $4,550,166.00. The proposal also included estimated actual costs for labor and materials. GDS was able to segregate material costs and track them as actual costs. GDS presented its methodology for calculating estimated actual costs and its cost rationale. The proposal also contained an SF1435 settlement proposal for vendor termination costs in the amount of $509,470.00. This submission marks the first time that GDS raised vendor termination cost with the Government. GDS indicated that ECP1 and the vendor termination proposal could be reviewed and negotiated independently of each other. File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: Even if the court were to find a modified total cost approach appropriate, GDS must justify its decrement that accounts for contractor-caused costs. To modify its total costs, plaintiff made a decrement of $865,721.00 to offset inefficiencies in the software development process. Of the $865,721.00, $148,910.00 (an amount that plaintiff failed to explain adequately, File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: $65,067.00 was a corrected rate adjustment after the DCAA audit, $204,583.00 was a DCAA deduction for Modification P00060, and $78,703.00 was a DCAA deduction for Modification P00035. Asserting that the decrement failed to capture all of the inefficiencies and other contractor-caused costs, defendant challenged the adequacy of the claim for damages. The court finds that the decrement is insufficient to account for all contractor-caused inefficiencies, costs, and delays. Much testimony was adduced at trial that reflected inefficiencies or excess costs on the part of GDS. This evidence can be classed into two categories: i) management and ii) technical and performance. File: 081 - Northrop Grumman Corp v US.doc, Paragraph with $: Subcontractors caused delays for GDS. For example, according to Mr. Matusic, SCI was to supply the voice communication system for the ATACC. Delivery was scheduled to coincide with completion of the software effort. SCI was late in its delivery. Mr. Matusic testified that if GDS were to have suffered no other delays, GDS still would have been delayed anyway because of SCI. GDS suffered other subcontractor delays. GDS contracted with Cyberchron Corporation to provide ruggedized monitors for the ATACC. At trial defendant demonstrated that GDS personnel, for example, through Mr. Cotellessa\rquote s September 30, 1991 deposition for the Cyberchron litigation, believed that at the time of the Cyberchron litigation, Cyberchron\rquote s breach was the only source of delay on the ATACC program. Although plaintiff attempted to blunt the force of this evidence by eliciting testimony that the delays testified to in the Cyberchron litigation were the only delays of which the GDS employees were contemporaneously aware, the court was not persuaded by plaintiff\rquote s showing. GDS took a decrement of $80,208.00 for Cyberchron-related costs; however, the Cyberchron impact could have been greater, given the ripple effect about which plaintiff so frequently elicited testimony, not to mention the SCI delay. File: 088 - Mangi Environmental Group Inc v US.doc, Paragraph with $: and SRI\rquote s initial proposal scored[* * *]. The TET\rquote s October 1, 1999, review of the BAFOs concluded that (1) Mangi\rquote s BAFO did not raise the quality of their proposal to the level required to maintain the quality of service expected under the contract and (2) SRI continued to exhibit excellent understanding of the magnitude of the PIT program and attention to customer service. Mangi\rquote s BAFO proposed a cost of [* * *] for the base year, and SRI\rquote s BAFO proposed a cost of $154,441.08 for the base year. In spite of SRI\rquote s higher cost proposal, on October 4, 1999, the Forest Service awarded the contract to SRI, reflecting the Forest Services\rquote view of the best overall value to the government. File: 093 - American Federation of Government Employees AFL-CIO v US.doc, Paragraph with $: Plaintiffs contend that nothing in the record explains EG & G\rquote s $11.8 million price, which is undisputably 46% lower than the next lowest private contractor proposal to perform the work. Plaintiffs contend that EG & G seriously underbid the work. In addition, plaintiffs argue that EG & G\rquote s final bid understates or omits numerous other costs that were included in the MEO price. Most importantly, File: 095 - Novell Inc v US.doc, Paragraph with $: The complaint alleges that the AOUSC conducted this procurement illegally by adding more than $10 million to plaintiffs\rquote cost proposal and improperly downgrading plaintiffs\rquote technical proposal. Plaintiffs seek a permanent injunction, an invalidation of the contract, and an order directing the AOUSC to award the contract to plaintiffs. File: 026 - It Shows Inc v United States.doc, Paragraph with $: USAID issued request for proposal No. SOL\u8211\'3fOAA\u8211\'3f14\u8211\'3f000024 (\u8220\'3fRFP\u8221\'3f or \u8220\'3fsolicitation\u8221\'3f) on March 7, 2014, seeking bids for a contract to provide non-direct-hire human resources support services to the Bureau for Global Health, related Washington, DC offices, and overseas field missions. The solicitation was for a cost-plus fixed fee contract for a five-year term, and it was designated as a small business set-aside. The contract was to be awarded to the offeror presenting the \u8220\'3fbest value\u8221\'3f to the government. USAID prepared its own independent government cost estimate (\u8220\'3fIGCE\u8221\'3f) and estimated a total cost plus fixed fee of $333,743,205 for the contract. File: 026 - It Shows Inc v United States.doc, Paragraph with $: USAID initially awarded the contract to IT Shows on August 7, 2015. At that time, IT Shows had a higher consensus technical rating and a lower price, undercutting SSI\rquote s probable cost of $[redacted text] by just under $[redacted text]. SSI protested the award at the Government Accountability Office (\u8220\'3fGAO\u8221\'3f). The GAO dismissed SSI\rquote s protest as academic on November 5, 2015 after USAID gave the GAO notice that it would take corrective action. Specifically, USAID provided a series of discussion questions to SSI and IT Shows and invited them to submit revised final proposals. File: 026 - It Shows Inc v United States.doc, Paragraph with $: The upshot of the cost realism adjustments was that SSI\rquote s probable cost was $[redacted text] less than that of IT Shows. The contracting officer determined that SSI\rquote s proposal presented the best value based on the equivalent technical merit of the proposals and SSI\rquote s lower cost. Accordingly, USAID awarded the contract to SSI on June 3, 2016. File: 033 - Level 3 Communications LLC v United States.doc, Paragraph with $: On November 18, 2016, the Government filed a sealed status report to update the court about the work that Verizon performed to date and the amount that has been paid or is due to Verizon. ECF No. 50. In an attached declaration, the CO stated that Verizon began the \u8220\'3fprovisioning process to install the circuit per the contract,\u8221\'3f on June 29, 2016, after GAO issued its ruling, and that Verizon completed work on the circuit on November 1, 2016. ECF No 50\u8211\'3f1 at \u182\'3f\u182\'3f 5\u8211\'3f6. In addition, the CO stated that, under Verizon\rquote s offer, the set up process carried a $ [...] \u8220\'3fnon-recurring cost,\u8221\'3f that would be billed to DISA. ECF No. 50\u8211\'3f1 at \u182\'3f 13. Since DISA accepted the circuit on November 1, 2016, the court was informed that Verizon apparently was also owed $ [...] for one month of service. ECF No 50\u8211\'3f1 at \u182\'3f 13. File: 041 - Tiber Creek Consulting Inc v United States.doc, Paragraph with $: The Government acknowledged that plaintiff Tiber Creek showed a higher level of technical expertise than ArrowPoint. The National Guard Bureau awarded the contract to ArrowPoint because the difference between Tiber Creek and ArrowPoint\rquote s levels of expertise did not warrant the substantial difference in bid price. Tiber Creek\rquote s bid price was approximately $50 million; ArrowPoint\rquote s was $40 million. An agency award based on such a balancing between cost and technical benefits is not necessarily improper so long as it is made according to agency procurement rules and regulations. File: 046 - Midwest Fence Corporation v United States Department of Transportation.doc, Paragraph with $: These race- and gender-neutral initiatives have never enabled IDOT to reach its participation goal (which is 22.77%), so it also sets individual contract goals on many contracts. In compliance with the federal regulations, IDOT sets those goals on contracts that have subcontracting possibilities. An IDOT engineer identifies the types of work included in the prime contract and estimates the value of each line item. An IDOT compliance officer then determines whether at least two DBEs are available to perform the work for each line item. The compliance officer then adds up the estimated cost of the line items and divides it into the total contract cost to set a DBE participation goal for the contract. For example, if $100,000 of line items on a $1 million contract could be performed by DBEs, the contract goal would be 10%. IDOT\rquote s Office of Business and Workforce Diversity examines the goal to determine whether it is realistic. File: 047 - Palantir USG Inc v United States.doc, Paragraph with $: (emphasis added). The August 13, 2014 Request for Information indicated that the \u8220\'3f[p]roposed contract types under consideration for this effort are cost-plus-incentive-fee (CPIF) or cost-plus-fixed-fee (CPFF), with an estimated value of $80\u8211\'3f$100M for File: 057 - Proxtronics Dosimetry LLC v United States.doc, Paragraph with $: The court therefore construes plaintiff\rquote s request for compensatory damages of $2,000,000, 3rd Am. Compl. 14, as a request for bid preparation and proposal costs. With respect to the 2014 procurement, plaintiff did not respond to the SSS or the NOI to award a sole-source contract, and therefore it is doubtful that it incurred bid preparation and proposal costs. Further, although plaintiff submitted a proposal during the 2015 procurement, it is highly unlikely that plaintiff incurred bid preparation and proposal costs of $2,000,000 for a proposal that contained an offer to supply the TLD badges to the Air Force for no more than $220,000. File: 059 - Allied Construction Industries v City of Cincinnati.doc, Paragraph with $: Provision of city ordinance which required contractors on water works construction projects to pay $0.10 per hour per worker into a fund for a pre-apprenticeship program and prohibited the payments from being taken from the fringe benefits of the contractor\rquote s employees had connection with ERISA, and thus provision was preempted by ERISA; fund required by ordinance threatened to affect the uniformity of ERISA plans, since the requirement that contractors not make the payment out of fringe benefits precluded them from reducing or otherwise changing the level of the benefit offered to their employees while mandating a specified rate of additional cost for the benefit and benefit could be duplicative of benefit the contractors already provided. Employee Retirement Income Security Act of 1974 \u167\'3f 514, File: 059 - Allied Construction Industries v City of Cincinnati.doc, Paragraph with $: For example, Mr. Klinker explained that under the requirements of Section 320-7, \u8220\'3fif every $1.00 in compensation paid by a contractor is divided so that seventy (70) cents of that $1.00 are wages and thirty (30) cents of that $1.00 are retirement benefits and profit sharing, CMC 320\rquote s pre-apprenticeship training fund requirement requires payment of an additional ten (10) cents per hour per worker, and prohibits the contractor from taking that money out of the thirty (30) cents of that $1.00 that are retirement benefits and profit sharing. Instead, CMC 320 requires additional compensation of ten (10) cents per hour per worker, which prevents the contractors from exercising their discretion to reduce the voluntary contribution to the benefit plan to cover the cost of the ten (10) cents mandated per hour per worker required by CMC 320 for the pre-apprenticeship training fund.\u8221\'3f ( File: 060 - Aegis Technologies Group Inc v United States.doc, Paragraph with $: The cost adjustment for Cole\rquote s proposal was based on the addition of 2,340 hours, at a cost of $368,212, for transitioning into the contract under line item 1 and 320 hours, at a cost of $54,472, for training and management under line item 3. AR 2515-19 (initial evaluation), 2843-45 (proposal analysis report), 2761 (source selection authority decision brief), 2887-88 (source selection decision showing overall adjustment and specifically discussing the addition of transition costs). File: 062 - Alpha Painting And Construction Company Inc v Delaware River Port Authorit.doc, Paragraph with $: The problem with Jacurak\rquote s conclusion that he could change the bid\u8212\'3fif indeed he was the one who made that decision\u8212\'3fand the subsequent recalculation is two-fold, one substantive, the other procedural. First, none of the provisions in DRPA\rquote s Procurement Manual or the IFB allow the DRPA to restate, or in effect change, the line item for mobilizations and clean-up costs. The provisions that come closest, Sections A.7.5 and A.7.6 of the IFB, are not nearly as broad as DRPA contends. These sections, when fairly read both independently and in context of the bid package as a whole, clearly address instances in which the bidder commits a mathematical error of some kind. An example might be a bidder who promises to provide 10 widgets at $.10 each but extends the line item out as $1.10 rather than $1.00. In such a situation, anyone involved in the process, a bidder, a contract administrator, or a reviewing court would understand the bidder intended to quote a price of $1.00 and not $1.10. File: 069 - United States ex rel Cody v Mantech International Corporation.doc, Paragraph with $: The awarded contract, Contract W56HZV\u8211\'3f12\u8211\'3fC\u8211\'3f0127 (the \u8220\'3fMRAP Contract\u8221\'3f or the \u8220\'3fContract\u8221\'3f), was a \u8220\'3fcost-reimbursement\u8221\'3f contract worth $2.85 billion in revenues to ManTech over five years and constituted at that time ManTech\rquote s largest and most lucrative contract. Management of the MRAP Contract was assigned to Kevin Cody\rquote s \u8220\'3fbusiness unit\u8221\'3f Muge Cody served as Program Manager for the Contract along with others in her Program Management Office (\u8220\'3fPMO\u8221\'3f). File: 072 - McConnell Jones Lanier And Murphy LLP v United States.doc, Paragraph with $: But the value of the contract over the five-year period was close to $50 million, and price was the least important consideration in choosing the awardee under the RFP. AR Tab 6 at 178. The RFP, in fact, provides that the adjectival ratings for the technical evaluation criteria, when combined, are to be considered \u8220\'3fsignificantly more important\u8221\'3f than cost. File: 072 - McConnell Jones Lanier And Murphy LLP v United States.doc, Paragraph with $: For similar reasons, the Court finds no merit to MJLM\rquote s argument that the CO was required to adjust API\rquote s costs upward some $1.3 million to reflect 4.65 additional FTEs as contained in the IGCE. Pl.\rquote s Mot. at 39\u8211\'3f42; Kiraly Decl. \u182\'3f 29. MJLM bases this contention on the fact that, as discussed in greater detail above, the technical evaluators assigned API a \u8220\'3fmarginal\u8221\'3f rating on the adequacy of staffing subfactor. Pl.\rquote s Mot. at 39\u8211\'3f40. But notwithstanding the \u8220\'3fmarginal\u8221\'3f rating, DOL assigned API\rquote s staffing resources proposal a \u8220\'3fvery good\u8221\'3f rating overall and awarded the contract to API with full awareness that it proposed to staff the Center at a lower FTE level than was reflected in the government\rquote s estimate. Under these circumstances the agency was not required to adjust API\rquote s proposal upward; indeed, it would have arguably been inappropriate for it to do so. File: 072 - McConnell Jones Lanier And Murphy LLP v United States.doc, Paragraph with $: AR Tab 5 at 40\u8211\'3f40.1; Kiraly Decl. \u182\'3f 19. In response, the government asserts that \u8220\'3fthe contracting officer has represented\u8221\'3f that her cost realism analysis relied on the $49,137,698 amount and not the incorrect amounts set forth in her award determination memorandum. Def.\rquote s Reply to Pl.\rquote s Opp\rquote n to Def.\rquote s Cross-Mot. at 4\u8211\'3f5, ECF No 61. It claims that the record supports this conclusion because CO Matz determined that API\rquote s proposed base costs were 2.7% below the IGCE while MJLM\rquote s costs were [...]% above the IGCE. File: 075 - Dellew Corporation v United States.doc, Paragraph with $: Administrative Record page (hereinafter \u8220\'3fAR\u8221\'3f) 16785. Essentially, plaintiff argues that, because the cost of the contract exceeded $640,000, the Agency should have considered it relevant transportation experience during its past performance evaluation. File: 077 - Palantir Technologies Inc v United States.doc, Paragraph with $: and \u8220\'3frequest[ed] respondents\rquote corporate overview information and basic qualifications in managing software development projects that are similar in scope and process to the DCGS-A program.\u8221\'3f The August 13, 2014 Request for Information indicated that the \u8220\'3f[p]roposed contract types under consideration for this effort are cost-plus-incentive fee (CPIF) or cost-plus-fixed-fee (CPFF), with an estimated value of $80-$100M for development efforts over three to four years.\u8221\'3f File: 086 - FlightSafety International Inc v United States.doc, Paragraph with $: The Army then took corrective action by conducting written discussions with CAE and FSI. During this time, it was necessary to extend the existing contract with FSI, as the incumbent contractor. The contract was extended by modification dated September 29, 2015, for a period of 12 months (\u8220\'3fthe bridge contract\u8221\'3f). The modification indicated, in an item labeled \u8220\'3fSAVINGS CLAUSE,\u8221\'3f that, if FSI were to receive the new contract, the cost of the bridge contract would be reduced by $8,972,240.00, which is the sum of two cost items that would no longer be required in that event. In its bid, FSI did not reduce its pricing by this amount, but it did place in a footnote to the \u8220\'3fOVERALL GRAND TOTAL\u8221\'3f price a reminder of price reduction recited in the savings clause. File: 086 - FlightSafety International Inc v United States.doc, Paragraph with $: SAVINGS CLAUSE ... In the event [FSI] is awarded the follow-on-7 year contract for the Flight Training Services, costs for FY 16 under this contract for additional ODC Asset Costs of $6,366,382 and the Employee Retention Incentive Plan of $2,605,858 would no longer be required. File: 100 - Phoenix Management Inc v United States.doc, Paragraph with $: options. AR Tab 12 at 737, Tab 45 at 2407. The Air Force estimates that the Youngstown contract will cost $29.4 million and the Pittsburgh contract will cost $28.1 million. AR Tab 7 at 700, Tab 45 at 2407. File: 006 - Cube Corp v US.doc, Paragraph with $: The solicitation contemplated a cost plus award fee contract for a base period and four option years. Award was to be made to the offeror whose proposal provided the \u8220\'3fbest overall value\u8221\'3f to the government. After review of their initial proposals, Cube and R & D Maintenance both were deemed to be within the competitive range. After discussions closed, Cube submitted a final proposal with a total proposed cost of [DELETED], and R & D Maintenance submitted a final proposal with a total proposed cost of $14,380,522.00. In spite of R & D Maintenance\rquote s higher cost proposal, on October 15, 1999, the Corps of Engineers awarded the contract to R & D Maintenance, reflecting the Corps of Engineers\rquote view of the latter\rquote s proposal as the best overall value to the government. Contract performance by R & D Maintenance was scheduled to began November 1, 1999. File: 006 - Cube Corp v US.doc, Paragraph with $: Plaintiff notes that the solicitation contained the government\rquote s estimate of the quantity of work to be performed in the Work Breakdown Structure (WBS), which the plaintiff relied on in preparing its proposal. Plaintiff attempts to contrast the WBS estimates in the solicitation with the Government Estimate of $13,867,666.00, which, according to the plaintiff, should be consistent with the WBS, but which plaintiff believes was based on the historical cost outlays of the preceding contract for the operation and maintenance of government facilities at Hartwell Lake. Plaintiff points out, for example, that the total cost to the government of the predecessor contract (less an award fee which has not yet been determined) was $13,855,025.29, while the Government Estimate for the contract currently under protest, as noted above, is similar: $13,867,666.00. Plaintiff contends that the preceding contract involved work far in excess of the work reflected in the WBS estimate, but the Government Estimate in dollar outlays for the two solicitations are similar. According to the plaintiff, therefore, the Government Estimate in the current solicitation must be far in excess of the more limited WBS in the current solicitation. File: 006 - Cube Corp v US.doc, Paragraph with $: In the last three years of the preceding contract, the incumbent contractor incurred and invoiced the Government for work above and beyond the quantities specified in the Solicitation\rquote s WBS in the amount of [DELETED]. Exhibit B. The WBS quantities were exceeded by similar amounts in the first two years of the contract, for an approximate extra cost of [DELETED] per year. Multiplied by five years, the cost of work above and beyond the Solicitation\rquote s WBS quantities was approximately [DELETED]. If this amount is added to Cube\rquote s proposal [DELETED], which was based on the Solicitation\rquote s WBS quantities, the total comes to [DELETED]\u8212\'3fvery close to the Government Estimate ($13,867,666). File: 006 - Cube Corp v US.doc, Paragraph with $: Plaintiff argues that only Cube proposed the required trucks, but that R & D nevertheless was scored higher for this subfactor. Cube was rated [DELETED] in Equipment Utilization; R & D was rated Above Average. The Source Selection Decision Summary notes that Cube proposed [DELETED] vehicles than were appropriate for the task, and also proposed an [DELETED] of vehicles. This provides a reasonable basis for the rating in this subfactor. The Source Selection Decision Summary noted that R & D was short four pickup trucks, and concluded that \u8220\'3fthe potential increase in cost of $108,000.00 for 4 vehicles is considered minor with comparison to the total proposed contract amount of $14,380,522.24.\u8221\'3f R & D did not propose the [DELETED] trucks criticized by the government that Cube proposed. On R & D\rquote s [DELETED] as Cube proposed, [DELETED]. The government had a reasonable basis for the evaluation and ratings of equipment. File: 006 - Cube Corp v US.doc, Paragraph with $: & D\rquote s cost proposal. The supporting Source Selection Decision Summary concluded that \u8220\'3f[i]t would be extremely difficult for [Cube] to perform the work contained in the proposal at an acceptable level at [Cube\rquote s] proposed cost.\u8221\'3f The government\rquote s analysis concluded that Cube\rquote s actual costs under the contract would be not the [DELETED] proposed, but [DELETED], which is less than [DELETED] percent below R & D\rquote s proposed cost of $14,380,522.00. The Source Selection Authority determined that \u8220\'3f[R & D\rquote s] offer represents a proposed cost that provides best value to the government when consideration is given to actual costs under current market conditions and technical and functional capabilities of this offeror.\u8221\'3f With the evaluated costs of the two offerors relatively close, given the size of the contract, R & D\rquote s technical superiority, noted above, provides a reasonable basis for a best value award to R & D. As noted above, the evaluation criteria stated that: \u8220\'3f[T]he Government is more concerned with obtaining superior Soundness of Approach and Management than with making an award at the lowest overall cost to the Government.\u8221\'3f File: 010 - Associated Utility Contractors of Maryland Inc v Mayor and City Council of.doc, Paragraph with $: \u8220\'3fprequalified to perform work in City of Baltimore projects\u8221\'3f in various categories of public works construction. Pursuant to City of Baltimore Rules for Qualification of Contractors \u167\'3f 2.1, \u8220\'3f[p]ossession of a valid Certificate of Prequalification is deemed proof of qualification\u8221\'3f to bid on city contracts to perform work costing in excess of $25,000. Finally, the fact that AUC members who are \u8220\'3fready and able\u8221\'3f to bid on City public works contracts are injured by the Ordinance is evidenced by the affidavit of Elaine Middleton, AUC\rquote s Executive Director, attesting to the fact that the twelve AUC members whose Certificates of Prequalification are in the record do not qualify as \u8220\'3fMinority Group Members,\u8221\'3f \u8220\'3fMinority Business Enterprise\u8221\'3f or \u8220\'3fWomen\rquote s Business Enterprise\u8221\'3f as defined in the Ordinance. Accordingly, these members are disadvantaged in the City public works contract bidding process, which privileges MWBE\rquote s as described above. Thus, members of AUC would have individual standing in their own right to challenge the constitutionality of the City\rquote s set-aside goals applicable to construction contracting, satisfying part one of the associational standing test. File: 012 - Unified Architecture And Engineering Inc v US.doc, Paragraph with $: In this case, in its cost realism analysis, NASA made a probable cost adjustment addressing plaintiff\rquote s understatement but not its overstatement of general and administrative expenses and incentive fees in its cost proposal. Although NASA\rquote s action might have been arbitrary and capricious, plaintiff still has not demonstrated that NASA\rquote s error was significant and prejudicial. Plaintiff cannot show that there was a substantial chance that it would have received the contract award but for NASA\rquote s improper probable cost adjustment without stating a percentage, an actual dollar amount representing general and administrative expenses and incentive fees, or an estimate of what its final adjusted cost should have been. Moreover, even if plaintiff specified the cost price of its proposal after a proper probable cost adjustment, NASA\rquote s error would not warrant summary judgment in favor of plaintiff. The court concludes that a probable cost adjustment correcting the fixed price portion of the contract would be minimal because (1) NASA adjusted the non-fixed price portion of the contract by $1.1 million and (2) the non-fixed price portion of the contract was 5.5 times greater than fixed price portion of the contract. File: 024 - Space Mark Inc v US.doc, Paragraph with $: than contractor performance by $274,232. Based on these results, the CO announced the Air Force\rquote s tentative cost comparison decision in favor of the MEO. The decision would not become final, however, until SMI exhausted its administrative appeals. File: 024 - Space Mark Inc v US.doc, Paragraph with $: On September 3, 1999, the AFMC issued a final decision denying SMI\rquote s appeal. As is relevant to this action, the AFMC ruled as follows. First, it rejected SMI\rquote s contention that the Air Force improperly had included three QAEs in the contract administration function. The AFMC agreed with SMI, however, that the Air Force had not justified three GS\u8211\'3f12 QAEs. The AFMC held that the Air Force QAEs should instead consist of only two GS\u8211\'3f12s and one GS\u8211\'3f11. As a result, the AFMC reduced SMI\rquote s cost by $70,569. Second, the AFMC rejected SMI\rquote s contention that the Air Force had miscalculated the number of employees to be relocated. The AFMC determined that the Air Force had not manipulated the relocation data and that the record supported the decision to relocate 13 employees. The AFMC explained that SMI\rquote s reliance on the existing organization data was misplaced because the existing organization is only part of the calculus, and as a result, conclusions could not be drawn from data about the existing organization. Rather, the relocation numbers were based properly on the revised personnel estimates needed for the MEO. The AFMC concluded that the Air Force had justified its conclusion that 13 employees would need to be relocated by privatizing the work. File: 026 - ITT Federal Services Corp v US.doc, Paragraph with $: , J., held that: (1) any perceived ambiguity in provision of solicitation which required that offeror submit a threat assessment with a proposed personnel security plan was not patent; (2) agency\rquote s interpretation that an offeror had to submit a single threat assessment with a proposed security plan whether or not the recommended staffing levels were included in the proposal was not an unreasonable contract construction; (3) although awardee failed to comply with solicitation requirement for security vehicle cost accounting, bid protestor failed to demonstrate element of prejudice; and (4) source selection authority (SSA) reasonably determined that cost savings of $4.5 million dollars or 8.4% in selecting awardee was not offset by the superior characteristics of protestor\rquote s management/technical proposal. File: 026 - ITT Federal Services Corp v US.doc, Paragraph with $: at 48. The total estimated cost of the contract was $109 million. File: 029 - Synetics Inc v US.doc, Paragraph with $: Plaintiff contends that the evaluation of the Cost proposals was flawed because defendant failed to conduct a meaningful cost realism analysis as required by the RFP. Specifically, plaintiff contends that defendant failed to properly consider the cost impact of (1) intervenor\rquote s and plaintiff\rquote s proposed reductions in staffing levels for contract out-years, (2) intervenor\rquote s use of five allegedly unpriced TWNET employees on the Help Desk portion of the contract work, and (3) intervenor\rquote s use of on-site TWNET and Help Desk personnel above the 19 person limit stated in the RFP. Plaintiff\rquote s FPR was approximately $4 million greater than intervenor\rquote s, even after defendant\rquote s downward adjustment of plaintiff\rquote s proposal lowered plaintiff\rquote s cost by $1.62 million. File: 030 - Stratos Mobile Networks USA LLC v US.doc, Paragraph with $: In assessing the relative burdens that the grant or the denial of injunctive relief would impose, we start by noting that eligibility for participation as a bidder in the Navy\rquote s procurement of INMARSAT\u8211\'3fB satellite communication services required a substantial investment in transmission facilities and equipment, either owned or leased. Stratos places its investment costs in such facilities and equipment at approximately $7.5 million. Thus, the denial of an injunction would inflict upon Stratos not only the harm that unfair exclusion from the competitive process normally entails\u8212\'3fnamely, the denial of the opportunity to earn future profits\u8212\'3fbut also would prevent it from having any hope of recovering its investment costs under the contract. And, as there is little reason to assume, given the record before the court, that replacement business could readily be found to help Stratos recoup its investment, the result would be to translate a reasonable business risk into a permanent business loss. File: 030 - Stratos Mobile Networks USA LLC v US.doc, Paragraph with $: By contrast, COMSAT\rquote s \u8220\'3fup-front\u8221\'3f costs were substantially lower than Stratos\rquote \u8212\'3froughly $900,000. However, COMSAT faces a risk of loss as large as Stratos\rquote because, after contract award, COMSAT finalized subcontract arrangements providing for the use and operation of the necessary transmission facilities and equipment which, if prematurely terminated, would expose COMSAT to a multi-million dollar termination liability. COMSAT places this number at approximately File: 034 - WG Yates And Sons Const Co Inc v Caldera.doc, Paragraph with $: Similarly, Yates has standing to bring IDC\rquote s claim for excess reprocurement costs that were paid to Yates. According to the LCCA, IDC was required to pay to Yates the excess reprocurement costs of $159,371 in installments, whether the ASBCA ruled favorably or unfavorably for IDC. IDC paid Yates according to its contractual obligations, and Yates sought to recover that sum. The Army argues that, because Yates is not liable to IDC and has already recovered that sum from IDC, Yates cannot recover this sum from the Army. File: 036 - County Council of Northampton County v SHL Systemhouse Corp.doc, Paragraph with $: Moreover, on October 19, 1995 the County Council received and reviewed the E9\u8211\'3f1\u8211\'3f1 plan. It expressly stated that the E9\u8211\'3f1\u8211\'3f1 services would be provided over a ten year period at a cost of $47 million and \u8220\'3f[i]t is the stated intent of the County to establish a contractual association with the SHL Systemhouse which will provide enhanced 9\u8211\'3f1\u8211\'3f1 service to all residents of Northampton County.\u8221\'3f (Systemhouse\rquote s Mem. Ex. G, Executive Summary). At the County Council meeting of October 19, 1995 Systemhouse representatives stated that Systemhouse wanted to implement the E9\u8211\'3f1\u8211\'3f1 plan. Additionally, County Council member, Diane V. Elliott reviewed drafts of the Agreement and the Agreement itself before witnessing the signing of the Agreement by Dr. Brackbill on December 12, 1995. File: 037 - Safeco Ins Co of America v City of White House Tenn.doc, Paragraph with $: Safeco asked District Judge Nixon to stay the federal case, but he denied the motion. White House filed a motion for summary judgment claiming that Eatherly committed anticipatory breach by withdrawing its bid after the contract arose. District Judge Nixon granted the motion. He awarded damages of $352,847.08, pre-judgment interest of $207,358.03, and attorney\rquote s fees and costs. File: 038 - Giesler v US.doc, Paragraph with $: The government then sought to arrange a replacement contractor and contacted the previous bidders. John B. Sanfilippo & Sons, Inc., (Sanfilippo) was prepared to perform on short notice, but increased its bid price to reflect an increase in the cost of speciality nuts since its spring bid. The contract was let, and Central Park was assessed the added costs to the government stemming from the increase in raw material prices, $185,625.30. This is the amount in dispute. File: 038 - Giesler v US.doc, Paragraph with $: Naval Air Station near Memphis, Tennessee, the Navy\rquote s fourth largest such installation. Hamilton and every one of the other bidders quoted prices below the Navy\rquote s dollar estimate. Hamilton eventually won the contract, but within a month, found it was losing money. Its requests for equitable adjustments denied, Hamilton reduced its manhours to 456 per day, less than half of the 1,100 previously provided, with the Navy taking up the slack. Within 3 months, the contract was terminated for default, with Hamilton assessed nearly $170,000 in reprocurement costs. File: 039 - Merck-Medco Managed Care LLC v Rite Aid Corp.doc, Paragraph with $: Both Eagle and Medco are Pharmacy Benefits Managers (\u8220\'3fPBM\u8221\'3f). PBMs were created in response to the rising costs of pharmaceutical products. They seek to keep prices down by pooling claims. A PBM will contract with a plan sponsor, such as the State of Maryland, and for a fee, will manage the drug benefits program for the sponsor\rquote s employees. The PBMs put together a network of participating pharmacies. To be included in the network, the pharmacies must agree to dispense drugs at a discount. For each prescription filled, the PBM reimburses the pharmacy under a formula based on the drug\rquote s average wholesale price (\u8220\'3fAWP\u8221\'3f) less a percentage, plus a dispensing fee. For the Maryland Plan, the network pharmacies were to be reimbursed at a rate of AWP minus 15% plus $2.00. The PBM that can offer the greatest price discount gains an advantage in winning the contracts of large employers. File: 040 - CTA Inc v US.doc, Paragraph with $: On December 17, 1993, CTA submitted its Best and Final Offer (BAFO), even though BAFOs were not due until December 30, 1993. The certification that CTA had a realistic compensation plan was included with the BAFO, as required by paragraph L.18. For year one of the contract, CTA submitted bids ranging from $29.33 to $33.78 per hour for on-site Skill Level 16 work and from $30.86 to $35.55 per hour for off-site Skill Level 16 work, depending on the geographical area. The incomplete evidence of record shows that the government estimated that Skill Level 16 work would cost from $37.89 to File: 040 - CTA Inc v US.doc, Paragraph with $: CTA alleges that it had difficulty filling the IEF positions ordered for SAAS\u8211\'3fMOD. According to CTA\rquote s Director of Business Operations, John Henderson, CTA was able to hire only two persons with the requisite IEF experience, and was able to provide 12 more IEF experts through subcontracts and consulting relationships. By November 26, 1996, CTA had provided 27,304 hours of work under Skill Level 16 work, for which it was paid $899,566 at an average rate of $32.95 per hour. However, based on data provided by Henderson, CTA\rquote s cost of providing the labor (including fringe benefits and overhead for CTA employees) totaled $1,841,922.39, making the average hourly cost of providing Skill Level 16 work $67.46\u8212\'3fmore than twice the hourly rate CTA was paid. Henderson\rquote s data also indicated that CTA\rquote s costs plus profit (labor costs plus general and administrative expenses and profit) totaled $1,963,163.29, making CTA\rquote s average hourly \u8220\'3fprice\u8221\'3f $71.90. File: 043 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with $: at 3\u8211\'3f141. The RFP estimated the total cost of the contract to be $26,356,101. File: 047 - John C Grimberg Co Inc v US.doc, Paragraph with $: contractor \u8220\'3fhave installed, on at least two prior projects, elevators which are comparable to those required for this project\u8221\'3f is a valid special standard). On these facts, however, we conclude that the solicitation was sufficiently specific and did provide Grimberg with reasonable notice of what would satisfy the special standard. For example, the similar \u8220\'3fsize\u8221\'3f requirement placed Grimberg on notice that the contracting officer would consider factors such as the total square footage, total cost, and number of stories of its previous projects. Of Grimberg\rquote s four submissions, however, only one project equaled or exceeded the South Wing project in terms of square footage, whereas two projects fell far (over 45 percent) short. And although Grimberg bid over $14 million for the South Wing project, three of its four submissions had a project cost under $9.1 million. To the extent that Grimberg had questions about what the special standards required, it should have asked the contracting officer for clarification. File: 049 - T And M Distributors Inc v US.doc, Paragraph with $: The contracting officer stated that mission needs could not have been met under the original contract because the Navy\rquote s estimated usage and the scope of the work had been substantially underestimated, and he pointed out differences in the requirements set forth in the original contract and the second contract. The contracting officer stated that it had been his opinion that \u8220\'3fa cardinal change in government requirements had occurred and that the competitive environment would best be served by terminating [the] contract for the convenience of the government and resoliciting the new requirement under conditions of full and open competition.\u8221\'3f He continued that the decision to re-compete had been logical because T & M had not started to perform under the contract and that therefore any costs incurred by it were minimal. The contracting officer suggested that, if circumstances had been reversed, \u8220\'3fi.e. that the government estimate for all five years under [the] contract had decreased from $5.0 million to $1.1 million just after award,\u8221\'3f T & M would have been justified in seeking termination. The contracting officer concluded his decision by stating that he had terminated T & M\rquote s contract after determining that the changes required in the contract to bring File: 052 - Forestry Surveys and Data v US.doc, Paragraph with $: Finally, on June 3, 1999, Forestry filed, by leave of the court, an amended petition, in which it dropped its request for an injunction to terminate the contract and to direct award of the contract to itself. In said amended petition, however, Forestry added a request for bid preparation costs premised on the allegation that there was an improper evaluation of the experience and past performance criteria. With the filing of the amended petition on June 3, 1999, Forestry\rquote s remaining request for relief was narrowed, therefore, only to the following: (i) bid and preparation costs of $1,000, (ii) an injunction barring the negative past performance evaluation of Forestry from use in consideration of the protested contract and of other contracts outside the Department of Agriculture, File: 055 - Hanten v School Dist of Riverview Gardens.doc, Paragraph with $: 27. Thereafter, the School Board voted to award the contract for the School Project to Wachter at a cost of $5,321,674.00, which was $453,124.00 above Wachter\rquote s original \u8220\'3fwinning\u8221\'3f bid. A material portion of this $453,124.00 increase was due to the additional cost of substituting mechanical and electrical subcontractors who are signatory to AFL\u8212\'3fCIO collective bargaining agreements. File: 061 - American Tel And Tel Co v US.doc, Paragraph with $: The contract was successfully performed by AT & T over a period of five years. With the price adjustments to which the Navy agreed during performance, the final fixed price was approximately $34.5 million. AT & T states that technical problems and unknowns arose throughout performance, and that its total cost was at least $91 million. The Navy rejected AT & T\rquote s requests for restructuring the contract and other relief, although AT & T directed attention to \u167\'3f 8118 of the Defense Appropriations Act and relevant Department of Defense policy directives concerning procurement of research and development for new technologies. File: 061 - American Tel And Tel Co v US.doc, Paragraph with $: Section 8118 by its terms applies to \u8220\'3ffixed price-type contracts in excess of $10,000,000 for the development of a major system or subsystem.\u8221\'3f The government argues that the Reduced Diameter Array is not a \u8220\'3fmajor system,\u8221\'3f referring to a memorandum issued six weeks after enactment of \u167\'3f 8118 wherein the Under Secretary of Defense defined \u8220\'3fmajor system\u8221\'3f for the purposes of \u167\'3f 8118 as a system having a contract cost of over $75,000,000. In a File: 061 - American Tel And Tel Co v US.doc, Paragraph with $: In addition, the AT & T contract itself, and the Space and Naval Warfare Systems Command\rquote s guide to the SURTASS, described the Reduced Diameter Array as a \u8220\'3fsubsystem.\u8221\'3f Subsystems were not defined in \u167\'3f 2305(5) and were not mentioned in the Memorandum of the Under Secretary. However, subsystems costing more than $10,000,000 were explicitly included in \u167\'3f 8118. Although the government now argues that the Under Secretary\rquote s Memorandum and SECNAV Instr. 4210.6A really covered a major system File: 061 - American Tel And Tel Co v US.doc, Paragraph with $: This court\rquote s opinion discounts the reasonable reconciliations of the $10,000,000 contract amount requirement with the \u8220\'3fmajor system\u8221\'3f classification requirement. Under the agency\rquote s reasonable interpretation, the $10,000,000 contract amount requirement serves as a floor for invoking \u167\'3f 8118 in contracts involving a project designated as a \u8220\'3fmajor system\u8221\'3f by the department head. Furthermore, the $10,000,000 contract amount requirement does not lose its meaning for systems whose estimated costs exceed $75,000,000. Development of a major system typically requires multiple contracts with multiple developers. In these cases, the $10,000,000 requirement serves as a floor for application of \u167\'3f 8118 to each contract involved in the development of that \u8220\'3fmajor system.\u8221\'3f Similarly, the $10,000,000 trigger amount excludes from \u167\'3f 8118 any subsystem contracts within a major system which do not satisfy this threshold amount. For these reasons, the $10,000,000 threshold continues to govern in conjunction with the $75,000,000 threshold for a \u8220\'3fmajor system.\u8221\'3f In sum, these dual thresholds work together and provide a reasonable explanation for the agency\rquote s interpretation of these statutes. Because reasonable, the agency\rquote s interpretation deserves deference. File: 062 - Glazer Const Co Inc v US.doc, Paragraph with $: ). By its terms, the BAA only exempts contracts the total amount of which is below the micropurchase threshold of $2,500. The value of particular non-conforming materials is irrelevant. Moreover, if a contractor is willing to risk violating the statute to save cost on relatively inexpensive materials, it seems as likely (if not more likely) that he would take identical risks with larger and more expensive components of a project. Reading a de minimis exception into the BAA would create an \u8220\'3fenforcement gap\u8221\'3f through which all but the most significant contract components would fall. File: 064 - Ryan Co v US.doc, Paragraph with $: NASA received seven bids in response to the IFB. On December 4, 1998, Angel Pagan, a contracting officer with NASA at the Lewis Research Center, conducted the bid opening and certified that the bids were opened, read, and recorded. Mr. Pagan asked Sue Gaudreau, the project manager for this contract, to review the three lowest priced bid packages under the bid evaluation criteria identified in section M of the IFB. Ms. Gaudreau was assisted in the evaluation by Louis Bernhardt, the High Voltage Power System Manager at the Research Center. Ms. Gaudreau and Mr. Bernhardt each independently reviewed the three bids according to the section M evaluation factors\u8212\'3fcost, preliminary schedule, and major equipment. Plaintiff, the Ryan Company (Ryan), had the lowest bid at $6,871,900. The Chappy Corporation (Chappy), the intervenor in this action, had the second lowest bid at $7,047,400. Lake Erie Electric (Lake Erie) had the third lowest bid at $7,804,785. File: 066 - CW Over And Sons Inc v US.doc, Paragraph with $: Plaintiff contends that the NSA\rquote s failure to bundle work orders and continued issuance of work orders valued under $2,000.00 resulted in a loss of $264,992.00. This loss stemmed from the application of plaintiff\rquote s coefficient to work that plaintiff was not required to perform under the contract. Plaintiff maintains that the cost of site inspection, estimating the work, and performance increased markedly for jobs under the $2,000.00 threshold and that such costs could not be covered by the proposed coefficient. Thus, plaintiff seeks an equitable adjustment totaling $264,992.00 for the issuance of work orders under $2,000.00 in violation of the contract. File: 066 - CW Over And Sons Inc v US.doc, Paragraph with $: On February 20, 1998, plaintiff submitted a certified claim to the contracting officer for $1,069,189.71 representing additional costs incurred during the course of performance. On July 20, 1998, the contracting officer denied plaintiff\rquote s claim. Plaintiff seeks review of this determination pursuant to the Contract Disputes Act, File: 076 - Medina Const Ltd v US.doc, Paragraph with $: Pursuant to their agreement, the USAF had agreed to pay a portion of Medina\rquote s cost of materials. Any remaining material costs were to be paid through progress payments as the goods were incorporated into the project. Medina was required to support its payment requests with certified vendor invoices, inventory checklists and accepted delivery tickets. The government alleges that during the course of the contract, Medina submitted and was paid upon twenty-three certified material vendor invoices. Twenty-one of these invoices were provided by one supplier, Confianca Export Company (\u8220\'3fConfianca\u8221\'3f). The government claims that five of the invoices submitted on Confianca letterhead used a different typewriter font than others from the same supplier. It is alleged that these five invoices were forgeries which resulted in an overpayment of $231,980.00 to Medina. In May 1993 the USAF Office of Special Investigation (\u8220\'3fOSI\u8221\'3f) considered the matter and ultimately concluded that the fraud allegations alone could not justify terminating the contract for cause. File: 076 - Medina Const Ltd v US.doc, Paragraph with $: In November 1996 negotiations still had not commenced and Medina filed suit against the United States and Portugal in the Tribunal Court of Portugal in Praia Da Vitoria, Terceira, Portugal (Docket No. 278/96). Medina argued that the United States had failed, after the termination of the contract, to pay the costs outlined in the TSP in the amount of $1,718,230.50. DOJ apparently argued to the Portuguese Court, on behalf of the government, that Medina\rquote s claims against the United States should be dismissed because, pursuant to the doctrine of sovereign immunity, Portugal lacked jurisdiction over the United States. In addition, DOJ raised the government\rquote s allegations of fraud against Medina as an affirmative defense. File: 076 - Medina Const Ltd v US.doc, Paragraph with $: In the complaint filed in this Court, naming only the United States as defendant, Medina calculated its damages as $1,718,230.50, representing the amount of the costs outlined in the TSP invoice dated July 2, 1996. In support of its allegations that it has not been paid upon the TSP plaintiff raises the following twelve causes of action: (1) failure to pay for changed and added work; (2) failure to pay amounts due under the TSP; (3) anticipatory breach of contract; (4) failure to pay earned progress payments; (5) breach of duty to cooperate; (6) request for payment of attorneys fees; (7) violation of the Administrative Procedure Act; (8) File: 083 - Dubinsky v US.doc, Paragraph with $: This total included three items: (1) $15,625.00 to reimburse plaintiff for time he personally spent preparing his proposals, calculated based upon an hourly rate of $250; (2) $7,739.10 for the services of Stan Laber, a \u8220\'3fcontract technical consultant,\u8221\'3f who helped plaintiff to prepare his proposals; and (3) $75.00 for mailing, telephone, faxing, and copying costs. The only documentation to support plaintiff\rquote s claim was his post facto itemization of the hours that he and his consultant spent preparing the proposals. File: 083 - Dubinsky v US.doc, Paragraph with $: For the reasons stated, the Academy\rquote s award of the contract to Daktronics was arbitrary and capricious and not in accordance with law. The agency is enjoined from continuing the procurement with Daktronics under solicitation number F05611\u8211\'3f98\u8211\'3fR\u8211\'3f2293. The Clerk is directed in her judgment to include an award of $2,000 as proposal preparation costs. File: 096 - Labat-Anderson Inc v US.doc, Paragraph with $: Should we be selected for this contract, and should the Selection Committee prefer Mr. Tarr, we are prepared to very quickly submit a cost proposal incorporating the lower costs associated with proposing Mr. Tarr. As a rough estimate, the change should reduce our costs by $100,000. File: 096 - Labat-Anderson Inc v US.doc, Paragraph with $: As an initial matter, the court declines to accept the GAO\rquote s interpretation that either of those FAR provisions created any such mandatory requirement. FAR 15.805\u8211\'3f1(b) addressed the use of cost or pricing data: \u8220\'3fWhen cost or pricing data are required, the contracting officer shall make a cost analysis to evaluate the reasonableness of individual cost elements.\u8221\'3f The submission of cost or pricing data, however, was required prior to the \u8220\'3faward of any negotiated contract ... expected to exceed $100,000,\u8221\'3f File: 096 - Labat-Anderson Inc v US.doc, Paragraph with $: Plaintiff alleges that Hazlewood misrepresented his employment and salary history on his biographical data sheet, which was included in Chemonics\rquote cost proposal. In particular, Hazlewood failed to disclose that Dimpex, the company of which he was president, had filed for Chapter 7 bankruptcy in 1989. Plaintiff contends that AID was aware of Dimpex\rquote s financial problems because (1) Dimpex owed money to AID from other contracts, and (2) counsel for Raymond Malley, a subcontractor to Dimpex on a prior AID contract, had notified AID\rquote s Administrator that Dimpex had \u8220\'3fdefaulted\u8221\'3f on a subcontract payment of over $23,000 and was \u8220\'3finsolvent.\u8221\'3f Pl.\rquote s App. at 476. Labat argues that the agency\rquote s failure to consider the financial health of Dimpex when evaluating Chemonics\rquote BAFO demonstrates bad faith. File: 100 - Green Management Corp v US.doc, Paragraph with $: Section H of the contract sets forth the procedures by which Green Management, as part of its management function, agreed to procure supplies, materials, equipment and services. For procurements under $1,000.00, Green Management was authorized to procure supplies, materials, equipment, and services on a non-competitive basis. For items or services over $1,000.00, but under $5,000.00, Green Management agreed to procure on a competitive basis. For items or services for which the cost was over $5,000.00, Green Management agreed that the contract for services would be between HUD and the provider of the services and that, if requested, Green Management would conduct the solicitation process. To this effect, Green Management agreed that when required and requested by HUD, it would \u8220\'3fsolicit quotations from three or more responsible Contractors and assist in the development and processing of repair or purchase orders....\u8221\'3f Section H also required that Green Management conduct certain solicitations as small business set asides. File: 100 - Green Management Corp v US.doc, Paragraph with $: 22. GMC is entitled to an award of damages, including lost profits, as a result of the cardinal change to the 1986 Contract in an amount not less than $1,075,241.20. This amount includes but is not limited to: the expense of hiring additional employees in GMC\rquote s Casper and Gillette, Wyoming offices including file clerks, contracting officers, and maintenance personnel; additional office expenses including furniture, office supplies, office usage, paper products, postage, and telephone usage; the increased cost of the performance audit which GMC was required to undergo; and a reasonable profit on these amounts. This amount also includes a reasonable profit of 10% on all work performed under the 1986 Contract which GNC was prevented from performing in-house as a result of the Government\rquote s breach of contract. File: 100 - Green Management Corp v US.doc, Paragraph with $: Plaintiff\rquote s second claim with respect to the 1986 contract is that rather than allowing the 1986 contract to expire on December 1, 1988 by its terms, the contracting officer improperly issued a termination of the 1986 contract for the convenience of the government, effective December 1, 1988. Green Management seeks costs in an amount not less than $122,262.57, plus accounting, legal and clerical expenses necessary for the preparation of the termination settlement proposal and supporting data. Plaintiff\rquote s allegations regarding the termination for convenience claim are best explained with selections, albeit lengthy, from plaintiff\rquote s brief. The plaintiff begins by describing defendant\rquote s position as follows: \u8220\'3fDefendant\rquote s Brief also seeks summary judgment against Green Management\rquote s termination for convenience claim for the 109\u8211\'3f86\u8211\'3f014 Contract. File: 004 - Metric Systems Corp v US.doc, Paragraph with $: On January 18, 1998, SM\u8211\'3fALC, the entity to which program responsibility was transferred, prepared a justification and approval (J & A) for the sole-source award of the advanced threat upgrade contract to Harris. As justification for awarding the contract to Harris, the J & A identified the COSSI agreement, the ACSN, and Harris\rquote respective proprietary data in those agreements as compelling reasons for the sole-source award. Specifically, the J & A noted the unavailability of data with respect to the agreements and found that \u8220\'3f[a] full and open competition will delay the [research and development] phase an estimated two years or more and result in additional costs of $2.5 million to duplicate the on-going development efforts that Harris Corporation is currently working under separate contracts.\u8221\'3f File: 004 - Metric Systems Corp v US.doc, Paragraph with $: Plaintiff\rquote s protest was denied on July 2, 1998. On July 13, 1998, defendant awarded the sole-source contract to Harris. The total estimated cost of the contract is $49.9 million. File: 004 - Metric Systems Corp v US.doc, Paragraph with $: Plaintiff further argues that the $1.5 million cost of the COSSI agreement should be added to the estimated cost of the sole-source contract, thereby exceeding the $50 million threshold for senior procurement executive approval. Defendant counters that the proper official approved the J & A. File: 007 - United Intern Investigative Services v US.doc, Paragraph with $: The TEB\rquote s instructions and procedures provided that \u8220\'3fthe results of the [members\rquote ] technical evaluations are merged into a summary report subsequent to a group discussion attended by all TEB members.\u8221\'3f Administrative Record (AR) 2303 (instructions entitled \u8220\'3fUSMS, Procurement Division, Technical Evaluation of Proposals for Negotiated Procurements\u8221\'3f). The stated purpose of this discussion was to note specific elements overlooked by another evaluator, and to arrive at a consensus concerning each proposal and the score to be applied. AR 2303. A separate evaluation form was to be completed whenever a TEB member adjusted his or her evaluation. AR 2304. RFP section M\u8211\'3f8 also required the agency to establish a \u8220\'3ftotal evaluated price,\u8221\'3f worth 40 points. RFP \u167\'3f M\u8211\'3f8. The total evaluated price was not the same as the actual stated price of a proposal. The total evaluated price was to consist of the basic contract period price (to be calculated by multiplying proposed unit prices by their corresponding estimated quantities) and the option period prices. RFP \u167\'3f M\u8211\'3f8. Calculation of the total evaluated price also included the government\rquote s reserved right to perform a cost realism analysis to minimize \u8220\'3fpotential or built-in cost growth,\u8221\'3f and the addition of $1,895 (for evaluation purposes only) to an offeror\rquote s proposal for each proposed new court security officer added at the contract start date. File: 009 - Summitt Investigative Service Inc v Herman.doc, Paragraph with $: \u8221\'3f 5 A.R. 1748 (emphasis added). The ALJ concluded that, despite section 4.3\rquote s clear admonition, \u8220\'3fSummitt bid the contract on the assumption that its stock uniforms would be approved by the COTR.\u8221\'3f 5 A.R. 1749. Contrary to expectation, the COTR rejected Summitt\rquote s stock uniforms. The price for this miscalculation was $12,000 to purchase new uniforms that garnered the COTR\rquote s assent. As Holiday conceded during the administrative hearing, the outlay for new uniforms \u8220\'3fwas a cost that we had not considered in bidding on this contract.\u8221\'3f 5 A.R. 1749. File: 019 - US v Electrodyne Systems Corp.doc, Paragraph with $: On 31 October 1989, Electrodyne entered into \u8220\'3fcontract # N00104\u8211\'3f89\u8211\'3fM355\u8221\'3f (the \u8220\'3fDiplexer Contract\u8221\'3f) with the Navy to supply 220 electronic components known as OE 82/WSC\u8211\'3f1(V) Diplexers (the \u8220\'3fDiplexers\u8221\'3f) at an average unit cost of $3,697.58, for a total contract price of $753,468. File: 019 - US v Electrodyne Systems Corp.doc, Paragraph with $: On 26 December 1992, Electrodyne entered into a contract (the \u8220\'3fSwitchable Amplifier Contract\u8221\'3f) with the Navy to supply thirty-seven switchable amplifiers (the \u8220\'3fSwitchable Amplifiers\u8221\'3f) at a unit cost of $2,374, for a total contract price of $87,838. File: 019 - US v Electrodyne Systems Corp.doc, Paragraph with $: On 22 March 1993, Electrodyne entered into a contract (the \u8220\'3fPhase Shifter Contract\u8221\'3f) with the Air Force to supply twenty-eight digital phase shifters (the \u8220\'3fPhase Shifters\u8221\'3f) at an average cost of $3,880 each for a total contract price of $108,640. File: 019 - US v Electrodyne Systems Corp.doc, Paragraph with $: On 12 November 1993, Electrodyne entered into a contract (the \u8220\'3fPin Diode Switch Contract\u8221\'3f) with the Air Force to supply 2,377 Pin Diode Switches at an average cost of $368.23 each for a total contract price of $875,280.00. File: 019 - US v Electrodyne Systems Corp.doc, Paragraph with $: On 13 August 1993, Electrodyne entered into a contract with the NRL (the \u8220\'3fBroad Band Amplifier Contract\u8221\'3f) to supply twenty-five broad band amplifiers (the \u8220\'3fBroad Band Amplifiers\u8221\'3f) at a cost of $1,595 each for a total contract price of $39,875. File: 033 - PCL Const Services Inc v US.doc, Paragraph with $: The USBR entered into a contract for a major construction project with a price of over $30 million with only $1.3 million of available funding. As with any fixed-price contract, the Contract purported to obligate the contractor to complete all contract objectives without regard to the costs of performance. Thus, the USBR entered into a contract for the future payment of money in advance of and in excess of available appropriations. Further, the contract was not supported by funds adequate to its fulfillment. Absent special authority, such a contract violates File: 033 - PCL Const Services Inc v US.doc, Paragraph with $: The plaintiff argues, however, that there was an exhaustion of funds, in that the agency\rquote s obligations exceeded the funds available at certain times during contract performance. Plaintiff asserts that the government\rquote s figures reflect approximately $34 million obligated to the contract on May 1, 1994, with, at that point in time, $29 million in progress payments earned by the contractor, another $1.5 million estimated for resolution of changes, $5 million estimated for resolution of a request for equitable adjustment, and another $4 million estimated for termination costs. Therefore, according to the plaintiff, the total of progress payments earned on May 1, 1994 plus estimated liability was $39.5 million, or $5.5 million more than had been obligated to the contract at that point in time. However, the amounts for the changes to the contract and the plaintiff\rquote s request for equitable adjustment were projections and not obligations on May 1, 1994. As an example, the first amended complaint reflects that plaintiff is seeking $31,040,071.00 plus Contract Disputes Act interest. At the time of the amended complaint, the merits of the claimed amount had not yet been fully resolved and there was no present governmental obligation for that amount of funding. Thus, there was no Antideficiency Act violation for failure to fully fund this amount. Under plaintiffs reasoning, an agency would have to obtain from Congress appropriations to cover unanticipated claims, even claims ultimately determined to be without merit, to avoid an Antideficiency Act violation. Under plaintiffs reasoning, which this court rejects, fixed-price contracts such as plaintiffs contract would not only have to be fully funded, but somehow funded to cover unanticipated and even unjustified contractor claims. File: 035 - Westinghouse Elec Corp v US.doc, Paragraph with $: In Count VI, Westinghouse asserts that if the government attempts to avoid the alleged commitment by arguing that either the alleged sole-source commitment was illegal or that the 1992 contracts, in their entirety, are unenforceable, then it is entitled to recovery under the theories of quantum meruit and quantum valebat, reformation and/or unjust enrichment in the amount of $112,151,000 plus the costs of performance and reasonable profit. This count essentially involves plaintiff\rquote s assertion of reasonable detrimental reliance concerning defendant\rquote s alleged commitment to make plaintiff the sole-source producer for the life of the program. Defendant argues, as Westinghouse correctly anticipates, that any such commitment would have been in violation of the Competition in Contracting Act (\u8220\'3fCICA\u8221\'3f), File: 038 - CRC Marine Services Inc v US.doc, Paragraph with $: Notably, the additional $40,000 is nearly fifty percent of plaintiff\rquote s original tender price. Despite this increase in cost, plaintiff offered to perform the work for an increase of only $20,000. This was a remarkable offer on plaintiff\rquote s part. Calore testified in his deposition that CRC\rquote s initial bid had included a profit of only $10,000. Thus, by offering to perform the contract with an increased cost to it of $40,000, and only receiving an additional $20,000 in compensation, plaintiff now argues it was willing to do the work even though it would incur a $10,000 loss. File: 038 - CRC Marine Services Inc v US.doc, Paragraph with $: Plaintiff alleges in its complaint that the covered barge CRC intended to use to perform the transport had been moved by the subcontractor to the Gulf of Mexico for other work. Calore alleges that retrieval of the covered barge would have cost CRC approximately $40,000. Calore felt MTMC should pay for one half of the cost of the return of the barge from the Gulf of Mexico by raising the contract price by $20,000. There is no evidence in the record to support CRC\rquote s contention that it could have secured the covered barge in time for the shipment date nor was there any evidence that CRC had a firm written or oral agreement with the owner of the barge to engage the barge at any time significant to the Lynn Requirement. File: 040 - INSLAW Inc v US.doc, Paragraph with $: The reference involves a $9.6 million, cost-plus-incentive-fee contract between DOJ and INSLAW, a for-profit corporation, to customize, prepare, and install the Prosecutor\rquote s Management Information System (PROMIS), a computerized case-management system, in various USAOs and the Executive Office of the U.S. Attorneys (EOUSA). Plaintiffs William Hamilton and Nancy Burke Hamilton are principals in INSLAW. File: 040 - INSLAW Inc v US.doc, Paragraph with $: The contract ended on March 15, 1985, when INSLAW delivered and installed the PRIME version of PROMIS. INSLAW filed a claim with the contracting officer (CO) on October 17, 1985, seeking a total of $4,108,885 in miscellaneous costs and fees related to termination of a portion of the contract, changes to the contract, and to DOJ\rquote s alleged infringement of INSLAW\rquote s data rights. File: 041 - DSE Inc v US.doc, Paragraph with $: that Plaintiff enter a bond in the amount of $5000, which shall cover the costs of delaying performance on the contract. The Court finds that $5000 is an appropriate amount because Plaintiff is a small company with modest revenues; and it is further File: 046 - Informatics Corp v US.doc, Paragraph with $: The cost savings to the fisc of almost $4 million\u8212\'3fapproximately 9% of the contract ceiling\u8212\'3fmust be weighed against the Air Force\rquote s potential obligation to monitor these few activities and to approve substitutions of contractor responsibilities should conflicts arise. File: 047 - Nautica Intern Inc v Intermarine USA LP.doc, Paragraph with $: that, 1) Nautica would provide IMUSA its design for the Parent Craft, 2) IMUSA would pay Nautica $20,000 royalty for each boat sold using Nautica\rquote s design, 3) Nautica would provide technical assistance and consultation at a reasonable cost for IMUSA\rquote s initial production, 4) Nautica would complete the Parent Craft at its own cost, 5) upon award of the SOCOM Test Article, Nautica would provide the Prototype Boat and IMUSA would contribute certain other accessories, and 6) the parties would work together exclusively for the duration of the SOCOM contract. File: 053 - RR Donnelley And Sons Co v US.doc, Paragraph with $: Plaintiff filed suit in the Court of Federal Claims on December 16, 1996. Its complaint contained two counts, breach of implied contract (Count I) and equitable estoppel (Count II). Plaintiff sought $336,673.37 in monetary damages for costs incurred in \u8220\'3fbid preparation; formulation and implementation of quality, security and production plans; pre-award survey and provision of necessary information to GPO to respond to various protests and preparation to perform the contract; facilities acquisition cost and expenses; [and] legal expenses.\u8221\'3f Defendant moved to dismiss Count II for lack of subject matter jurisdiction and for summary judgment on Count I. Following argument on defendant\rquote s motion, the court entered an order on July 28, 1997, denying summary judgment on Count I and dismissing Count II for lack of subject matter jurisdiction. File: 056 - Alfa Laval Separation Inc v US.doc, Paragraph with $: Disappointed bidder was not entitled to injunction against award of contract for supplying centrifugal purifiers to Navy for use in destroyers; respective harms to two bidders for contract were equal, but public interest in minimizing cost of federal procurements and in Navy being at its highest degree of readiness warranted refusal of injunction against mission-critical procurement contract in favor of disappointed bidder whose offer was $5 million more than successful bidder\rquote s offer. File: 056 - Alfa Laval Separation Inc v US.doc, Paragraph with $: (discussing importance of national defense). Moreover, were the court to order that the Government not perform this contract with any offeror other than plaintiff, the public fisc would suffer because plaintiff\rquote s lowest price alternative was $5 million more than Westfalia\rquote s. Although the public has an interest in assuring the integrity of the procurement process, it also has an interest in \u8220\'3fminimizing the cost of federal procurements.\u8221\'3f File: 060 - CCL Inc v US.doc, Paragraph with $: In this case, it is true that the original ceiling for the BDM contract, $362 million, is substantial. It is also true that a great deal of this money remains unobligated. Although the overall ceiling price of the BDM contract remained the same, costs were reallocated among the different CLINs and sub-CLINs. Specifically, the \u8220\'3fnot to exceed\u8221\'3f amount of CLIN 0012 was raised from $13,500,000 to $23,500,000 to accommodate maintenance at the ten additional MegaCenters. File: 061 - McClure Elec Constructors Inc v Dalton.doc, Paragraph with $: After completion of the project, Mr. McClure\rquote s son, vice-president of McClure Electrical, reviewed the project to determine why McClure Electrical had lost money on the contract and discovered the error. McClure Electrical then sought reformation of the contract to increase its price by $19,000\u8212\'3fthe mistakenly omitted materials costs of $16,530, plus sales tax, overhead, profit, and bond costs. McClure Electrical argued that the Navy\rquote s bid verification request was inadequate because the contracting officer did not expressly state her suspicion that McClure Electrical had submitted an erroneous bid. The contracting officer denied relief, and the Board affirmed. McClure Electrical now appeals to this court. File: 062 - City And County of San Francisco v US.doc, Paragraph with $: Second, the City contends that PG & E failed to submit a cost-reimbursement contract proposal as required by the RFP, but instead submitted a fixed-price contract proposal. Specifically, the City argues that the proposal was for a firm-fixed-price contract because NPS liabilities were capped at a certain amount. PG & E\rquote s proposal required NPS to pay PG & E $2 million if the Letterman Hospital (within the Presidio grounds) was not under a ten-year lease when the new electrical system was energized. The City argues that this contingency plus the $2 million NPS set aside for twenty-one contingencies included in PG & E\rquote s BAFO makes the contract proposal \u8220\'3ffixed\u8221\'3f in price. The City also asserts that even if the PG & E proposal was for a cost-share contract, the RFP did not implicitly allow for this type of contract. File: 062 - City And County of San Francisco v US.doc, Paragraph with $: The City proposed a cost of $1,745,000 as the cost of ownership to NPS. Both the City and PG & E stated in their BAFO\rquote s that they would not sell to a third party during the ten-year service contract. At the end of this period, both the City and PG & E would give NPS the option to purchase the system for a fair value. The City has failed to show that NPS acted arbitrarily or unreasonably by File: 075 - Delbert Wheeler Const Inc v US.doc, Paragraph with $: At the debriefing, the Corps indicated that plaintiff\rquote s technical score in Criteria I (Training and Employment of Native Americans) was reduced because plaintiff\rquote s proposal did not set adequate hiring goals, did not provide a specific training program plan, did not name a liaison person for the tribes in its Tribal Employment Rights Office, and did not provide verification of the Native American status of the identified subcontractors. Plaintiff was also informed that its price was higher than that of the successful offeror and the government\rquote s cost estimate. Wheeler expressed skepticism over White Eagle/Ohno\rquote s price and the government estimate, stating that it knew that funds for training and employment could not have been included in them because Wheeler had estimated those costs at $300,000. File: 087 - Analytical And Research Technology Inc v US.doc, Paragraph with $: There was no reasonable likelihood that disappointed offeror on contract to provide computer and data processing services to Army would have been awarded contract absent alleged statutory violations by Army, and thus offeror could not demonstrate the prejudice necessary to prevail in bid protest action; offeror did not show that it could have located personnel with requisite experience specified in Army\rquote s solicitation, offeror\rquote s proposal showed misunderstanding of \u8220\'3fbig picture\u8221\'3f of solicitation and of the purpose and function of the skill, subskill, and labor category components, and offeror\rquote s cost proposal was $4.5 million higher than that of winning bidder and $3.4 million higher than Army\rquote s estimate. File: 087 - Analytical And Research Technology Inc v US.doc, Paragraph with $: In its motion for summary judgment, the defendant contends that \u8220\'3f[e]ven if one were to assume, for the sake of argument, that any of ART\rquote s allegations are true, ART cannot demonstrate that it was prejudiced by the claimed violations in the procurement process.\u8221\'3f Def.\rquote s Mot. at 24. According to the defendant, ART was struggling to find personnel who satisfied the solicitation requirements, its technical score was significantly lower than Van Dyke\rquote s technical score, and ART\rquote s cost proposal was $4.5 million more than Van Dyke\rquote s cost proposal and approximately $3.4 million more than the Govermnent\rquote s estimate. In its reply brief, the plaintiff responds that \u8220\'3fa reasonable likelihood exists that ART would have been awarded the contract but for the Army\rquote s arbitrary and capricious conduct of excluding resumes from the evaluation process for failing to meet minimum experience requirements without prior notice.\u8221\'3f Plt.\rquote s Reply at 11. In addition, the plaintiff contends that its proposal was adversely affected by its interpretation of the team approach. File: 087 - Analytical And Research Technology Inc v US.doc, Paragraph with $: The defendant also contends that prejudice cannot be found because ART\rquote s cost proposal was significantly more expensive than Van Dyke\rquote s proposal and the Government\rquote s estimate such that it cannot demonstrate that there was a reasonable likelihood that it would have been awarded the contract but for the alleged errors. Specifically, according to the defendant, ART\rquote s cost proposal was $4.5 million and $3.4 million higher than Van Dyke\rquote s proposal and the Government\rquote s estimate, respectively. The plaintiff responds that cost is not a proper focus of prejudice because the technical evaluation was more important than the cost evaluation. While this Court agrees with the plaintiff that the technical proposals were more important than the cost proposals, the solicitation specifically states that \u8220\'3fcost realism * * * will be an inherent consideration in the review of all proposals.\u8221\'3f Admin. Rec. Vol. 1 at 220. Therefore, this Court finds that ART\rquote s significantly more expensive proposal demonstrates that it did not have a reasonable likelihood, or substantial chance, of being awarded the contract in the absence of the alleged errors. File: 091 - RR Donnelley And Sons Co v US.doc, Paragraph with $: with plaintiff when it canceled the solicitation. Plaintiff sought reimbursement in the amount of $336,673.37 for costs incurred in \u8220\'3fbid preparation; formulation and implementation of quality, security and production plans; pre-award survey and provision of necessary information to GPO to respond to various protests and preparation to perform the contract; facilities acquisition cost and expenses; [and] legal expenses.\u8221\'3f Mr. Weiss responded to plaintiff\rquote s claim on April 24, 1995. He explained that he did not have jurisdiction to enter a final decision on plaintiff\rquote s claim. File: 091 - RR Donnelley And Sons Co v US.doc, Paragraph with $: Plaintiff filed suit in the Court of Federal Claims on December 16, 1996. Plaintiff\rquote s complaint contained two counts, breach of implied contract (Count I) and equitable estoppel (Count II). Plaintiff seeks $310,957.01 in monetary damages and an award of attorney\rquote s fees and other costs. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: In August 1993, ASO and Best Foam engaged in price negotiations. The negotiations were conducted by ASO contracting officer William Ryan, Keith Hasty, president of Best Foam, and Darence Smith, Best Foam\rquote s government sales representative. Although the parties anticipated during the negotiations that production would be spread out evenly over a six month period following contract award, Mr. Ryan repeatedly stated that the Navy urgently needed the foam fuel cells for the reasons stated above. On September 14, 1993, the parties agreed upon a price of $569,795.40 and concluded negotiations. Mr. Smith certified that, as of that date, the cost and pricing data Best Foam submitted were accurate, complete, and current. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: During March, April and May of 1994, Best Foam submitted additional cost information to Mr. Ryan and the government attempted to negotiate a revised contract price. On May 9, 1994, when the parties were nearing an agreement, Keith Hasty transmitted a fax to Mr. Ryan containing language which Best Foam wanted to include in any price modification reserving its right to file a claim. By telefax dated May 10, 1994, Mr. Ryan offered Best Foam a revised price of $417,781 and stated that ASO\rquote s Office of Counsel was reviewing Best Foam\rquote s proposed language. However, in a two sentence fax dated May 12, 1994, Mr. Ryan withdrew ASO\rquote s offer without explanation. Mr. Ryan testified at trial that ASO withdrew the offer because he and ASO\rquote s attorney agreed that Best Foam\rquote s proposed language was \u8220\'3fnot acceptable.\u8221\'3f Tr. at 190. As a result, the parties proceeded toward litigation. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: . The claim sought payment of the contract price in addition to a declaration that a valid contract existed. On November 8, 1994, the contracting officer issued a final decision finding that no contract was formed and denying Best Foam\rquote s claim in its entirety. Best Foam filed the instant action on November 29, 1994 seeking damages in the amount of $569,795.40 plus costs. A one-week trial was held in Chicago, Illinois. The court has jurisdiction over this matter pursuant to File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: At trial, Best Foam presented evidence demonstrating that it incurred a total of $295,617.41, including profit, producing the foam fuel cells prior to the government\rquote s improper repudiation of the contract. In addition, Best Foam presented evidence that it incurred $76,591.81 storing the foam fuel cells during the government\rquote s attempt to renegotiate the contract price and that $27,313.00 should be charged to the contract for Best Foam\rquote s facilities capital cost of money. Both of these cost items are recoverable following a termination for convenience. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: (storage costs), 31.205\u8211\'3f10 (facilities capital cost of money). Thus, Best Foam asserts a total cost of $399,522.22 in connection with the contract consisting of the following: File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: Defendant\rquote s Post\u8211\'3fTrial Brief at 29. Accordingly, it is determined that Best Foam incurred $399,522.22 in connection with the contract as set forth above and that these costs are reasonable in amount, allocable to the contract, and otherwise allowable under the termination for convenience clause. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: Although defendant does not contest that Best Foam incurred $399,522.22 in connection with the contract, defendant, without citing any authority, argues that plaintiff is not entitled to recover any of its costs because the foam fuel cells do not conform to the contract requirements. Before addressing defendant\rquote s allegations of nonconformity, File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: 92. Best Foam did not incur $569,793.40 in costs to produce the fuel cell liners for the proposed contract. File: 093 - Best Foam Fabricators Inc v US.doc, Paragraph with $: 93. Best Foam claims to have incurred cost in the amount of $399,522.22 in connection with the performance of the proposed contract. File: 094 - Day And Zimmermann Services a Div of Day And Zimmermann Inc v US.doc, Paragraph with $: Contractor that unsuccessfully bid on government contract proved prejudice resulting from government\rquote s failure to adequately explain its cost realism adjustments in the bids where government failed to call as witness the person who in fact made the award decision, or any member of the body specifically charged with advising that person, to testify, despite the fact that counsel for contractor brought their absence to the court\rquote s attention; thus, court was constrained to infer that there was reasonable likelihood that complaining contractor would have been awarded contract if its proposal had not been adjusted by $2.4 million by the government. File: 094 - Day And Zimmermann Services a Div of Day And Zimmermann Inc v US.doc, Paragraph with $: Here, the quality difference between DZS and J & J was merely a minuscule 2.42 points. Further, the cost difference between DZS\rquote s initial proposed cost of $36,843,398, and J & J\rquote s MPCE of $38,873,826, is $2,030,428. The Army\rquote s contention that such a significant difference in cost, when compared to the minor difference in quality, could not change the award decision is without merit. Rather, the tremendous difference in cost demonstrates that a $2.4 million reduction in DZS\rquote s evaluated cost proposal would weigh strongly in favor of awarding the contract to plaintiff. File: 100 - Darden v Dalton.doc, Paragraph with $: challenging the award of a contract for cleaning services to a competing bidder. Darden alleged that the competing bid of $787,519.70 was unreasonably low and that his bid of $1,006,545.20 should have been considered the most advantageous bid for the Government because it was closest to the Government\rquote s own cost estimate of $1,455,504.91. He alleged that, in awarding the contract, the Government did not follow the proper contracting procedures outlined in the Federal Acquisition Regulations Systems, File: 008 - American Recycling Co Inc v County of Manatee.doc, Paragraph with $: Page 16 of 30 of Second Quarter Report. Finally, in the 10\u8211\'3fQ for the third quarter of 1994, Coastland stated, \u8220\'3fThe Company is currently negotiating a contract with Manatee County, Florida, to design, build and operate an MSW recycling and composting facility with an estimated capital cost of $47,000,000 ... There can be no assurance the Company can successfully consummate the contract with Manatee County, Florida.\u8221\'3f File: 011 - Veda Inc v US Dept of the Air Force.doc, Paragraph with $: The Air Force awarded plaintiff Veda Incorporated a five-year contract with a minimum guaranteed contract value of $100,000. The contract required Veda to provide an indefinite amount of support services to the Air Force. The Air Force informed intervening defendant RJO Enterprises, Inc., a competing bidder with a lower proposed cost, that its bid had been rejected due to its failure to submit resumes for all proposed personnel. RJO Enterprises successfully protested its failed bid to the General Accounting Office, which found that the Air Force\rquote s solicitation did not require the submission of resumes for all personnel. The General Accounting Office recommended that the Air Force amend its solicitation to clearly require the submission of resumes and then solicit revised proposals before making new awards or terminate the award to Veda and make the award to RJO Enterprises. The Air Force awarded its support services contract to RJO Enterprises and informed Veda that, as it had already exceeded the minimum contract value of $100,000, it would not place any further orders with Veda. File: 014 - Hydro Engineering Inc v US.doc, Paragraph with $: introduced by the words \u8220\'3fto the maximum extent practicable,\u8221\'3f but the solicitation also contemplated that the offerors could use sole source or proprietary parts in their XM22 designs. Paragraph C.3.1.1.4.1 of the solicitation requires the contractor to maintain \u8220\'3fseparate listings of parts that are: high cost (exceeding $500.00), long procurement lead time (exceeding 3 months), sole source, proprietary, and commercial parts.\u8221\'3f File: 018 - Cubic Applications Inc v US.doc, Paragraph with $: The contract itself is to be a requirements contract with cost-plus-award-fee task orders for one year, with options for three additional years. The Army\rquote s acquisition plan states that the total expected cost over the four year period will approach $82.3 million. File: 026 - Statistica Inc v Christopher.doc, Paragraph with $: Finally, again assuming the board erred in holding that the State Department\rquote s cost evaluation was proper and that the contracting officer did not abuse his discretion by failing to include the FAR\rquote s Professional Employee Compensation Clause in the RFP, Statistica has not demonstrated that the errors were prejudicial. Its expert testified that the difference between the two BAFO prices would have been only $4 million had Statistica priced its offer using base wage rates below those in the Wage Determination and contractor-site overhead instead of home-site overhead. The SSA testified, however, that that price difference would not have changed his award decision because Statistica\rquote s technical advantage was slight. The board found the SSA\rquote s testimony credible, calling it \u8220\'3fthoughtful,\u8221\'3f \u8220\'3fwell-reasoned,\u8221\'3f and \u8220\'3fconvincing.\u8221\'3f 96\u8211\'3f1 BCA at 140,493. Of course, credibility determinations are \u8220\'3fvirtually unreviewable.\u8221\'3f File: 035 - Clark Pacific v Krump Const Inc.doc, Paragraph with $: Clark Pacific analyzed the cost differential between its bid and Krump Construction\rquote s proposed subcontract, and calculated that Krump Construction\rquote s demands for concessions would translate into additional costs to Clark Pacific of between $311,000.00 and $402,000.00. These figures include the additional cost of providing deadmen, of advancing the erection start date by 14 days, of reducing erection time by 28 days, of maintaining access roads, of providing power for its welders, of providing temporary heat for curing grout, and of obtaining Errors and Omissions insurance coverage. Other than agreeing to shoulder perhaps half the cost of welding power, Krump Construction refused during post-award negotiations to modify any of these demands, all of which were expressly contradicted by the terms of Clark Pacific\rquote s original bid. If the court assigns a value to these demands by Krump at a point halfway between Clark Pacific\rquote s low and high estimates, the cost of Clark Pacific\rquote s agreement to these terms would have been in the neighborhood of $350,000.00, an amount equal to approximately eight per cent of Clark Pacific\rquote s total bid price, and equal to nearly half Clark Pacific\rquote s built-in margin. Because at the time of negotiations Krump Construction had already been awarded the prime contract, at a set price, this $350,000.00 would represent pure additional profit to Krump Construction, and zero benefit to the State. File: 035 - Clark Pacific v Krump Const Inc.doc, Paragraph with $: Buehner\rquote s June 18, 1996 bid to perform the precast concrete portion of the Lovelock project was $5.03m; the precast concrete subcontract offered to Buehner by Krump on July 15, 1996 carried a price tag of only $4.415m. Somehow Buehner shaved $615,000.00 off its original bid. Don Clark testified that Clark Pacific built a $750,000 profit margin into its $4.625m bid, a profit of 16.2%. Assuming Buehner\rquote s original bid included a similar margin, Buehner\rquote s 12.2% price reduction would have sheared off more than 75% of its margin. And Buehner, with creditors breathing down its neck, certainly had greater incentive to sacrifice profits than did Clark Pacific; likely Buehner\rquote s original margin was considerably lower than Clark Pacific\rquote s 16%. Human nature being what it is, allowing Buehner to perform the work at this price, with hardly any profit margin, entails precisely the type of risk of corner-cutting and shoddy workmanship on public buildings which is the key evil resulting from \u8220\'3fbid-shopping.\u8221\'3f This risk appears especially grave in light of the facts that (1) Buehner\rquote s owners, and its counsel, have agreed personally to indemnify Krump Construction, (2) Krump retains a UCC security interest in all materials purchased by Buehner for the Lovelock project, (3) that Krump will withhold $500,000.00 of the total due Buehner under the purchase order to secure Buehner\rquote s performance and warranties, and (4) that the purchase order relieves Krump of any obligation to pay Buehner the balance until final completion of Buehner\rquote s work, including delivery, erection, aligning, welding and grouting. In performing its work under these terms, Buehner, which prior to this agreement was flirting with insolvency, may well see its finances stretched to the breaking point, providing an even more urgent incentive to try to conserve costs wherever possible, and whatever the risk to the quality of the finished project. File: 035 - Clark Pacific v Krump Const Inc.doc, Paragraph with $: Earlier that same day, July 17, 1996, Tom Tucker at Clark Pacific received a telephone call from Nevada Public Works Board Manager Raecke. Tucker asked Don Clark to join the conversation, which he did. Mr. Raecke informed them that the Project Architect had made a serious error in composing the bid solicitation documents: The specifications erroneously indicated a total project time of 380 days, instead of the correct time, 330 days. Raecke told Tucker and Clark that it was crucial the project be completed by July 1, 1997, so that Raecke could live up to the promises he had made to the legislature and to the Nevada Department of Prisons that the new prisoner housing units would be \u8220\'3fon-line\u8221\'3f by that date. The three men spoke for perhaps thirty minutes, and at the conclusion of the conversation Clark and Tucker promised to contact Raecke with a price for accelerating the date for the completion of Clark Pacific\rquote s work. Fortunately for Mr. Raecke, the total budget for the Lovelock project was some $2m over Krump Construction\rquote s total prime bid of $28,169,000; even if the State were obliged to pay the contractors for the cost of accelerating the project by 50 days, the project would still come in under budget. File: 035 - Clark Pacific v Krump Const Inc.doc, Paragraph with $: On the other hand, performance of the precast concrete portion of the Lovelock Project by Buehner Corporation and Bragg Crane would relieve the State of its obligation to compensate the precast supplier and/or contractor for the fifty-day acceleration of the project occasioned by the Project Architect\rquote s mistaken designation, in the owner\rquote s solicitation documents of a 380\u8211\'3fday total contract duration, rather than 330 days. Krump Construction would have passed the additional costs of such acceleration onto the State; Clark Pacific reckoned the cost of its own acceleration at $151,000.00. By allowing the substitution, the State may have been attempting to save itself this additional cost. File: 035 - Clark Pacific v Krump Const Inc.doc, Paragraph with $: Clark Pacific introduced evidence that Buehner had originally (and improperly, given its lack of a Nevada subcontractor\rquote s license) bid $5.03m to perform precast concrete panel fabrication and delivery, as well as erection, aligning, welding and grouting of the panels by Bragg Crane. Following the Public Works Board\rquote s final approval on August 13, 1996 of Krump\rquote s request to substitute Buehner and Bragg Crane for Clark Pacific, Krump signed a purchase order and subcontract with Buehner and Bragg Crane, respectively, for $4.465m, which agreements covered the perhaps $125,000 cost to Krump for providing the deadmen, welding power, and temporary heat excluded from the work Clark Pacific had bid on. Had Krump agreed to pay Clark Pacific that $125,000 in addition to Clark Pacific\rquote s base price of $4.625m, Krump\rquote s total precast concrete cost would have been $4.75m. In other words, Krump saved at least $285,000 from the substitution. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: NCI complied with this contractual provision, and was at least partially compensated for the additional work, receiving $52,711.30 pursuant to Modification No. 6. The CG refused, however, to extend the contract completion date. Modification No. 6 specifically reserved NCI\rquote s right to submit an impact claim for both time and additional costs. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: The CG has paid NCI $7,749,031.94 to date, $148,632.13 less than the contract balance. On October 1, 1992, NCI submitted its total cost claim to the CO in the amount of $6,443,175. The CO\rquote s decision of March 17, 1993, denied these claims. This amount has since been modified to $6,899,606. The final CO decision of May 3, 1993 asserted government claims based on repair or completion work that the Government alleges was prompted by NCI\rquote s alleged poor construction and delay, as well as for liquidated damages. The total amount of these Government claims, at that time, was $785,909.68. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: A memorandum by Tom Bartlett, an NCI project manager, states that four of plaintiff\rquote s major subcontractors defaulted during the project, and that the defaults were taking a toll on NCI\rquote s management time and were impacting costs on the project. The significant problems associated with Felton alone are discussed above. The subcontractors Bartlett referred to were: Denny\rquote s Plumbing, the mechanical subcontractor; Felton Construction, responsible for the heavy earthwork and grading; David & Sons, the finish carpentry subcontractor; and, Proteam, the contractor responsible for rough carpentry. Plaintiff\rquote s current damage calculations concede that subcontractor defaults were responsible for $500,000 of its cost overruns, although Bartlett initially estimated that these four defaults alone comprised $1,837,000, or 23%, of the contract. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Moreover, even if the other three elements were established, the court is faced with figures from NCI as to contractor fault that it believes are seriously understated. As mentioned above, Mr. Adkins\rquote analysis draws into serious question several of the \u8220\'3fcredit\u8221\'3f items contained within Rounds\rquote one-page summary. A significant disagreement exists as to the additional cost incurred by NCI as a result of the defaults of the various subcontractors, as well as the disagreement regarding the appropriate daily rate for overhead. Adkins concluded that NCI incurred a loss of $1,399,090 as a result of subcontractor defaults. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Of this amount, he attributes $612,309 to Felton alone. This is in stark contrast to NCI\rquote s sole allocation of $500,000 for Felton\rquote s default, assessing no other costs for additional subcontractor defaults. The court also notes that NCI\rquote s original claim, as submitted to the CO, assessed in excess of $1.4 million to NCI just for costs associated with the completion of Felton\rquote s earthwork. The court finds Adkins\rquote analysis to be more persuasive given the level of detail of his report, as well as the court\rquote s view that Rounds\rquote conclusions are insufficiently supported. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Another direct cost not included by Adkins was the cost of repairing or maintaining the undersized boilers, $52,868.00. Although Adkins reflects that only $7,092.00 was captured by NCI in the relevant job cost series, that does not appear to be the reason he rejected the larger amount. He opined that it was an item of contractor fault. The court has found to the contrary. Accordingly, the larger amount is included. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Modification No. 29 deducted $1,401 from NCI\rquote s contract for costs associated with the project manager\rquote s trip to Kodiak Island to inspect the project when it was not in fact ready for inspection. According to Mallahan, the project was not ready for final inspection on the date which NCI had so informed the CG. File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Included within the 39 modification orders were modifications to increase work. These increased the contract price by approximately $181,700. This was offset by approximately $426,000 in contract reductions. Of these reductions, approximately $79,000 was associated with a reduction in the scope of NCI\rquote s work, while the remaining sum, approximately $347,000, was deducted by the Government because of alleged delay (liquidated damages assessed against NCI in the amount of $280 per calendar day) and incomplete work (costs incurred by the CG in order to complete the project). File: 037 - Neal And Co Inc v US.doc, Paragraph with $: Modification No. 16 (adding $9,319.91 to contract to pay for cost of DCR\rquote s 008, 016, 021, and 022). File: 039 - Strategic Analysis Inc v US Dept of Navy.doc, Paragraph with $: Disappointed bidder on Navy contract showed reasonable likelihood it would have been awarded contract if given opportunity to file best and final offer (BAFO), as was required once Navy held discussions with other finalist concerning its application, and thus remand to request BAFOs was necessary; while bidder\rquote s proposed costs were $74,000 higher, bidder alleged it would have significantly lowered price in a BAFO, bidder was incumbent contractor, and its technical proposal was rated slightly higher, while other finalist might have been disqualified completely absent the discussions and may not have qualified as small business so as to be eligible even to bid. File: 043 - Browning-Ferris Inc v Manchester Borough.doc, Paragraph with $: All contracts or purchases in excess of ten thousand dollars ($10,000), except those hereinafter mentioned, shall not be made except with and from the lowest responsible bidder after due notice ... In awarding contracts, council shall have the right to take into consideration such other factors as the availability, cost and quality of service. File: 044 - Krygoski Const Co Inc v US.doc, Paragraph with $: Increase in estimated cost of asbestos removal portion of demolition contract from 10% of total cost of contract, or $40,000, to just under 50% of total contract, or $320,000, constituted change of circumstances sufficient to justify terminating contract for government\rquote s convenience under Competition in Contracting Act, where contract had no clause which would have accounted for additional cost of asbestos removal. Office of Federal Procurement Policy Act, \u167\'3f 2 et seq., File: 044 - Krygoski Const Co Inc v US.doc, Paragraph with $: Krygoski conducted a predemolition survey. Just ten days after Krygoski acknowledged receipt of the notice to proceed with the contract, Mr. Phillips, Krygoski\rquote s counsel, informed the Corps of asbestos in the vinyl flooring and roof insulation of the Raco buildings. Krygoski proposed to remove the tile for a unit price of $8.78 per square foot\u8212\'3fthe cost of removing additional duct insulation under item 2 of the VEQ Clause. The Corps requested Thermo Analytical, Inc. to take samples at potential new locations of asbestos contamination. The tests showed asbestos in the tile and the flashing at the Composite building, but not in the roof insulation. File: 044 - Krygoski Const Co Inc v US.doc, Paragraph with $: (1995). This contract language governs the legal relations of the parties. Under the discretion conferred by this contract language, Contracting Officer LTC Johnson decided to terminate the contract with Krygoski because removing the asbestos-containing vinyl tile would constitute a cardinal change from the originally competed contract. The contracting officer felt that a change increasing the total contract price between 25% and 33% warranted resolicitation. The trial court stated that LTC Johnson cited \u8220\'3fno authority for his definition of cardinal change.\u8221\'3f Because the Government ultimately removed only 9,000 square feet of tile, not 36,000 square feet, the trial court concluded that the Corps arbitrarily and capriciously miscalculated the scope of asbestos abatement. To the contrary, the contracting officer had a reasonable basis for terminating the contract for the Government\rquote s convenience. Asbestos removal was originally estimated to cost about $40,000 out of an estimated $415,000 demolition contract. Thus asbestos removal accounted for about 10% of the total cost of the contract. At that point, the contracting officer\rquote s experts increased the cost of asbestos removal by about $320,000. After this change, the total asbestos removal cost was about $360,000 on a contract near $775,000\u8212\'3fjust under 50% of the total contract. Asbestos removal, originally about 10%, became about 50% of the contract work. File: 053 - Grumman Data Systems Corp v Dalton.doc, Paragraph with $: After reviewing the SSEB\rquote s report and receiving a briefing from the SSEB, the SSAC\u8212\'3falthough it was not required by the Solicitation to do so\u8212\'3fcommissioned an Impact Analysis Working Group (\u8220\'3fIAWG\u8221\'3f) to compare technical differences among the proposals. The IAWG identified sixteen areas of technical differences (called \u8220\'3fdiscriminators\u8221\'3f), and divided the sixteen areas into two categories: quantifiable and non-quantifiable. The IAWG identified and analyzed four quantifiable discriminators. The IAWG based its analysis on tasks that were likely to be commonly undertaken by the equipment\rquote s users, and on how much time generally was spent on those tasks. Using this information, and federal government pay-rates, the IAWG estimated the cost to the agency to use each offeror\rquote s proposal, and then assigned a value to the government for each proposal. The IAWG reported that, over the period of the contract, the agency would save $97 million if it selected Grumman\rquote s proposal instead of Intergraph\rquote s proposal. File: 054 - Hellenic American Neighborhood Action Committee v City of New York.doc, Paragraph with $: \u8220\'3fGiuliani Officials Broke Rules on Contract Bids with Agency.\u8221\'3f Ex. G to Pltf.\rquote s Order to Show Cause. The article details purported irregularities in HRA\rquote s grant of the WAY Contracts. The article closely parallels the facts described in a letter dated March 19, 1996 from the Comptroller to the HRA (the \u8220\'3fComptroller\rquote s Letter\u8221\'3f). Ex. N to Pltf.\rquote s Order to Show Cause. The Comptroller\rquote s Letter details the results of a months-long investigation into the letting of the WAY Contracts, valued at $43 million, and requested an explanation (i) for their granting even though another bidder had been more highly rated, and (ii) for a $19.1 million discrepancy between what HANAC first said the contracts would cost and the contract price which was finally agreed upon. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: The parties executed Modification A022 (\u8220\'3fMod 22\u8221\'3f) to the contract on April 30, 1990. Through Mod 22 the parties agreed to extend the base contract by increasing the limitation of funds and level of effort required. Mod 22 provided for two options to be exercised unilaterally by DOE. Option A extended performance through December 31, 1990, for a level of effort of 71,450 DPMH, at an estimated cost and fixed-fee of $7,752,698.00. Option B extended performance to March 31, 1991, with an estimated level of effort of 9,946 DPMH, at a total estimated cost and fixed fee of $1,346,838.00. Mod 22 never mentions \u8220\'3fclose-out\u8221\'3f nor contains a statement of work. DOE immediately exercised Option A to extend the contract through December 31, 1990. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: Under paragraph 1 of Mod 35, modifying Clause B.4 of the contract, the total estimated cost and fixed fee was increased to $65,580,229.00, and under paragraph 2, modifying Clause B.9, the limitation of funds was increased by $2 million, to a total of $62,692,179.00 in order to cover plaintiff\rquote s work effort through September 30, 1991. Mod 35 renewed Option B of Mod 22, calling \u8220\'3ffor 9,946 DPMH of close-out effort.\u8221\'3f By Mod 35 plaintiff agreed to \u8220\'3fimmediately resume full cooperative direct and indirect effort with DOE to close out the subject contract.\u8221\'3f File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: On October 1, 1991, plaintiff notified DOE, as required under the contract, that it expected within the next 60 days to exceed 75 percent of the estimated cost and total amount allotted to the contract. Plaintiff estimated total cost for close-out at $74,156,692.00. On the same day, plaintiff also responded to Ms. Richard\rquote s September 27 letter stating that, based on a lack of guidance for close-out under the contract, preparation of a proposal for post-Mod 35 work was difficult. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: Through Mod 38, executed on November 4, 1991, in response to plaintiff\rquote s requests for additional financing, DOE increased the estimated cost and fixed fee for the contract by $500,000.00. On November 14, 1991, plaintiff again notified DOE of an impending limitation of costs and limitation of funds, requested an increase in funding for the contract, and stated its intention to perform minimal work absent an increase. Contracting Officer Richards responded on November 18, 1991, denying plaintiff\rquote s request, and directing plaintiff to continue performance as required under the contract. On November 19, 1996, Ms. Richards also provided plaintiff with a task assignment form for the disposition of GFE in the West Wing. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: , plaintiff submitted several certified claims to DOE during the dispute, including a June 10, 1994 certified claim in the amount of $15,374,539.00 for damages for breach of contract. That claim was denied on August 23, 1994. The Defense Contracting Audit Agency (the \u8220\'3fDCAA\u8221\'3f) conducted several audits of plaintiff\rquote s claims, including audits dated May 26, 1993, for FY92 costs; July 19, 1995, for FY93 costs; August 30, 1995; and September 4, 1995. DCAA also issued a supplemental audit on October 27, 1995. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: The problem that I was having at the time, I had gone back to headquarters, you know, two times ... in one year trying to seek additional funds to keep the contract going and when we received the ... $4.9 million, ... the story that I was given was, \u8220\'3fDon\rquote t come back again. There are no additional funds to put into this contract.\u8221\'3f And so I ... was, you know, in a dilemma from a management standpoint in terms of ... how to continue ... to keep that contract in place when I had a limit on the ... total amount of funds at that particular point in time. And the costs, you know, continued to escalate even beyond the point where I was able to obtain the $4.9 million. File: 056 - KMS Fusion Inc v US.doc, Paragraph with $: Plaintiff\rquote s estimated costs also increased during a similar period at a similar rate. On August 8, 1991, plaintiff presented DOE with an estimated cost of approximately $6,200,000.00 for close-out to the extent contemplated by Mod 35. By Mr. McCarthy\rquote s limitation-of-funds letter of October 1, 1991, plaintiff requested an additional $6,008,691.00 to fund the cost and fee on the contract through December 31, 1991. Mr. McCarthy also estimated that the total cost-plus-fixed-fee at completion would be $78,901,721.00. By plaintiff\rquote s October 25, 1991 proposal for close-out activity beyond December 31, 1991, plaintiff estimated that $14,556,161.00 would be necessary to complete close-out. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Cupey Bajo claims that defendant wrongfully disallowed $35,000 in costs that plaintiff allegedly incurred performing its cost-reimbursement type contract for the Veterans Administration (VA) File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: In response to Cupey Bajo\rquote s claim, defendant filed an answer, affirmative defenses, and a counterclaim on May 18, 1993, seeking recovery of $239,730, which it asserts the government overpaid Cupey Bajo under the contract during the calendar year 1983. In short, therefore, the dispute before this court is whether, based on the terms of the contract and the applicable regulatory provisions, plaintiff was underpaid or overpaid under its cost reimbursement type contract with the VA during 1983. This court held a five-day trial to resolve the parties\rquote dispute, commencing May 17, 1995 and concluding May 23, 1995, in San Juan, Puerto Rico. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Cupey Bajo\rquote s Hospital Administrator, Mr. Luis M. Oyola, completed the form and reported the sum of $3,188,443 as plaintiff\rquote s total inpatient costs incurred in performing the contract during 1983. Based on this sum of total inpatient costs for 1983, plaintiff claimed a \u8220\'3ffinal\u8221\'3f per diem rate of $72.95 as follows: File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: After Cupey Bajo provided this statement of proposed actual costs dated October 23, 1984, to the VA, neither the VA nor Cupey Bajo acted on this matter until the spring of 1987. At that time, Mr. Oyola sent a letter to the CO on June 8, 1987, asserting that Cupey Bajo was due additional compensation of $169,905 under the contract based on the alleged difference between (i) the contract\rquote s provisional interim rate paid to the hospital; and (ii) the alleged final per diem cost rate incurred by the hospital. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Finally, plaintiff has never contended that the government wrongfully disallowed $44,176 of the total 1983 costs of $3,188,443 plaintiff claimed under the contract. Plaintiff concedes that the costs amounting to $44,176.00\u8212\'3fconstituting (i) donations, $800; (ii) bad debt expense, $10,000; and (iii) penalties and fines, $33,376\u8212\'3fare expressly File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Pl.Exs. 4, 5; Def.Ex. 2 at 085\u8211\'3f087; Tr. 174 \u8211\'3f75 (Roche). Thus, plaintiff challenges the VA\rquote s disallowance of $461,864 in costs claimed for performing the contract during 1983. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: for 1983 under the contract by (i) employing the auditor\rquote s figures for the number of total \u8220\'3finpatient service days\u8221\'3f of 47,330; (ii) using the auditor\rquote s figure for \u8220\'3fVA inpatient service days\u8221\'3f of 23,936, and (iii) decreasing Cupey Bajo\rquote s cost pool by $507,040. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: As mentioned above, Cupey Bajo challenges the VA\rquote s disallowance of six (6) particular costs it allegedly incurred pursuant to its contract performance: (i) hospital rental expense ($97,800); (ii) legal and audit expenses ($15,000); (iii) management fees ($234,700); (iv) representation expenses ($10,857); (v) interest expenses ($38,354); and (vi) capital improvement expenses ($39,300). Aggregated, these questioned File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: rental costs for the approximate five-month period of July 1983 through November 22, 1983 (pro rated), at a rate of approximately $16,300 per month, or a sum of $76,989. This additional rental expense allegedly increases plaintiff\rquote s total 1983 costs claimed under the contract from $3,144,267 to File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: The DCAA questioned plaintiff\rquote s accrued rental expense of $97,800 for the first six months of 1983, allegedly because it had no assurance that Cupey Bajo intended on actually paying the rental expense. The DCAA\rquote s recommendation was rooted in the fact that plaintiff had merely accrued, and not paid, this debt as of 1987, when the DCAA performed its audit of plaintiff\rquote s 1983 costs. Therefore, defendant\rquote s expert witness, a supervisory DCAA auditor, explained, \u8220\'3fIt would be unreasonable to reimburse the contractor for an expense which, from the records and evidence that [DCAA was] provided, it\rquote s not likely to ever be paid.\u8221\'3f Tr. 830\u8211\'3f31 (Traylor). File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Plaintiff claims that $15,000 in legal and audit expenses it incurred performing the contract in 1983 are allowable costs. Conversely, defendant argues that such expenses are not allowable under the contract because they were not paid within a reasonable time after the debts were incurred. The DCAA auditor, also defendant\rquote s expert witness, Ms. Davey, could not point to a contract provision or section of the FPR that specifically disallows the subject legal and audit fees on this record. Instead, referring to the FPR, Ms. Davey justified her recommendation to disallow the costs based on the FPR\rquote s reasonableness standard incorporating the \u8220\'3fprudent business practice\u8221\'3f standard. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: of $38,354 interest expense, $97,800 rent, and $15,000 legal and audit fees ( [a total of] $151,154), the questioned costs would be $315,589 and the amount of overpayment to the contractor would be $145,684. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Notwithstanding the fact that expenses are generally paid by the contractor before they are reimbursed by the government under a cost reimbursement type contract, it is significant that Cupey Bajo ceased operations in 1983. Yet Cupey Bajo adamantly asserts that it intended and still intends to pay the $15,000 of accrued legal and audit expenses to its creditors, but has been without liquid funds to do so since 1983. This representation was not seriously challenged by defendant at trial nor controverted by the record. The DCAA\rquote s representation that plaintiff is not likely to pay the expense is mere speculation. Thus, this court holds that a lack of liquid funds due to the complete termination of operations in the year that the entity incurs the expense stands as a reasonable and valid basis for not having paid the expenses up to five years subsequently. Accordingly, plaintiff\rquote s legal and audit expenses are allowable costs under the contract. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: To resolve whether plaintiff is properly entitled to its management fees in the amount of $234,700, this court turns to the contract terms and governing regulations. The contract does not specifically allow or disallow management fees. Section 1\u8211\'3f15.205\u8211\'3f31 of the FPR, however, addresses allowability of professional and consultant service costs. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: In light of the foregoing nonexclusive listing of payments made by plaintiff directly to its agents, and the substantial lack of any other specific evidence, written or verbal, to evidence the services actually furnished by HMG pursuant to the Agreement during 1983, plaintiff\rquote s evidence that it utilized substantial services of HMG is obviously weak, vague, and non-probative. In contrast, defendant introduced evidence that, after Cupey Bajo left the hospital premises on November 22, 1983, HUD operated the hospital under a separate management agreement with another contractor at a cost of $5,000 per month. In light of this evidence of market rates for hospital management services, which is admittedly somewhat limited, this court recognizes that the management fee of $234,700 accrued by plaintiff for services performed by HMG, averaging approximately $21,000 per month in 1983, substantially exceeds a reasonable rate for similar management services. Moreover, the $234,700 for the accrued management fee substantially exceeds the $50,000 actually invoiced by HMG. Therefore, in light of the evidence presented at trial, or, more accurately, the lack thereof, this court holds that the File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: As part of its total 1983 costs claimed under the contract, Cupey Bajo seeks allowance of $10,857 in car expense payments it made to its employees, Dr. Murcia, Mr. Oyola, and Ms. Santiago. Dr. Murcia received File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Defendant contends that plaintiff\rquote s total car allowance payment of $10,857 should be disallowed under the contract because plaintiff failed to provide adequate documentation substantiating the fact that these costs were actually incurred by the three individuals in their representation of the company. For instance, Cupey Bajo failed to provide any employee documentation, such as expense reports or receipts, supporting these costs. Defendant avers, moreover, that Dr. Murcia used his personally-leased vehicle for personal matters and work involving both Cupey Bajo and a second company, HMG, which he also owned and directed. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Plaintiff also challenges defendant\rquote s disallowance of certain claimed interest expense in the amount of $38,354, consisting of two items, (i) $28,354 and (ii) $10,000, as a portion of its total costs for 1983 under the contract. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Defendant contends that the $28,354 interest expense is not an allowable cost under the contract. It argues that the dispute reflected in the Federal Deposit Insurance Corporation\rquote s (FDIC) amended complaint filed against Cupey Bajo pertaining to the promissory note was resolved in 1982 and, therefore, whatever interest accrued on the $283,718.63 note actually accrued File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: This court, upon its review of the record, finds that the accrued interest cost was reasonably incurred in obtaining hospital premises for the performance of the services anticipated by the contract, and, moreover, is not unreasonable in its amount. Again, the DCAA recommends disallowance of this $28,354 interest cost merely because it had not been paid by 1987. This court rejects the DCAA\rquote s recommendation, however, for the same reasons this court found that plaintiff is entitled to its legal and audit fees. That is to say, this court cannot find that plaintiff is not entitled to costs incurred under its contract with the VA merely because it terminated operations in 1983 and thereafter lacked liquid File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Therefore, this court holds that plaintiff is allowed $28,354.08 in interest costs reasonably incurred in performing the contract in 1983. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: The second item of interest expense plaintiff seeks to recover under the contract, however, is a different matter. Plaintiff claims $10,000 interest cost representing \u8220\'3faccrued interest on a mortgage held by the Banco Popular.\u8221\'3f Def.Ex. 2 at 125\u8211\'3f26; Tr. 659 (Davey). Cupey Bajo defaulted on the mortgage note in 1973, and HUD, as the guarantor of the loan, paid the mortgage loan and took possession of the mortgage property in 1982. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: This court agrees with defendant. Plaintiff has not shown that the $10,000 interest expense claimed under the contract is an allowable 1983 cost. There is no evidence in the record supporting plaintiff\rquote s contention that the $10,000 interest cost was incurred as an expense in 1983 as part of its performance of the contract, after HUD had assumed ownership of the hospital property through foreclosure proceedings in 1982. As a result, plaintiff has failed to prove to this court that its $10,000 interest cost is an allowable 1983 cost. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Plaintiff\rquote s accountant, Mr. Roche, testified that Cupey Bajo was not required to expense the fees in 1982, because it did not abandon the capital improvement project until 1983. As a result, plaintiff contends that the $39,300 architectural fees paid to Mr. Rodriguez in 1983, before plaintiff abandoned the conversion project on November 22, 1983, when it was ousted from the hospital property, are allowable 1983 costs under the contract. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Questioned costs [of $40,202] represent costs allocated to outpatient care. The contractor\rquote s accounting system does not segregate costs incurred for outpatient care. Therefore, we allocated costs on the basis of the ratio of outpatient revenues to total revenues. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: contractor\rquote s final claim submission that is most relevant here, however. Plaintiff did not show through documentary evidence or testimonial evidence at trial that it properly excluded outpatient costs throughout its accounting procedures and, thus, from its total costs claimed, other than $103,099 in emergency care expenses. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Plaintiff seeks additional payment under its contract with the VA, claiming it was underpaid its cost of performance in 1983 by approximately $35,000. Conversely, defendant contends that plaintiff was, in fact, File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: In addition to the total overpayment of $150,078.72, based on the audited number of 47,330 inpatient service days provided by Cupey Bajo and the allowable reimbursable costs of $2,823,914, plaintiff was overpaid an excess of 267 (24,203 minus 23,936) inpatient service days at the contract provisional rate of $65.93. Accordingly, defendant is entitled File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Although the original contract indicates a provisional per diem rate of $55.53, effective January 1, 1983, the provisional per diem rate was established as $65.93 based on the Defense Contract Audit Agency\rquote s (DCAA) audit of plaintiff\rquote s 1982 accrued costs. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: In addition to the $15,000 legal and audit expenses questioned by the DCAA, defendant asserts that the $1,000 plaintiff paid to Mr. Luis M. Oyola and Mr. Miguel Aran, at a sum of $500 each, is unallowable under the contract. Although the $1,000 cost was reflected in plaintiff\rquote s records in the audit and legal expense account, the costs were described in the account as \u8220\'3frepresentation costs\u8221\'3f and were reviewed as such by the DCAA. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: As a result, the \u8220\'3factual per diem rate\u8221\'3f calculated according to the results of the audit reflects $9.28 less than the $65.93 provisional per diem rate originally estimated by the contract and used by Cupey Bajo for invoicing the government during 1983. In other words, the \u8220\'3factual\u8221\'3f per diem rate based on the DCAA audit was $16.30 less than the $72.95 per diem rate Cupey Bajo had claimed in its post-performance statement of actual costs dated October 23, 1984. Pl.Ex. 2. File: 057 - Cupey Bajo Nursing Home Inc v U S.doc, Paragraph with $: Alternatively, defendant contends that Cupey Bajo waived its objection to such costs when it failed to inform the CO that the legal and audit expenses served a basis for challenging the government\rquote s contention that it overpaid plaintiff under the contract. Defendant does not cite to pertinent case law to support this alleged requirement. Cases defendant cites simply address a contractor\rquote s waiver of objection to conditions of contract performance when the contractor continues performance under such conditions. Notwithstanding the foregoing, as a factor determining plaintiff\rquote s claim before this court, plaintiff included the $15,000 in legal and audit costs accrued in 1983 as part of its costs allegedly incurred under the contract. The DCAA audited and specifically questioned such costs. Consequently, plaintiff\rquote s total claim of $169,905 underpayment, including the legal and audit fees, was subject to a final negative decision by the contracting officer on December 21, 1988. Under these circumstances, this court cannot find that plaintiff waived its right to dispute the disallowance of its legal and audit fees. File: 063 - Davies Precision Machining Inc v US.doc, Paragraph with $: . Its purpose is to prescribe simplified procedures for small purchases in order to (1) reduce administrative costs and (2) improve opportunities for small business concerns ... to obtain a fair proportion of Government contracts. \u167\'3f 13.102. Contracting officers shall use the small purchase procedure that is most suitable, efficient, and economical in the circumstances. \u167\'3f 13.104. Purchases not exceeding $2,500 may be made without securing competitive quotations if the contracting officer considers the prices to be reasonable. For purchases over $2,500, contracting officers shall solicit quotations from a reasonable number of sources to promote competition to the maximum extent practicable. Generally, solicitation of at least three sources may be considered to promote competition to the maximum extent practicable. Generally, quotations should be solicited orally; written solicitations should be used when oral quotations are not considered economical or practical. \u167\'3f 13.106(b)(2). File: 076 - Widnall v B3H Corp.doc, Paragraph with $: ), the Board upheld a protest of DALFI for a contract selection by the Naval Aviation Logistics Center (NALC). The NALC had chosen the lower rated $17 million proposal of SDI over the higher rated $20 million DALFI proposal. The GSBCA held that the NALC erred in part by taking SDI\rquote s assertion of a lower cost to the Government at face value and not conducting a price realism analysis that would assess the proposal\rquote s true cost. The Board stated that the procurement had been \u8220\'3fconverted ... from one for the highest technically rated proposal representing the best buy to the Government into one for the lowest price for a technically acceptable proposal.\u8221\'3f File: 076 - Widnall v B3H Corp.doc, Paragraph with $: , the agency awarded a contract to Boeing rather than accepting the less expensive proposal of CSC. The decision process consisted of starting with the proposed costs of each offer and adding additional charges quantifying estimates as to how much each proposal would actually cost the agency during the life of the contract. For example, the agency determined that CSC\rquote s cheaper, technically inferior proposal would actually cost the agency over $350 million for necessary future upgrades and maintenance. The SSA chose Boeing based on this analysis because Boeing\rquote s true cost was only 1% greater than CSC\rquote s. File: 076 - Widnall v B3H Corp.doc, Paragraph with $: ), the Board granted IBM\rquote s and Lockheed\rquote s protests, rejecting the IRS\rquote acceptance of AT & T\rquote s proposal to build its automation system. The IRS could not justify the increased cost of $500\u8211\'3f700 million for the project simply by stating that AT & T\rquote s winning proposal was technically superior to the lower offers. Furthermore, AT & T\rquote s offer was only 15% more technically superior than the other proposals. The Board directed the IRS to justify its award to AT & T or initiate a new procurement for the contract. File: 076 - Widnall v B3H Corp.doc, Paragraph with $: ), the Board sustained Grumman\rquote s protest of the Air Force\rquote s decision to award a computer networking contract to Contel. The SSA had concluded that the technical enhancements in Contel\rquote s proposal warranted the $33.9 million (58.8%) higher price. The Board found that the SSA had failed to explain via quantification or reasoned analysis why the increased value of Contel was worth the price. Simply adhering to the solicitation\rquote s ranking of technical merit over cost was insufficient. File: 083 - Advanced Distribution System Inc v US.doc, Paragraph with $: On July 7, 1994, plaintiff filed a complaint in this court alleging that defendant breached its contract with plaintiff by rerating the bills of lading and refusing to pay the exclusive use charges. Plaintiff claims that, as a result of this breach, it has been damaged in the amount of $16,697.02, plus interest, attorney fees, and costs. By agreement, the parties stipulated to the material facts. Upon plaintiff\rquote s request, the court heard oral argument on the parties\rquote cross-motions for summary judgment on November 28, 1995. File: 084 - Dakota Tribal Industries v US.doc, Paragraph with $: Contracting officer had no duty to verify small business contractor\rquote s bid, pursuant to set-aside program of Small Business Administration (SBA) to supply government with chain saw chaps, even though bid was based on material supplier\rquote s quote of $7.58 per yard, when cost was actually $19.78 per yard; General Services Administration (GSA) had no reason to believe that bid contained mistake, as its analysis compared bid to recent bids for similar products that were deemed to be fair and reasonable, and bid was within reasonable range of expectations based on previous contract prices. Small Business Act, \u167\'3f 2[8](a), File: 089 - United Prison Equipment Co Inc v Board of County Com'rs of Caroline County.doc, Paragraph with $: Dashiell advised the County that the change would cost approximately $10,000, or about 0.3% of the total contract price, and thereafter the architect and Dashiell executed a change order document bringing into play the substitution of Jailcraft for United. File: 091 - Smith v US.doc, Paragraph with $: (1) On October 22, 1986, SPI was awarded a contract to manufacture and deliver 650,000 bags used to carry nuclear, biological, and chemical materials (NBC bag contract), at a unit cost of $3.96 and a total contract price of $2,574,000. The contract called for eight monthly deliveries of 812,250 units between May 5 and December 30, 1987. The contract contained a 100 percent option quantity clause, which was never exercised. File: 091 - Smith v US.doc, Paragraph with $: 19. On October 22, 1986, DPSC awarded to SPI contract number DLA100\u8211\'3f86\u8211\'3fC\u8211\'3f4438, known as the NBC bag contract. The NBC bag contract was a firm fixed-price contract, and required SPI to deliver 650,000 NBC bags at a unit cost of $3.96, for a total contract price of $2,574,000. The contract contained a 100% option quantity clause, which was never exercised. File: 091 - Smith v US.doc, Paragraph with $: 75. SPI\rquote s appeal of PCO Pelullo\rquote s final decision regarding the first claim for equitable adjustment, which awarded SPI $119,529, was dismissed without prejudice by the ASBCA because it was improperly certified. The same day, November 30, 1988, SPI submitted a modified total cost claim to the contracting officer for $1,140,074, later reduced to $905,755 due to mathematical errors. File: 091 - Smith v US.doc, Paragraph with $: of the cost of material in progress payments. Burlington also required that SPI and Mississippi River Bank (\u8220\'3fMRB\u8221\'3f), which had an assignment of all progress payment proceeds under the NBC bag contract, execute a disbursement agreement requiring progress payment proceeds for Burlington material to be paid directly to Burlington by MRB. The amount of the CD was subsequently reduced to $30,000 with agreement of all parties. File: 094 - Gould Inc v US.doc, Paragraph with $: On December 11, 1986, Gould submitted a certified claim to the contracting officer seeking an \u8220\'3fequitable reformation and upward adjustment in the price of [the] contract.\u8221\'3f Gould sought more than $57 million in added costs due to the unanticipated design work that Gould had performed under the contract. In support of its requested relief the claim contained three separate counts. In Count one, Gould alleged that the Navy had violated File: 095 - Stapp Towing Inc v US.doc, Paragraph with $: Plaintiff is not entitled to an award for barge clean-up costs, also incurred in preparation for the contract. Section L. 18 of the solicitation notes that \u8220\'3f[t]he Contractor will prepare barges for inspection at its own expense.\u8221\'3f As part of the pre-award survey, plaintiff undertook an admittedly expensive process of cleaning its barges, a cost to the company of nearly $200,000.00. However, as the contract states, and the case law affirms, bid preparation costs lie with the unsuccessful bidder and are not recoverable. Plaintiff\rquote s request for bid preparation costs, including barge clean-up costs, is denied. File: 100 - Percy J Matherne Contractor Inc v Grinnell Fire Protection Systems Co.doc, Paragraph with $: Statute requiring that all public work exceeding contract limit be advertised and let by contract to lowest bidder who had bid according to contract, plans and specifications as advertised, did not preclude post bid negotiations between owner and low bidder resulting in contract cost reduction of 8% on original bid of $8,500,000; purpose of requiring competitive bidding, avoidance of owner favoritism to particular bidder, was not applicable under circumstances. File: 003 - Chamber of Commerce v Reich.doc, Paragraph with $: Although President\rquote s issuance of Executive Order authorizing Secretary of Labor to disqualify employers with federal contracts exceeding $100,000 who hired permanent replacement workers during lawful economic strike was not subject to judicial review, district court would decide legal issues raised by parties since full implications of Supreme Court decision prohibiting such judicial review were unclear, legal issues raised regarding extent of Presidential power under Federal Property and Administrative Services Act (FPASA), pursuant to which executive order was issued, and its relationship to national labor laws had significance, and review would reduce delay and cost of the litigation. Federal Property and Administrative Services Act of 1949, \u167\'3f 2 et seq., File: 006 - Westinghouse Elec Corp v US Dept of Navy.doc, Paragraph with $: Additionally, the Secretary calculated that the cost of switching from a sole-source process to a competitive bid process was an estimated eight million dollars ($8,000,000.00). However, the Secretary also estimated that the likely savings to the Navy from awarding the contract on a competitive basis could be as much as forty-eight million dollars ($48,000,000.00). Therefore, the Secretary concluded that it could expect to recover the costs through competition. File: 011 - Mark Dunning Industries Inc v Perry.doc, Paragraph with $: First, the Navy will reimburse a contractor for actual costs incurred from disposing solid waste at an out-of-county landfill as long as the actual cost per ton is equal to or less than the unit price bid by the contractor. For example, upon presentation of receipts from the landfill, BFI can receive renumeration for disposal fee expenses but only up to the amount of its unit price on CLIN 0002, which is $28 per ton. In other words, if the refuse disposal fee at the landfill used by BFI decreases to $15 per ton, it can receive reimbursement only for that amount, not the $28 per ton unit price inserted on CLIN 0002. File: 014 - IMCO Inc v US.doc, Paragraph with $: costs that would be incurred if the purchase order quantity was reduced by thirty-seven items. In its September 28, 1992 response, IMCO stated that reducing the quantity by this amount would affect the line item minimum quantity and would result in a unit cost of $223 for a total of $15,028. IMCO suggested to the government: \u8220\'3fYou may wish to T for C this contract in its entirety which will result in a cost of $8,000 at this point.\u8221\'3f (DAR 60). The language used by IMCO in this letter suggests that it considered purchase order 0627 to be a contract. File: 014 - IMCO Inc v US.doc, Paragraph with $: By letter of March 26, 1993, MICOM requested that IMCO provide estimated cancellation costs in the event that all thirty-one items were cancelled. IMCO responded by letter of April 14, 1993, in which it stated: \u8220\'3fIf this contract [1167] were to be cancelled within the next 30 days, the cancellation costs are estimated to be $1800.\u8221\'3f (DAR 131, 136). In another letter dated that same day, IMCO requested forbearance from MICOM in regard to \u8220\'3fContract No. DAAHO1\u8211\'3f92\u8211\'3fP\u8211\'3f1167.\u8221\'3f (DAR 131, 135). The language used File: 019 - Hotcaveg v Kennedy.doc, Paragraph with $: In anticipation of the contract\rquote s expiration, the NPS began the renewal process by advertising a concession opportunity at Big Springs Lodge. The Service issued a prospectus which set forth the minimum requirements. This prospectus required an upgrade of the facility and a lengthened operating season. The total upgrades will cost at least seven thousand five hundred dollars ($7,500). File: 026 - Central Arkansas Maintenance Inc v US.doc, Paragraph with $: The president of CAM, Mr. Bobby J. Leming, in addition to years of managing fixed-cost contracts, was elected and served for two years as County Judge, a post that entails administration of county property (roads, bulldozers, equipment, etc.), administration of county buildings (including a courthouse, a library, and a hospital), and oversight of county employees and procurement activity, with an annual budget of around $5,000,000. Admin.Rec., vol. IX, Tab B, Management Plan. File: 029 - Advanced Seal Technology Inc v Perry.doc, Paragraph with $: . Although these cases did not involve disappointed bidders, this rule should apply here all the same. Plaintiff stood to recover no more than $44,000 in gross income from the contract. Plaintiff has offered no evidence at all concerning its projected costs or profits, nor has Plaintiff offered evidence that the loss of this contract would irreparably harm its business, its viability, or its ability to compete for other contracts. File: 031 - McKnight Const Co Inc v Perry.doc, Paragraph with $: For purposes of proving that bidder on federal government contract was entitled to preliminary injunction to bar government from administering construction contract allegedly improperly awarded to another bidder, public interest would be served by the injunction because public would save $119,000 if contract was awarded to first bidder, and although public interest in federal procurement is served by expeditious completion of government products, there is overriding public interest in protecting integrity and cost effectiveness of procurement process. File: 052 - Guardian Moving And Storage Co Inc v US.doc, Paragraph with $: , plaintiff, Guardian Moving & Storage Co., Inc., seeks to recover approximately $18,000 in bid preparation costs it incurred in preparing an unsuccessful bid proposal for a Department of Defense (DOD) contract. The contract in issue covered the interstate transportation of household goods of DOD employees based at Fort Meade, Maryland, during 1991. DOD awarded the contract to the low bidder, Eastern Moving & Storage Co., Inc. (Eastern). Plaintiff contends that the contracting officer should have rejected Eastern\rquote s bid and awarded the contract to plaintiff, the second low bidder. Plaintiff alleges that Eastern\rquote s bid was not responsive to the requirements of the bid solicitation and that Eastern was not a responsible bidder. When the United States accepts a bid in response to a solicitation, it enters into an implied-in-fact agreement to consider the bid fairly and honestly. File: 056 - Orbas And Associates v Secretary of Navy.doc, Paragraph with $: The contracting officer emphasized the importance of receiving Orbas\rquote response by September 17, 1993. No response was received, so Bycsek telephoned Orbas on September 17 and again on September 20. Each time Bycsek was told that Orbas was waiting for confirmation from its bonding company before confirming its bid. During the September 20 conversation, Mrs. Orbas inquired whether all of the options would be awarded. Bycsek informed her that no decision had been made concerning the options. Mrs. Orbas then informed Bycsek that an error had been made in its bid, because certain costs, in the amount of \u8220\'3fapproximately\u8221\'3f $120,000, had been allocated to option 3 instead of to the base bid. Mrs. Orbas ended the conversation with a promise to provide a definitive answer by the early morning of September 21, 1993. File: 059 - Superior Services Inc v Dalton.doc, Paragraph with $: The public interest also militates against granting an injunction. If an injunction issued, an entity which does not qualify under the 8(a) program would nevertheless be receiving public monies under this program at a noncompetitive price under an interim contract. This, in turn, would harm other companies that are eligible under the 8(a) program, including Cabaco. Additionally, because the price would be noncompetitive, the Navy would incur an excess cost of approximately $224,000 per month with LEG rather than Cabaco performing the services. Accordingly, the court denies the plaintiffs\rquote request for preliminary injunctive relief. File: 062 - Latecoere Intern Inc v US Dept of Navy.doc, Paragraph with $: Based on the overall proposal ratings, the Evaluation Board recommended that only Latecoere and Brown & Root were capable of satisfying the requirements for the G\u8211\'3fTIP systems contract and that only they should be eligible for the award. After reviewing the Evaluation Board\rquote s ratings and comparing cost proposals, the Advisory Council agreed with that recommendation and placed only Latecoere and Brown & Root in the competitive range. As between those two offerors, the Advisory Council recommended that the contract be awarded to Latecoere, without negotiations, because it was both the superior-rated and the lower-cost offeror, proposing a cost of $20,911,166 as compared to Brown & Root\rquote s proposed cost of $35,199,045. In short, the Advisory Council, which consists of the Training Center\rquote s senior officials, agreed with the approximately forty engineers, scientists, medical doctors, and other specialists who were on or assisted the Evaluation Board. They all agreed that Latecoere\rquote s proposal was acceptable and ETC\rquote s was not. File: 062 - Latecoere Intern Inc v US Dept of Navy.doc, Paragraph with $: Based on these offers, ETC and Latecoere were the only offerors that the Advisory Council considered further. To assist in deciding between the two, the Advisory Council requested a comparative cost analysis. That analysis showed that Latecoere had proposed completing the project three months earlier than ETC and that Latecoere\rquote s earlier completion date might well save both money and human lives. At least one recent aircraft crash had been caused by a lack of centrifuge training and more were anticipated absent increased availability of such training. By contrast to Latecoere\rquote s likely completion date, ETC\rquote s past performance suggested that delays of up to nine months were possible if ETC received the contract; such delays would increase the risk of loss of lives and aircraft. A logistics analyst also compared the long term maintenance costs for the facilities proposed by ETC and by Latecoere. His analysis revealed that, over a ten-year period, the maintenance costs for Latecoere\rquote s proposed facility would be $554,556 less than the maintenance costs for ETC\rquote s proposed facility. File: 063 - Smith Setzer And Sons Inc v South Carolina Procurement Review Panel.doc, Paragraph with $: 19\u8211\'3f446.1000(B)(5). In addition, certain categories of purchases are wholly exempted from this preference scheme. Thus, permanent improvements to real estate, contracts with prime contractors or subcontractors providing materials or services relating to permanent improvements for real estate, and solicitations where the price of a single unit of the item sought is greater than $10,000 or where the total cost of the solicitation is less than $2,500 are not covered by this preference system. File: 064 - Halifax Technical Services Inc v US.doc, Paragraph with $: Plaintiff Halifax Technical Services, Inc. (\u8220\'3fHalifax\u8221\'3f) seeks to set aside the award of a contract by the U.S. Marine Corps (\u8220\'3fUSMC\u8221\'3f) for maintenance of military equipment and supplies loaded aboard prepositioning ships. The value of the contract is approximately $130 million. USMC first awarded the contract to Halifax in October, 1991, after which the General Accounting Office (\u8220\'3fGAO\u8221\'3f) recommended a recompetition based on the USMC\rquote s mis-evaluation of cost proposals. Upon the recompetition, the contract was awarded to defendant AlliedSignal Technical Services Corp. (\u8220\'3fAllied\u8221\'3f) in September, 1993. The USMC evaluated Allied at a slightly higher technical rating (weighted 60%) and found that Allied\rquote s costs (weighted 40%) were substantially less than Halifax\rquote s. Plaintiff\rquote s GAO protests, raising File: 064 - Halifax Technical Services Inc v US.doc, Paragraph with $: Allied\rquote s bid proposed a cap of approximately $61.8 million on direct labor costs, or just under 50% of the total contract value. In other words, Allied\rquote s bid proposed to shift the risk of direct labor cost overruns to itself. The USMC conducted two cost realism analyses\u8212\'3fone which took into account Allied\rquote s cap on labor costs (\u8220\'3fcapped costs analysis\u8221\'3f), and another which compared anticipated costs absent the cap (\u8220\'3funcapped costs analysis\u8221\'3f). Both the analyses showed Allied to be the low bidder, by $5.2 million with labor costs capped and by $1.3 million without the cap. The GAO found that Allied\rquote s cap on direct labor costs was the basis for its significantly lower proposed costs. GAO Decision at 4. Halifax contends that USMC made a series of errors in its cost realism analyses which, if corrected, would make Halifax the low bidder by just over $1 million with the labor cap and approximately $1.5 million without the cap. File: 064 - Halifax Technical Services Inc v US.doc, Paragraph with $: . The GAO\rquote s altogether sensible conclusion that upward adjustments to capped costs are improper is a sound rule of bid evaluation, and this Court perceives no justification for discarding it, or for second-guessing the GAO\rquote s determination that the USMC appropriately evaluated the actual costs to it of the contract at issue and properly awarded the contract to Allied as the low bidder by $5.2 million. File: 070 - Aerolease Long Beach v US.doc, Paragraph with $: Satsuma submitted its initial offer on November 30, 1992 and its initial BAFO on February 8, 1993. Soon after the submission of its revised BAFO on or before February 25, 1993, however, Satsuma discovered that the contracting officer anticipated evaluation of offers based solely on net per square foot present value allegedly without pricing termination costs, service costs, and overtime charges. As Satsuma proposed no termination fee, in contrast to the $501,960 termination fee of One Airport Plaza, Satsuma sought inclusion of this cost within the evaluation criteria. Also, as Satsuma proposed service costs of $101,404, in contrast to the $123,000 service costs of One Airport Plaza, Satsuma sought inclusion of these costs within the evaluation criteria. Further, as Satsuma proposed $25 per hour in overtime charges, in contrast to the $36.50 per hour rate of One Airport Plaza, Satsuma sought inclusion of these costs within the evaluation criteria as well. Based on the alleged impropriety of the exclusion of these costs from evaluation, on May 21, 1993, Satsuma filed a simultaneous protest both with the FAA and the GAO. On June 4, 1993, the contracting officer denied the administrative protest and, on August 17, 1993, the GAO dismissed the protest because Aerolease had initiated the instant action in this Court. File: 070 - Aerolease Long Beach v US.doc, Paragraph with $: Defendant\rquote s Statement of Facts in Support of its Cross\u8211\'3fMotion for Judgment on Plaintiff\u8211\'3fIntervenor Satsuma Investment, Inc.\rquote s Complaint, Attachment 1 (November 4, 1992). Because number two on the worksheet for Satsuma states \u8220\'3fNo CPI,\u8221\'3f the intervenor apparently believes that the contracting officer failed to consider service costs during the evaluation of the offers. To the contrary, as adduced at the hearing, the contracting officer added service costs (noted as $4.16 per square foot) to the initial net rental costs (noted as $12.04 per square foot) to derive a total net rental cost of $16.20 per square foot as stated in number one of the worksheet. Only the computation for \u8220\'3fthe escalation and discount factor\u8221\'3f maintains no computation because the intervenor had not requested an escalation factor in its BAFO. Indeed, if desired, the SFO specifically instructs the offerors to request a cost of living index adjustment: \u8220\'3fThe offer File: 076 - US v Stern.doc, Paragraph with $: Actual loss sustained by government as result of defendants\rquote uttering of phony payment and performance bond for government contract and forged power of attorney was $250 administrative cost of rewarding contract, and, thus, only that amount could be awarded as restitution. File: 076 - US v Stern.doc, Paragraph with $: In this case, following the pre-sentence report, the district court found that the loss to the Air Force of the fraudulent activities in this case was \u8220\'3fthe difference between the bid price [by Tower] and the award [to Fellsway, the second lowest bidder] for $88,477, increased by the restated administrative costs of $250\u8221\'3f involved in reawarding the contract to Fellsway. The resulting figure, $88,727, increased the base offense level from 6 to 11, File: 076 - US v Stern.doc, Paragraph with $: 1. The parties jointly stipulate that the best readily calculable measure of the loss from the offenses of conviction, for purposes of applying the Sentencing Guidelines, is $20,450. This amount includes both an attempted gain of $20,200 (the purchase price for a genuine bond of the kind that was forged in this case), and actual consequential losses of $250 (the immediately identifiable administrative costs associated with the re-awarding the Photolab contract). For purposes of ordering restitution, only the actual loss figure, $250 is subject to restitution. File: 076 - US v Stern.doc, Paragraph with $: Restitution is a different matter. We agree with the government\rquote s concession that the intended or probable loss cannot be the measure of restitution: it is one thing to base a criminal sentence on the magnitude of threatened harm but quite another to \u8220\'3frestore\u8221\'3f to the government money that it never lost. Here, the actual loss is only the $250 administrative cost of reawarding the contract. Given the common interrelationship between fines and restitution, we see no reason why the government should not be allowed to argue for a fine on remand. File: 086 - Dairy Maid Dairy Inc v US.doc, Paragraph with $: In context of request for injunctive relief, contractor\rquote s remedy at law for Army\rquote s improper lifting of stay pending resolution of procurement dispute was clearly inadequate inasmuch as, absent injunction, contractor would effectively lose contract of limited duration valued at $4 million before its pending pre and postaward protests could be considered, and monetary damages if protests were sustained would be limited to costs of pursuing protests. File: 091 - Continental Collection And Disposal Inc v US.doc, Paragraph with $: After discussions between the parties, CCD was permitted to resume use of the new system. CCD was also reimbursed for losses suffered due to the delayed implementation of the new system, which was less costly for the contractor to operate than the old system: $49,750.00 was paid on April 19, 1989, and $38,992.64 was paid on August 11, 1989. File: 097 - PG Const Co Inc v George And Lynch Inc.doc, Paragraph with $: (2) Neither the State nor county ... shall accept any bid for [a public works contract, the probable cost of which exceeds $10,000,] or award any such contract to any bidder, as the prime contractor, if the bidder has listed himself as the subcontractor for any subcontractor category set forth on the \u8220\'3flisting\u8221\'3f as provided in File: 099 - Lockheed Missiles And Space Co Inc v Bentsen.doc, Paragraph with $: Internal Revenue Service (IRS) sufficiently demonstrated that price was factor in its final decision to award contract for procurement of office automation systems, software, and maintenance services, even though successful proposal was double cost of competing bid and $500 million more than another proposal, where increased productivity of software, higher scores on workload performance tests, and nonquantified discriminators indicated that successful proposal offered substantially more value to government than other proposals. File: 099 - Lockheed Missiles And Space Co Inc v Bentsen.doc, Paragraph with $: In response to the IRS solicitation, proposals were submitted in confidence by various vendors including AT & T, Lockheed and International Business Machines Corporation (IBM). Each submitted proposal contained a recommended system/software/services package and its estimated cost to the government. The cost of the IBM proposal was approximately $700 million while the cost of the Lockheed proposal was about $900 million. In comparison, AT & T\rquote s proposal would cost the government approximately $1.4 billion. Nevertheless, AT & T was awarded the contract. File: 002 - DTH Management Group v Kelso.doc, Paragraph with $: These costs allegedly include: (1) liquidating approximately $100,000 of inventory in plaintiff\rquote s maintenance warehouses; (2) selling off significant equipment and fixtures installed for the contract at a substantial loss; (3) dismissing over 100 employees of its own and possibly an additional 100 employees through its subcontractors; (4) terminating material supply contracts; (5) interrupting its communications system; and (6) discontinuing hazardous waste material and other state licenses, among others. (Affidavit of Rhett Raynor, at para. 17). Of course, all these costs would be incident to normal business practices but for the pending GAO protest. However, if the GAO rules in DTH\rquote s favor, these costs would be unnecessarily incurred but unrecoverable by plaintiff against the Navy. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: as a consequence of WMATA\rquote s breach of the two contracts for the construction of the Shaw Street and U Street Stations. WMATA seeks by way of a counterclaim $28,456,450.00 in reprocurement costs, liquidated damages, and other credits and damages. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: The total cost of the buy out to Mergentime was approximately $1,466,000. Def.\rquote s Ex. 627. Mergentime also agreed to pay Perini $95,000 upon completion of the Projects, provided the financial results of the work was a profit to Mergentime. Def.\rquote s Ex. 529, \u182\'3f 1. Perini agreed to relinquish any interest in the profits or losses of the Joint Venture; Mergentime and the Joint Venture released Perini from any claims; and Mergentime and the Joint Venture agreed to indemnify Perini against any liability, loss, damage, costs or expenses relating to the Joint Venture Agreement, the contracts, the projects and the bonds. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On October 27, 1987, M/P formally entered into a subcontract with GKN Hayward Baker, Inc., for grouting along the inbound tunnel route from the Fan Shaft to the Crossover and along the full length of the outbound tunnel route from the Crossover to the Shaw Station North Bulkhead. This work, performed on a unit price basis, was at an estimated cost of $1,153,544.00. Def.Ex. 495. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On December 2 and 3, 1987, M/P\rquote s Ralph Bradford and Mr. William Linde and Mr. Robert Zaepfel of WMATA met to negotiate M/P\rquote s CPN 035/PCO 031 claim for grouting under Peoples\rquote Drug Store on the inbound North Tunnel drive. According to minutes of the meeting, Mr. Zaepful \u8220\'3fpointed out that WMATA did not envision impact, inefficiency, time or extended performance costs in this change to the contract, and that WMATA\rquote s position on this PCO was for far less than the $934,270.00 plus 16 calendar days proposed.\u8221\'3f Pls.\rquote Ex. 200. Negotiations then turned to direct costs. An agreement was reached on these in the amount of $183,256 with no time, subject to Contracting Officer approval. WMATA prepared and signed a \u8220\'3fSummary Record of Negotiations,\u8221\'3f setting forth the agreements reached between the parties in January, 1988. The Record noted that \u8220\'3fMr. Bradford accepted this offer stating that Mergentime/Perini expressly reserved its right to claim increased costs for inefficiency, impact, time and/or extended performance resulting from overall contract tunnelling conditions in all areas of the contract, at a later time.\u8221\'3f File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On July 6, 1988, Mr. McElhenny, the Contracting Officer, evidently declining to consider the claims as a whole, issued Modification No. 16 (\u8220\'3fMod 16\u8221\'3f), which covered only PCO 31/CPN 035, the grouting under Peoples Drug Store during the inbound tunneling operations. Pls.\rquote Ex. 225. Mod 16 acknowledged a change to the Shaw Contract from this work in the amount of $183,256, with no change in contract time, which was what Mr. Bradford and the WMATA negotiators had agreed to back in January. Mod 16 further provided in paragraph 4 that \u8220\'3f[t]he terms and conditions of this contract modification constitute a full accord and satisfaction for all costs and time of performance related to the actions described or referenced herein.\u8221\'3f Pls.\rquote Ex. 225. Although Mod 16 was supposedly based upon the agreement reached by the parties and reflected in the \u8220\'3fSummary Record of Negotiations,\u8221\'3f paragraph no. 4 in the modification was at odds with the Contractor\rquote s agreed reservation of its right to claim for increased costs due to impact, inefficiency, time and extended performance. Mr. Zaepfel testified that WMATA \u8220\'3funderstood that [M/P] needed money on the job and had agreed to the dollars so the [modification] was prepared with accord and satisfaction language in it as a negotiation ploy, a strategem if you like.\u8221\'3f Tr. 11/25/91, at 88. It is evident to the Court from WMATA\rquote s conduct here that the Authority intended to take advantage of M/P\rquote s weak financial condition to impose unilaterally an accord and satisfaction notwithstanding its previous agreement in negotiations concerning M/P\rquote s reservation of rights to assert claims for costs other than direct costs. Tr. 11/25/91, at 88, 90. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Def.\rquote s Ex. 1410. This modification granted an increase in the contract price of $341,000 based upon WMATA\rquote s estimate of the extra labor, material, and incidental costs required to perform the work. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Tr. 10/21/91, at 58\u8211\'3f59 (Opening Argument by Perini Counsel). Mr. Keiser testified, however, that the phrase \u8220\'3fcover the job\u8221\'3f referred to the $2.5 million, up-front payment that Mr. Whalen sought during the Keiser\u8211\'3fWhalen negotiations in June and that M/P and WMATA continued to discuss during July. This $2.5 million payment was what Mr. Mergentime said was necessary to re-hire a workforce for the job and get subcontractors mobilized. Tr. 11/27/91, at 169\u8211\'3f71. Mr. Egbert testified that he never said that WMATA would completely fund the remaining performance of the Shaw and U Street Contracts or that he would convert those Contracts into a \u8220\'3fcost-plus operation.\u8221\'3f File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: On August 24, 1989, WMATA issued Modification No. 36, Part I relating to PCO 001. Def.\rquote s Ex. 1410. This modification granted an increase in the contract price of $341,000 based upon WMATA\rquote s estimate of the extra labor, material, and incidental costs required to perform the work, with no extension in time. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Pls.\rquote Ex. 526. This revenue forecast showed that there was $13,556,527.40 remaining in the two contracts, and that the estimated cost to complete was $19,565,274.40. This left a revenue shortfall of $6 million, exclusive of past due payables. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: In entering into the August 1989 Agreement, M/P recognized that the ultimate resolution of its claims could result in payments of more or less than the $6 million needed to fund the remaining work. Tr. 11/5/91, at 60; 12/9/91, at 133\u8211\'3f34. It is evident from Pls.\rquote Ex. 446(a) that the balances M/P believed it was due on its major outstanding claims approximated the revenue shortfall on the two contracts. Nevertheless, as M/P\rquote s Mr. Bradford testified, if the claims were settled for less than the $6 million funding shortfall \u8220\'3fMergentime\u8211\'3fPerini would have had to finish the work with either the costs that were provided, meaning cutting costs, or come up with alternate sources of funds.\u8221\'3f Tr. 11/5/91, 62\u8211\'3f63. The Court finds this testimony to reflect an understanding of WMATA\rquote s and M/P\rquote s financial obligations that is consistent with the terms of the August 1989 Agreement. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: Mergentime, Perini and INA have agreed that WMATA\rquote s procurement method to obtain completion of the Shaw and U Street Contracts\u8212\'3fentering a cost-reimbursement completion contract with Perini\u8212\'3fwas reasonable. From the testimony of Mr. Kolodne and other evidence introduced by WMATA, the Court is satisfied that WMATA is claiming only costs incurred by Perini Corporation in completing base contract work left uncompleted by M/P and that WMATA acted reasonably to mitigate those costs. M/P presented no evidence at trial that any of the costs claimed by WMATA as excess reprocurement costs were either unreasonable or inappropriate. Having met the three-part test above, therefore, the Court concludes that WMATA is entitled to $15,615,179.00 in excess reprocurement costs as claimed on both the Shaw and U Street Projects. File: 004 - Mergentime Corp v Washington Metropolitan Area Transp Authority.doc, Paragraph with $: FURTHER ORDERED, that Mergentime/Perini, as joint-venture contractor on WMATA Contracts 1E0012 and 1E0021, and the plaintiffs in this action, and counterdefendant Insurance Company of North America, are jointly and severally liable to defendant and counterplaintiff WMATA for damages in the amount of $16,487,305, consisting of excess reprocurement costs in the amount of $15,615,179, credits for unperformed work and overpayments in the amount of $637,311, and damages related to system-wide contractors in the amount of $234,815, all proven at trial; and, it is File: 009 - Minnesota Chapter of Associated Builders and Contractors Inc v County of S.doc, Paragraph with $: For purposes of union\rquote s motion for preliminary injunction to prevent county from requiring contractor\rquote s bidding on jail construction project to agree to execute project labor agreement, county made adequate showing that it would suffer significant countervailing harm if injunction was issued; there was evidence that county now operated unsafe jail at less than full capacity and incurred continuing costs to house inmates outside of county, additional construction costs for six weeks\rquote delay were estimated to be $985,000, and rebidding project for following year would cost county approximately $765,000. File: 015 - Shields Enterprises Inc v US.doc, Paragraph with $: the components of the target data base architecture and to develop a detailed transition plan for migrating SSA\rquote s applications software to the data base operating environment.\u8221\'3f The RFP anticipated the use of a cost-plus-fixed-fee contract. SSA estimated that the work would take four years and would cost $9,800,000.00. File: 016 - YRT Services Corp v US.doc, Paragraph with $: , J., held that: (1) applicant had to present \u8220\'3fcompelling evidence\u8221\'3f that it could satisfy $12 million equity capital requirement at time of application under second phase of application process; (2) concessions contract did not permit applicant to place limit on liability for costs of environmental remediation; and (3) contract did not permit applicant to condition its capital improvement fund contribution on further negotiations upon changes in concession service plan and housing plan. File: 016 - YRT Services Corp v US.doc, Paragraph with $: Statement of requirements for second phase of concessions contract, proposed contract itself, and merger agreement required applicants to accept unlimited environmental liability, and applicant\rquote s attempt to place limit on its liability for costs of environmental remediation at $12.3 million warranted rating its offer \u8220\'3funsuccessful\u8221\'3f on environmental criterion. File: 016 - YRT Services Corp v US.doc, Paragraph with $: YRTSC has forecast costs for such a program at $5 million over the first four years of the contract as shown in the financial projections. Beyond year four, an additional $7 million has been included in the forecasts for continued underground tank and other environmental cleanup costs. File: 017 - TRW Inc v US.doc, Paragraph with $: In this government contract action, plaintiff, TRW, Inc., seeks to recover approximately $2.9 million in bid and proposal (B & P) costs that it incurred in preparing a bid proposal in response to the United States Internal Revenue Service\rquote s (IRS) Request for Proposal No. IRS\u8211\'3f89\u8211\'3f038 (RFP), issued on September 29, 1989. The RFP covered an automated method of processing checks and forms designated as the Check Handling Enhancements and Expert Systems (CHEXS). Plaintiff submitted a proposal in response to the RFP but, after a series of negotiations with plaintiff, the IRS ultimately determined not to award a contract under the RFP requirements. Plaintiff contends that it is entitled to recover all of the B & P costs it incurred in preparing its CHEXS proposal because the IRS breached its contractual obligation to consider plaintiff\rquote s File: 017 - TRW Inc v US.doc, Paragraph with $: In its motion for partial summary judgment, defendant contends that even assuming the IRS breached its contractual obligation to consider plaintiff\rquote s proposal fairly and honestly, plaintiff nevertheless is precluded from recovering approximately $2.1 million of the approximately $2.9 million in B & P costs sought in its complaint. Defendant bases its motion on advance agreements plaintiff had entered with the United States Department of Defense (DoD). These agreements obliged the government to pay certain B & P costs incurred during the years 1990\u8211\'3f92 by plaintiff\rquote s Space and Defense Sector (TRW Space). Defendant contends that pursuant to these advance agreements, defendant already has paid plaintiff $2.1 million of the $2.9 million in CHEXS B & P costs plaintiff seeks in this action. As an alternative argument, defendant contends that even if the $2.1 million in CHEXS B & P costs had not been paid, in view of the advance agreements, plaintiff would receive an improper \u8220\'3fwindfall\u8221\'3f if the government made any additional payments toward reimbursing this $2.1 million in costs. To comprehend defendant\rquote s argument, it is necessary to understand the intricacies of these advance agreements. File: 017 - TRW Inc v US.doc, Paragraph with $: Defendant has not demonstrated that it has paid $2.1 million of plaintiff\rquote s CHEXS B & P costs. In addition, assuming that defendant breached its contractual duty to treat plaintiff\rquote s proposal fairly and honestly, defendant has not demonstrated that the government\rquote s payment of additional B & P costs would in any sense represent an improper \u8220\'3fwindfall\u8221\'3f to plaintiff. For the reasons set forth above, defendant\rquote s motion for partial summary judgment is denied. File: 035 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Paragraph with $: According to the RFP, WMATA would utilize its \u8220\'3fcompetitive negotiation\u8221\'3f procedures throughout the process of awarding the escalator contract, which was worth more than $20 million over the three-year life of the contract. Proposals would be evaluated under the following criteria, which the RFP listed \u8220\'3fin descending order of importance:\u8221\'3f (1)\u8220\'3fGeneral Quality and Responsiveness of Proposal,\u8221\'3f (2) \u8220\'3fOrganization and Personnel,\u8221\'3f (3) \u8220\'3fPrevious Experience of Proposing Firm,\u8221\'3f and (4) \u8220\'3fDisadvantaged Business Enterprise Participation\u8221\'3f (\u8220\'3fDBE\u8221\'3f). The RFP further provided that \u8220\'3fthe contract shall be awarded to that proposer submitting the most favorable technical and business/cost proposal as determined through the evaluation process,\u8221\'3f assuming the requirements of the DBE program were met. File: 035 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Paragraph with $: The scoring data and the CIVR\rquote s DBE evaluation were then passed on to the Technical/Business Cost Panel, which recommended that Schindler, having received the highest score, be awarded the escalator contract. The Contracting Officer disagreed with that recommendation, finding instead that the award should go to Elcon, as the lowest-cost proposer, since he viewed the proposals as \u8220\'3fsubstantially equal technically.\u8221\'3f Both the Assistant General Manager and the Acting General Manager accepted the Contracting Officer\rquote s recommendation. They therefore recommended that WMATA\rquote s Board of Directors (the \u8220\'3fBoard\u8221\'3f), which had the sole power to award contracts worth more than $100,000, award Elcon the contract. File: 035 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Paragraph with $: Knowing that if it awarded the contract to Schindler, Elcon might well sue, and if it awarded the contract to Elcon, Schindler might well sue, challenging not just the contract award but the constitutionality of the entire DBE program, the Board accepted the recommendations of staff that it request a second round of BAFOs to allow Elcon to demonstrate technical capability and Schindler to demonstrate good faith efforts to satisfy the DBE requirement. At that meeting, the Board appointed an advisory body called the \u8220\'3fAd Hoc Panel\u8221\'3f to review the new BAFOs. The Ad Hoc Panel included (1) the Deputy Assistant Manager of WMATA\rquote s Department of Design, Construction, and Facilities Maintenance; (2) WMATA\rquote s CIVR Director; and (3) WMATA\rquote s Director of Procurement (who also was the Contracting Officer for the escalator contract). WMATA officials then met with Elcon and Schindler on November 16 and 17, 1989, respectively, to inform them of the Board\rquote s concerns regarding their proposals and to encourage them to include any additional information they deemed pertinent with their new BAFOs. Within weeks the new BAFOs were submitted to the Ad Hoc Panel. Schindler\rquote s BAFO was unchanged from its first, except that it showed an increase in DBE participation from 2.6 to 10.3%. Elcon likewise submitted the same BAFO as before, except that it included two additional personnel (one with financial and the other with elevator experience) and lowered its already lowest-cost proposal by $574,059. File: 039 - HK Porter Co Inc v Metropolitan Dade County.doc, Paragraph with $: Additionally, the record now before the court indicates that Dade County did perform studies to support the five percent set aside goal. During July and August, 1979, Dade County developed its goal for the contract under the constant scrutiny of the Equal Opportunity Division of the county transit agency. The Equal Opportunity Division and county engineers determined the contract portions available for subcontracting. They also utilized a national directory for minority businesses to locate minority firms who could supply nuts and bolts, and perform assembly and fabrication work. Additionally, the Equal Opportunity Division and county engineers conducted a telephone spot check of minority firms listed in the directory to confirm the current status and the MBEs\rquote ability to do the work. Thus, Dade County determined that minority firms could do splice joint assembly and expansion joint assembly work, in addition to furnishing nuts and bolts. Accordingly, the engineers estimated the total contract price at $7 million to $8 million. They estimated splice joint assembly cost at $300,000 to $350,000, and expansion joint assembly at $150,000 to $200,000. The engineers then set the minority goal at five percent of the estimated total contract price, which equaled $350,000 to $400,000. Thus, Dade County did conduct an investigation to determine an appropriate set aside goal. File: 040 - Health Systems Marketing And Development Corp v US.doc, Paragraph with $: HSMD disputes this, claiming that its bid of $13 million was not only reasonable, but was more realistic, because AID\rquote s original estimate was based on an assumption that the TA contract would be performed by so-called \u8220\'3fpersonal service contractors\u8221\'3f who typically have very low overhead costs. Plaintiff further defends its figure in the \u8220\'3fTable of Assumptions and Justifications\u8221\'3f attached to its bid proposals. It is possible that plaintiff\rquote s assumptions and justifications are assailable. The court does not, however, have before it uncontroverted evidence of how much the CCSP should be expected to cost. It would be unreasonable for AID to solicit responses to a proposal that it had no reasonable expectation of funding at required levels. At trial, the parties will have the opportunity to litigate whether AID\rquote s initial estimate of $4 million was reasonable, or, if it was not, whether the agency\rquote s subsequent allocation of $11 million cured the initial underestimate and reflected an adequate re-evaluation by AID of the costs involved. File: 042 - Northern Management Services Inc v US.doc, Paragraph with $: decision and government\rquote s assertion in its brief (that any labor or cost in excess of the 16 hours/ $500 limit becomes indefinite quantity work) may well protect the contract awardee in the instant case. File: 047 - Hunt Paving Co Inc v City of Indianapolis.doc, Paragraph with $: Plaintiffs argued that the mere provision of the data required on Data Sheet 1 and Data Sheet 2 imposes an economic cost on non-MBE/WBE bidders not borne by MBE/WBE bidders. Plaintiffs introduced evidence establishing that they incur administrative expenses of $10,000 annually to comply with the MBE/WBE Program. Presumably some of these costs are incurred in preparing bids and contacting MBE/WBE subcontractors for their bids. The fact that Hunt Paving File: 052 - Planning Research Corp v US.doc, Paragraph with $: EIA solicited bids for the management and support of its Forrestal Computer Facility located in Washington, D.C. EDS was the incumbent contractor at the facility. The contract was for a term of two years, with three successive one-year renewal options. The total estimated cost was in excess of $34 million. File: 053 - County of Suffolk NY v US.doc, Paragraph with $: Plaintiff contends that even if summary judgment is granted on the allegation that plaintiff acted imprudently in failing to make the award before Hendrickson withdrew its bid, a trial is necessary to resolve factual issues as to how much of the $3,219,662 difference between Hendrickson\rquote s bid and the subsequent contract cost could properly be disallowed. Plaintiff argues that because Hendrickson\rquote s bid was so far below the engineer\rquote s estimate and the next lowest bid, the bid was not a realistic representation of what the job would have cost Hendrickson and, hence, the job would have ended up costing plaintiff much more than Hendrickson had bid. But there was no guarantee that Hendrickson would make any minimum level of profit, or even that Hendrickson would avoid a loss. Under the contract, Hendrickson would have been legally bound to complete the job at the contract price, and plaintiff has not presented any evidence, expert or otherwise, to suggest that Hendrickson would not have been able to comply with this contractual obligation had plaintiff completed the contract formation in a timely manner. File: 065 - Corporate Air v US.doc, Paragraph with $: The complaint requests a declaratory judgment that the government\rquote s May 5, and June 9, 1989 default terminations of two contracts be declared improper and be converted into terminations for convenience and that, accordingly, or because of the government\rquote s failure to mitigate, plaintiff, Corporate Air, does not owe the government the sum of $96,681, which it was billed on December 13, 1989, for the government\rquote s excess reprocurement costs. The complaint also prays for damages in an unspecified amount for the government\rquote s alleged termination for convenience, and associated attorney\rquote s fees and costs. File: 068 - Associated General Contractors of Connecticut v City of New Haven.doc, Paragraph with $: on all City Construction Contracts and Development Agreements ... where the costs of construction exceed $75,000, the Construction Contractor or the Developer ... shall make maximum practicable efforts to insure that 4% of the construction costs shall be set aside for subcontractors, which are certified as women business enterprises and that 10% of the construction costs shall be set aside for subcontractors, which are certified as disadvantaged business enterprises.... File: 077 - GE Government Services Inc v US.doc, Paragraph with $: After revising their initial proposals, GEGS and ARS submitted their best and final offers (\u8220\'3fBAFOs\u8221\'3f) for the AUTEC contract on November 4, 1991. In a 355\u8211\'3fpage final Proposal Evaluation Report issued in December, 1991, the SSEB determined that all three of GEGS\rquote s BAFO technical volumes should be rated \u8220\'3fhighly acceptable.\u8221\'3f The SSEB\rquote s final PER rated all three of ARS\rquote s BAFO technical volumes \u8220\'3facceptable,\u8221\'3f which was an upward departure from the two \u8220\'3facceptable\u8221\'3f and one \u8220\'3fmarginal\u8221\'3f ratings given for the initial proposal. The SSEB also reviewed the cost volumes and after making the appropriate cost realism adjustments, determined that ARS\rquote s proposal would cost the Navy $15 million less than GEGS\rquote s proposal. File: 077 - GE Government Services Inc v US.doc, Paragraph with $: Accordingly, in January, 1992, the Chairman of the SSAC provided to the SSA a newly drafted and more-detailed memorandum justifying its recommendation that ARS be awarded the contract. The SSAC\rquote s new memorandum reported that although the SSAC initially concurred with the SSEB\rquote s adjectival ratings of the ARS and GEGS proposals as \u8220\'3facceptable\u8221\'3f and \u8220\'3fhighly acceptable,\u8221\'3f closer review of the SSEB\rquote s evaluations revealed errors. Specifically, the SSAC concluded that the SSEB mistakenly awarded the GEGS\rquote s proposal increased technical merit credit because it provided more detail and information than was required. A.R. Tab 26 at \u182\'3f\u182\'3f 6, 7 and accompanying enclosures; Testimony of William A. Mackinson. After making its own adjustments, the SSAC rated all three of GEGS\rquote s technical volumes \u8220\'3facceptable,\u8221\'3f and concurred with the SSEB that all three of ARS\rquote s technical volumes were \u8220\'3facceptable.\u8221\'3f Based on the conclusion that any additional technical merit of the GEGS\rquote s proposal was not worth the extra $15 million it would cost, the SSAC again recommended to the SSA that ARS receive the AUTEC contract. A.R. Tab 26 at \u182\'3f 8 and addendum page 3. The SSA reviewed the SSAC memorandum and agreed that additional technical merit of the GEGS\rquote s proposal was not worth $15 million. A.R. Tab 27 at \u182\'3f 5. Consequently, on January 7, 1992, the SSA issued a detailed decision stating that ARS should be awarded the contract. File: 077 - GE Government Services Inc v US.doc, Paragraph with $: that the additional merit of the GEGS\rquote s proposal was not worth an extra cost of $15 million, and that therefore ARS should be awarded the contract. Transcript at File: 082 - Newport News Shipbuilding and Dry Dock Co v General Dynamics Corp.doc, Paragraph with $: (1) a cost analysis which established that the construction rate of one ship per year was inadequate to sustain efficient production at both yards; (2) a competition analysis which indicated that the winner of the SSN\u8211\'3f22 contract would have a decided advantage in future competitions, and that effective competition could not be maintained at the rate of one ship per year; (3) the Navy\rquote s interest in having both yards participate in construction to promote efficient execution of their respective design responsibilities; (4) the fact that Newport News\rquote [ ] bid was below the $708 million ceiling, and it File: 083 - Kollsman a Div of Sequa Corp v US.doc, Paragraph with $: The following facts are undisputed, unless otherwise noted. On December 22, 1987, the Government of the Arab Republic of Egypt (\u8220\'3fEgypt\u8221\'3f) agreed to purchase from the United States Army Armament, Munitions and Chemical Command (\u8220\'3fAMCCOM\u8221\'3f) 140 Laser Range Finders (\u8220\'3fLRFs\u8221\'3f) at a cost of $54,611.04 per LRF, 170 Ballistic Computer Systems (\u8220\'3fBCSs\u8221\'3f) at a cost of $27,523.58 per BCS, and numerous other defense items. The agreement, Case EG\u8211\'3fB\u8211\'3fUHO, was executed on \u8220\'3fDD FORM 1513,\u8221\'3f entitled \u8220\'3fUNITED STATES DEPARTMENT OF DEFENSE OFFER AND ACCEPTANCE\u8221\'3f (referred to as the \u8220\'3fLetter of Agreement\u8221\'3f or the \u8220\'3fLOA\u8221\'3f), and indicated that payment was to be by \u8220\'3fFMS [Foreign Military Sale] Credit.\u8221\'3f Funds provided through the Foreign Military Credit Sales Program are loans made by the United States to foreign governments that the United States has released from having any contractual liability for repayment. On February 23, 1988, AMCCOM commenced implementation of Case EG\u8211\'3fB\u8211\'3fUHO (the \u8220\'3fEgyptian FMS case\u8221\'3f) based upon AMCCOM\rquote s receipt of certified funds. File: 083 - Kollsman a Div of Sequa Corp v US.doc, Paragraph with $: On March 21, 1990, plaintiff submitted a claim to the procuring contracting officer for $14,417,888.00. Plaintiff stated that it was requesting \u8220\'3freimbursement reflecting its costs and reasonable profit relating to its performance on an implied contract in support of an anticipated sole-source award of RFP DAA[A]09\u8211\'3f89\u8211\'3fR\u8211\'3f0793 from the U.S. Army Armament[,] Munitions and Chemical Command (AMCCOM) for 140 Laser Range Finder AN/VVG\u8211\'3f2 Systems and 170 Ballistic Computer Systems.\u8221\'3f The contracting officer issued a final decision denying the claim in its entirety on August 21, 1990. Plaintiff has sued for the full amount of its claim. File: 087 - Professional Bldg Concepts Inc v City of Cent Falls Housing Authority.doc, Paragraph with $: By letter dated April 4, 1991, the Authority\rquote s architect, Robinson, Green & Beretta, Corp., recommended that the Authority award Professional Building Concepts the contract since it was the low bidder. On April 19, 1991, HUD also informed the Authority, by letter, that it could proceed to award the contract to Professional Building Concepts in the amount of $1,704,000.00 (cost of alternate 1 deducted from overall bid total of $210,000.00). File: 093 - TGS Technology Inc v US Dept of Air Force.doc, Paragraph with $: Second, other parties to this action will be substantially harmed if Bionetics is enjoined, even temporarily, from performing on the contract. For example, the Air Force estimates that, at a minimum, the government would lose approximately $500,000.00 per day due to lost productivity should the RVITS contract be ordered stopped. And if Bionetics were required to stop work, it would, therefore, face a loss of revenue and profits, and would be subjected to other, unanticipated costs, not all of which might be deemed reimbursable by the government under the contract, including possible personnel loss and subsequent additional recruitment costs. File: 001 - In re Bicoastal Corp.doc, Paragraph with $: On July 13, 1984, Link\u8211\'3fFlight submitted to the Government an updated combined contract pricing proposal to produce the flight simulators at a total cost of $471 million, broken down as follows: File: 001 - In re Bicoastal Corp.doc, Paragraph with $: which could be matched against the July 13, 1984 formal proposal. None of the computer runs carried a line item identified either as \u8220\'3fmanagement reserve\u8221\'3f or \u8220\'3fnegotiation loss reserve.\u8221\'3f However, a handwritten sheet dated August 2, 1984, (Debtor Exhibit 9, Tab 3) does provide comparisons of Link\u8211\'3fFlight\rquote s \u8220\'3fbest estimates\u8221\'3f and the total prices proposed by Link\u8211\'3fFlight for the four contracts. This document shows a comparison of total costs for the four contracts of $421 million including profits and a total proposal made by Link\u8211\'3fFlight of $451 million, including profit. File: 001 - In re Bicoastal Corp.doc, Paragraph with $: Between September 18 and September 20, 1984, Link\u8211\'3fFlight prepared an internal estimate of its costs to complete the four IICA contracts (Debtor\rquote s Exhibit 9, Tab 6). Properly adjusted, the total cost of the four contracts was $321,296,126 according to Link\u8211\'3fFlight\rquote s internal estimate. On October 2, 1984, Link\u8211\'3fFlight submitted to the Government updated proposals (Debtor\rquote s Exhibit 9, Tab 6). These proposals showed Link\u8211\'3fFlight\rquote s costs to complete the contracts as $333,036,524. File: 001 - In re Bicoastal Corp.doc, Paragraph with $: It is the Government\rquote s position that the July 13th proposal which estimated the total cost for the four contracts must be matched to the August 2nd \u8220\'3fbest estimate\u8221\'3f of Link\u8211\'3fFlight, which estimated the cost to perform these contracts with profit at $364,827,421.41, a difference of $56 million. File: 003 - Inhabitants of City of Saco v General Elec Co.doc, Paragraph with $: ....\u8221\'3f Clearly, services are the predominant factor in this listing. Moreover, the contract was for a fixed fee of $63,116,000, without any allocation of price breakdown between engineering or other services and material costs. File: 005 - Cone Corp v Hillsborough County.doc, Paragraph with $: Plaintiffs allege they submitted the lowest bid to Hillsborough County and were awarded this contract. However, in order to comply with the MBE program requirements, Plaintiffs maintain they were again forced to subcontract with an MBE subcontractor who did not submit the lowest bid. Plaintiffs argue that this resulted in an additional cost of $85,970.00, which reduced Plaintiffs\rquote expected profit by that amount. File: 005 - Cone Corp v Hillsborough County.doc, Paragraph with $: Plaintiffs allege they submitted the lowest bid to Hillsborough County and were awarded this contract. However, in order to comply with the MBE program requirements, Plaintiffs maintain they were forced to subcontract to an MBE subcontractor whose bid was $15,812.00 higher than the next lowest bid. Consequently, Plaintiffs argue, they incurred an additional cost in the same amount, and were denied this expected profit. File: 005 - Cone Corp v Hillsborough County.doc, Paragraph with $: Plaintiffs allege they were awarded this contract during the period in which the injunction entered by this Court was in effect. However, when the Eleventh Circuit Court of Appeal vacated this Court\rquote s order granting the injunction, Hillsborough County required Plaintiffs to increase their MBE participation from 5.1% to 24.8% in order to meet the MBE program requirements. Consequently, Plaintiffs argue, they subcontracted with another MBE subcontractor at an additional cost of $3,690.00, and were denied an expected profit in the same amount. File: 011 - Sulzer Bingham Pumps Inc v Lockheed Missiles And Space Co Inc.doc, Paragraph with $: In 1988, Lockheed sent out a request for quotation to potential subcontractors, seeking bids for the manufacture of 124 ballast cans. In February 1989, Lockheed received eight bids, including one from Sulzer Bingham. Sulzer Bingham was the lowest bidder at $6,544,055. The next lowest bid was $10,176,670, and the bids ranged up to $12,940,540, with one high bid at $17,766,327. Lockheed estimated that the job would cost about $8.5 million. File: 012 - Diebold v US.doc, Paragraph with $: bids and did cost comparisons several times during the next several years. Interested parties contested the process. One contract award to Colbar was cancelled and bids were resolicited because a Congressional Inquiry questioned compliance with the Small Business Administration regulations. Another award to Colbar was withdrawn following a protest by a disappointed bidder filed with the GAO. The GAO sustained the protest and directed an award to the protesting bidder. A solicitation was re-issued in May 1988, resulting in a tentative award to Colbar. This award, the subject of this litigation, was supported by the Army\rquote s calculation that it could save $6 million or almost 20% over 55 months: in-house costs of $33 million as compared to $27 million on Colbar\rquote s bid. File: 012 - Diebold v US.doc, Paragraph with $: Under the in-house system Army civilian cooks supervised the recruits at no additional cost to the Army. Under the contract with Colbar, the Army must provide supervision because Army regulations do not allow this supervision to be done by contractor personnel. This supervision issue was raised throughout the contracting-out process. Fort Knox originally included $2.9 million to cover these costs. (The GAO said this calculation was too low because it was not computed according to Circular A\u8211\'3f76 guidelines.) The Army Audit Agency said the figures should not be included because military personnel from the Army training brigade could supervise the KP\rquote s without additional cost to the Army. Fort Knox still believed the figures should be included because the training brigade did not have the extra personnel, and in any case, this supervision cost would be an additional cost made necessary by contracting-out. The United States Army Organization and Efficiency Review Agency agreed with the Army Audit Agency. Fort Knox took the supervision cost out of its calculations of the cost for contracting-out, and the Army proceeded with the cost comparison and award. File: 012 - Diebold v US.doc, Paragraph with $: Acting on the request of Kentucky\rquote s senators, the GAO examined the cost comparison and concluded that the supervision cost should be included in the cost of contracting-out. The GAO calculated the supervision cost to range from $4.6 million to $5.6 million, depending on whether the supervision provided was civilian, military, or a combination of these. The GAO recognized that part-time supervisors might be used, thus lowering the cost, but noted that the Army had not analyzed the Fort Knox operation so as to know whether part-time supervision might suffice in some parts of the food service operation. As part of its investigation, the GAO talked to the Efficiency Review Agency official who had said the supervision cost did not have to be included. The official said that he gave File: 012 - Diebold v US.doc, Paragraph with $: The GAO also concluded that the Army had overstated the in-house costs and understated other costs of contracting-out, thus understating the net cost of contracting-out by an additional $1.5 million, indicating that it would be cheaper to operate the dining halls in-house. File: 017 - Celtech Inc v US.doc, Paragraph with $: In October 1988, Celtech filed a claim with State\rquote s contracting officer, seeking $219,994.89 in \u8220\'3fcontract costs\u8221\'3f based on an alleged implied-in-fact contract to perform the typewriter repair services. The contracting File: 020 - Fridge Const Co Inc v Federal Emergency Management Agency.doc, Paragraph with $: Fletcher said that after Elena struck the Mississippi coast, he and Smith decided to have employees with previous debris removal experience (including Boyce Childs) assist them in estimating the quantity of debris and calculating their bids. Fletcher insisted that the estimating process began immediately after they received the bid package on September 6, 1985, and continued for four days. Fletcher admitted that he had seen Exhibit P\u8211\'3f8 before he and Smith calculated the first bid but they did not rely upon this estimate. He said that they used a figure of approximately $4.00 per yard multiplied by their estimates. Fletcher explained that their cost for the Elena bids was higher than the Houston bids because they had to supply their own dump site and the cost for Pascagoula was higher because the debris was more difficult to remove there. He admitted that he and Childs recommended a unit price but that it was Smith\rquote s final decision. Fletcher pointed out that each contractor was required to bid on the 21 areas individually. File: 020 - Fridge Const Co Inc v Federal Emergency Management Agency.doc, Paragraph with $: Childs, Fletcher, and Smith testified that they calculated their bid on each area individually and that it was $3.50 per cubic yard for Ocean Springs and $4.00 per cubic yard for Pascagoula. According to Smith, in preparing his bid, a contractor should consider the amount of debris, his bonding capacity, his dump site\rquote s availability and cost, and his transportation time and costs. Smith admitted that as compared to the FEMA and local officials, he was more knowledgeable on all of those factors except the amount of debris. Fletcher and Smith testified that they submitted their bids for all of the areas in Jackson County, Ocean Springs and Pascagoula. They said they had estimated approximately 127,000 cubic yards of debris in Ocean Springs and 250,000 cubic yards for Pascagoula when they proposed their first bid. File: 020 - Fridge Const Co Inc v Federal Emergency Management Agency.doc, Paragraph with $: Hall testified that he did not attend the meeting at which the first round of bids were rejected. He also admitted that it would not have been unusual for someone to inform the contractors the reason for the rejections or to schedule a second round of bids three days later. Hall explained that due to the emergency situation (some streets were blocked by debris), they would have attempted to get a contract and remove the debris as fast as possible. He also insisted that he never informed the local officials the reimbursement amount was limited to $4.00 per cubic yard multiplied by the FEMA estimates. Hall said that after the bids were rejected, he met with them because they were considering a request of military assistance. He stated that at this meeting, he informed them of the prerequisites for military intervention and informed them that the $4.00 per cubic yard was not a limit. He insisted that several variables would have been considered in determining what exactly was a reasonable cost and that it would have been in the $2.50 to $6.00 range. Hall testified that Schneider informed him the first bids were rejected because they were File: 028 - Newport News Shipbuilding and Dry Dock Co v US Dept of Navy.doc, Paragraph with $: Were Electric Boat\rquote s bid only $1 below that of Newport News, the rational decision would be to award the contract to Newport News, for the $1 would be far exceeded by the savings obtained in later competitive acquisitions. For example, if competition reduced the price of ten future contracts by $10 million apiece, establishing competition at a cost of less than $100 million might be justified by economics alone, without regard to Industrial Mobilization. File: 028 - Newport News Shipbuilding and Dry Dock Co v US Dept of Navy.doc, Paragraph with $: If the Navy awarded contracts solely on price, the award of a lead ship contract would create a monopoly, because of the effect of start-up costs discussed above. It is a fundamental principle of economics that monopolies cause prices to remain high, while competition causes them to fall. The bids for the SSN\u8211\'3f22 itself demonstrate the value of competition. Electric Boat bid $615 million, $93 million below the price of the first contract. Were Electric Boat the only bidder, it could bid up to one dollar below $708 million, which the Navy has established as the reasonable cost for obtaining the ship. File: 028 - Newport News Shipbuilding and Dry Dock Co v US Dept of Navy.doc, Paragraph with $: with regard to the original SSN\u8211\'3f21 lead ship contract cost, and that if Newport News bid below $708 million, Industrial Mobilization would control the award and Newport News would receive the contract. Newport News could reasonably have believed this interpretation and could reasonably have believed that this was the only interpretation. File: 042 - Goldberger Foods Inc v US.doc, Paragraph with $: According to GFI, it inadvertently failed to mark up its all-beef bids by $.11 per pound, a margin that was intended to cover manufacturing costs, overhead and profit. Plaintiff contends that this omission was reported to the contracting officer (CO) prior to contract award; that it should have been allowed to correct or withdraw the bid because it demonstrated both the mistake and the bid actually intended by clear and convincing evidence; and that it was injured when the CO subsequently assessed $122,698.65 in reprocurement costs and liquidated damages for nonperformance. In rebuttal, the defendant argues that the alleged omission, if indeed there was one, was a noncompensable error in judgment by GFI. Moreover, it adamantly asserts that the time of contract award is not of critical importance here because GFI has File: 042 - Goldberger Foods Inc v US.doc, Paragraph with $: The CO reviewed this evidence, along with the material in the USDA files, and, on February 2, 1987, rejected the GFI request for relief. She determined, first, that the mistake was alleged after contract award, and secondly, that the evidence did not rise to the level necessary to support a contract reformation or rescission. PX 12; JX 1, \u182\'3f 15. Subsequently, GFI completed that part of the contract calling for the manufacture of one soy patty unit by the February 28, 1987 deadline for delivery under Invitation # 14, but refused to perform the contractual provision on the 24 all-beef units. JX 1, \u182\'3f 16. As a consequence, on March 4, 1987, the CO issued a 10\u8211\'3fday cure notice. JX 1, \u182\'3f 17; PX 27. GFI persisted in its refusal to manufacture and deliver the 24 units of all beef at the prices bid; as a result, that portion of the contract was terminated for default on March 26, 1987. JX 1, \u182\'3f 18; DX 139. Ms. Cope thereafter initiated reprocurement procedures for the 24 units of all-beef patties by issuing a new invitation on March 27, 1987. GFI participated in this reprocurement, and, on April 1, 1987, received an award for seven of the 24 units reprocured. JX 1, \u182\'3f 19; PX 24; PX 26. As a result thereof, by letter dated June 2, 1987, the CO assessed $79,930.65 in reprocurement costs and $42,768.00 in liquidated damages against GFI, a total of $122,698.65. JX 1, \u182\'3f 20; PX 24. The USDA issued a demand for payment of the above amount on June 15, 1987, DX 135, and again on July 28, 1987. JX 1, \u182\'3fs 21, 22; DX 136. GFI refused to pay, and on August 28, 1987, the USDA offset $124,027.89 due GFI under a subsequent contract. JX 1, \u182\'3fs 23, 24. The subject complaint was filed in this court on February 2, 1988. File: 042 - Goldberger Foods Inc v US.doc, Paragraph with $: Based on the evidence adduced in this case, or the lack of evidence, we find that GFI submitted the bid that it intended to submit, and that its so-called mistake was a noncompensable error in judgment. GFI did not prove its actual meat costs by any reasonable quantum of evidence, having failed to proffer its business records or the testimony of its suppliers. This warranted an adverse inference that the meat costs alleged by GFI were not the costs that would have actually been incurred had it performed on the all-beef portion of the contract. The evidence showed that GFI would have been able to obtain its raw material at the lower market prices available on January 16, 1987, and that its all-beef bids were in fact marked up between $.0674 and $.0824 per pound. This leads us to reasonably infer that GFI File: 042 - Goldberger Foods Inc v US.doc, Paragraph with $: GFI failed to deliver the 24 all-beef units by February 28, 1987, the deadline under Invitation # 14. Thus, under the general terms and conditions of USDA\u8211\'3f1, Art. 68, \u182\'3f (a)(2), PX 1, the CO issued a 10\u8211\'3fday cure notice on March 4, 1987, PX 27, and subsequently terminated the contract under Art. 68, \u182\'3f (a)(1) on March 26, 1987. A new solicitation was issued on March 27, 1987, and those 24 units were reprocured on April 1, 1987. PX 24. On June 15, 1987, the CO issued a demand letter claiming $79,930.65 in reprocurement costs and $42,768 in liquidated damages, totalling $122,698.65. File: 043 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Paragraph with $: The cost review team reported that Westinghouse submitted a cost proposal in the amount of $9,099,029.00. It noted that Westinghouse had submitted a proposal of only 2.6% DBE participation and had been urged to increase the participation. Both teams recommended that Westinghouse be awarded the contract. File: 043 - Elcon Enterprises Inc v Washington Metropolitan Area Transit Authority.doc, Paragraph with $: The report listed concerns about Elcon\rquote s ability to perform the contract. Specifically, the panel found that Elcon had not demonstrated its capability to carry out a contract of that size, and that \u8220\'3fWMATA would risk a degradation in service and safety while Elcon acquired on-the-job experience.\u8221\'3f The panel noted that Elcon\rquote s largest related project had a value of $520,000.00 and that the largest number of escalators maintained under any of its contracts had been eight at the D.C. Convention Center and six at National Airport. It listed concerns about Elcon\rquote s ability to supervise and manage the sizeable contract, particularly in light of the lack of escalator experience of Elcon\rquote s proposed supervisory personnel, and about Elcon\rquote s ability to perform with the 98% availability and two-hour response time requirements. In addition, the panel found that the Technical Review Panel had not given adequate weight to \u8220\'3fquestions about the contractor\rquote s ability to rapidly expand its operations to accommodate a contract of this magnitude.\u8221\'3f The panel did not rescore the proposals, as \u8220\'3fit did not consider its mission to be to completely rescore the technical proposals.\u8221\'3f Rather, the panel focused on the concerns that had been raised by the Board. If it had rescored the proposals, Elcon would have received the higher score, due to its reduced cost proposal. File: 057 - Logicon Inc v US.doc, Paragraph with $: (on reconsideration), a case involving award of a contract by NUSC under an RFP to Aquidneck. Due to a $2.65 million cost advantage for Aquidneck over Columbia, and to only a slightly higher technical score for Columbia, the contracting officer awarded the contract to Aquidneck. Columbia protested, asserting, File: 057 - Logicon Inc v US.doc, Paragraph with $: for the systems engineering position had B.S. degrees in Mathematics rather than in science or engineering, as required in the RFP, this minor deviation did not impact contract award. Columbia was not prejudiced by this deviation because, even if Columbia knew of the relaxation in time to change its proposal accordingly, similar changes in its personnel could not have lessened significantly Aquidneck\rquote s $2.65 million cost advantage. File: 059 - Howard Cooper Corp v US.doc, Paragraph with $: Howard Cooper contends first that Diamond\rquote s proposal was not responsive to the RFP and therefore should have been rejected. Howard Cooper further contends that, even assuming the responsiveness of Diamond\rquote s proposal, the selection of the proposal for contract award (i) effectively eliminated $525,000 worth of parts from the contract and thus represented a change in requirements which should have been communicated to all offerors, (ii) caused prejudice to Howard Cooper, and (iii) led to unbalanced proposals from which the contracting officer could not determine the low-cost offeror. Finally, Howard Cooper contends that the contracting officer failed to employ the evaluation criteria specified in the RFP and acted in bad faith. These claims are addressed File: 059 - Howard Cooper Corp v US.doc, Paragraph with $: In \u167\'3f B of the RFP, the government provided its dollar volume estimates, based on prior years\rquote experience, of the value of rebuilt, replacement, and OEM parts to be provided. Those estimates were $222,900, $852,300, and $2,004,490, respectively. Thus, Howard Cooper complains that the award to Diamond excluded approximately twenty-five percent ($525,000 worth of the estimated $2,004,490) of OEM parts that Howard Cooper expected to be covered by the contract. This deviation, Howard Cooper contends, (i) represented a change in requirements which should have been communicated to all offerors, (ii) prejudiced Howard Cooper and caused a lack of equality between offerors, and (iii) so imbalanced the proposals that it became impossible for the Navy to determine the low-cost offeror. These arguments are unpersuasive. File: 059 - Howard Cooper Corp v US.doc, Paragraph with $: Finally, the record shows that the difference in quantity of OEM parts price lists between Howard Cooper\rquote s and Diamond\rquote s proposals did not prevent the contracting officer from determining the low cost proposal. With respect to rebuilt and replacement parts, about which Howard Cooper raises no objections, the Navy calculated that Diamond\rquote s proposal would save the Navy approximately $134,400 each year. With respect to OEM parts, the parties agree that both Diamond and Howard Cooper offered price lists for at least thirty common manufacturers. Diamond offered a discount for these manufacturers; Howard Cooper did not. With respect to the remaining OEM parts covered by the price lists which only Howard Cooper submitted, the Navy will be able to obtain these parts, if they are needed, because it retains power under the RFP to incorporate additional price lists in its contract with Diamond. File: 070 - Cone Corp v Florida Dept of Transp.doc, Paragraph with $: Plaintiffs contended in support of their motion for summary judgment that the structure of the DBE program itself constitutes a sufficient threat of injury to give them standing for declaratory and injunctive relief: the program is likely to burden them, and those like them, with added clerical costs, the possibility of being forced to accept higher DBE bids for subcontracts, and, most importantly, the requirement that they trigger the Secretary\rquote s duty to avoid discrimination by using the protest procedures. As examples of past instances of this added burden, Cone alleged that his company had suffered increased clerical costs because of the bookkeeping requirements of the program (his company has one employee who does nothing but keep records on the company\rquote s DBE goals and program) and was forced to subcontract work to DBEs at higher prices in order to meet the goals (on one job, the DBE subcontractor bid his company accepted was $13,000 higher than the low bid). Cone also described the protest procedures as \u8220\'3fvery expensive,\u8221\'3f although he stated that his company had filed several protests unrelated to the DBE goals. File: 072 - Manning Elec And Repair Co Inc v US.doc, Paragraph with $: On April 12, 1988, Lewis Anderson wrote the Air Force that Manning would order cable that met the specifications and submit a \u8220\'3fclaim for the excess direct and associated cost, plus ripple effect.\u8221\'3f Subsequently, Manning ordered cable from Kerite Co. which met the contract specifications without dispute. The order with Hi\u8211\'3fTech was cancelled. On July 28, 1988 Manning submitted a claim against the United States for $92,187. Anderson certified and signed the claim as Project Manager. On November 9, 1988, the Contracting Officer denied Manning\rquote s claim in its entirety. File: 074 - Compliance Corp v US.doc, Paragraph with $: The Request for Proposals was a total small business set-aside procurement worth approximately $3.2 million, and the contract performance period was to extend from October 1, 1989 through September 30, 1994, including all options. The Request for Proposals stated that the bids submitted would be evaluated on the basis of the bidder\rquote s technical approach, management approach, personnel, corporate experience, and cost realism. The contract would be awarded to the bidder that submitted a technically acceptable proposal with the lowest evaluated total estimated cost-plus-fixed-fee. File: 075 - A-G-E Corp v US By and Through Office of Management and Budget.doc, Paragraph with $: Procurements in excess of $10,000 will be recorded with the following information: (1) if negotiated\u8212\'3fjustification for this procedure, (2) justification for contractor selection, and (3) the basis for the cost or price negotiated. File: 082 - Applications Research Corp v Naval Air Development Center.doc, Paragraph with $: The \u8220\'3fcertification\u8221\'3f in SelectTech\rquote s proposal that ARC refers to is merely a \u8220\'3frepresentation\u8221\'3f that the government requires all bidders for government contracts to make concerning their women-owned small business status. That representation is routinely sought in such contracts where performance is to take place within the United States and where the contract cost exceeds $25,000. File: 090 - Commercial Energies Inc v Cheney.doc, Paragraph with $: CEI next challenges DFSC\rquote s basis for estimating the $463,000 in savings. To compute the difference in cost for October and November, the DFSC first calculated the cost for these months under the pre-solicitation contracts. This calculation was based on the estimated use at each installation multiplied by the price the government was paying in August of 1990. Next, the DFSC estimated the price it would be charged for October and November under the solicitation contracts. File: 096 - Federal Data Corp v US.doc, Paragraph with $: On July 18, 1988, HCFA notified the unsuccessful vendors that IBM had been awarded the contract at a total price (evaluated cost) of $16,111,686. Certain technical information regarding IBM\rquote s proposal was also provided the unsuccessful parties. File: 099 - Troise v US.doc, Paragraph with $: (Emphasis added.) Under the new cost formula, the Air Force would assess liquidated damages for BAQ based upon both the number of units and the number of days of delay; the contract administration costs would be uniform for each day of delay, regardless of the number of delayed units. The prior formula assessed $223.94 worth of damages per unit, for each of delay. Mr. Troise, Jr., signed Modification P00010, on behalf of plaintiff, on May 9, 1983. File: 099 - Troise v US.doc, Paragraph with $: Per Modification P00032, dated July 1, 1986, $260,239.27 in additional liquidated damages were assessed, reducing the contract price from $2,113,115.64 to $1,852,746.21. However, since there were periods of time wherein plaintiff was delayed in renovating more than one block of units, assessment of contract administration costs on a per-block basis would have amounted to a penalty, since the Air Force incurred identical contract administration costs if one block or all ten blocks were behind schedule. Assessment of administration costs on a per-block basis was thus an infirmity in the P00010 formula of assessing liquidated damages that only came to light as plaintiff fell further behind on its performance schedule. When the Air Force assessed liquidated damages for delays in Blocks Two through Ten, the liquidated damages formula had to be adjusted yet again. Modification P00032 reads: File: 099 - Troise v US.doc, Paragraph with $: Plaintiff asserts that it signed under duress Modification P00010, which modified the assessment of administrative costs from a per-block to a per-day basis. As plaintiff states in brief, \u8220\'3fthe fact that EJT now faced the potential assessment of liquidated damages eliminated any bargaining power EJT may have had....\u8221\'3f Plf\rquote s Br. filed May 15, 1990, at 10. To plaintiff, the specter of a $134,000 assessment for 30 days\rquote delay loomed large: \u8220\'3fRealistically, what contractor, facing this type of assessment, would refuse to agree to a liquidated damages modification that appeared to reduce liquidated damages from a maximum assessment of ... $4,478.80 ... per day to ... $457.26 ... per block per day[?]\u8221\'3f File: 099 - Troise v US.doc, Paragraph with $: the contracting officer, finding the amount assessed per day to be unreasonable, made a downward modification to the assessment in her final decision against the contractor. The contracting officer therein reduced the assessment from $1,820.11 per day to $220.11 per day\u8212\'3fthe latter figure representing the government\rquote s \u8220\'3fcalculated administrative cost.\u8221\'3f File: 001 - Novicki v Cook.doc, Paragraph with $: During the same period, Dale received thirty-five reports from customers of 1,350 instances of resistor failure. As indicated, under the contract, Dale was required to report these failures too, to the Department of Defense. However, Dale executives again made a decision not to do so. Instead, when customers told Dale of the failures, the company blamed them on the customers\rquote inept handling. Dale personnel also knew, but failed to report, that between twenty and twenty-seven percent of the Dale resistors in the MX nuclear missile and certain other critical weapons systems had failed. Losses from resistor failures now total $2.5 million, and failures in the future are expected to result in the destruction of two orbiting satellites at a cost of $176 million. File: 008 - Commercial Energies Inc v US.doc, Paragraph with $: (McGraw Hill, pub.). Consequently, the SIP line item would fluctuate throughout the contract period. For the purpose of computing a bid price, however, the RFP instructed bidders to assume a natural gas unit cost of $1.52. To reach a bid for the SIP line item, the bidder then would multiply the unit cost by the estimated quantity of gas to be supplied under the contract. File: 008 - Commercial Energies Inc v US.doc, Paragraph with $: According to the RFP, the WBI line item is \u8220\'3fthe basis for the Government\rquote s payments to the offeror for the provision of ... pipeline transportation ... to the applicable Air Force city gate.\u8221\'3f Def.Mot., App., at 5. This line item reflects the gas transportation rate charged by the Williston Basin Interstate Pipeline Company. The RFP instructed bidders to assume a unit cost for transportation of $.52405. Def.Mot., App., at 13. To reach a bid for the WBI line item, the bidder would multiply the unit cost by the estimated quantity of gas to be transported under the contract. File: 012 - Contractors Ass'n of Eastern Pennsylvania Inc v City of Philadelphia.doc, Paragraph with $: (1) Stephen Colanero, a member of CAEP, stated that he was the lowest responsible bidder on project no. S9\u8211\'3fCP3490, but that since he was unable to obtain quotes from qualified MBEs and FBEs to satisfy the participation requirement, and because the MBEC denied his request for a waiver, his bid was disqualified. (2) Charles E. Furtaw, a member of EBA, stated in his affidavit that he was advised by many prime contractors that he could not be used as a subcontractor because of the participation requirements of the Ordinance. In addition, he stated he was forced to refrain from bidding on city projects because the set-asides made the cost of estimating the work prohibitive. (3) James J. Clearkin, Jr., a member of GBCA, stated that since 1984 he has generally refrained from bidding on city contracts because, despite good faith efforts, he was unable to comply with the MBE and FBE participation requirements. However, he did prepare a bid on project 2085, but was unable to submit it because he could not satisfy the MBE participation requirement. (4) Mark L. Strong, a member of SADV, stated by affidavit that he would have received a subcontract on a project involving Terminal A of the Philadelphia International Airport, for which he was the lowest bidder, if it were not for the MBE and FBE requirements. In addition, Mr. Strong stated that he would have bid on a project involving the installation of closed circuit television networks but for the fact that the project was reserved or sheltered market bidders. Finally, Mr. Strong stated that his costs were $42,000 on another bid, project no. 4325R, as a result of the set-aside requirement. File: 014 - Ohio Contractors Ass'n v City of Columbus Ohio.doc, Paragraph with $: Croson, a non-minority plumbing contractor headquartered in Columbus, Ohio, was the successful bidder on a contract for the provision and installation of certain plumbing fixtures at the Richmond City Jail. The city specified two manufacturers of plumbing fixtures for the project. In order to meet the 30% set aside requirement, Croson would have to purchase these fixtures from a minority contractor but, after contacting five or six MBEs who were potential suppliers and after contacting three local and state agencies that maintained lists of additional MBEs, no MBE expressed an interest in the project or tendered a quote for the fixtures prior to Croson being awarded the contract. Thereafter an MBE did submit a bid to Croson at a figure over $6,000 higher than the price Croson had included for the fixtures in its bid to the city. This constituted a 7% increase over the market price for the fixtures which, with added bonding and insurance, would have raised the cost of the project by over $7,000. The MBE was not an authorized supplier for either of the fixture manufacturers and his bid was substantially higher than any other quotation Croson had received. Nevertheless the City of Richmond required Croson to accept this bid and refused to permit it to raise its contract price, thus forcing Croson to absorb the extra cost of purchasing these fixtures from the MBE. File: 015 - Ace-Federal Reporters Inc v FERC.doc, Paragraph with $: The underlying facts are as follows. FERC, acting through its Division of Procurement, issued Solicitation No. DE\u8211\'3fFB89\u8211\'3fRC\u8211\'3f00001 (the \u8220\'3fFirst Solicitation\u8221\'3f) for stenographic services on August 25, 1989. The First Solicitation was issued as an Invitation for Bids (IFB) to provide stenographic reporting services at FERC for one year, from October 1, 1989 through September 30, 1990, with four one-year option periods thereafter. The stenographic services contractor receives revenue from the sale of transcripts to the public. Such sales fully defray the cost of performance and FERC has not made any payment for stenographic services in, at least, the last eight years. Plaintiff represents that FERC expected that the First Solicitation would result in \u8220\'3fno charge\u8221\'3f bids, and in fact four of the six bids from five vendors responding to the First Solicitation offerred \u8220\'3fno charge\u8221\'3f to FERC. Plaintiff submitted two bids, one bid offering to make payments in the amount of $.05 per page for the life of the contract, this bid being a so-called \u8220\'3fbonus bid\u8221\'3f and the alternative bid was one offering \u8220\'3fno charge\u8221\'3f. Plaintiff alleges that its \u8220\'3fbonus bid\u8221\'3f offered the price most advantageous to the government and that as a result plaintiff expected to receive the award. Instead, the Contracting Officer cancelled the First Solicitation by issuing Amendment No. 2 on September 27, 1989. The amendment stated that the First Solicitation was \u8220\'3fcancelled in its entirety due to ambiguities in the Invitation for Bids.\u8221\'3f File: 016 - Monchamp Corp v US.doc, Paragraph with $: award to the fourth highest bidder, since Mr. Neatherlin of Sierra lacked financial ability and was being assisted by Warner. The contracting officer denied the claim and plaintiff appealed to the United States Department of Agriculture Board of Contract Appeals (the \u8220\'3fBoard\u8221\'3f). The Board dismissed the appeal (which plaintiff had attempted to withdraw), describing plaintiff as a disappointed bidder and not as a contractor, because the Board\rquote s jurisdiction was limited to appeals by contractors. Plaintiff filed a similar suit in this court on September 25, 1989, to recover lost profits of $2,809,000.00. In response to defendant\rquote s motion, plaintiff restated its projected profits at $3,150,509.00 and asks as an alternative measure to recover an unspecified amount as its costs of preparing its bid proposal. File: 016 - Monchamp Corp v US.doc, Paragraph with $: plaintiff and the Navy entered into a contract relating to the design and production of a Rankine Cycle Energy Recovery (RACER) System for use on Navy vessels. The validity of this agreement was not disputed by either party. At stake, however, was the last of 35 modifications, a memorandum of understanding which provided that in the event plaintiff\rquote s costs and fees reached a $55,000,000 cost limitation, the contractor had two options: The contractor could require the Navy to terminate the contract for convenience or, in the alternative, complete the project at its own cost. In addition, this modification provided the Navy with an unpriced option to have the contractor design and manufacture two additional RACER units. The contractor continued work on RACER and received payments totalling $55,000,000. Thereafter, the Navy\rquote s Procurement Contracting Officer unilaterally terminated the contract for convenience of the Government. In its suit for anticipatory profits, plaintiff invoked a breach of contract theory. It claimed that the amendment to the contract was invalid because the Navy fraudulently induced it to accept the $55,000,000 cap, thereby engaging in a series of misrepresentations. Moreover, plaintiff took the position that the Government had a binding legal commitment to enter into future contracts. File: 020 - SMS Data Products Group Inc v US.doc, Paragraph with $: Plaintiff asked the contracting officer for $288,652.96 to compensate for HHS\rquote s improper termination. This amount reflected bid and proposal costs, the costs of preparing for the acceptance test, the cost of performing the acceptance test, and attorney fees. The contracting officer specifically denied this claim for relief. File: 020 - SMS Data Products Group Inc v US.doc, Paragraph with $: plaintiff sought $31,500.00 because the Government wrongfully withheld payment. The contracting officer, however, required plaintiff to pay reprocurement costs and liquidated damages. At the Claims Court, plaintiff sought $66,570.32. This additional quantum of damages was not a new cause of action. Rather, the increased amount resulted \u8220\'3ffrom the denial of his initial claim in the C.O.\rquote s liability decision and additional setoffs determined in the [C.O.\rquote s] quantum decision.\u8221\'3f File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: Bean, on behalf of the joint venture, protested the reasonableness of the government\rquote s estimate by a fax transmittal to the Corps on September 29, 1989, PX 5. Said protest requested a review of the Corps\rquote Original Estimate prior to any further action by the Corps, which was done. As a consequence, the Corps made a reconsideration of its estimate, by making some minor changes which did not significantly alter the estimate sufficiently to create an awardable bid, PX 7, p. 40. Subsequently, the Corps informed plaintiffs by telephone that it intended to deny the protest, but offered to further consider any submissions that might influence the contracting officer\rquote s decision. In response, plaintiffs submitted an extensive written analysis of the project costs which they deemed to be fair and reasonable, dated October 10, 1989. They attempted to substantiate the alleged reasonableness of their $11,246,000 bid and also sought to demonstrate deficiencies in the government estimate, PX 6. This submission led to a meeting on October 11, 1989, in which Bean, again on behalf of the joint venture, was allowed to make a verbal presentation of plaintiffs\rquote case, PX 6. The Corps analyzed plaintiffs\rquote submission as supplemented and determined that some changes were appropriate. It (the Corps) thereafter prepared a Revised Estimate of $7,710,262, PX 7, p. 21. File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: was unfair and unreasonable at the very minimum by $1,862,251.16 ($7,922,747.17 \u8722\'3f $6,060,496.01). To establish an awardable contract, plaintiffs now are required to prove only that the admitted $7,922,747.17 B & FE should have been at least $8,996,800.00, or an increase of $1,074,052.83 ($11,246,000 divided by 1.25 = $8,996,800 \u8722\'3f $7,922,747.17). Plaintiffs have, notwithstanding the Corps\rquote B & FE, vigorously renewed their objections to the manner by which the B & FE was prepared, particularly with respect to the estimation of those costs in bid items # 1 and # 2. File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: We embrace this corrected amount as being required by EP 1110\u8211\'3f1\u8211\'3f8, which is incorporated by reference in ER 1110\u8211\'3f2\u8211\'3f1300, and the testimony of Mr. Mears. Consequently, we reject the Corps\rquote estimated plant ownership cost of $64,371 and find that $85,091 is the fair and reasonable monthly plant ownership cost of a well-equipped contractor doing the work. File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: in bid items # 1 and # 2 of $1,298,476. Thus, it is plainly apparent that the proven mandatory adjustments in monthly cost alone very nearly exceed the $1,340,615 needed to produce an awardable contract, which increase falls short by only $42,139. We find that that difference is supplied by a required adjustment in at least one factor in the estimated dredging time analysis, File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: , ER 1110\u8211\'3f2\u8211\'3f1300, and EP 1110\u8211\'3f1\u8211\'3f8. Had it done so, it would have estimated the cost for the project in issue at no less than $9,518,744. That figure is within 25% of the lowest responsible, responsive bidder, plaintiffs here. Against this background, the Corps\rquote failure to award the contract was a breach of its implied-in-fact obligation to treat all bids fully, fairly, and honestly. File: 021 - Bean Dredging Corp v US.doc, Paragraph with $: , ER 1110\u8211\'3f2\u8211\'3f1300, and EP 1110\u8211\'3f1\u8211\'3f8 were clearly designed to prevent. As for the second element, the loss of an $11,246,000 dredging contract to which plaintiffs are plainly entitled undoubtedly constitutes irreparable harm; plaintiffs could only recover bid preparation costs in a suit for damages and, therefore, would have an inadequate remedy at law if the permanent injunction is not granted. Lastly, the relative harm to the defendant, if any, is slight, inasmuch as an award to plaintiffs would be at the File: 023 - Leslie and Elliott Co Inc v Garrett.doc, Paragraph with $: debarment, but it is one in a chain of events leading to a conclusion that there was a debarment of the plaintiff. Another factor making the failure to award either contract to the plaintiff significant is the fact the two contracts are quite different in nature. One contract called for the demolition of a structure at a cost of over $200,000. Presumably, such work required stricter safety considerations than the construction of a jogging path. File: 024 - Servidone Const Corp v US.doc, Paragraph with $: Public contractor\rquote s allowed direct and indirect costs on embankment work, after appropriate changes in profit, bond and insurance charges, was $23,703,582; however, since contractor\rquote s bid was inadequate, in determining extra compensation to which contractor was entitled for differing site conditions, extent of difference between what contractor should have bid and what it did bid had to be subtracted from award. File: 024 - Servidone Const Corp v US.doc, Paragraph with $: . The case arises out of a contract awarded by the United States Army Corps of Engineers, Ft. Worth District (\u8220\'3fCorps\u8221\'3f or \u8220\'3fGovernment\u8221\'3f) to Servidone Construction Corporation (\u8220\'3fServidone\u8221\'3f) for the completion of an earth fill dam approximately 4 miles long. Servidone has filed a complaint alleging primarily a differing site condition. It seeks recovery of $41,877,029.00, plus interest and costs. The case was tried in Washington, D.C. and in Dallas, Texas. The court conducted a site visit on the parties\rquote agreement. After post-trial briefing and oral argument, the court concludes that Servidone is entitled to recover on part of its claim. File: 024 - Servidone Const Corp v US.doc, Paragraph with $: As an additional element of the underlying cost of the changed condition, however, Servidone also seeks recovery of interest it paid on borrowings during the course of the contract. At trial, plaintiff established that it borrowed over $30,000,000 during the period of performance of the contract. Although defendant contests the assertion that all of this borrowing can be traced to the Texas project, for the court\rquote s present purposes, it is sufficient to state that, at a minimum, a substantial portion of these borrowings is attributable to the contract in question. (The court recognizes that the question of whether these borrowings can be traced to the differing site condition is a different one.) At the time of closing argument, cumulative interest on the total amount borrowed was over $13,000,000. Servidone seeks recovery of that entire amount. File: 024 - Servidone Const Corp v US.doc, Paragraph with $: The court has already determined that Abrams acted as a reasonable contractor. Its total bid was $33,961,358.77. This is $8,180,020.00 more than Servidone\rquote s total bid. During closing argument, the court asked plaintiff\rquote s counsel whether total bid or unit estimates are a better reflection of costs. Counsel argued that the total bid is more accurate because contractors may have reasons not directly related to actual cost to make imbalanced bids. File: 024 - Servidone Const Corp v US.doc, Paragraph with $: Servidone\rquote s estimate of the total cost of the four contested embankment items, $14,767,424.00, was $9,262,459.00 less than Abrams\rquote estimate of $24,029,883.00, for the same items. The bid for embankment items of Resource Construction Co., the third lowest bidder, was $16,343,696.00. This is $1,576,272.00 more than Servidone\rquote s estimate for the same work. The difference between Servidone\rquote s embankment bid and the Government estimate of $19,326,845.00, with a profit of 8.5 percent, is $6,202,202.00. The record does not reflect the embankment bid of those contractors which bid more than the 3 qualified low bidders, although the court notes that the high bid on all items of work was over $46,000,000, $21,000,000 more than Servidone\rquote s bid. File: 039 - Jowett Inc v Department of Navy.doc, Paragraph with $: This dispute began after Jowett sought an \u8220\'3fequitable adjustment\u8221\'3f in connection with one of its contracts with the Navy for cost overruns of $698,488 allegedly attributable to government-caused delays. As is common when a contractor requests such an adjustment, the Navy had the Defense Contract Audit Agency (\u8220\'3fDCAA\u8221\'3f) conduct audits of Jowett and three of its sub-contractors. These audits and accompanying reports have long since been completed, but the Navy has not yet issued a decision on Jowett\rquote s request for an adjustment. File: 040 - AT And T Technologies Inc v US.doc, Paragraph with $: The plaintiff claims $3,781,300, including G & A expenses, in pre-contract costs. These costs include the purchase of equipment from Xyvision and various labor costs incurred in order to meet the requirements of the anticipated contract. In response to the defendant\rquote s interrogatories, the plaintiff conceded that none of costs were incurred for purposes of preparing the plaintiff\rquote s proposal but rather to place the plaintiff in a position to perform the contract had it received the award. File: 044 - TRW Environmental Safety Systems Inc v US.doc, Paragraph with $: as the only repository site, rather than one of a total of three sites, as proposed in the initial RFP (PX 15). The amended RFP also provided for a performance period of 10 years with a five-year option to renew in DOE, a cost reimbursement contract, and an operating budget of $1 billion for the first 10 years. Equally significant, the RFP set forth the following evaluation criteria against which each submitted proposal would be rated (PX 15, pp. 183\u8211\'3f86): File: 044 - TRW Environmental Safety Systems Inc v US.doc, Paragraph with $: issue. As stated, this cost-plus-award-fee contract contemplates an amount in excess of one billion dollars over the next 10 years\u8212\'3f$100 million per year with options to renew. While the defendants are perfectly correct in their argument that anticipatory profits are not recoverable in a bid protest action, it is on the other hand perfectly erroneous to conclude from this that the loss of an opportunity to earn an award-fee profit of the magnitude contemplated by this contract is not an irreparable harm that plaintiff will suffer if injunctive relief is denied. File: 044 - TRW Environmental Safety Systems Inc v US.doc, Paragraph with $: Lastly, the court considers the relative harm to the defendants should the injunction issue. First, one must understand that the SEDM contract is not for the construction of the repository, but rather it is for the integration of construction work presently being performed at the Yucca Mountain site. According to the defendants, OCRWM\rquote s inability to integrate the contracts is preventing the work from proceeding as expeditiously as possible. The government then goes on to argue that OCRWM is spending $800,000 per day on the program, while Bechtel avers that its delay costs are approximately $11,000\u8211\'3f$12,000 per day (Tr. I 1050). File: 044 - TRW Environmental Safety Systems Inc v US.doc, Paragraph with $: A reading of the testimony of Mr. Milner leaves the court with the unmistakable conclusion that it is unbridled speculation, totally void of any supportable factual basis. It is indisputable that\u8212\'3fthe $600,000 to $800,000 daily costs referenced by Mr. Milner are costs relating to on-going work presently under contract to 50 contractors at Yucca Mountain relating to site characterization. These costs have nothing to do with the SEDM contract, and they will continue next year whether or not there is a six or 12\u8211\'3fmonth delay resulting from the grant of plaintiff\rquote s motion; and he testified that the OCRWM employees will be engaged in productive work benefiting the program (Tr. 4564). File: 050 - Service Engineering Co v Southwest Marine Inc.doc, Paragraph with $: contract for repair and modernization of four vessels on the West Coast (the \u8220\'3fAOR contract\u8221\'3f). This contract was the largest West Coast procurement by the Navy at the time, scheduled to be performed over five years at an estimated cost of approximately $135\u8211\'3f150 million. File: 054 - Shoals American Industries Inc v US.doc, Paragraph with $: The district court\rquote s opinion betrays a strong concern that what the court construes as a relatively insignificant clerical error will cost Shoals the contract and the United States $480,000. The GAO\rquote s decision, on the other hand, focuses on the government\rquote s need to know from the face of the bid whether the offeror will be bound to provide all that the government seeks. The GAO opinion emphasizes that achieving certainty in the bidding process is well worth the $480,000 it will cost in this case. File: 057 - Ransom v US.doc, Paragraph with $: Bid opening was publicly conducted on August 22, 1980. There were no representatives present for Marvin or the sureties. Marvin was the lowest bidder, with a basic bid of $3,695,548. The next lowest bid was $4,960,100, submitted by The Triax Company. The Government\rquote s estimate of the contract cost, plus profit, was $5,464,115. File: 057 - Ransom v US.doc, Paragraph with $: On September 25, 1980, plaintiffs executed performance and payment bonds which promised that in the event Marvin defaulted in its performance of the contract or failed to pay its laborers and suppliers plaintiffs would be responsible for (1) completing the contract or paying the Government\rquote s cost of doing so and (2) paying Marvin\rquote s laborers and suppliers. The performance bond had a penal sum of $4,113,880 and the payment bond had a penal sum of $1,645,522. The payment bond was supported by the affidavits of the sureties and bank certificates of sufficiency. File: 057 - Ransom v US.doc, Paragraph with $: On August 23, 1982, plaintiffs submitted a claim against the Government in the total amount of $1,383,229.15, plus an unspecified additional amount for completion of the contract at a cost in excess of the balance of contract funds remaining unpaid. Plaintiffs later amended their claim to seek a total amount of $3,024,699. The claim as amended was denied by the contracting officer in his final decision dated October 25, 1983. File: 058 - OAO Corp v US.doc, Paragraph with $: Air Force was equitably estopped from denying liability for start-up costs agreement with contractor with regard to early warning system computer project; Air Force induced contractor to begin work ahead of final award of $13.7 million contract, and contractor reasonably believed that its agreement with Air Force required immediate performance. File: 058 - OAO Corp v US.doc, Paragraph with $: , for work it performed before execution of the formal contract. After trial held March 20\u8211\'3f22, 1989, this court determines that OAO and the Air Force entered an implied contract for start-up costs. The parties entered this implied-in-fact contract at the close of the November negotiations. Due to changes in Government policy, the parties did not formalize a contract for the entire $13 million project. Nonetheless, the implied-in-fact contract for some start-up costs was complete and enforceable after the November 1983 meetings. Therefore, defendant must compensate plaintiff for work performed under the implied-in-fact agreement. File: 058 - OAO Corp v US.doc, Paragraph with $: On December 10, 1985, plaintiff submitted a claim to defendant for costs incurred under the CPP procurement, including bid and proposal costs. The contracting officer denied the claim on December 16, 1985. On April 10, 1986, plaintiff instituted an action in the Claims Court seeking $384,533.08 in damages. On March 28, 1988, another judge of the Claims Court denied defendant\rquote s motion for summary judgment. This court received the case on October 17, 1988. On March 20\u8211\'3f22, 1989, the parties tried the case in Washington D.C. File: 058 - OAO Corp v US.doc, Paragraph with $: Because of the need to remedy the potential vulnerability of the early warning system, Captain Mather accepted the risk that the $13.7 million contract might not survive reviews. He concluded that the circumstances required an agreement to authorize immediate start-up work. Thus, at the conclusion of the negotiations, the parties shook hands and agreed to an implied-in-fact contract for start-up costs. The parties\rquote conduct showed a meeting of the minds. File: 058 - OAO Corp v US.doc, Paragraph with $: Although he lacked authority to bind the Air Force to the entire $13.7 million contract, Captain Mather could enter agreements up to $250,000. Under the extreme circumstances of this case and fully expecting consummation of the entire contract within a month, Captain Mather exercised that option. Thus, the officer upon whom plaintiff relied for its implied start-up costs contract had authority to bind the Government up to $250,000. File: 058 - OAO Corp v US.doc, Paragraph with $: On December 19, 1983, Captain Mather sent plaintiff a letter wholly inconsistent with the implied contract for start-up costs. Moreover, Lieutenant Tollinger, when asked to provide this letter, explained that the Air Force did not feel bound at that time. The relevant portions of the letter state that approval of the $13.7 million contract is still pending: File: 058 - OAO Corp v US.doc, Paragraph with $: On the basis of an implied-in-fact contract for start-up costs, defendant must compensate plaintiff for work performed between the entry of the agreement on November 18 and December 19, 1983. This work includes the ordering of computer hardware from Data General, which occurred immediately after the agreement when Ms. Schelin arose in the presence of Air Force contracting personnel to confirm the order. In any event, plaintiff may not recover more than $250,000, the extent of Captain Mather\rquote s contracting authority. File: 058 - OAO Corp v US.doc, Paragraph with $: Although the parties did not reach an express or implied contract for the entire $13.7 million CPP project, the parties did achieve an implied-in-fact contract for start-up costs. This implied-in-fact agreement, however, ended on December 19, 1983, when plaintiff did not inquire into Air Force conduct and communications inconsistent with the start-up contract. Plaintiff did not establish a violation of the fifth amendment to the Constitution or entitlement to proposal preparation expenses. File: 068 - TRW Environmental Safety Systems Inc v US.doc, Paragraph with $: The defendant-intervenor has complained that its personnel who are scheduled to perform on the SEDM contract are in a state of flux\u8212\'3funable to begin the SEDM contract or any others. Such downtime, claims the Bechtel management, is costing the company $12,000 per day. File: 072 - Westech Gear Corp v Department of Navy.doc, Paragraph with $: It describes the willingness of a competitor to provide ram tensioners similar to those sold by Westech for over $20,000 less than Westech\rquote s recent price of $121,000. It projects that the price per unit following reverse engineering and competitive solicitation will be $20,000 below that price, or $80,000. More importantly, it details the high costs associated with repair of the ram tensioners by Westech and the willingness of independent contractors to make these repairs for half of the $40,000 charged by Westech. This is a sufficient and reasonable showing of cost savings and it satisfies the requirements of DFAR 17.7201\u8211\'3f2(b)(4). Thus even if the original calculations were insufficient to demonstrate that Westech\rquote s price was unreasonable or that reverse engineering would result in significant cost savings, this decision paper provides any necessary supplemental support. File: 075 - Tele-Sentry Sec Inc v US Dept of Defense (Air Force).doc, Paragraph with $: The amended complaint also slightly altered TSSI\rquote s prayer for relief to add a $1500 claim for the costs it incurred in preparing its bid on the Williams contract. File: 076 - City of Richmond v JA Croson Co.doc, Paragraph with $: constituted a 7% increase over the market price for the fixtures. With added bonding and insurance, using Continental would have raised the cost of the project by $7,663.16. On the same day that Brown contacted Acorn, he also called city procurement officials and told them that Continental, an MBE, could supply the fixtures specified in the city jail contract. On November 2, 1983, the city denied Croson\rquote s waiver request, indicating that Croson had 10 days to submit an MBE Utilization Commitment Form, and warned that failure to do so could result in its bid being considered unresponsive. File: 080 - Vulcan Engineering Co v US.doc, Paragraph with $: Plaintiff, on June 16, 1986, filed a complaint in this court seeking bid preparation costs in the amount of $110,235.55, plus interest, attorney\rquote s fees and costs. Plaintiff alleges that NAVFAC failed to fairly and honestly consider plaintiff\rquote s bid because it erroneously determined that Diamond, through its proposed subcontractor Foundry, was responsible under paragraph 2.7 of the IFB. Defendant contends that plaintiff does not have standing to seek bid preparation costs, and that nonetheless, plaintiff cannot recover bid preparation costs because it cannot cite any actions of the Navy that demonstrate bad faith or fraud. File: 081 - National Gateway Telecom Inc v Aldridge.doc, Paragraph with $: Additional information on this question was provided after the hearing. On September 7, 1988, Virginia Contracting Activity responded by letter to ESC\rquote s inquiry whether the DIA contract could support ESC\rquote s acquisition. The letter stated that except for approximately eight items, $2,638,641.75 would be the aggregate cost under the DIA contract for the equipment that had been required for the basic year under the canceled ESC solicitation. This figure, according to ESC contracting officer Smith compares very favorably with the lowest offer for like items on the canceled solicitation. File: 088 - Honeywell Federal Systems Inc v US.doc, Paragraph with $: At the debriefing, SBA\rquote s Contracting Officer, explained that although Honeywell\rquote s proposed price of $524,884 was obviously lower than Xerox\rquote s proposed price of $575,020, SBA had added an incremental paper cost factor of $98,900 to Honeywell\rquote s bid, increasing Honeywell\rquote s price to $623,784. Accordingly, the contract was awarded to Xerox. File: 096 - BMY A Div of HARSCO Corp v US.doc, Paragraph with $: This amounts to a contention that no criterion but cost had significance in the procurement decision; taken to extremes, it suggests that, despite the time and expense devoted to testing prototype vehicles in Phase One of this procurement, defendant would have to award the contract to an offeror whose trucks did not function but cost only $1. This obviously makes no sense. Nor would it comply with the R.F.P.: the R.F.P. did not make all criteria save cost irrelevant. Rather, it promised a contract award to that offeror whose proposal \u8220\'3fis most advantageous to the Government and offers the greatest value based on the evaluation and award criteria....\u8221\'3f File: 097 - Sanders-Midwest Inc v US.doc, Paragraph with $: Disparity between low bid and other bids for government contract was not so great to put Government on notice that bidder had made a mistake about applicable taxes on contract and allow reformation; while $2 million disparity existed between Government\rquote s estimates for cost of work and bids, seven of the other twelve bids received were within $500,000 of the low bid. File: 097 - Sanders-Midwest Inc v US.doc, Paragraph with $: On February 12, 1983, plaintiff entered into a contract with the United States Postal Service (USPS) to perform certain mechanical work required for the construction of a general mail and vehicle maintenance facility in Phoenix, Arizona. Plaintiff\rquote s bid of $4,498,155 for the contract was the lowest of the 13 bids submitted in response to the invitation for bids. Plaintiff\rquote s bid made no provision for state and local taxes. The government had originally estimated that the work would cost $6,549,900 to perform. However, the highest bid submitted for the work was only $5,880,000. File: 097 - Sanders-Midwest Inc v US.doc, Paragraph with $: Defendant has also moved for summary judgment as to count 3 wherein plaintiff requests that reformation of the contract be allowed because there was a mistake at the time the contract was executed regarding whether the contract work was subject to sales tax in Arizona. In support, plaintiff states that the USPS knew or should have known plaintiff had made a mistake when it did not provide for payment of sales tax in its bid. According to plaintiff, defendant should be charged with knowing it had made a mistake in its bid because of the disparity between the government\rquote s estimate of the cost of the job and the bids submitted by plaintiff and some of the other contractors. The government\rquote s estimate was $6,549,900; plaintiff\rquote s bid was $4,498,155, which was almost $2 million less than the government\rquote s estimate. However, seven of the other 12 bids received were within $500,000 of plaintiff\rquote s bid. Citing to File: 02 - Abel Converting Inc v US.doc, Paragraph with $: Contractor which successfully challenged Government\rquote s decision to solicit bids for new contract period without sending the solicitation to the incumbent contractor was entitled to award of attorney fees under the Equal Access to Justice Act only at the statutory ceiling rate, adjusted for cost of living, of $96 per hour. File: 08 - Nationwide Roofing and Sheet Metal Co Inc v US.doc, Paragraph with $: On October 20, 1986, Nationwide filed a certified claim with the Air Force seeking $107,687.71 for breach of contract damages including attorney\rquote s fees, bid preparation costs, material costs, and anticipatory profits. On December 4, 1986, the contracting officer issued a final decision denying Nationwide\rquote s claim. On April 6, 1987, Nationwide filed this action, seeking to reverse the contracting officer\rquote s final decision to terminate the contract and seeking breach of contract damages. File: 10 - Paxson Elec Co Inc v US.doc, Paragraph with $: The first public notice of the procurement, issued on January 10, 1985, estimated that the SCADA system would cost between $1,000,000 and $5,000,000. The RFP, issued on April 1, 1985, solicited proposals for a firm fixed price contract. The procurement was conducted by competitive negotiation, pursuant to Part 15 of the Federal Acquisition Regulations (FAR), 48 C.F.R. \u167\'3f 15 (1985). File: 13 - Hudome v US Postal Service.doc, Paragraph with $: (claim for bid preparation costs based on the government\rquote s implied contract to treat bidders honestly and fairly is not within the Contract Disputes Act). Furthermore, even if this case was construed not as a contract action but as a bid protest case and even if plaintiffs\rquote claim is not within the Contract Disputes Act, the amount of damages sought, $18,000, places it within the exclusive jurisdiction of the Claims Court under the Tucker Act. File: 25 - Peerless Ins Co v US.doc, Paragraph with $: Since the contract amount was $2,095,000, Peerless\rquote maximum liability is $419,000. The United States asserts that because its reprocurement costs were $829,577, Peerless is liable for the entire bid bond default amount of $419,000. File: 30 - CACI Field Services Inc v US.doc, Paragraph with $: Four of these areas\u8212\'3fstaffing, MHE, forklift operators, and key personnel\u8212\'3fwere grounds for finally rejecting CACI\rquote s proposal. Under \u8220\'3fStaffing,\u8221\'3f CACI was asked to provide (a) \u8220\'3fdetailed plan of staffing during the first 90 days of the contract period (Not Phase\u8211\'3fIn Period) that guarantees CACI will provide the level of quality necessary to support the operation,\u8221\'3f and (b) \u8220\'3fdetails/job descriptions of your intended use of \u8216\'3fSupply Clerks.\u8217\'3f This must include the amount of time you expect to use them for each job function or duty they are to perform.\u8221\'3f Under \u8220\'3fMaterial Handling Equipment,\u8221\'3f CACI was asked to provide \u8220\'3fthe numbers and kinds that will be on-hand to perform this contract. This must include a detailed breakout of the lease cost ($276,298.00) shown in Volume III of your proposal.\u8221\'3f Under \u8220\'3fForklift Operators,\u8221\'3f CACI was asked to provide \u8220\'3fdetailed information concerning the availability and level of staffing of forklift operators, which shows how the numbers provided for in your proposal will supports [sic] the operation.\u8221\'3f Under \u8220\'3fKey Personnel,\u8221\'3f CACI was asked to provide \u8220\'3fletters or other forms of communication with key personnel that further indicates the availability and interest of these individuals to perform at the Stockton Facility.\u8221\'3f The court repeats the language of the CO\rquote s request here to demonstrate that CACI was specifically informed of the need for additional detail in the areas of its technical proposal that were later determined by the CO to be unacceptable. File: 35 - John J Kirlin Inc v US.doc, Paragraph with $: When Kirlin learned of the contract to replace the dampers, it submitted a claim to the contracting officer under its contract for HVAC renovations. Kirlin maintained that by awarding a contract to replace the dampers GSA had constructively accepted Kirlin\rquote s VECP. Kirlin claimed that it was entitled to $323,456.00, which was Kirlin\rquote s estimate of twenty percent of the average annual energy cost savings resulting from the work. The contracting officer issued a decision denying the claim on the ground that Kirlin\rquote s proposal was \u8220\'3fnot initiated by the Contractor\u8221\'3f as required by Paragraph 1 of the VEI clause, since Kidde had proposed replacement of the outside air dampers before Kirlin. Kirlin filed a direct access action on the claim in the Claims Court pursuant to the Contract Disputes Act of 1978. File: 39 - JA Croson Co v City of Richmond.doc, Paragraph with $: In September of 1983, the city invited bids for the installation of stainless steel urinals and water closets at the City Jail. The J.A. Croson Co., which is not itself an MBE, was the only bidder on the contract. After Croson submitted its bid for the project, it requested a waiver of the MBE requirement. Croson contended that it was unable to locate any minority subcontractors, except one that it considered unqualified. The city refused to grant a waiver. Croson then informed the city that if it were required to use the unqualified contractor, the cost of the project would rise by $7,663.16, and the contract price would have to rise accordingly. The city again turned Croson down, stating that the minority contractor was qualified and that the fixed price bid could not be increased. File: 48 - Refine Const Co Inc v US.doc, Paragraph with $: to construct a consolidated laundry facility at the Veterans Administration\rquote s Extended Care Center in St. Albans, New York and authorized the Veterans Administration\rquote s (VA) contracting officer to negotiate directly with plaintiff. Defendant\rquote s cost estimate for the project was $5.9 million and plaintiff\rquote s proposed price was $8.7 million. Because of the large difference between the estimated cost and the proposed price, VA requested an audit of plaintiff\rquote s offer. File: 51 - Gottlieb v Tulane University of Louisiana.doc, Paragraph with $: The district court taxed $6,325.75 costs against Gottlieb. Gottlieb seeks a reduction in the amount of costs in an unspecified amount because: 1) a significant portion of the costs of deposition transcripts (almost $6,000) represents depositions taken in preparation for trial on both federal Title VII and state breach of contract claims, therefore, the costs awarded should be apportioned to the federal claim only; and 2) certain copies of deposition transcripts ($337.50) were made exclusively for the convenience of the defense counsel. The district court adopted the magistrate\rquote s report and recommendation on costs and refused to reduce the award. No abuse of discretion appears in the record on this issue. File: 56 - US v City of Twin Falls Idaho.doc, Paragraph with $: , Circuit Judge, held that: (1) district court had ancillary and pendent jurisdiction over city\rquote s claims against contractor in third-party action; (2) retention of third-party action by district court once principal federal claim was settled was not abuse of discretion; (3) contract between city and contractor for supply and installation of secondary treatment equipment at sewage treatment plant was a \u8220\'3fsale of goods contract,\u8221\'3f rather than a construction contract; (4) expert witness fees in addition to statutory $30 per day witness fee could be awarded; and (5) refusal to award each party costs for depositions of its expert witnesses conducted by other party was error. File: 56 - US v City of Twin Falls Idaho.doc, Paragraph with $: The United States sued the City of Twin Falls, Idaho for violation of federal water pollution statutes. The City filed a third-party indemnity action against Envirotech Corporation and others responsible for the design and construction of the City\rquote s sewage treatment plant. The United States prevailed against the City, and the City obtained a jury verdict in its breach of contract and warranties action against Envirotech. The verdict was for $1,222,493.65, and the district court awarded the City attorney fees and some costs. The City moved unsuccessfully for a partial new trial on damages. Envirotech cross-appeals. The parties raise numerous issues involving jurisdiction, contract formation and modification, Uniform Commercial Code application and remedies, jury instructions, punitive damages, expert witness costs and fees, and attorney fees. File: 60 - Chemung County v Dole.doc, Paragraph with $: 30, 1984, but never executed a contract with Chemung. On December 4, 1984, the FAA, acting under statutory obligation notified the NFTA that Chemung had been selected. \u8220\'3fEnclosed in the letter was a summary of the FAA\rquote s estimated life cycle costs for all offerors. This indicated that the NFTA had a telecommunications cost advantage over Chemung of $10,000\u8212\'3fdue to the large number of pilots residing in the Buffalo area who could utilize the services of the flight station within the local telephone calling area\u8212\'3fit concluded that an error had occurred in the evaluation of its offer.\u8221\'3f File: 60 - Chemung County v Dole.doc, Paragraph with $: \u8212\'3fOn May 24, 1985, the FAA published an in-house report of its re-examination, wherein it concluded that, under the re-calculation, Buffalo ranked first among the bidders with a total 20\u8211\'3fyear discounted cost of $6,329,369 and that Elmira was second with $6,592,609. On May 29, the FAA officially awarded the contract to Buffalo and the NFTA. File: 64 - Spectrum Analysis and Frequency Engineering Inc v Fowler.doc, Paragraph with $: The closing date for submission of proposals was extended to February 14, 1986. Five proposals, including proposals by SAFE and SMS/AMS, were timely received in response to the amended solicitation. On May 5, 1986, the FCC notified SAFE and SMS/AMS that their proposals were within the competitive range and requested each to submit a best and final offer on their respective cost proposals by May 7, 1986. SAFE submitted its best and final offer of $1.57 for the total cost for jobs 1, 2, and 3. SMS/AMS submitted its best and final offer of $1.31 for the same three jobs. There is some disagreement as to the technical evaluation comparison. SAFE submits it was told the technical proposals \u8220\'3fwere essentially equivalent but SMDS/AMS was number one in both technical and price.\u8221\'3f Chadwick Affidavit \u182\'3f 11. The Government contends that \u8220\'3f\u8220\'3f[a]lthough SAFE and SMS/AMS were judged to be close by the technical evaluation committee, each individual member of the committee concluded that SMS/AMS had the better technical proposal.\u8221\'3f Defendants\rquote Opposition, at 9. On May 14, 1986, the FCC awarded the contract to SMS/AMS. File: 64 - Spectrum Analysis and Frequency Engineering Inc v Fowler.doc, Paragraph with $: The protest argues that the FCC did not adhere to the mandatory evaluation criterion of 60 characters per line expressly made part of the REF, and that if it had, SMS/AMS\rquote minimum cost would have been $2.32 for the sample jobs, considerably higher than SAFE\rquote s cost proposal. By letter dated June 12, 1986, SAFE requested the FCC to reconsider the award of the contract and to suspend SMS/AMS\rquote continued performance of the contract, pointing out that the solicitation required the contractor to complete replication of the FCC\rquote s data base within 90 days of the date of the contract, which in all likelihood would be prior to a GAO decision on SAFE\rquote s bid protest. At a June 17, 1986, meeting with SAFE\rquote s counsel, the FCC indicated that it would not suspend performance of the contract or alter its award to SMS/AMS. File: 69 - Bromley Contracting Co Inc v US.doc, Paragraph with $: In 1978, the General Services Administration (GSA) hired a consulting firm to estimate the cost of replacing the roof of a federal office building. The consulting firm\rquote s architect, Mr. John Knauth (Knauth), inspected the roof and called local roofing contractors, subcontractors, and material manufacturers for labor and material cost estimates in order to determine the total project price. Knauth prepared a detailed, item-by-item estimate of the cost of replacing the roof totaling $192,254. File: 69 - Bromley Contracting Co Inc v US.doc, Paragraph with $: Bromley attempts to present this case as one of mutual mistake in the formation of the contract for which the board may grant reformation. Bromley alleges that the Government\rquote s price estimate, as well as its own, is in error and that these errors constitute a mutual mistake. The board held that Bromley and the Government, however, did not enter into the contract based on commonly mistaken beliefs. We agree: this is not a case where two parties, both thinking a cow barren when in fact she was not barren, agreed to the sale of that cow. Here, the board found that Bromley left out the labor cost for installing the new roof from its bid, but properly included its other costs. The board found further that the GSA cost estimate, on the other hand, included roof installation labor costs but also included small underestimates of the cost of a large number of items. Knauth testified that these errors totaled from $25,000 to $95,000. File: 70 - Mideast Systems and China Civil Const Saipan Joint Venture Inc v Hodel.doc, Paragraph with $: Appellant was allowed six months and roughly $500,000 to complete the job; the contract specified that both time and cost containment were of the essence. File: 75 - Thomas P Carney Inc v School Dist of Philadelphia.doc, Paragraph with $: (a) All construction, reconstruction, repairs, maintenance or work of any nature, including the introduction of plumbing, heating and ventilating, or lighting systems, upon any school building or upon any school property, or upon any building or portion of a building leased under the provisions of section 703.1, made by any school district, where the entire cost, value, or amount of such construction, reconstruction, repairs, maintenance or work, including labor and material, shall exceed four thousand dollars ($4,000), shall be done under separate contracts to be entered into by such school district with the File: 78 - National Maritime Union of America AFL-CIO v Commander Military Sealift Com.doc, Paragraph with $: \u8211\'3f13 (Oct. 7, 1985). While the bids of Marine Transport and Lavino, both before and after resolicitation, were remarkably close, the government\rquote s bids always trailed woefully behind by some $35 million, or 44 percent. Hence, it cannot realistically be said that any further appeals would serve the purpose of challenging the initial decision to contract-out. If plaintiffs were granted a second round of appeals, which in any event would only require a brief suspension of the procurement, it would be clearly an exercise in futility. Plaintiffs have adduced no previously ignored cost factor that would suddenly permit the government to trim $35 million from its bid and overtake Marine Transport and Lavino. File: 82 - US v Amdahl Corp.doc, Paragraph with $: March 29, 1985, Treasury contracted to have the computer equipment moved to Freddie Mac\rquote s Reston, Virginia, facility because Treasury\rquote s new computer space was still not ready. The equipment was moved at a cost to Treasury of approximately $60,000 and occupies space leased by Treasury from Freddie Mac. File: 83 - NKF Engineering Inc v US.doc, Paragraph with $: Mr. Park had been designated the Contracting Officer\rquote s Technical Representative for RFP 4175. In addition, he had also been named chairman of the Contract Award Review Panel (\u8220\'3fCARP\u8221\'3f), the group charged with overseeing the contractor selection process. In these dual capacities\u8212\'3fone as technical representative and the other as CARP chairman\u8212\'3fMr. Park\rquote s responsibilities included development of the following matters pertaining to RFP 4175: the evaluation plan pursuant to which the offerors\rquote initial technical proposals were to be evaluated, the Government\rquote s estimates of the labor mix and the range of costs it considered reasonable, and the technical vs. cost weighting formula. Also, in his role as CARP chairman, Mr. Park learned the number of offerors who had chosen to participate in the procurement effort and their relative rankings following initial evaluation. More particularly, Mr. Park knew that of the five offerors involved, two\u8212\'3fNKF and Weidlinger\u8212\'3fhad received nearly identical rankings on their technical proposals but stood over $2.5 million apart on cost with NKF being the higher of the two. File: 83 - NKF Engineering Inc v US.doc, Paragraph with $: proposals for RFP 4175. Specifically, Mr. Dennard (the contract negotiator) stated that, although the technical scores for NKF and Weidlinger were very close and significantly higher than those of the other offerors, NKF\rquote s cost proposal was the highest submitted and near the outside limit of the range the Government considered reasonable. Mr. Dennard informed the group that the cost difference between the two was approximately $2.5 million. Mr. Park was present for this entire meeting. File: 03 - JA Croson Co v City of Richmond.doc, Paragraph with $: Rather than supplying a completed Commitment Form, Bonn again requested a waiver on November 8, 1983. He argued that Continental was not qualified; that its quotation was substantially higher than any other quotation and was submitted twenty-one days after the bid date. Eight days later, Bonn documented the additional costs that would result should Continental provide the fixtures. He concluded that, if he were required to subcontract with Continental, the contract price must be increased by $7,663.16. The Department of General Services denied Croson\rquote s request to raise the contract price, as well as its renewed request for a waiver. On November 18, the City informed Croson by letter that it had decided to rebid the project and invited Croson to submit a new bid. File: 03 - JA Croson Co v City of Richmond.doc, Paragraph with $: The facts of Croson\rquote s case illustrate vividly the adverse effects of a set-aside program that would not occur if the city adhered to the state requirement of competitive principles. Croson in effect faced a set-aside far greater than 30%, for the supply of plumbing fixtures represented approximately 75% of the cost of the total project. Croson was obliged, therefore, to award this subcontract to a preferred subcontractor to meet the 30% set-aside. The minority subcontractor\rquote s price for the plumbing fixtures ($96,677.14) was $6,183.29 higher than the competitive market price ($90,493.85). This would represent nearly a 7% increase in the cost of these items. If Croson had bid the job using this figure, additional overhead and bond expenditures would have brought the extra cost from using the MBE to $7,663.16. Limited public funds would thus be used on a project actually requiring a much lesser expenditure, and alternative projects\u8212\'3fdesirable and achievable in a competitive market\u8212\'3fwould be foregone or delayed. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: The contracting officer stated that excess costs of $8,598.78 were incurred by the Postal Service as a result of having to reprocure, through emergency contracts for the period May 16, 1983 through September 3, 1983, the services plaintiff failed to perform under its contract, which the court has found was properly terminated for default. The Postal Service did not assess plaintiff with additional administrative costs incurred by it as a result of plaintiff\rquote s default in the performance of its contract. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: By final decision dated July 11, 1984, the contracting officer found that the total emergency contracts excess costs incurred by the Postal Service from May 14, 1983 until regular (permanent) contract service was implemented on September 3, 1983 were $8,598.78. This amount was reached by subtracting the costs for service that would have been incurred had plaintiff performed its contract during the pertinent period ($81,823.88) from the reasonable costs that were incurred during the relevant period under the emergency contracts ($90,422.66). This is a proper measure of damages. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: The decision further advised that the Postal Service had recovered $4,956.24 from amounts otherwise due plaintiff on another contract (C\u8211\'3f5\u8211\'3f79\u8211\'3f1\u8211\'3f4) it had performed for the Postal Services and applied said amount in reduction of the $8,598.78 due the Postal Service. Parenthetically, it should be noted that on June 16, 1983, the contracting officer had notified plaintiff that said deductions from contract C\u8211\'3f5\u8211\'3f79\u8211\'3f1\u8211\'3f4 would be made to offset the costs being incurred by the Postal Service because of plaintiff\rquote s default. The contracting officer in her decision of July 11, 1984 File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: pleaded a counterclaim alleging that plaintiff was liable to defendant for $8,598.78 representing the excess reprocurement costs defendant incurred because of the proper default termination of plaintiff\rquote s Postal Service air taxi service contract. Defendant, in its answer, admitted that it had recovered $4,956.24, otherwise due plaintiff under another Postal Service contract, and had offset this amount against the $8,598.78 due defendant from plaintiff. As a result, defendant contends, in its counterclaim, that $3,642.54 remains due and owing defendant and seeks an affirmative judgment in this amount. Plaintiff\rquote s answer to defendant\rquote s counterclaim contested defendant\rquote s right to recover on its counterclaim. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: As indicated earlier, the affidavits of the contracting officer and her assistant set forth the facts leading up to the assessment of excess reprocurement costs against plaintiff. In her affidavit the contracting officer states that the $8,598.78 assessment was reasonable and explains why this is so, as indicated previously. The services procured were identical to those required by the terminated contract; the Postal Service actually incurred the excess costs; and the Postal Service acted reasonably to minimize the excess costs resulting from the default. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: On the basis of the above discussion, and without oral argument, it is concluded that there was a binding contract between plaintiff and the Postal Service; that plaintiff\rquote s failure to enter into performance of said contract justified the default termination thereof; and that the Postal Service incurred excess reprocurement costs of $8,598.78 because of plaintiff\rquote s default. It is further concluded that defendant is entitled to recover on its counterclaim of $8,598.78. File: 05 - Eagle Aviation Inc v US.doc, Paragraph with $: The contracting officer, in her affidavit, computed the excess reprocurement costs resulting from the permanent contract with AAA to be $63,125 over the remaining 1 File: 06 - General Engineering Corp v Virgin Islands Water and Power Authority.doc, Paragraph with $: This is precisely our own position. We believe that the WAPA board, in charting new territory for itself in meeting the power needs of St. Croix, used its own flexible approach to this urgent problem. We say flexible, because WAPA did seek proposals for supplying the \u8220\'3fprimary mover\u8221\'3f (engine) portion of the equipment. It then insisted in its contract with DLJ\rquote s subsidiary that the equipment of one of the favored engine suppliers who had responded to the RFP, (M.A.N. of Germany), be used in the project. It is the cost of this equipment which consumes the bulk of the estimated $25 million investment. Thus, it can be said, that WAPA used a flexible approach in obtaining the basic equipment it needed after soliciting a variety of proposals. It then turned to DLJ to complete the package. After all, to WAPA the most important part of the arrangement was to select prime generating equipment compatible with its own system and capable of meeting the needs of St. Croix power consumers. It might even eventually own this equipment. Accordingly, even though we find that WAPA was not required to comply with the competitive bidding statute because the contract was covered under the professional services exception to File: 07 - Arrowhead Metals Ltd v US.doc, Paragraph with $: . Plaintiff also seeks to have the court draw inferences from the Mint\rquote s post-bid opening cost analysis efforts in support of its bad faith contention. The materials at hand, especially the deposition of the Associate Director for Operations of the Mint, will not support any allegation or inference of bad faith relative to the Mint\rquote s post-bid cost analysis efforts. This cost analysis effort was engendered for the most part by the $4 million differential between the plaintiff\rquote s bid and the Denver Mint\rquote s bid. Mint officials wanted to discover the basis for this spread. It was not done to discredit or impugn plaintiff\rquote s bid or preclude it from being awarded the contract. File: 12 - Busby School of Northern Cheyenne Tribe v US.doc, Paragraph with $: In the summer of 1983, the plaintiff School Board decided to contract for the operations and maintenance aspect of the Busby high school program. An engineering firm was retained to inspect the high school and to ascertain the cost necessary to bring the high school within proper facility guidelines. A cost estimate of $1,182,000 was obtained as a result of this survey. File: 17 - Western Pioneer Inc v US.doc, Paragraph with $: On or about April 10, 1985 the DFSC contracting officer (CO) at Cameron Station, Alexandria, Virginia, received a call from the commander, Defense Fuel Region-Alaska, reporting that he had been contacted by MAPCO regarding a change in the JP\u8211\'3f4 and diesel fuel contract from FOB origin North Pole to FOB destination Galena. The CO then contacted MAPCO directly, noting that a change in the contract was possible only if the rate was advantageous to the government. On April 12, 1985 the CO received a letter from MAPCO proposing a change to FOB destination Galena at an additional cost of $.229 per gallon. After gaining requisite concurrences and noting that the $.229 additional fuel cost would be a saving over the $.342 rate tendered by plaintiff, the MAPCO fuel contract was, on April 22, 1985, modified to provide FOB Galena for JP\u8211\'3f4 and diesel fuel at an additional cost of $.229 per gallon. File: 17 - Western Pioneer Inc v US.doc, Paragraph with $: In the above circumstances, plaintiff asserts entitlement to provide fuel transportation to Galena to satisfy the 1985 Air Force requirements as it submitted a $.342 rate to the TO which was lower than the Alaska Railroad/Yutana submission of $.5081. Plaintiff characterizes the amendment of the MAPCO fuel contract to FOB Galena, at an additional cost of $.229 per gallon, as effectively and erroneously awarding the Galena transportation to Yutana, despite the previous higher tender Yutana had submitted directly to the TO for this work. File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with $: Flynn testified that plaintiff could supply the aircraft at a cost of $33,000 per month less than the existing lease figure. The court notes that it has two bases upon which to question the reliability of the estimated figure arrived at by Flynn. One, Flynn had defendant\rquote s monthly cost figure to use as a target for setting his own figure. This gave him a large advantage in arriving at his low estimated amount. Two, Flynn\rquote s cost figure was only an estimate and not an actual bid to which he would be bound if he was awarded the contract. Such an estimate, under such circumstances, gives the proposer a degree of leeway in viewing his potential costs which serves to detract from the weight to be given such an estimate. File: 22 - Aviation Enterprises Inc v US.doc, Paragraph with $: The factors plaintiff failed to consider were: (1) the costs incurred by defendant in the resolicitation process; (2) the potential cost of the delay in acquiring planes through resolicitation (6 months) which could interrupt airlift services to the mission at Nellis; (3) the cost savings in the long run associated with the economics of scale inherent in possessing a large fleet of identical aircraft; (4) the cost of retraining pilots to fly the aircraft which would be utilized at Nellis after a resolicitation; and (5) the fact that defendant\rquote s cost figure ($1,625,000) for the C\u8211\'3f12s was a tentative amount which through negotiation could be reduced by 20 percent or more. An additional factor to consider would be the substantial termination costs which the government would incur if this court ordered a resolicitation. The termination cost would result from cancelling the C\u8211\'3f12 lease contract amendment provision which allowed four C\u8211\'3f12 aircraft to be placed at Nellis Air Force Base. Plaintiff conceded that such termination costs would be incurred. File: 30 - Connelly Containers Inc v US.doc, Paragraph with $: Plaintiff asserts that the contracting officer (1) was \u8220\'3fput on notice\u8221\'3f of plaintiff\rquote s mistaken bid for delivering the said shipping boxes to Stockton, but did not request verification of plaintiff\rquote s actual bid quotation for doing so prior to award, and (2) after award, erroneously failed to permit correction of plaintiff\rquote s mistaken bid. Plaintiff concludes that it is accordingly entitled to recover $35,698.96, the amount by which its intended bid price for the number of units in fact ordered from plaintiff and delivered by it to defendant in Stockton under line item 33 exceeded its actual bid price for those units, plus interest, costs, and attorney fees. File: 30 - Connelly Containers Inc v US.doc, Paragraph with $: In June 1981, plaintiff advised GSA by letter that its $11.68 quotation on line item 33 had not included \u8220\'3fany freight charges,\u8221\'3f and asked that the contract be modified to include unit freight costs of $4.52, and a unit price of $16.20, under item 33. File: 30 - Connelly Containers Inc v US.doc, Paragraph with $: Precisely when the contracting officer received this request is unclear. Nor, for that matter, does it appear when performance of the Group 7 award was completed. On the pleadings and exhibits before the court, however, there is no real dispute about (1) plaintiff\rquote s intended bid price (including unit freight costs) on line item 33, (2) the inadvertent omission of line item 33 unit freight costs of $4.52, or (3) the total number of line item 33 units eventually ordered from plaintiff and delivered by it to Stockton. File: 31 - Udis v US.doc, Paragraph with $: This contract case, brought under the Contract Disputes Act of 1978, comes before the court on defendant\rquote s motion for summary judgment and plaintiff\rquote s opposition thereto. The plaintiff seeks $46,694.80 in damages plus costs, fees and interest, alleging in support thereof that the defendant improperly terminated the contract for default. Conversely, in addition to arguing that the termination for default for failure to make delivery was proper, the defendant filed a counterclaim for the reprocurement costs it allegedly incurred in the amount of File: 31 - Udis v US.doc, Paragraph with $: Thereafter, due to plaintiff\rquote s failure to make a timely delivery, according to the defendant, the government repurchased identical forceps, through two negotiated procurements, that would have otherwise been provided under the defaulted contract. On March 29, 1982, under contract number DLA\u8211\'3f82C\u8211\'3f5194, 10,248 forceps were reprocured for $73,785.60, from the Surgical Instrument Company of America at a unit price of $7.20 each. Additionally, on June 8, 1982, under contract number DLA120\u8211\'3f82\u8211\'3fC\u8211\'3f5480, 2,400 forceps were reprocured for $13,152.00 from American Medical Instruments at a unit price of $5.48 each. However, upon completion of the reprocurement contracts, their final prices were adjusted to $72,785.60 and $12,458.00, respectively. Nonetheless, pursuant to a notice dated October 4, 1982, the plaintiff was assessed $40,242.80 in excess costs incurred by the government. File: 31 - Udis v US.doc, Paragraph with $: As previously stated, the government obtained the forceps, which were to have been originally supplied through the subject contract, by entering into two reprocurement contracts on March 29, 1982 and June 8, 1982, respectively. Ultimately the combined total price of these contracts was $85,243.60. The defendant seeks the excess costs incurred beyond the revised price of the initial contract ( File: 31 - Udis v US.doc, Paragraph with $: The court notes that the excess reprocurement costs were based on the initial contracted prices which by our calculation should have resulted in net excess costs of $40,215.80 ($13,152.00 + $73,758.60 - $46,694.80). However, in footnote 2 of the brief in support of its motion for summary judgment, the defendant concedes that upon completion of the reprocurement contracts, the plaintiff is ultimately liable to the government only in the amount of $38,548.80 ($72,785.60 + $12,458.00 - $46,694.80). File: 32 - Grade-Way Const v US.doc, Paragraph with $: Specifications, \u182\'3f I.7.1, Labor Standards); and (2) the specific wage rate for electricians\rquote fringe benefits was $6.88 per hour per the attached schedule. Amendment number 5, here in issue, modified an earlier schedule so as to provide that the specific wage rate for electricians\rquote fringe benefits was $7.88. The number of hours for electricians\rquote work was estimated at 100 (by intervenor), 400 (by the agency), and 1500 (by plaintiff). This item could affect only the contractor\rquote s cost and hence the bid price, and would have no other impact upon the scope of work (quality, quantity, or delivery of the item). The maximum amount involved is thus $1500. File: 34 - Drexel Heritage Furnishings Inc v US.doc, Paragraph with $: The crux of this portion of the dispute is whether the RFP, as modified by Amendment No. 1, permitted all offerors to propose furniture made of cherry wood, as did Ethan Allen, to satisfy the 18th Century English style requirement which traditionally is made of mahogany. If it was intended as such, was that provision relaxed by defendant during the procurement secretly, as alleged by plaintiff, by permitting intervenor to offer its 18th Century English line to be made from cherry, but not so informing plaintiff, thereby forcing plaintiff to offer its 18th Century English line made of mahogany. Plaintiff argues that since mahogany is, as a general rule, more expensive than cherry plaintiff was treated unfairly because its costs would be necessarily higher. The court notes, interestingly enough, that Drexel\rquote s best and final offer, which was based on the use of mahogany, was significantly less expensive than Ethan Allen\rquote s offer based on cherry wood. The reason Ethan Allen won the contract was because it offered much lower prices for other items contained in the price evaluation formula contained in the RFP. Plaintiff does not state how much of an effect the use of cherry wood would have on its best and final offer, thus, there is no way of determining whether it would have changed the standing of the offers, but it does not seem likely that such a change would enable Drexel to overcome the difference in excess of $800,000 that existed between these two proposals. File: 39 - C And L Const Co v US.doc, Paragraph with $: Public Laws, a program cost average for all Air Force family housing units in the continental United States and overseas has been established. The Air Force has distributed these funds for each project in the Fiscal Year 1975 Program, and has programmed $2,728,500 for award of this contract. This sum represents the total contract funds presently available for this project. File: 39 - C And L Const Co v US.doc, Paragraph with $: The RFP for the 100 military housing units at PAFB did not require the contractor to include all of the items provided for in Section 502(a). Accordingly, $195,000 was deleted from the initial Air Force allocation of $2,923,500 for the construction of the 100 military housing units at PAFB, thus allowing $2,728,500 for said construction. It is to be noted that the initial allocation of $2,923,500 was below the maximum average unit cost of $30,000, which for 100 units would total $3,000,000. File: 39 - C And L Const Co v US.doc, Paragraph with $: As indicated above, the statutory maximum average cost that the Air Force could spend for a housing unit at the time the RFP was issued was $30,000 per unit. Thus, 100 housing units set forth in the RFP had a statutory cost limitation of $3,000,000. The Air Force allocated $2,728,500, which was under the $3 million statutory cost ceiling, to the PAFB contract, and the RFP stated this was the Air Force cost limitation for construction of the 100 housing units. The RFP requested a proposal from plaintiff and others to design and construct 100 housing units within the limitation of $2,728,500. On October 7, 1975, while plaintiff and the Air Force were negotiating relative to the above RFP, Congress increased the maximum average cost ceiling for a housing unit from $30,000 per unit to $35,000 per unit. Plaintiff claims that its proposal in response to the RFP contained mistakes in the amount of $511,360 and that the limitation in the RFP of $2,728,500 should not bar recovery of the amounts of said mistakes because the Air Force, at the time of award, had statutory authority and a concomitant obligation and duty to increase the RFP cost limitation from $2,728,500 to $3,500,000. If this was done, plaintiff\rquote s recovery of $511,360 reflecting its mistakes in bid would not be barred by any cost limitation provision in the contract. File: 39 - C And L Const Co v US.doc, Paragraph with $: This would permit an increase in the limitation set by the Air Force. However, the plaintiff determined that it could do the job for less than $2,728,500 and the government accepted its proposal. In this case, unlike the two cases cited above, there were no statutory changes or affirmations by the government, subsequently proven inaccurate, which increased plaintiff\rquote s costs. Plaintiff simply underbid or underestimated (petition, par. seventeenth) the project and now wishes to reform the contract based on a change in the maximum average limits on the unit cost of housing which occurred prior to the defendant\rquote s acceptance of plaintiff\rquote s bid. File: 44 - LG Lefler Inc v US.doc, Paragraph with $: On July 7, 1982, the VA issued an Invitation for Bids for the construction of an addition to the VA Medical Center in Tuscon, Arizona. As a contractor unsophisticated in the bidding process for government contracts, plaintiff, L.G. Lefler, Inc., d/b/a Defco Construction Company (\u8220\'3fDefco\u8221\'3f), interpreted the bid documents as permitting the use of foreign materials as the basis for its bid, provided the cost of comparable domestic material exceeded the cost of the foreign material by at least six percent (6%). Proceeding on this basis, Defco submitted a bid to the VA totalling $11,331,500, of which $1,028,000 was for structural steel work. The structural steel price was based on a bid received by Defco from the Phoenix Steel Manufacturing Company (\u8220\'3fPhoenix\u8221\'3f) of $737,000, which partly was based on $439,000 worth of wide flange structural steel fabricated in Japan. Because the lowest quoted price for comparable domestic steel was $108,000 (24.6%) higher than the price quoted by Phoenix for Japanese steel, Defco assumed that its bid to the VA could incorporate the price for foreign steel. File: 44 - LG Lefler Inc v US.doc, Paragraph with $: change order of July 29, 1983, reflecting the contracting officer\rquote s final decision, effected a decrease in the contract price of $108,000\u8212\'3fthe difference between the cost of the domestic and foreign steel. Clause 3 of the contract reads, in pertinent part, as follows: File: 46 - Tibshraeny Bros Const Inc v US.doc, Paragraph with $: . Plaintiff appeals the contracting officer\rquote s decision which denied plaintiff\rquote s claims for damages in the amount of $127,269 for breach of contract. In addition, plaintiff seeks the release of $20,000 retained by defendant under the contract. Plaintiff claims money damages for time delays and extra costs incurred because of defendant\rquote s alleged failure to provide a complete and accurate set of electrical control drawings. For want of a better name File: 46 - Tibshraeny Bros Const Inc v US.doc, Paragraph with $: Prior to January 15, 1981, plaintiff filed a claim with the contracting officer for $127,269 for costs incurred resulting from the problems and delays surrounding the dispute over the control wiring diagram. Plaintiff\rquote s claim for reimbursement of excess costs was denied by the contracting officer on June 8, 1981. In addition, the government continued to withhold the $20,000 retention from plaintiff. File: 47 - Descon System Ltd v US.doc, Paragraph with $: The first count of Descon\rquote s four-count complaint to the HUDBCA was a $350,000 claim for increased general and administrative expenses. In count II, Descon alleged that HUD wrongfully default terminated the subcontracts and sought $900,000 for all costs and liabilities incurred through the end of Descon\rquote s work on the subcontracts and a reasonable profit pursuant to the Termination for Convenience clause. In count III, Descon claimed $5,000,000, alleging that a HUD source released false and defamatory information to the Canadian press which resulted in a loss of potential investors and business opportunities. Descon sought $20,000,000 in count IV alleging that HUD caused Descon\rquote s loss of existing investment in its business organization and future profits from volume production in phase III by wrongfully default terminating the phase II subcontracts and by wrongfully terminating Descon\rquote s participation in phase III. File: 49 - Kinetic Structures Corp v US.doc, Paragraph with $: As a result, the plaintiff asserts that the Government\rquote s failure to follow its regulations and its denial of the awarding of contract \lquote 0006 to the plaintiff comprise a sufficient basis on which to recover its bid preparation costs for contract \lquote 0006, in the amount of some $625. File: 49 - Kinetic Structures Corp v US.doc, Paragraph with $: On July 29, 1981, DLA issued another invitation for bids for the reconditioning of Government-owned banker type partitions with electrostatic coating. Solicitation DLA 710\u8211\'3f81\u8211\'3fB\u8211\'3f0048 (\rquote 0048) was a small business set-aside acquisition, and the plaintiff responded by submitting the sole bid in the amount of $197,853.44. The Government\rquote s original cost estimate, based on a prototype procurement, was $136,797.75, and an engineering cost estimate, prepared by Government engineers, was $148,000.00. Due to the disparity between the plaintiff\rquote s offer and the two Government estimates, the Government contracting officer, Ms. Donna Huff, asked the plaintiff to submit a cost breakdown, which the plaintiff subsequently provided. Based on these facts and figures, Ms. Huff found File: 49 - Kinetic Structures Corp v US.doc, Paragraph with $: There are presently no requirements existing or planned by DLA for electrostatic flocking of banker partitions due to the difficulties with promulgating adequate specifications and the high costs resulting from the lack of competitive bidding in the procurement. Plaintiff contends that the arbitrary and capricious cancellation of solicitation \lquote 0048, resulting from bad faith on the part of Ms. Huff, entitles it to the reinstatement of the solicitation and award of the contract. In the event the reinstatement of the solicitation and award of the contract to the plaintiff is not granted by the Court, the plaintiff claims to be entitled to bid preparation costs of some $3,100 in regard to solicitation \lquote 0048. File: 51 - Dyn Logistics Services Inc v US.doc, Paragraph with $: On September 5, 1984, the Contract Review Board (the Board) approved the contracting officer\rquote s recommendation for a split award which would effect a $770,000 cost savings. On or about that time, DLSI and the Navy also entered into an agreement to the effect that plaintiff would move for a dismissal, with prejudice, upon the execution of the award as approved by the Board. File: 53 - DLM And A Inc v US.doc, Paragraph with $: The subject $3.3 million cost-plus-fixed-fee (\u8220\'3fCPFF\u8221\'3f) contract implements the Navy\rquote s Project Management and Program Planning Support Services for the Service Life Extension Program Aircraft Carrier Ship Acquisition Project (the \u8220\'3fCV-SLEP program\u8221\'3f). This program has been in effect for at least seven years, throughout which intervenor Northrop Services, Inc. (\u8220\'3fNorthrop\u8221\'3f) served as the prime contractor or subcontractor. During 1978\u8211\'3f81, Northrop held the contract on the basis of a sole-source acquisition. Thereafter, Northrop was the subcontractor to DLM & A, the incumbent contractor for the CV-SLEP program. The genesis of this litigation was the Navy\rquote s proposed award of the next three-year contract to ROH, which responded to the RFP identifying Northrop as its subcontractor. Thus, Northrop\rquote s involvement in the contract spans a seven-year period, for three years of which Northrop acted as DLM & A\rquote s subcontractor, and Northrop would now act, upon contract award, as ROH\rquote s subcontractor. File: 53 - DLM And A Inc v US.doc, Paragraph with $: The Technical Evaluation Review Panel (the \u8220\'3ftechnical review panel\u8221\'3f) assigned DLM & A a higher evaluation than ROH. DLM & A\rquote s total technical score was 623.6 points, compared with 592.9 points given to ROH\u8212\'3fa difference of 30.7 points or 5.2 percent. DLM & A, however, bid at $3,825,829, and ROH offered $3,345,235\u8212\'3fa difference of $480,594 or 14.4 percent. After the contract specialist, who was the contracting officer\rquote s designated representative, reviewed the cost proposals and found that cost factors indicated an award to File: 53 - DLM And A Inc v US.doc, Paragraph with $: (1) Prior to negotiation of a contract or modification resulting from a proposal in excess of $500,000, when the price is based on cost or pricing data (3\u8211\'3f807.3) submitted by the contractor, the contracting officer (PCO or ACO) or authorized representative shall request a field pricing report (which usually includes an audit review by the contract audit activity), File: 53 - DLM And A Inc v US.doc, Paragraph with $: Mr. Neuman further noted that ROH\rquote s cost proposal did not include the cost, estimated at $85,968, including fees, of assuming an existing maintenance agreement to service a Hewlett-Packard 3000 computer, \u8220\'3fas contemplated by the RFP.\u8221\'3f In his supplemental cost realism determination submitted pursuant to the court\rquote s order entered after the evidentiary hearing was continued, the contracting officer states that the successful offeror will not be required to assume the Hewlett-Packard agreement after all. The cost of DLM & A\rquote s proposal, which includes the agreement, has been reduced accordingly in the cost realism determination. File: 53 - DLM And A Inc v US.doc, Paragraph with $: These computations produced overall costs, including fees, for ROH of $1,185,003.11 for year one\u8212\'3fcompared to $1,199,941.88, excluding the computer costs, for DLM & A. The contracting officer determined, moreover, that the level of reduction in Northrop\rquote s average direct labor rate required to produce the roughly 25 percent reduction in overall rates \u8220\'3freflects an acceptable business judgment by ... [Northrop] with no quantifiable basis for rejection,\u8221\'3f and was partially explainable by allowances for \u8220\'3fefficiencies and improvements.\u8221\'3f A comparison of the proposed average direct labor rates of DLM & A and ROH and of their subcontractors would not have alerted the contracting officer to the existence of a cost realism problem. Instead, the overall difference in the two cost proposals is primarily attributable to differences in the burden rates, as Lt. Naber noted in his original cost realism report. File: 58 - Carrier Corp v US.doc, Paragraph with $: the cost \u8220\'3fis expected to exceed $1,000 but not more than $10,000 for labor, supervision, supplies and contractual services.\u8221\'3f Incidental repairs were defined as follows: File: 58 - Carrier Corp v US.doc, Paragraph with $: As a result of these definitions, the contractor\rquote s repair obligations under the IFB were limited to repairs costing $1,000 or less. File: 58 - Carrier Corp v US.doc, Paragraph with $: The July 2, 1982, IFB was thereafter amended twice. Amendment No. 1, effective July 26, 1982, postponed the bid opening time and date pending issuance of Amendment No. 2 which was to change certain requirements in the IFB as well as set a new bid opening time and date. Amendment No. 2, effective July 27, 1982, which served as the catalyst for this litigation, amended Part 4, subpart 9, entitled \u8220\'3fRepairs\u8221\'3f, discussed above, to provide that \u8220\'3f[a]s part of the services provided under this contract, the contractor shall perform all incidental and minor repairs necessary to prevent a breakdown or failure of a piece of equipment or systems.\u8221\'3f This subpart was also amended to provide that \u8220\'3f[t]he contractor will not be required to perform any repair work over $10,000 under this contract. The critical effect of Amendment No. 2 was to increase the types of repairs for which the contractor would be responsible under the contract from those costing $1,000 to those costing $10,000. Amendment No. 2 advised the new bid opening time and date was 11:00 a.m. on August 18, 1982. Amendment No. 2 contained 17 pages. Plaintiff received Amendment No. 2 shortly after it was issued. File: 59 - Mil-Tech Systems Inc v US.doc, Paragraph with $: At any rate, Mil-Tech then became a wholly-owned subsidiary of ATACS Corp. (\u8220\'3fATACS\u8221\'3f), and Oliver Brown became a commissioned sales representative of ATACS. On September 18, 1983, the directors and shareholders of ATACS met to ratify ATACS\rquote acquisition on September 16 from Charles Brown of 500 shares in Mil-Tech, which was all of Mil-Tech\rquote s outstanding stock, for $200 cash and $5,000 payable upon ratification by ATACS. The ATACS board also ratified an agreement to compensate Oliver Brown for his costs and efforts in submitting a bid on the subject procurement by payment of $24,800 upon the award of a contract by the Army to Mil-Tech and payment of a 50 percent sales commission on any savings in acquiring materials. File: 59 - Mil-Tech Systems Inc v US.doc, Paragraph with $: As of September 20, 1983, when the new Mil-Tech made its presentation to the SBA, ATACS had supplied a lease with ATACS and some of its personnel and did not include all of the foregoing bid work product in its listing of resources. Also infused into Mil-Tech by ATACS as of September 20 was $50,000 cash and $45,000 in equipment. This was not consideration for the sale, because Oliver Brown was no longer a stockholder of Mil-Tech. As a commissioned sales representative of the new Mil-Tech, Oliver Brown was to receive a substantial commission payable only upon award of the contract and a commission on cost savings for materials purchased for the contract. File: 64 - Cedar Lumber Inc v US.doc, Paragraph with $: To compensate plaintiff for the road construction, the contract specified a certain number of timber \u8220\'3fpurchaser credits\u8221\'3f which would be applied against amounts due the Forest Service for timber logged and hauled from the sale area. To arrive at the appropriate sum of purchaser credits, the Forest Service surveyed the sale area and estimated the amount and type of rock to be excavated during road construction. The terrain was a combination of \u8220\'3fcommon,\u8221\'3f \u8220\'3frippable\u8221\'3f and \u8220\'3fsolid\u8221\'3f rock. Using the \u8220\'3fZone V Cost Estimating Guide for Road Construction,\u8221\'3f the Forest Service would apply the total cubic yards of excavation and derive a \u8220\'3fbase\u8221\'3f cost from the guide. To arrive at the total number of purchaser credits, the base cost would be multiplied by a factor of one to arrive at the per unit cost of common excavation, a factor of two for rippable rock excavation and a factor of three for solid rock excavation. For instance, if the base cost were $0.50, then each unit of common excavation would be priced at $0.50, each unit of rippable rock at $1, and each unit of solid rock at $1.50. The purchaser credits for road construction at the time of contract award were totalled at $296,960, of which $141,560 was allocated to reconstruction of existing roads and $155,400 was allocated to new construction. File: 69 - International Graphics Div of Moore Business Forms Inc v US.doc, Paragraph with $: Because defendant stipulated that no award of a contract would be made until after a hearing on October 5, 1983, this application was denied as moot. Before the hearing could be held, however, defendant abruptly cancelled the solicitation on October 3, 1983. This was done because retention of the CBD production and distribution in-house, rather than outsourcing same, would allegedly effect a $1.2 million cost savings to the government over the five-year life of the contract. File: 69 - International Graphics Div of Moore Business Forms Inc v US.doc, Paragraph with $: The subsidiary question thereto is how and by what method may defendant prove said fact. Defendant initially claimed that its decision to cancel the solicitation was justified by a cost savings of $1.2 million that would be effected thereby, and that it was not bound to follow A\u8211\'3f76 in making its determination of cost savings. Following the issuance of this court\rquote s opinion on December 23, 1983, holding that defendant was bound to comply with the fundamental cost comparison principles of A\u8211\'3f76 before it could cancel the solicitation because of cost savings achieved thereby, defendant conceded that its initial cancellation decision was not made pursuant to a defensible A\u8211\'3f76 study. Hence, it subsequently undertook to perform such a study, committing itself, concomitantly, to award the contract to the lowest responsible/responsive private bidder if it found that outsourcing the contract was justified under the cost comparison principles of A\u8211\'3f76. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: When $160,000 reduction in pipe cost on a public project was presented after agreement was reached on a price which could not have encompassed a reduced pipe price of $160,000, Army Corps of Engineers\rquote approach that corresponding reduction in agreed contract price was then required had rational or reasonable basis. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: Alderete\rquote s proposal for the Outlet Conduit contract was submitted on August 31, 1982 and the government estimate was completed at the same time. Alderete\rquote s proposal price was $5,267,557, whereas the government estimate, including profit, was $4,200,000. Alderete\rquote s proposal was premised upon laying 6 lengths of pipe per 10-hour day, while the Corps of Engineers\rquote estimate was premised upon laying 8 lengths of pipe per 8-hour day. The specifications for the contract, as prepared by the Corps, allowed 500 days to perform the work and Alderete\rquote s proposed rate of progress encompassed this period. The government estimate contemplated a somewhat shorter period of actual work time with a resulting cost savings in items such as labor, equipment rental, dewatering the site and overhead. The 500 day performance time had been carried over from the specifications for the enjoined 1981 advertised contract and, in that prior procurement, this period of time had been set forth on the assumption that funding problems and weather could extend the time needed to complete the project. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: A substantial portion of the proposed contract price consisted of the amount to be paid for the large underground concrete pipe required. Alderete\rquote s proposal set forth some $2,133,000 in pipe cost as did the government estimate. Both Alderete and the Corps\rquote estimators had obtained a written price quotation for the pipe from the only feasible supplier, Hydro Conduit Corporation, a company located in Albuquerque, New Mexico, with a branch plant in El Paso, Texas. The price quotation provided to Alderete had been actually delivered by Mr. Bob Holderman, the Hydro Conduit El Paso branch manager, to Mr. Glenn Guy, an official of another construction company who was assisting Alderete in developing its proposal for the Outlet Conduit contract. Mr. Guy\rquote s company had performed other contracts with Alderete and Mr. Guy had a financial interest in the equipment rental firm from which Alderete proposed to obtain its equipment if it was awarded the Outlet Conduit contract. Also, Mr. Guy had a long-term business relationship with Mr. Holderman and, for these reasons, Alderete sought and obtained his assistance in developing price quotations from potential suppliers such as Hydro Conduit. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: On November 30, 1982 a conference call was placed between the negotiators and Mr. Alderete conveyed the results of computations he had made, assuming an average pipe-laying rate of 10 joints per 10-hour day. Mr. Alderete calculated that this would produce a contract cost reduction of $424,536 which would produce a price of $4,843,021. However, Mr. Alderete considered that additional costs would be required by the reduced time. These additional costs were stated to be: $21,450 for labor; $10,600 for fuel; $25,750 for impact and mishaps; $15,800 for supervision; and $29,250 for Saturday and holiday work. Balancing these additional costs of $102,850 against the $424,536 reduction produced a net reduction of $321,871 to equal a contract price proposal of $4,945,871. Mr. Alderete File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: As a result of continued effort by SBA a further session was convened commencing on December 9, 1982 in Albuquerque. At this session Mr. Styron was assigned as the SBA negotiator. Again, the pipe-laying rate was the main topic of discussion. Mr. Alderete pointed to the 500 days set forth in the specifications and indicated his belief that any reduced time was proposed to prevent him from obtaining the contract. In response, the Corps\rquote negotiators indicated that Alderete could, if it desired, consume 600 days to perform the work but that a fair and reasonable contract price had to be premised upon a reasonable construction period and the 500 days in the specifications was asserted to relate to funding considerations and other constraints. Lt. Col. Pylant did inform Alderete that the government estimate used a placement rate of 8 joints of pipe per 8-hour day and Mr. Alderete again noted his disagreement with this rate. Lt. Col. Pylant explained that the Corps had to have some reason to revise the government estimate and, in his view, no reason had been presented. Lt. Col. Pylant did indicate, however, that a good negotiation figure would be in the range of $4,600,000. After further discussion concerning the dewatering cost for the project, it was agreed that Alderete would contact its subcontractors and suppliers, attempt to obtain reduced prices, and provide a revised price by December 14, 1982. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: government\rquote s position. The sheets of paper shown to Mr. Styron on the trip to Albuquerque were presented and discussed with the conclusion that they were inadequate in that it was not possible to make any judgments as to where some of the reductions or add-ons occurred. Mr. Styron suggested that a summary sheet could be prepared, keyed to the original proposal, and the meeting was recessed at 10:30 a.m. to allow this preparation. At 1:15 p.m. Mr. Alderete presented a summary sheet showing changes in the bid items and the government negotiators then proceeded to review this sheet. When the meeting was reconvened at 1:45 p.m. the government indicated that a price agreement could be reached if Alderete would agree to three direct cost reductions: $32,000 from dewatering; $40,000 from pipe laying; and $40,000 from borrow. The Alderete negotiators then discussed this situation in private with Mr. Alderete still expressing reservations concerning the pipe-laying rate involved, but finally concluding that if the government would not split the remaining price difference he would take the contract at $4,700,000. Mr. Alderete stated that he would have to accept the reduction out of anticipated profit. Mr. Styron was initially concerned about any such possible profit reduction, but after checking profit statistics with his office by telephone, he ascertained that the resulting amount was still well within applicable guidelines. Mr. Styron was also concerned about several comments made over the course of the negotiations that the pipe price given by Hydro Conduit was subject to escalation in that a quotation was only good for 30 days. Accordingly, because the pipe cost was a substantial part of the contract price, Mr. Styron suggested to Mr. Alderete that, before the meeting with the Corps\rquote negotiators reconvened, the pipe price be reconfirmed by making a telephone call to Hydro Conduit. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: leave and present a price revision at a later date. Mr. Alderete also suggested that any reduction be provided in the form of a percentage for prompt payment rather than a price reduction. Mr. Snow declined any such percentage arrangement and noted that, as this was a negotiated procurement, he could not delay submitting the revision because of Truth in Negotiations Act requirements. Mr. Snow then stated the conditions for a price revision to be a prompt award of a contract with Alderete, payment upon manufacture (less freight) and no more than 12 joints a day required. Mr. Alderete agreed that the conditions could be met and Mr. Snow then said he had a $160,000 price reduction for Alderete. Mr. Styron questioned Mr. Alderete concerning his statement that he had already reduced the proposed contract price by speculating on a pipe cost reduction. Mr. Styron informed Mr. Alderete that, given the circumstances and the documentation that had been provided to him and used in the presentations to the Corps, he had no way of supporting Mr. Alderete in such a contention. This was because, Mr. Styron stated, it was obvious from the documentation that the pipe price had not been substantially reduced and Mr. Alderete had not mentioned to Mr. Styron that there was even the probability of a pipe reduction or that he had speculated and used it in his earlier revisions. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: Accordingly, the Outlet Conduit project was again advertised for bids by the Corps under basically the same specifications with the exception that the performance time was reduced from 500 days to 365 days. Bid opening was scheduled for February 15, 1983. The instant litigation contesting the Corps\rquote decision to proceed with unrestricted bidding was initially commenced in the United States District Court for the Western District of Texas on January 21, 1983. The District Court\rquote s order filed March 9, 1983 transferred the matter to this court and also permitted the Corps to award the contract. Alderete had obtained the bid package for this advertised procurement and had obtained some price quotations from subcontractors and suppliers, but determined not to submit a bid. Some 15 bids were received by the Corps of Engineers. All bids received were under $4,700,000 and 10 bids were under the final price offered Alderete by Lt. Col. Pylant of $4,539,283. On March 15, 1983 the contract was awarded and a notice to proceed issued to Burn Construction Co. The contract price was approximately $3,400,000, which sum encompassed an increased cost for the concrete pipe supplied by Hydro Conduit over that contemplated for the previous Alderete proposal. File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: by Hydro Conduit in the pipe price. Similarly, the revised price initially presented by Alderete to the Corps on December 16, 1982 could not have included any reduced amount attributable to a possible reduction in the cost of the pipe to be supplied by Hydro Conduit as, again, the document presented was essentially the November 30, 1982 computation by Alderete plus an additional reduction, given orally, of only some $28,000. While it is conceivable that Mr. Alderete could have eventually agreed to perform the contract at $4,700,000 instead of his initial December 16th offer of $4,825,000 based upon some assumption that he could subsequently obtain a $160,000 reduction in the pipe price to make up the $125,000 reduction, any such assumption could not be valid. The applicable provisions of the Truth in Negotiations Act, File: 84 - F Alderete General Contractors Inc v US.doc, Paragraph with $: Accordingly, when the $160,000 reduction in pipe cost was presented on December 16, 1982 after agreement was reached on a $4,700,000 price which could not have encompassed a reduced pipe price of $160,000, the Corps\rquote approach that a corresponding reduction in the agreed contract price to $4,539,283 was then required has a rational or reasonable basis. File: 92 - ATL Inc v US.doc, Paragraph with $: Defendant further maintains that on the three contracts already awarded, the Navy, and hence the public, suffers an estimated $3,585 per day in delay damages. As already discussed, most of this delay is of the Navy\rquote s own making. On the other side of the coin, there is the fact that the Navy has awarded the three contracts and is threatening to award the fourth to bidders at higher prices than plaintiff has offered and hence at greater cost to the public. File: 94 - International Graphics Div of Moore Business Forms Inc v US.doc, Paragraph with $: Defendant next contends that if a \u8220\'3fcompelling reason\u8221\'3f is obligatory as a basis for rejecting all bids, its compelling reason is established by the cost savings of $242,506 per year, or $1,212,530 over the five-year life of the contract, that would be realized by the cancellation. File: 09 - Shuey Aircraft Inc v US.doc, Paragraph with $: The contracting officer testified before the Board that plaintiff was a small business and that he thought the price difference reflected the differences in the respective company\rquote s overhead costs. On other occasions such bid disparities had been observed, and he concluded that they posed no cause for concern in this case. Plaintiff\rquote s price per unit on its first contract was $2.77, and on this contract was $4.50. This 60 percent increase could be acceptable to a contracting officer as reasonable in the light of plaintiff\rquote s prior production difficulties. File: 17 - Coastal Corp v US.doc, Paragraph with $: Following the cancellation of the solicitation, the appellants filed a claim for more than $2 million for the cost of preparing their proposals. They sought this amount on the theory that there was an implied contractual commitment by the government to pay them the bid preparation cost because the government improperly had cancelled the solicitation. After the contracting officer denied the claim, the appellants sought recovery before the Board. The government moved to dismiss the claim on File: 24 - Aqua-Tech Inc v US Army Corps of Engineers.doc, Paragraph with $: O.H. Materials commenced performance of and has made substantial expenditures and commitments in good faith reliance upon the contract. Carlock Aff. \u182\'3f 17. Defendants estimate that the government may incur additional costs of approximately $437,845.00 if the contract were to be terminated for the convenience of the government and re-awarded to Aqua-Tech. Affidavit of Joseph R. Turner. File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with $: was improperly terminated for default; that the excess reprocurement costs which the Government claimed should be disallowed, and that the Government\rquote s claim for the cost of military services furnished in the performance of the contract should be denied. The Board found that Hamilton made a mistake in its bid; that the Government\rquote s request for verification was inadequate, and that the acceptance of Hamilton\rquote s low bid resulted in a contract that was unconscionably priced. In addition to the other relief granted, the Board found that Hamilton was entitled to recover its losses which amounted to $206,101. File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with $: Following the termination for default, a reprocurement contract was negotiated, and an award to another contractor was made on July 17, 1979. On July 23, 1979, the contracting officer assessed excess reprocurement costs of $109,124.03 against Hamilton. The Navy withheld payment on invoices totaling $60,262 to offset the reprocurement costs. On July 31, 1979, Hamilton appealed the decision assessing the excess reprocurement costs against it. File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with $: As previously stated, the Board held that under the circumstances, the acceptance of Hamilton\rquote s low bid resulted in an unconscionably priced contract; that the termination for default and the assessment for excess reprocurement costs should be set aside, and that the Government\rquote s claim for military personnel costs should be denied. The Board awarded Hamilton damages in the amount of $266,363, consisting of Hamilton\rquote s stipulated loss of $201,101, plus $60,262 which had been withheld by the Navy to offset the reprocurement costs. File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with $: After its request for a consolidation of its four appeals was granted, Hamilton first filed with the Board a complaint contending, as it did in the submissions to the contracting officer, that the Government had breached the contract and therefore that it was entitled to the equitable adjustments denied by the contracting officer. Hamilton also alleged that the default termination was wrongful and that in view thereof, the Navy was not entitled to recover the excess costs of reprocurement and that the Government had unlawfully withheld the sum of $60,262.30 due Hamilton as an offset on the reprocurement claim. Hamilton further denied that it was indebted to the Government for the cost of the services of Navy personnel which were used to supplement the contractor\rquote s personnel. Hamilton\rquote s complaint sought recovery in the amount of $345,879.30 on its claims for equitable adjustments. File: 25 - US v Hamilton Enterprises Inc.doc, Paragraph with $: Accordingly, we affirm the Board\rquote s denial of the Government\rquote s right to recover for the excess reprocurement costs and the costs of providing the services of military personnel to supplement the contractor\rquote s work force. However, we reverse the Board\rquote s award of damages in the amount of $206,101 to Hamilton and hold that the amount of its recovery is limited to the sum of $60,262, which the Navy withheld as an offset against the excess reprocurement costs. File: 29 - Related Industries Inc v US.doc, Paragraph with $: On March 25, 1983, DPSC wrote to the SBA that the contracting officer, Paul Crossin, was proposing to reject the low offer submitted by Related and to accept the next lowest offer, despite the additional $118,050 cost to the government, \u8220\'3ffor factors which are in the nature of lack of tenacity, perseverance, integrity and capacity.\u8221\'3f It referred the proposed rejection to the SBA for processing pursuant to the requirements of File: 33 - BCM Corp v US.doc, Paragraph with $: 18 S.W.L.J. 1 (1964) ( \u8220\'3fDoke\u8221\'3f), delineates these general categories: (1) facially apparent errors, such as multiplication errors made when computing unit prices into total price; (2) disparity in prices among the bids; (3) disparity between the bid and the private government estimate; (4) disparity between the bid and the cost of prior procurements of the same item; (5) disparity between the bid price and, if the contracting officer knows it, the market value for the goods. Doke at 16\u8211\'3f26. BCM\rquote s bid was 82 percent of the Government\rquote s $300,000 estimate and, like those of LD/S and Tunnel, was out of line with the other bids. File: 33 - BCM Corp v US.doc, Paragraph with $: (and these arguably vitiated one another, according to the Board). At the time verification was sought of Tunnel and BCM, however, the contracting officer was aware only 1) that LD/S, bidding $189,300, omitted the subject feeders; 2) that the cost of the subject feeders was not known; and 3) that Tunnel had bid $229,850 and BCM, $248,000 against the Government\rquote s estimate of $300,000. File: 36 - Doe v Devine.doc, Paragraph with $: For the 1975 contract year Aetna, with OPM\rquote s acquiescence, reduced its mental coverage for outpatient visits to 80% of a maximum of 20 visits per year. J.A. 400, 427. In 1978, Aetna placed a $20,000 maximum on inpatient hospital costs for mental illness, with 20% coinsurance by the patient, and imposed a $1000 per year limit on reimbursements for outpatient treatment of mental illness. File: 39 - Inter-Con Securities Systems Inc v Orr.doc, Paragraph with $: 19. The government, which operates with public funds, would be required to pay Delta Associates over $120,000.00 in start-up costs and expenses if it were required to terminate the contract awarded on December 3, 1982. File: 54 - Indian Wells Valley Metal Trades Council v U S.doc, Paragraph with $: On or about March 15, 1982, the Naval Facilities Engineering Command issued a solicitation for bids for a commercial activities contract involving housing maintenance, transportation and supply services to be performed at the Naval Weapons Center at China Lake, California. Concurrent with this contracting procedure (and as a part thereof), the Navy undertook a study to determine the costs to the Government of retaining the in-house capability for the performance of the same commercial activities. Upon later comparative evaluation, it was concluded that the work in question could be performed in-house for approximately $3,000,000 less than the cost of performance by an outside contractor. Based on this conclusion, the affected federal employees (plaintiffs being among these) were advised that a recommendation had been made favoring the in-house retention of the work contemplated by the commercial activities contract. File: 61 - John Carlo Inc v Corps of Engineers of U S Army Fort Worth Div.doc, Paragraph with $: The Court has also considered the extensive testimony presented at the preliminary injunction hearing describing the harm to the government that continuance of the injunction poses. The Lakeview Project was originally authorized in 1965; the current completion date is 1988 and the total estimated cost of the project is $220 million. The government\rquote s evidence outlined the increase in costs it will incur if completion of the embankment work is delayed by this injunction. As rebuttal evidence Carlo submitted a bar graph, prepared in consultation with Bosco, reworking the construction schedule submitted by Carlo with its bid. If the graph is accurate it appears it would be possible to complete the project within the original schedule even if actual construction did not begin until Fall of 1982. Servidone attacked the reliability of the graph on cross-examination. Carlo also claims that the Corps by amending the contract specifications, making the completion date contingent upon the start date rather than having it fixed, had undermined any claim it might have that completion of the embankment project within the original time frame is crucial. File: 62 - Bayou State Sec Services Inc v Dravo Utility Constructors Inc.doc, Paragraph with $: (mandamus of U. S. government employee). The complaint asked for a declaratory judgment and a mandatory injunction ordering the defendants to award the contract to Bayou-Citadel. Alternatively, it prayed for $1,000,000.00 in actual damages based on proposal preparation costs, litigation costs, and lost profits, and in punitive damages. File: 63 - Lincoln Services Ltd v U S.doc, Paragraph with $: HARKINS, Trial Judge : Plaintiff was unsuccessful in an effort to obtain a contract from the Naval Facilities Engineering Command, Atlantic Division (NAVFAC-ATL), for the construction of 250 military family housing units at the United States Naval Station, Bermuda and now seeks to recover $150,000 assertedly expended in its proposal effort. Proposal preparation expenses are a cost of doing business that normally are \u8220\'3flost\u8221\'3f when the effort to obtain the contract does not bear fruit. In an appropriate case, however, a losing competitor may recover the costs of preparing its unsuccessful proposal if it can establish that the Government\rquote s consideration of the proposals submitted was arbitrary or capricious. The standards that permit a File: 63 - Lincoln Services Ltd v U S.doc, Paragraph with $: NAVFAC-ATL issued its request for proposals (RFP) for the Bermuda housing project on March 5, 1974. The RFP solicited proposals for a turnkey design and construction contract, in a project programmed to cost $8,650,000 for the 250 units, with a maximum price of $41,490 for the most expensive unit, and an average unit price not to exceed $34,600. Proposals were to be submitted by May 16, 1974. The RFP specified that a NAVFAC instruction File: 64 - Princeton Combustion Research Laboratories Inc v McCarthy.doc, Paragraph with $: Having found the agency\rquote s action to be clearly illegal (though rational), the district court went on to consider whether a preliminary injunction should be granted. The district court held that the delay occasioned by an injunction would cause no significant harm to the public interest in the agency\rquote s efficient functioning, because the Spacelab was only in the development stage and its launching was still a number of years away. Nor did the public interest in avoiding excessive costs weigh against the grant of a preliminary injunction, because after the modifications submitted on July 21, 1981, Shaker\rquote s bid was only about $5,000 less than Princeton Combustion\rquote s; at any rate, the contract was a cost-plus contract, so that the difference between the two bids might prove illusory once the contract was actually performed. Finally, the district court held that because NASA had so clearly violated its own procedures, Princeton Combustion\rquote s interest in fair treatment was very strong. This interest, the district court held, outweighed Shaker\rquote s interest in not having its contract set aside two months after it had begun performing it. Thus the district court declared the contract signed by Shaker and NASA on September 25, 1981, to be null and void, and ordered NASA to reconsider the Shaker modifications of July 21, 1981, in accordance with the governing procedures, and to resolve the written protests that Princeton Combustion had submitted on September 25, 1981. File: 65 - Peter Kiewit Sons' Co v U S Army Corps of Engineers.doc, Paragraph with $: 1. Kiewit complains that Defendants would, unless constrained by this Court, wrongfully reject Kiewit\rquote s low bid on a contract at Barbers Point Harbor, Hawaii, and award the contract to the next bidder at an additional cost to the taxpayers of more than $2,750,000, because of an illegal de facto debarment or suspension. (Verified Complaint P 1). File: 69 - K-W Const Inc v U S.doc, Paragraph with $: After completing the work in February of 1980, petitioner notified the Contracting Officer that due to the delay in awarding the contract, petitioner was claiming an additional $18,298 to cover increased costs. The Contracting Officer denied this claim, and the subsequent appeal to the ASBCA File: 70 - Aydin Corp v U S.doc, Paragraph with $: , alleging the existence of a mistake in its offer. This mistake, plaintiff claimed, was due to \u8220\'3fclerical oversights\u8221\'3f which consisted of a failure to estimate quantities and costs of required items, and an omission from its estimate of a standard allowance factor for shrinkage, breakage, and loss of low priced items; \u8220\'3festimating judgment errors,\u8221\'3f and, finally, \u8220\'3ferrors in the compilation of the computerized material list.\u8221\'3f Plaintiff contended that the mistake was so obvious, given the 40 percent discrepancy between its bid and that of RCA, that it should have been apparent to the contracting officer. The contracting officer was then under a duty to verify the bid with Aydin which she failed to do. Accordingly, plaintiff requested an increase in the contract price of $578,879 representing $494,768 in excess material costs, plus $84,111 in general and administrative costs. File: 70 - Aydin Corp v U S.doc, Paragraph with $: One estimate was prepared by the contracting officer, Anna H. Schwartz. This estimate was based on procurement costs of the same type of radio set obtained by defendant from plaintiff in a 1970 procurement. The contracting officer applied a 12 percent inflation rate to the bid unit price of the previous NAVELEX contract with plaintiff and obtained a $162,134 estimate which closely approximated plaintiff\rquote s bid of $158,000 per unit. File: 70 - Aydin Corp v U S.doc, Paragraph with $: is the following notation: \u8220\'3f2 Step IFB FFP, Comp. actual contractor cost approx. $135K ea.\u8221\'3f Plaintiff insists that the NAVELEX estimate should have been based on the \u8220\'3factual contractor cost\u8221\'3f of approximately $135,000 per unit rather than the 1970 Aydin contract price. We do not agree. File: 70 - Aydin Corp v U S.doc, Paragraph with $: We are not unmindful of the fact that plaintiff is here seeking to impute to the contracting officer knowledge of plaintiff\rquote s \u8220\'3factual contractor cost\u8221\'3f for the purposes of making her estimate, and by virtue of this litigation, seeking to relieve itself of its own \u8220\'3festimate,\u8221\'3f the instant bid price, in spite of the fact that plaintiff was, or should have been, in a better position to ascertain its own \u8220\'3factual costs.\u8221\'3f If it is true, in the words of plaintiff\rquote s president, that Aydin \u8220\'3ftook a shellacking\u8221\'3f because in 1970 Aydin bid $103,348 while it cost approximately $135,000 to produce each unit, then the contracting officer could certainly expect from Aydin that it would exercise additional caution in a subsequent bid. The contracting officer cannot be held to a higher standard in making her estimate than the bidder, who for obvious reasons is in a better position to ascertain the facts upon which to base its estimate. Plaintiff does not contend that the 1970 contract price was mistaken in any way, therefore, that price appears to be a reasonable basis for price comparison. The 1970 excess of cost over price was a curious fact, but the contracting officer knew plaintiff had sold subsequent units to various customers since that first 1970 production. She might infer plaintiff had had ample opportunity to learn of any cost pitfalls, and the benefit of the \u8220\'3flearning curve\u8221\'3f would work contrary to inflation. File: 76 - American Ship Bldg Co v U S.doc, Paragraph with $: plaintiff testified that at the time it prepared the bid, it knew it would have to subcontract the CERC system, it introduced no evidence showing it even bothered to consult with Westinghouse or any other specialized electrical firm prior to preparing the bid, as to what the problems might be. Three bids were received, and the contract was awarded to plaintiff on June 6, 1966, at a contract price of $8,382,431. Westinghouse was the CERC subcontractor. Delivery was due 900 days from the date of award, November 24, 1966. However, the Researcher was delivered 511 days late on June 18, 1970. When delivered, the vessel met all of the contract specifications, but at a total asserted cost of $13,155,955.37. Plaintiff claims a total loss of $4,546,383.87, excluding lost profits. File: 80 - Hoel-Steffen Const Co v U S.doc, Paragraph with $: Hoel-Steffen\rquote s contract with GSA amounted to $8,039,692. As a result of Rock Hill\rquote s failure to perform the mechanical portion of the contract for the amount of its original quotation, $3,254,020, plaintiff\rquote s costs were increased $200,000, or roughly less than 2 1/2 percent of the contract price. As a result of the contracting officer\rquote s refusal to allow Condaire to perform in lieu of Rock Hill for the price of $3,300,000, plaintiff\rquote s costs were increased by $154,020, or less than 2 percent of the total contract price. Without determining how much cost increase a contractor must sustain to establish an \u8220\'3fimportant loss,\u8221\'3f as described in Freedman, supra, it seems apparent that a cost increase of $154,020 on an eight million dollar contract does not constitute the \u8220\'3fgrave loss\u8221\'3f contemplated by the court as a predicate to invalidating a contract clause on the basis of public policy. File: 82 - Spencer White And Prentis Inc v US Environmental Protection Agency.doc, Paragraph with $: Regional Administrator of Environmental Protection Agency did not act arbitrarily and capriciously in upholding county\rquote s rejection of all bids for completion of federally subsidized sewer system, and its approval of renegotiated deal with company that had originally undertaken the contract, because renegotiated deal offered county a $4,000,000 savings over what project would cost if disappointed bidder were given job, unavailability of federal funds made such savings desirable, reinstatement of original contractor apparently involved less start-time than that needed by disappointed bidder, and prospect of extensive litigation with original contractor over propriety of county\rquote s earlier termination of contractor and over resultant obligation of surety could be both expensive and risky for county. Federal Water Pollution Control Act Amendments of 1972 (Clean Water Act), \u167\'3f 202, File: 82 - Spencer White And Prentis Inc v US Environmental Protection Agency.doc, Paragraph with $: In 1977 Fitzpatrick-Arundel was awarded a contract by Suffolk to lay sewer pipe for the county\rquote s federally subsidized water pollution control project in Great South Bay, near Islip, New York. As low bidder it agreed to construct the sewer pipe portion of the project for $10,646,000. Defendant Great American Insurance Company was the surety for Fitzpatrick-Arundel\rquote s bid. The sewer pipe was part of a water pollution control project to be constructed for Suffolk\rquote s Southwest Sewer District No. 3 at an estimated cost of $307,600,000, of which.$230,700,000 would be reimbursed by the EPA to Suffolk under the terms of the Federal Water Pollution Control Act, File: 83 - Lincoln Services Ltd v U S.doc, Paragraph with $: Plaintiff was unsuccessful in an effort to obtain a contract from the Naval Facilities Engineering Command, Atlantic Division (NAVFAC-ATL), for the construction of 250 military family housing units at the United States Naval Station, Bermuda and now seeks to recover $150,000 assertedly expended in its proposal effort. Proposal preparation expenses are a cost of doing business that normally are \u8220\'3flost\u8221\'3f when the effort to obtain the contract does not bear fruit. In an appropriate case, however, a losing competitor may recover the costs of preparing its unsuccessful proposal if it can establish that the Government\rquote s consideration of the proposals submitted was arbitrary or capricious. The standards that permit a disappointed competitor to recover proposal preparation expenses are high and the burden of proof is heavy. File: 83 - Lincoln Services Ltd v U S.doc, Paragraph with $: NAVFAC-ATL issued its request for proposals (RFP) for the Bermuda housing project on March 5, 1974. The RFP solicited proposals for a turnkey design and construction contract, in a project programmed to cost $8,650,000 for the 250 units, with a maximum price of $41,490 for the most expensive unit, and an average unit price not to exceed $34,600. Proposals were to be submitted by May 16, 1974. The RFP specified that a NAVFAC instruction File: 87 - Allis-Chalmers Corp Hydro-Turbine Division v Friedkin.doc, Paragraph with $: The second criterion-public interest in avoiding excessive costs-also militates toward affirming the award of the contract to Hitachi. Government contracts are awarded under a competitive bidding process to reward the most cost efficient manufacture and thereby save public funds. Hitachi\rquote s unadjusted bid was almost one million dollars less than Allis-Chalmers\rquote . Even after adjustments that included a twelve percent surcharge on portions of Hitachi\rquote s bid, Allis-Chalmers\rquote proposal still exceeded Hitachi\rquote s by approximately $20,000. Public funds would be saved by awarding the contract to Hitachi. File: 87 - Allis-Chalmers Corp Hydro-Turbine Division v Friedkin.doc, Paragraph with $: In evaluating the submitted bids the bid solicitation authorized the Corps to deduct the cost of model turbine tests if the bidder had conducted such tests previously and submitted sufficient data to enable the contracting officer to judge the acceptability of the prior tests. This was done with Allis-Chalmers\rquote bid and $198,750 was deducted. File: 88 - Venice Maid Co Inc v U S.doc, Paragraph with $: On October 16, 1975, the contracting officer issued his final decision demanding that plaintiff pay the excess costs of reprocurement plus interest. The amount of excess costs has been stipulated by the parties to be $15,321.42, which sum was recovered by setoff in favor of the Government on April 19, 1979. File: 92 - City of Rochester v US Environmental Protection Agency.doc, Paragraph with $: 71. From the date bids were first solicited by Rochester through the date Rochester awarded the contract to PALCO, PALCO employees spent in excess of 2,000 man hours in preparation of its bid. This effort represented the full-time work of at least eleven PALCO employees during a period of approximately three months and cost PALCO in excess of $60,000. File: 94 - Tackett And Schaffner Inc v U S.doc, Paragraph with $: Plaintiff then amended its offer. In a confessed attempt to avoid the bar of the Economy Act, it increased its offer to 7,125 square feet of office space and reduced the rental to $24,937.44 per year, or $3.50 per square foot. However, the amended offer made mandatory an additional charge of $10,800 per year for parking throughout the life of the contract and the number of offered parking spaces was reduced from 45 to 30. Thus, the total cost of the office space and parking under the amended offer was $35,737.44 per year, or $5.01 per square foot. This was about $2,000 per year more than plaintiff\rquote s previous offer. File: 96 - Hercules Inc v U S.doc, Paragraph with $: defense contractors and subcontractors and by relevant federal agencies in estimating, accumulating, and reporting costs of negotiated defense contracts and subcontracts exceeding $100,000. File: 001 - Ultimate Concrete LLC v United States.doc, Paragraph with $: On September 25, 2015, the contracting officer issued a memorandum entitled \u8220\'3fDetermination of Fair and Reasonable Price.\u8221\'3f In that memorandum, the contracting officer determined that Fortis was the lowest bidder, that it submitted a request to correct its bid mistake which was approved, and that this did not affect the total cost of the bid. AR 1414\u8211\'3f1417. The contracting officer also issued another memorandum, titled \u8220\'3fDetermination of Responsibility,\u8221\'3f which concluded that Fortis was a responsible contractor with the ability to obtain adequate financial resources to perform the contract, including average bank deposits in the low 7-figure range and a $5,000,000 line of unutilized credit. AR 1415. Subsequently, on September 25, 2015, the Corps awarded the contract in the amount of $10,023,839.00 to Fortis. The contract included both optional CLINs (0004 and 0007). File: 007 - Kingdomware Technologies Inc v US.doc, Paragraph with $: case proves the point: the contract at issue here concerned complex information technology services over a multiyear period. Moreover, the Department may continue to purchase items that cost less than the simplified acquisition threshold (currently $150,000) through the FSS, if the Department procures them from a veteran-owned small business. See File: 009 - Spectrum Comm Inc v United States.doc, Paragraph with $: Although Spectrum\rquote s proposal came in at a total price $398,614.19 more expensive than that of the contractor with the lowest price, it was evaluated by the Cost/Price Evaluation Team as fair and reasonable. Spectrum\rquote s proposed pricing was below both [General Service Administration] schedule rates and the government\rquote s cost estimate. The Air Force Wideband Enterprise Terminals program is a $1.3 Billion program that depends on its product support team to integrate all program implementation activities in lieu of a prime contractor. The PSS2 contractor must meet an aggressive Joint schedule comprised of 25-30 concurrent projects at 22 global locations. Without top-notch support, this incredibly complex schedule is not achievable. As a Joint schedule, any perturbations also trigger substantial impacts to Army and Navy programs and budgets. This cost differential represents a mere 0.026% of the program\rquote s lifecycle cost. Therefore, I believe securing the superior contracted support justifies this relatively small premium, making Spectrum the best value for the government in supporting this critical program. File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP [Technical Evaluation Panel] is proposing award to candidate, BLM Companies, LLC, with the highest confidence rating and the second lowest contract cost of $112,969,979.00. BLM Companies, LLC\rquote s Present/Past Performance involved the same scope, magnitude and complexity of work required in the solicitation resulting in a rating of Good/Significant Confidence. BLM Companies, LLC\rquote s overall quality of services, scheduling, cost, business relations and management of key personnel was rated excellent. BLM Companies, LLC\rquote s Technical Approach was rated Acceptable, which illustrates their abilities to manage, maintain, and/or preserve HUD-owned properties. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating is worth a higher price than the unknown confidence of [* * *] at a lower price. There is reasonable expectation that BLM Companies, LLC can successfully perform the services and the price differences is not worth the risk of awarding to [* * *] where no confidence rating could be reasonably assigned. File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP is proposing award to candidate, BLM Companies, LLC, with an Acceptable Technical Approach and Good/Significant Confidence rating and the third lowest contract cost of acceptable offerors at a cost of $46,622,975. BLM Companies, LLC\rquote s overall past performance in the quality of service, scheduling, cost, business relations and management of key personnel is rated good. BLM Companies, LLC\rquote s performance involved the scope, magnitude and complexity required in the solicitation and based on this opinion, the offeror was rated \u8220\'3fGood/Significant Confidence\u8221\'3f overall. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating, is worth a higher price than the unknown confidence of [* * *] and [* * *] at a lower price. There is reasonable expectation that BLM Companies, LLC can successfully perform the services and the price difference is not worth the risk of awarding to [* * *] or [* * *], where no confidence rating could be reasonably assigned. File: 016 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP is proposing award to candidate BLM Companies, LLC with an Acceptable Technical Approach, Good/Significant Confidence rating and at a cost of $73, 262,899.00 [sic]. BLM Companies, LLC\rquote s overall past performance in the quality of service, scheduling, cost, business relations and management of key personnel is rated good. BLM Companies, LLC\rquote s performance involved the scope, magnitude, and the complexity required in the solicitation and based on this opinion, the offeror was rated \u8220\'3fGood/Significant Confidence\u8221\'3f overall. BLM Companies, LLC has a good history in servicing and managing REO properties as a subcontractor. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating is worth a higher price than the unknown confidence of [* * *] at a lower price. There is reasonable expectation that BLM Companies, LLC can successfully perform the services and the price difference is not worth the risk of awarding to [* * *] where no confidence rating could be reasonably assigned. File: 030 - Eco Tour Adventures Inc v Jewell.doc, Paragraph with $: , Eco Tour was awarded $36,250 in monetary damages representing reimbursement of the costs it incurred in submitting its bid for the disputed contracts, Judgment, File: 030 - Eco Tour Adventures Inc v Jewell.doc, Paragraph with $: , No. 13\u8211\'3fcv\u8211\'3f532\u8211\'3fLJB (Fed.Cl. Feb. 10, 2014), ECF No. 53. Thereafter, however, the parties jointly agreed and stipulated that Eco Tour should be awarded $36,250 in preparation costs stemming from its unsuccessful bids for the disputed contracts and requested entry of judgment to that effect. Joint File: 035 - Validata Chemical Services v United States Department of Energy.doc, Paragraph with $: According to a declaration submitted by Heather Cloar, the DOE contracting officer for the prime contract, she authorized \u8220\'3fUCOR to enter into competitive firm-fixed-price subcontracts with dollar values of up to $5,000,000 and cost-type subcontracts with dollar values of up to $2,000,000 without seeking\u8221\'3f further consent. Dkt. 22-1 at 1\u8211\'3f2 (Cloar Decl. \u182\'3f\u182\'3f 1\u8211\'3f2). As she further explains, as a result, UCOR \u8220\'3fwas not required to submit its prequalification criteria, its solicitation, or its award documentation to DOE for consent and it did not submit [them] to [her] or anyone in DOE.\u8221\'3f File: 041 - Innovative Test Asset Solutions LLC v United States.doc, Paragraph with $: AR 10\u8211\'3f7364 to \u8211\'3f66. Over the next several months, the Air Force also trained personnel who would be involved in the source selection process, including those who would be responsible for acquisition planning, past performance evaluation, risk management, and drafting instructions to offerors and evaluation criteria. AR Tabs 2\u8211\'3f3, 6, 8. In October 2013, the Air Force received an independent government cost estimate totaling approximately $1.8 billion for the anticipated work to be performed over an eight-year period. AR 9\u8211\'3f7343. The government also obtained a market research report, which concluded that the Test Operations and Sustainment contract should be awarded through a full and open competition because of the \u8220\'3flimited number of companies with the capabilities to manage and execute the broad and diverse requirements of the proposed ... contract.\u8221\'3f AR 10\u8211\'3f7396. File: 041 - Innovative Test Asset Solutions LLC v United States.doc, Paragraph with $: Respecting the cost-realism analysis in the cost-price factor, Innovative Test argued that the Air Force failed to \u8220\'3fmeaningfully account for [Innovative Test\rquote s] proposed innovations and efficiencies.\u8221\'3f AR 148\u8211\'3f29404. Innovative Test asserted that the Air Force \u8220\'3fmechanically compared [Innovative Test\rquote s] proposed costs to a government cost estimate,\u8221\'3f without evaluating Innovative Test\rquote s proposed cost saving initiatives in the context of its demonstrated success under the OMIMS contract. AR 148\u8211\'3f29404 to \u8211\'3f05. Innovative Test contended that this \u8220\'3fmechanical application\u8221\'3f led to misleading and unequal discussions that forced Innovative Test to raise its proposed price by over $[* * *] million to eliminate perceived weaknesses in its Technical Risk ratings. AR 148\u8211\'3f29405 to \u8211\'3f06. File: 041 - Innovative Test Asset Solutions LLC v United States.doc, Paragraph with $: Finally, Innovative Test asserted that, based on all its foregoing protest grounds, the Air Force\rquote s best value determination was flawed. AR 148\u8211\'3f29412. It argued that the \u8220\'3ftradeoff decision\u8221\'3f was based on inappropriate ratings and an inaccurate most probable cost estimate. AR 148\u8211\'3f29412. Innovative Test also contended that the Air Force did not adequately document or justify its decision to award the contract to National Aerospace, given that National Aerospace\rquote s most probable cost estimate was approximately $[* * *] million higher than Innovative Test\rquote s. AR 148\u8211\'3f29413 to \u8211\'3f414. File: 041 - Innovative Test Asset Solutions LLC v United States.doc, Paragraph with $: AR 132\u8211\'3f28384 to \u8211\'3f99 (describing the evaluation notices and adjustments related to the Day One cost savings). Accordingly, Innovative Test had ample opportunity to adjust either its Day One staffing levels or its other cost savings to account for these concerns. In any event, Innovative Test concedes that any adjustment to cost savings for its other innovations and efficiencies would only amount to approximately $[* * *] million, which in the context of an approximately $1.5 billion contract award is insignificant. See Pl.\rquote s Mot. at 44 n.12 (acknowledging that the $[* * *] million \u8220\'3ferror\u8221\'3f could be viewed as non-prejudicial, but asserting it is nevertheless one of many errors in the evaluation). File: 047 - United States v Vergez.doc, Paragraph with $: I. Another aspect of the DODIG audit was an inquiry into the facts and circumstances associated with the approximately $3.67 million that AVB claimed it was owed under the Northrop contract because of costs AVB claimed to have incurred as a result of the conduct of Northrop and FTA. File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with $: On the price factor, the SSA noted that Lockheed\rquote s evaluated contract price was $[* * *] billion. Lockheed had received a life cycle cost credit of $[* * *]; a \u8220\'3fTDP\u8221\'3f ( File: 049 - Lockheed Martin Corporation v United States.doc, Paragraph with $: Oshkosh\rquote s evaluated contract price was $5.587 billion. PI\u8211\'3f1012. It received a life cycle cost credit of $1.527 billion; a TDP Adjustment of $511 million; a \u8220\'3fTier 1 Adjustment\u8221\'3f of $229 million; and a \u8220\'3fSecondary Technical Adjustment\u8221\'3f of $622 million. PI\u8211\'3f1012. This brought Oshkosh\rquote s TEC/P to $2.689 billion. PI\u8211\'3f1013. Thus Oshkosh\rquote s TEC/P was roughly $398 million less than Lockheed. File: 063 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP [Technical Evaluation Panel] is proposing award to candidate, BLM Companies, LLC, with the highest confidence rating and the second lowest contract cost of $112,969,979.00. BLM Companies, LLC\rquote s Present/Past Performance involved the same scope, magnitude and complexity of work required in the solicitation resulting in a rating of Good/Significant Confidence. BLM Companies, LLC\rquote s overall quality of services, scheduling, cost, business relations and management of key personnel was rated excellent. BLM Companies, LLC\rquote s Technical Approach was rated Acceptable, which illustrates their abilities to manage, maintain, and/or preserve HUD-owned properties. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating is worth a higher price than the unknown confidence of [* * *] at a lower price. There is reasonable expectation File: 063 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP is proposing award to candidate, BLM Companies, LLC, with an Acceptable Technical Approach and Good/Significant Confidence rating and the third lowest contract cost of acceptable offerors at a cost of $46,622,975. BLM Companies, LLC\rquote s overall past performance in the quality of service, scheduling, cost, business relations and management of key personnel is rated good. BLM Companies, LLC\rquote s performance involved the scope, magnitude and complexity required in the solicitation and based on this opinion, the offeror was rated \u8220\'3fGood/Significant Confidence\u8221\'3f overall. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating, is worth a higher price than the unknown confidence of [* * *] and [* * *] at a lower price. There is reasonable expectation that BLM Companies, LLC can successfully perform the services and the price difference is not worth the risk of awarding to [* * *] or [* * *], where no confidence rating could be reasonably assigned. File: 063 - Wallace Asset Management LLC v United States.doc, Paragraph with $: The TEP is proposing award to candidate BLM Companies, LLC with an Acceptable Technical Approach, Good/Significant Confidence rating and at a cost of $73, 262,899.00 [sic]. BLM Companies, LLC\rquote s overall past performance in the quality of service, scheduling, cost, business relations and management of key personnel is rated good. BLM Companies, LLC\rquote s performance involved the scope, magnitude, and the complexity required in the solicitation and based on this opinion, the offeror was rated \u8220\'3fGood/Significant Confidence\u8221\'3f overall. BLM Companies, LLC has a good history in servicing and managing REO properties as a subcontractor. The TEP believes that the verified past performance of BLM Companies, LLC with a good confidence rating is worth a higher price than the unknown confidence of [* * *] at a lower price. There is reasonable expectation that BLM Companies, LLC can successfully perform the services and the price difference is not worth the risk of awarding to [* * *] where no confidence rating could be reasonably assigned. File: 070 - Summit MultiFamily Housing Corporation v United States.doc, Paragraph with $: In Counts I through IV, SMHC seeks $4,938,545.46 in damages\u8212\'3fthe amount, according to SMHC, that it earned in fees under the contracts for the work it performed prior to HUD\rquote s rescission; or, in the alternative, $2,304,631.02\u8212\'3fthe amount, according to SMHC, it incurred in costs and expenses, plus its lost profits. 2d Am. Compl. \u182\'3f\u182\'3f 78, 81, 89, 93. In Count V, SMHC seeks $690,106.26\u8212\'3fthe amount it expended in preparing its bid. File: 03 - Burroughs Corp v U S.doc, Paragraph with $: The contracting officer (in Denver) was advised of these circumstances by telephone at about 2:00 p. m. EST on December 31, 1975. Plaintiff\rquote s lowest offer was for an estimated evaluated price of $1,944,561 for a proposed \u8220\'3fsystems life of 65 months.\u8221\'3f Honeywell\rquote s \u8220\'3funcorrected\u8221\'3f cost tables reflected an estimated evaluated price of $1,784,395. The contracting officer by telephone accepted Honeywell\rquote s statement of an arithmetic error of approximately $120,000 and decided that $120,000 would be the maximum change to the cost tables that he would accept. Thus, the contracting officer determined Honeywell had submitted an acceptable offer consisting of the original $1,784,395 stated in its proposal plus the $120,000 indicated in its letter for a total of $1,904,395 ; substantially below plaintiff\rquote s offer of $1,944,561. Honeywell\rquote s corrected cost tables were delivered shortly thereafter at 2:45 p. m. EST. The tables indicated a total estimated evaluated price of $1,877,749, an increase of only $93,354 over the \u8220\'3funcorrected\u8221\'3f cost tables but well within the error of \u8220\'3fapproximately $120,000\u8221\'3f noted in the earlier communication. With the belief he was acting within the authority of Section I.7 of the RFP, File: 03 - Burroughs Corp v U S.doc, Paragraph with $: Offers and Notification of Withdrawals\u8221\'3f) the contracting officer considered the $93,354 change to be a late modification of an otherwise successful proposal which made the proposal more favorable to the Government. Honeywell\rquote s bid was deemed acceptable on the basis of its corrected cost tables (the full value of said correction having been publicly and timely submitted prior to 2:00 p. m. December 31, 1975). File: 03 - Burroughs Corp v U S.doc, Paragraph with $: The two proposals were also evaluated for cost computation accuracy. MESA found that both Burroughs and Honeywell had not computed costs as specified in the RFP and reevaluated the prices as follows: Honeywell at $1,884,874; Burroughs at $1,977,816. The contracting officer awarded the contract to Honeywell on February 10, 1976, as the lowest priced offer which had passed the benchmark tests and was technically acceptable. On June 21, 1976, after it had been installed, the Honeywell system successfully passed the rerun of the benchmark tests as called for by the contract. File: 03 - Burroughs Corp v U S.doc, Paragraph with $: We turn first to plaintiff\rquote s complaint that the contracting officer was arbitrary and capricious by accepting Honeywell\rquote s proposal with its increase of \u8220\'3fapproximately\u8221\'3f $120,000. Plaintiff makes no suggestion at all that the contracting officer was motivated by bad faith in accepting this proposal. Instead, it is clear the contracting officer as shown by his affidavit had sought to avoid the situation of a sole source procurement, for that would have been, realistically speaking, exactly the result if he had excluded Honeywell\rquote s proposal. Sole source procurements are strongly discouraged by the procurement regulations which state that all purchases are to be made on a competitive basis to the maximum practicable extent. 41 C.F.R. s 1-1.301 (1979). As far as the contracting officer knew, the error Honeywell wanted to correct was nothing more than an arithmetic one in a long, detailed and complex set of cost tables. Moreover, since the contracting officer treated the $120,000 \u8220\'3fapproximate\u8221\'3f File: 06 - Sun Ship Inc v Hidalgo.doc, Paragraph with $: to enjoin performance of a Navy contract to design and construct an ocean-going vessel which has a target cost in excess of $100 million. This ship, designated the \u8220\'3fT-ARC 7\u8221\'3f, is to be used for retrieving, repairing and deploying cable along the ocean floor. File: 09 - Allis-Chalmers Corp v Friedkin.doc, Paragraph with $: The District deducted the test costs of $198,750 from Allis-Chalmers\rquote bid and deducted the discounts of $38,070.50. The final evaluated bid of Allis-Chalmers was $3,768,979.50, or approximately $20,000 higher than that of Hitachi. Accordingly, on June 21, 1979 the District recommended to the Section that the contract be awarded to Hitachi. File: 11 - Sun Ship Inc v Woolsey.doc, Paragraph with $: At present, the record does not disclose exactly what occurred in regard to QSD\rquote s cost proposal. However, it appears that QSD submitted the lowest cost proposal to the Navy, at a target price of $97,725,000. QSD was advised after the contract award that the Navy had determined this figure to be unrealistically low by approximately $20,000,000. File: 11 - Sun Ship Inc v Woolsey.doc, Paragraph with $: Plaintiff presents three basic arguments challenging the Navy\rquote s decisions regarding the award of the T-ARC 7 contract. First, Sun Ship argues that the Navy was obliged to award the contract to Sun Ship because its proposal was technically equal to NASSCO\rquote s and was projected by the Navy to cost $5.1 million dollars less. Second, Sun Ship contends that even if the Navy properly declared a \u8220\'3ftie\u8221\'3f between Sun Ship\rquote s and NASSCO\rquote s Technical/Management and Cost Proposals, it exceeded its legal authority and acted irrationally not only in its selection and application of the \u8220\'3ftie breaker\u8221\'3f factors, but also in making a decision without affording an opportunity for discussions and best and final offers. Finally, Sun Ship submits that the Navy was required by statute and regulation to afford all offerors within the competitive range an opportunity for (1) meaningful discussions, and (2) best and final offers. QSD joins only the last of these contentions, arguing that the procurement process should be started anew. In contrast, Sun Ship contends that it should be awarded the T-ARC 7 contract. File: 20 - Churchill Chemical Corp v U S.doc, Paragraph with $: The Board the sustained the Government\rquote s assessment of excess reprocurement costs, in the amount of $50,897.99, against the plaintiff, following the default termination to plaintiff\rquote s contract. Plaintiff\rquote s cross-motion for summary judgment alleges that the Board\rquote s decision File: 20 - Churchill Chemical Corp v U S.doc, Paragraph with $: Items 1 through 5 of the reprocurement were awarded to the lowest reprocurement bidder at a total cost of $46,835.52 or about $19,163.28 more than plaintiff\rquote s initial contract price of these items of $27,672.24. File: 20 - Churchill Chemical Corp v U S.doc, Paragraph with $: Items 10, 13, and 14 of the reprocurement were awarded to the lowest reprocurement bidder at a total cost of $21,681.60 or about $8,354.40 more than plaintiff\rquote s initial contract price of $13,327.20. The plaintiff\rquote s proffered price in its nonresponsive reprocurement bid was $4,430.40 more than the lowest reprocurement bidder\rquote s price, or $12,785 more than its own initial contract price. File: 25 - Dick Corp v Associated Elec Co-op Inc.doc, Paragraph with $: 18. There is no issue between the parties as to the error made by Dick, the substance of that error or the honesty or good faith of either party in connection therewith. The error was one of procedure which caused an omission which was made in the course of preparing the lump sum proposal or bid submitted by Dick. Through inadvertence, when transferring the amount designated as Dick\rquote s bid item for \u8220\'3fplant\u8221\'3f which was the field overhead and general conditions item contemplated by Dick on its plant sheet in the sum of $1,100,000, the number $100,000 was placed on the summary sheet (Plaintiffs\rquote Exhibits 3 and 4). This error resulted in the sum of $1,000,000 not being included in the total bid price. The omission caused the estimated cost of direct labor, material and subcontract work as summarized on the summary sheet to be in error. As a consequence of this mistake, the lump sum proposal or bid of Dick resulted in a $1,000,000 error. File: 27 - American Federation of Labor and Congress of Indus Organizations v Kahn.doc, Paragraph with $: Under the Statement, companies determined by the Council not to be in compliance with the noninflationary pay and price standards are ineligible for federal government contract awards anticipated to exceed $5 million, unless noncompliance is waived by the government. If after an award it is determined that a contractor was willfully not in compliance with the voluntary standards when he certified otherwise, the contract may be terminated or the contractor required to accept an equitable reduction of the contract price or cost allowance and profit or fee. The contractor must require a certification of compliance with the pay and price standards before awarding any first tier subcontract that exceeds $5 million. File: 29 - Toyo Menka Kaisha Ltd v U S.doc, Paragraph with $: The district court found that the cost of loading rice at the commercial pier would be $34.41 per ton. The effect to Toyo\rquote s condition was that if the rice were loaded from a commercial pier, Toyo\rquote s expenses would have been about $28,300 less than those of the completing bidders. This represented more than one-half of the difference of $51,437 between the bids of Toyo and Ambyth. Moreover, under the contract actually signed, Toyo\rquote s limitation on the charges it would pay for fobbing enabled it to exceed Ambyth\rquote s bid by over $62,000. File: 29 - Toyo Menka Kaisha Ltd v U S.doc, Paragraph with $: One of them may have been even more onerous to the government than the earlier proposal. Toyo originally had stated that it would pay fobbing charges of no more than $5 per ton if the rice were shipped from the naval pier and of no more than $20.94 if the commercial pier were used. The contract ultimately signed did not contain the latter qualification but provided only that the government was to pay all fobbing charges above $5 a ton. Thus, under the contract, apparently the government would have had to pay the difference between $5 and the $34.41 the district court found would be the cost of loading at the commercial pier, or $29.41. For the 2,134 tons of rice the contract covered, this would have totaled $62,760, or approximately $11,300 more than the difference between Toyo\rquote s and Ambyth\rquote s bids. File: 31 - T M Systems Inc v US.doc, Paragraph with $: Action for injunction restraining contracting officer of Federal Aviation Administration from granting certain government contract to anyone but plaintiff bidder was not an action for damages, but, even if it were, plaintiff\rquote s claim, unless he claimed only recovery of costs of bid preparation, exceeded $10,000, and thus jurisdiction was not proper in district court under statute, which gives district court concurrent jurisdiction with Court of Claims over claims against United States not exceeding $10,000. File: 32 - Bromley Contracting Co Inc v U S.doc, Paragraph with $: In Chris Berg, the court defined the meaning of the \u8216\'3fclear and convincing\u8217\'3f standard. In that case, the evidence reflected that the contractor had \u8216\'3frounded off\u8217\'3f its original cost plus markup figure of $618,128 to $616,000 for bidding purposes. Faced with the fact that certain mistakes had resulted in the omission of costs totaling $41,121, the Government argued that the \u8216\'3fgross reduction\u8217\'3f of $2,128 in the contractor\rquote s original bid made it difficult to determine to what extent the bidder would have relied on the correct costs to bid any specific higher amount. The court stated: File: 32 - Bromley Contracting Co Inc v U S.doc, Paragraph with $: Plaintiff has established that its original estimated costs for the contract amounted to $300,530. Defendant has introduced a number of figures, ranging from $298,434 to $313,576, which, it asserts, might have been the total original bid figures of the plaintiff. Therefore, defendant contends that because of plaintiff\rquote s \u8216\'3flackadaisical and unpredictable method\u8217\'3f of preparing and submitting bids, it is impossible to determine plaintiff\rquote s intended bid absent the mistake even within the relatively narrow range permitted by Chris Berg. That plaintiff may have been careless in preparing its bid is not at issue. See File: 32 - Bromley Contracting Co Inc v U S.doc, Paragraph with $: From that figure there must be subtracted $19,045, the cost ($14,650) plus 30 percent markup amount $4,395) for the Item C work not performed by plaintiff. This yields a reformed contract price of $368,389. File: 34 - Glover Const Co v Andrus.doc, Paragraph with $: Government vigorously contends that its interpretive preference, which led to the grant of the non-competitive award of the roadway construction project to Indian Construction is based upon the Remedial aspects of the Buy-Indian Act, to-wit: Furtherance of a \u8220\'3f. . . longstanding and important component of the Government\rquote s Indian policy designed to enable Indians to obtain jobs without having to compete on equal terms with non-Indians.\u8221\'3f (Brief of Appellants, p. 9.) We recognize that the remedial Buy-Indian Act is to be given a liberal construction in order to effectuate the purpose for which it was enacted. Sutherland, Statutory Construction, 4th Ed., Vol. 3, s 60.01. Even so, we believe that it strains the most liberal interpretation to conclude that the Act\rquote s preference for purchase of \u8220\'3fIndian supplies\u8221\'3f and \u8220\'3fproducts\u8221\'3f applies to a roadway reconstruction project whose contract price, through Indian Construction, is $1,219,481.00. The strain is the more \u8220\'3fpainful\u8221\'3f when we consider that the Government engineer\rquote s estimate for the project was $963,117.48 and that Glover completed the first five miles of the reconstruction project, under normal competitive bidding procedures, for $538,000.00. While we do not represent or pretend that these comparative figures control in determining the reasonableness of the Indian Construction non-competitive contract price of $1,219,481.00, we do observe that a primary, significant Remedial feature of the advertisement and competitive bidding requirements of the Federal Property and Administrative Services Act of 1949 is to obtain the best and lowest bid for the benefit of the American taxpayers in \u8220\'3fhigh cost\u8221\'3f construction categories. In that sense we observe that this Court has held that a statutory exception should be strictly construed so that the exception does not devour the general policy which the law embodies. File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with $: regarding total set-asides, provides: \u8220\'3fAll proposed procurements for construction anticipated to cost between $2,000 and $1,000,000 will be considered as though S.B.A. had initiated a set-aside request. * * * \u8221\'3f Where such proposed procurements are anticipated to cost more than $1 million, the determination whether the project should be designated as a total set-aside must be made on a contract by contract basis in accordance with section 1-1.706-5(a) of the Federal Procurement Regulations, 41 C.F.R. s 1-1.706-5(a). That section provides: File: 35 - John W Danforth Co v Veterans Administration.doc, Paragraph with $: The VA originally estimated the total cost of the boiler replacement contract at $1.5-2.5 million. Such estimate was later revised to $2.8-3.3 million. File: 37 - American General Leasing Inc v U S.doc, Paragraph with $: of lost net profits for the breach of an alleged express oral contract. As an alternative, Infodyne alone seeks $65,400 in damages (bid preparation costs) for the alleged and capricious cancellation of the solicitation in question. In response, the Government has moved for summary judgment as to both claims and, in addition, asked for leave to amend its original answer. File: 38 - Southern Packaging and Storage Co v US.doc, Paragraph with $: 5. Southern Packaging employs 551 workers, 84% Of whom live in Marion County, South Carolina. Ninety percent of these employees are black and 87% Are female. Many of these employees are illiterate and the vast majority are unskilled. Costs attributable to labor account for 55% Of the cost of production. Under previous M.C.I. contract solicited under the Walsh-Healey Act, Southern Packaging produced at a per carton cost of $1.45. The plaintiff\rquote s per carton cost under the proposed minimum wage rate, as determined pursuant to the Service Contract Act, would be $3.00. The total contract cost would increase from approximately 3 million dollars to 8 million dollars, if the M.C.I. solicitation is governed by the Service Contract Act and the proposed nationwide minimum wage rate. The proposed minimum wage would increase one-half plaintiff\rquote s employees wage by 75% 100% And the remainder by 50% 75%. File: 43 - Trilon Educational Corp v US.doc, Paragraph with $: This case, before the court on cross-motions for summary judgment, concerns a naval procurement contract. Defendant cancelled it, six weeks after award, for nonresponsibility of the contractor. Plaintiff seeks recovery of costs incurred in preparing to perform and anticipatory profits, totaling $58,000. Defendant disclaims all liability on the ground that plaintiff\rquote s nonresponsibility rendered the contract void. File: 44 - American Elec Contracting Corp v U S.doc, Paragraph with $: Accordingly, plaintiff ordered and installed the Viking receptacles and later submitted a claim for $51,874, representing the asserted difference in cost between the Crouse-Hinds and Viking receptacles plus a cancellation charge levied by ESD. The claim was denied by the contracting officer. File: 45 - Cessna Aircraft Co v Brown.doc, Paragraph with $: An affidavit by Harold J. Hart, Jr., filed here on behalf of the Navy, states Inter alia that it is estimated that the cost to the Navy of operating the planes which the CTX aircraft are to replace is $12,000 per day more than the cost of operating the Beech C-12; that due to provisions in the Beech contract adjusting the price in accordance with changes in certain economic indicators, each day of delay increases the cost of the CTX program by $14,000; that delay in the replacement of the aircraft now in use increases the safety hazard to Navy personnel; and that were it necessary for the Navy to stop work on the Beech contract for more than 90 days, the Navy would be exposed to a breach of contract action or would have to terminate the contract at an estimated cost of $2,000,000. File: 48 - Shermco Industries Inc v Secretary of US Air Force.doc, Paragraph with $: Unsuccessful bidder on government contract and its president sued Secretary of Air Force seeking release of certain documents under Freedom of Information Act and the Privacy Act. The District Court, Robert W. Porter, J., held that: (1) corporation lacked standing under Privacy Act; (2) since corporate president was seeking information in his entrepreneurial capacity he also lacked standing under Privacy Act; (3) since government did not timely respond to initial request or timely decide appeal, plaintiffs were not required to exhaust FOIA administrative remedies; (4) decision to award contract to another was a \u8220\'3ffinal opinion\u8221\'3f for purposes of FOIA, notwithstanding pendency of protest; (5) otherwise exempt legal opinions of judge advocate were required to be produced where they were sent to GAO in support of Air Force\rquote s response to the protest; (6) contractors\rquote cost proposals were not exempt from disclosure as specifically exempted by statute or as trade secrets of a privileged and confidential nature; (7) search fees of $5.50 per hour and reproduction costs of $2.00 for the first six pages and five cents for each additional page were reasonable, and (8) plaintiffs were entitled to award of attorney fees. File: 50 - Tidewater Management Services Inc v U S.doc, Paragraph with $: Plaintiff, an unsuccessful bidder on a contract awarded by the U.S. Navy, seeks damages in the amount of $1,664, consisting of its bid preparation costs, occasioned by the Government\rquote s alleged breach of its obligation to consider plaintiff\rquote s reply to a solicitation of bids with fairness and honesty and in compliance with applicable statutes and regulations and the terms of the solicitation. In an unbroken line of cases, this court has recognized its jurisdiction of an action such as this one based on an implied contract which obligates the Government to deal lawfully and in good faith with those who respond to its requests for bids or proposals. See File: 66 - Firestone Tire And Rubber Co v U S.doc, Paragraph with $: Since it was generally recognized that this was a higher cost shoe than the earlier version, it is significant to note that on a net basis plaintiff bid 12 cents a shoe less than the price of its last contract using 1345 steel, n. 4, supra. That the bid could have been so low in the face of contrary cost considerations was explained by the testimony of the Manager of Firestone\rquote s Government Contracts Division in terms of a general company policy under which the reference point for bid pricing purposes is the prior successful bid, in this case Standard\rquote s bid of $13.798 on the initial procurement. File: 71 - Union Carbide Corp v Train.doc, Paragraph with $: An affidavit submitted by the Contractor indicates that construction of the Facility commenced in May, 1976; that throughout the ensuing months it has been working closely with APC in planning construction of the oxygen producing facilities; that although much of this work was done at APC\rquote s own risk pending the determination of UC\rquote s protest by the EPA, a final contract was executed on November 30th (four days after this action was commenced but three days before the return date of the order to show cause); and that construction of the building which will house the oxygen facility has begun, and cannot continue without a further supply of information from APC to the Contractor. APC had committed $375,000 to the Facility as of the commencement of this suit. Shipments are scheduled to occur and payments to come due within the coming month. APC is utilizing the efforts of 60 engineers in the planning and oversight of the project. (Oeler Affidavit, December 3rd, at PP 17, 18, 19) The effect of delay in their work and in the work of those similarly employed in the engineering organizations of APC\rquote s major equipment suppliers will obviously be to increase costs to each of the individual organizations involved, and ultimately, perhaps, to the tax-paying public. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: Review was sought of a decision of the Armed Services Board of Contract Appeals which adopted, with modifications, the opinion of the Trial Judge, John P. Wiese, J., upholding the right of a contracting officer to require the submission of cost data from a contractor in support of a proposed catalog price for a commercial item being purchased by the Government on a negotiated procurement basis. The Court of Claims, Bennett, J., held that the statutory language, that requirements for submission of cost and pricing data \u8216\'3fneed not be applied\u8217\'3f to contracts where the price negotiated is based on established catalog or market prices of commercial items, envisioned no mandatory exemption from cost disclosure; that the contractor\rquote s intracorporate selling price of $138.78 per unit for the item in question was a factor sufficient by itself to justify the contracting officer in rejecting the contractor\rquote s proposed catalog price of $351; and that the fact that the Government had previously and subsequently consented to pay the catalog price without demanding submission of cost data had no effect on the reasonableness of the contracting officer\rquote s decision to insist on submission of cost data in the instant case. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: Evidence, in price dispute proceedings before Armed Services Board of Contract Appeals, supported finding that parties contemplated that if Board rendered decision adverse to contractor on severed issue regarding contractor\rquote s entitlement to payment of its proposed catalog price of $351 per unit without having to furnish supporting cost data, further litigation on issue of reasonableness of Government contracting officer\rquote s proposed $204 price would ensue. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: Statutory obligation of government contractor to furnish cost and pricing data applies to every negotiated procurement where amount involved is expected to exceed $100,000 and statutory language that requirement for submission of cost and pricing data \u8220\'3fneed not be applied\u8221\'3f to contract where price negotiated is based on established catalog or market prices of commercial items sold in substantial quantities to general public envisions no mandatory exemption from cost disclosure; there is no basis for assuming that words \u8220\'3fneed not be applied\u8221\'3f should be read to say \u8220\'3fshall not be applied.\u8221\'3f File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: Government contractor\rquote s intracorporate selling price of $138.78 per unit for commercial item being purchased by Government on negotiated procurement basis was factor sufficient by itself to justify government contracting officer in rejecting contractor\rquote s proposed catalog price of $351 and insisting instead, upon substantiating cost data. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: envisions no mandatory exemption from cost disclosure as applied to the negotiated purchase of a catalog-priced item ordered under a basic ordering procurement where, as here, the amount involved is expected to exceed $100,000. ASPR 3\u8211\'3f801.1 observes that sound pricing depends primarily upon the exercise of sound judgment, and the decision to contract at a particular price\u8212\'3fa responsibility resting with the contracting officer alone\u8212\'3fis inherently a judgmental process demanding broad discretion. In the last analysis, the contracting officer must satisfy himself that the negotiated contract price is reasonable. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: On December 15, 1971, the order which eventually gave rise to this litigation was issued. It was an unpriced order calling for delivery of 660 model ML\u8212\'3f1 remote compass transmitters, also sometimes referred to in the trade as flux valves. This is an electrical induction sensing device which measures the earth\rquote s magnetic field and it is used primarily in aircraft as part of a directional gyrocompass system. There had been three previous unpriced orders for ML\u8212\'3f1 transmitters processed under the instant contract and on each of these past occasions the contractor had proposed and was paid its then current catalog price for the item. However, in this instance, the then newly assigned contracting officer declined to accept the contractor\rquote s proposed price, namely, its catalog price of $351 per unit, and asked instead for substantiating cost data. This data the contractor declined to furnish. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: There followed an extensive written exchange of views as well as negotiations between the parties, all of which proved fruitless. Thereafter, the contracting officer-whose initial request for cost data had, in the interim, been specifically approved by his superior-issued a final decision, which unilaterally established a price for the ML-1 at $204, and set forth specific reasons for the rejection of the contractor\rquote s proposed price of $351. These reasons, which were repeated among the board\rquote s own later findings in the matter, were the following. First, the catalog price of the ML-1 (i. e., the proposed price) was not an acceptable pricing criterion to the Government because that unit had not been sold in substantial quantities to the general public. Second, the proposed price of the ML-1 could not be considered to be \u8216\'3fbased upon\u8217\'3f the established catalog price of the functionally comparable File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: Before the board plaintiff requested and was granted a severance of the issues in the case. As a result of the severance, the board hearing and decision was limited to the question of plaintiff\rquote s entitlement to payment of its proposed catalog price without having to furnish supporting cost data. Postponed to a future date were the proceedings that would determine, at defendant\rquote s behest, the price payment to which plaintiff was entitled should it have been decided, in the first board decision, that plaintiff was required to furnish the cost data in support of its proposed price upon request of the contracting officer. Plaintiff sought this severance for the highly practical reason that it would need to bring in the cost data to counter a separate challenge by defendant to the contracting officer\rquote s decision that $204 was a reasonable and fair price, and yet, in plaintiff\rquote s counsel\rquote s words, \u8216\'3fif we are to put in cost data at this time to meet the Government\rquote s objections with regard to the contracting officer\rquote s finding as to reasonable price, we moot the appeal (on the need to furnish cost data at all).\u8217\'3f When plaintiff received the board File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: the court finds against plaintiff on all the issues presently appealed from the board\rquote s decision, the case must return to the board for a determination of defendant\rquote s objections to the $204 price, then to be considered, of course, in light of the plaintiff\rquote s disclosed cost data. Plaintiff counters that it has a right to stand on the contracting officer\rquote s $204 price, which it expresses a willingness to do if it does not succeed in persuading the court on the catalog price issue, and accordingly opposes reopening the contracting officer\rquote s price decision. Since we resolve the issues in defendant\rquote s favor in part IIB, infra, it becomes necessary for us to address the effect of the severance of issues on defendant\rquote s entitlement to the price redetermination that it seeks. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: First of all, we think it important to note what the parties are not contending. No issue is raised regarding the Government\rquote s right to question before the board its own contracting officer\rquote s decision that, even lacking the supporting cost data he previously requested of plaintiff and was refused, he had sufficient information available to him to determine that $204 was a fair and reasonable price for the ML-1. It is not contended that, by operation of law, plaintiff\rquote s recovery may not File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: assuming a settlement was not reached in the meantime\u8212\'3fthe correctness of the $204 price, and would do so with plaintiff\rquote s ML\u8212\'3f1 cost data in hand. Plaintiff\rquote s counsel plainly acknowledged that the \u8216\'3fGovernment has also put into issue, as is their right, the other finding of the contracting officer in terms of reasonable price.\u8217\'3f He then asked for the severance of the catalog price issue from the Government\rquote s challenge to the $204 price in order to avoid bringing in the supporting cost data to defend against the Government\rquote s challenge even as he was arguing that that data need not be furnished at all, as a matter of law. The Government counsel before the board responded that he had no objection to the severance stating: File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: This statement is hardly a stipulation that the litigation may end once plaintiff is informed that it may not withhold its cost data from the Government. Defendant clearly looked forward to arguing before the board, in the absence of a compromise settlement, that the cost data, perhaps together with the information that the contracting officer had in his possession, points toward a unit price other than $204. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: that a new decision from the contracting officer would not be sought. In light of the parties\rquote s general understanding that the Government\rquote s challenge to the price determination was part of the appeal, the examiner could not have meant to say that a further decision could not be sought from the board on the Government\rquote s challenge, once the cost data were released and a settlement not reached. The examiner went on to state that \u8216\'3fif the board did render a decision adverse to the Appellant on that (the catalog price) issue it would stand as a preliminary decision reducing the issues on the appeal and the appeal could simply stand in suspense, pending arrangements for disposing of the second problem (the Government\rquote s objection to the $204 price).\u8217\'3f Further litigation on the price reasonableness issue, making use of the disclosed cost data, was thus clearly contemplated. File: 72 - Sperry Flight Systems v U S.doc, Paragraph with $: action that was taken by the contracting officer in rejecting the contractor\rquote s proposed price. Given the two figures which the contracting officer had before him\u8212\'3for, more to the point, the disparity between the two figures\u8212\'3fit was altogether appropriate that he should decline to accept the proposed catalog price of $351 and insist, instead, upon substantiating cost data. Clearly, without the benefit of such data, the contracting officer would have been hard pressed to accept as reasonable a price to the Government that was fully two and one-half times greater than the seller\rquote s own indicated purchase cost. This is not to say, of course, that the price differentials might not have been entirely justifiable; there well might be appropriate justifications. We mean only to say that, given the circumstances, an explanation was clearly called for and the contracting officer was well within his rights under the regulations quoted above, in asking for the contractor\rquote s cost data. File: 79 - Tony Downs Foods Co v U S.doc, Paragraph with $: needed by plaintiff to fulfill its contract and upon which plaintiff had computed its bids rose. After the termination of the price freeze, plaintiff\rquote s cost per pound for turkey rose from $.5051 to $.6970. Plaintiff\rquote s chicken costs increased from $.3728 to $.57 per pound. File: 79 - Tony Downs Foods Co v U S.doc, Paragraph with $: In its petition, plaintiff divided its claim(s) into two counts. Count I deals with plaintiff\rquote s July contract and seeks recovery of excess performance costs in the amount of $209,204.55. Count II seeks recovery of $102,805.29 for losses plaintiff sustained on its June contract. For chronological purposes, plaintiff\rquote s respective counts will be treated in reverse order. File: 82 - Brown v U S.doc, Paragraph with $: according to the different craft skills that were required to complete them. No matter how many bids were received by the AMB, the applicable HUD policies prohibited any contractor from receiving more than one craft job on each FHA property. Pursuant to the language of the AMB contract, Berg Realty Company was authorized to \u8216\'3fprocure * * * such supplies, materials, equipment, and services * * * as may be necessary for the maintenance, repair, and operation of the project where the cost of a single item or total cost of a series of related items * * * does not exceed $2,500.00.\rquote File: 82 - Brown v U S.doc, Paragraph with $: Therefore, the primary question is whether the evidence presented to the court demonstrates that the alleged instructions, if given, were \u8216\'3fauthorized\u8217\'3f by defendant. From the record, we have determined that such instructions as described in plaintiff\rquote s third claim would clearly have been unauthorized and therefore that plaintiff\rquote s claim must fail. First, such an instruction would have been in direct contravention of the AMB contract between HUD and Berg Realty Company, which authorized the latter to procure supplies, equipment and services only if their cost did not exceed $2,500. The purchase orders involved in this File: 82 - Brown v U S.doc, Paragraph with $: claim show a total cost for the related items involved of $8,748, an amount far in excess of the $2,500 ceiling. Furthermore the contract mandates that, if it becomes necessary to purchase File: 83 - Bethlehem Steel Corp v U S.doc, Paragraph with $: Our 1970 decision details the controversy as it had evolved up to that time and we need not repeat it all here. Briefly, Bethlehem had built five Navy destroyers under two fixed price contracts, Nobs\u8212\'3f3556 and 3648, both of which contained clauses allowing for labor and material escalation, but enabling the Contracting Officer to deny any upward adjustment thereunder in whole or in part, if he found that it was not required to enable the Contractor to earn a fair and reasonable profit under the contract, Art. 6, Par. (e). After full performance, plaintiff claimed $3,347,000 escalation under Nobs\u8212\'3f3556 and $2,404,900 under Nobs\u8212\'3f3648. The latter claim has now been allowed by the Board in its entirety and having been dismissed is not before us for review. The original Board decision allowed $1,064,151 under Nobs\u8212\'3f3556 making a total profit of 5% of costs. The Board\rquote s theory was that plaintiff had agreed to a limit of 5%. We were unable to find evidence of agreement to that limit. Further, the Board had determined the level of reasonable profit without reference to the published guidelines of the Department of Defense which told how contract clauses limiting contractors to reasonable profit levels (hereinafter, profit limitation provision) were to be interpreted and applied. File: 83 - Bethlehem Steel Corp v U S.doc, Paragraph with $: When plaintiff\rquote s contracts were completed (the last of the five destroyers was delivered on February 26, 1958), plaintiff sought from the contracting officer labor and material escalation costs of $3,347,500 on Nobs\u8212\'3f3556 and $2,404,900 on Nobs\u8212\'3f3648. In neither case was the amount of the escalation costs in dispute, but the contracting officer refused to permit recovery of any of those costs on the basis that such adjustment was unnecessary \u8216\'3fto enable the Contractor to earn a fair and reasonable profit.\u8217\'3f Article 6(e), supra. If the decision of the contracting officer had stood, plaintiff\rquote s profit on the two contracts would have been 3 percent and 2.3 percent of cost, respectively; the full escalation sought by plaintiff, on the other hand, would result in profit margins of 9.3 percent and 9.6 percent. File: 84 - Rossetti Contracting Co Inc v Brennan.doc, Paragraph with $: \u8216\'3fNo contracts or subcontracts shall be awarded for Federal and Federally-assisted construction in the Chicago, Illinois SMSA on projects whose estimated cost exceeds $500,000 unless the bidder completes and submits, prior to bid opening, the document identified as Appendix A, . . . or a substantially similar document, which shall include specific goals of minority manpower utilization for each trade designated therein which will be used by the contractor on all of his work (both Federal and non-federal) within the Chicago SMSA during the term of his performance of the contract, such goals to be established by the contractor at least within the ranges set forth in Appendix A.\u8217\'3f 41 C.F.R. 60-11.21(a). File: 85 - Rossetti Contracting Co Inc v Brennan.doc, Paragraph with $: (a) No contracts or subcontracts shall be awarded for Federal and Federally-assisted construction in the Chicago Illinois SMSA on projects whose estimated cost exceeds $500,000 unless the bidder completes and submits, prior to bid opening, the document identified as Appendix A, notice of requirement for submission of affirmative action plan to insure equal employment opportunity or a substantially similar document, which shall include specific goals of minority manpower utilization for each trade designated therein which will be used by the contractor on all of his work (both Federal and nonfederal) within the Chicago SMSA during the term of his performance of the contract, such goals to be established by the contractor at least within the ranges set forth in Appendix A. File: 89 - Luce v U S.doc, Paragraph with $: The plaintiff is a disappointed bidder on a Government contract to supply security guard services for the Los Angeles Air Force Station, Los Angeles, California, for a 3-year period, July 1, 1972, through June 30, 1975, and sues here to recover the cost of preparing his bid. This project was initially proposed as a 100 percent small business set aside which was limited to firms with total annual sales in the previous fiscal year of less than $5 million. Later the size standard was reduced to $1 million, but because of the reduction in competition this would cause, the small business set aside was deleted from the Request for Bids. File: 91 - Descomp Inc v Sampson.doc, Paragraph with $: from being awarded on February 4, 1974 as scheduled until the wage determination issue had been settled. Later Descomp amended its complaint to seek a declaration that the Act is inapplicable to a contract for keypunch services and also asked for damages of $3,600 in bid preparation costs, $3,000 for the expenses involved in prosecuting its protests, and $3,000 in attorney fees. Descomp alleged jurisdiction under File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: Action was brought against United States by secondary dealer in copper, challenging award by Armed Services Board of Contract Appeals of only $250 as allowable costs on Government\rquote s termination for convenience of contract to sell copper ingots to the Navy, and also challenging the dismissal of breach of contract claim. On motion of the United States, the Court of Claims, in a per curiam opinion adopting the recommended decision of trial judge David Schwartz, held, inter alia, that (1) finding and conclusion that no oral contract was concluded or implied in fact between the parties relative to an additional 440,000 pounds of copper ingot set aside for specially qualified bidders was amply supported by the evidence, and (2) Government\rquote s termination for convenience of the contract was not an act of bad faith and was permissible under convenience-termination clause providing for termination \u8216\'3fwhenever the contracting officer shall determine that such termination is in the best interest of the Government,\u8217\'3f where the termination was effected in order to buy elsewhere at a cheaper price, notwithstanding the fact that the Government contracting officer, who was not shown to have acted maliciously, knew of the better price elsewhere at the time he awarded the contract to plaintiff. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: In suit brought against United States by secondary dealer in copper challenging award by Armed Services Board of Contract Appeals of only $250 as allowable costs on Government\rquote s termination for convenience of contract to sell copper to Navy, Board\rquote s finding and conclusion that no oral contract was concluded or implied in fact between the parties relative to an additional 440,000 pounds of copper ingot set aside for specially qualified bidders was amply supported by the evidence, including testimony that navy officer with whom dealer spoke was only a procurement officer, not a contracting officer, that he did not pretend to any higher authority, that he referred to necessary prior approval at a higher level. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: Difference between Government contract price of $.7838 per pound for copper ingot which was to be supplied by plaintiff, and plaintiff\rquote s own purchase price of $.7225, constituted anticipatory profit within meaning of regulation, incorporated into contract clause on convenience termination, providing that anticipatory profit would not be allowed in the settlement of termination costs, since the \u8220\'3fprofit\u8221\'3f was unearned, unrealized and contingent on the completion of the transaction, notwithstanding plaintiff\rquote s claim that its lost profit was fixed and certain once it had placed its order to buy the copper at $.7225. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: This is a suit to review a decision of the Armed Services Board of Contract Appeals awarding $250 on plaintiff\rquote s claim for $123,059 as the allowable costs on the Government\rquote s termination for convenience of a contract to sell copper ingot to the Navy. A second count raises the claim, dismissed by the Board as beyond its jurisdiction, that the termination-for-convenience clause was invoked for an improper purpose and therefore constituted a breach of contract. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: Before the Board, plaintiff claimed, as Its lost profit on the contract with the Government, the difference between the contract price of $.7838 and its purchase price of $.7225, or $.0613 per lb. times the contract quantity, and as its costs or loss on the settlement of the Ferer contract, an additional $.0635 per lb., the difference between its purchase price from Ferer of $.7225 and $.6590, the market price of copper on the day of the cancellation and reorder. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: been retained for plaintiff\rquote s own account; that there was no evidence of a loss or of a settlement of a subcontractor\rquote s claim allowable in a termination settlement; and, generally, that plaintiff had failed to meet its burden of proof of any costs beyond the $250 allowed by the termination contracting officer. These rulings were correct and are adopted. File: 93 - Colonial Metals Co v U S.doc, Paragraph with $: The regulation incorporated into the contract clause on convenience-termination provides that anticipatory profits shall not be allowed in the settlement of termination costs. ASPR 8\u8212\'3f303(a), 32 CFR \u167\'3f 8.303(a) (1970). Plaintiff would avoid the regulation by a contention that its lost profits were not anticipatory but rather fixed and certain. Once it had the award of the contract to sell copper to the Government for $.7838 and had placed the order with Ferer to buy at $.7225, plaintiff says, the profits were fixed and certain\u8212\'3f\u8216\'3fonly the date of payment was anticipatory.\u8217\'3f File: 98 - M-R-S Mfg Co v U S.doc, Paragraph with $: Based on the report of the second auditor, the contracting officer decided that the two types of allegedly defective data showed a failure to disclose accurate, complete, and current cost data as required by the Truth in Negotiations Act. The duplication and the defective labor cost data were found to have resulted in a total cost overstatement of $176,845 on Contracts C976 and 8006. For overstatement due to the duplication, $23,028 was allocated to Contract C976, and $27,907.50 was allocated to Contract 8006. The overstatement from defective labor cost data was allocated $57,300 to Contract C976 and $68,610 to Contract 8006. On appeal to the Board, the parties stipulated that the plaintiff understated its costs on the two contracts by a total of $32,215. The Board upheld the contracting officer\rquote s decision File: 99 - Emeco Industries Inc v U S.doc, Paragraph with $: Following the bid opening, defendant on October 16, 1969, requested a plant inspection report to determine if plaintiff\rquote s facilities were capable of producing the entire 31,896 boxes within the time specified by the solicitation. The inspection was completed on October 24, 1969, and the report indicated that plaintiff was capable of performing the contract within the 70 days required by the contract, notwithstanding that plaintiff had never manufactured index card boxes before. The report further noted that plaintiff had made arrangements to purchase four dies, at a total cost of $10,300, which were essential in order for it to manufacture the boxes. The dies were to be delivered within 30 days after defendant had approved plaintiff\rquote s preproduction sample. File: 99 - Emeco Industries Inc v U S.doc, Paragraph with $: Furthermore, defendant was aware that plaintiff had never manufactured boxes before and that it was necessary for it to purchase dies at a cost of over $10,000 in order to be able to perform the contract. This is of particular importance since it is inconceivable that plaintiff would have incurred such an expense if it had known that it would only receive an $8,247.52 award. File: 99 - Emeco Industries Inc v U S.doc, Paragraph with $: Defendant obviously also knew that plaintiff\rquote s bid of $3.04 per box was an average that took into consideration the costs for manufacturing the 31,896 boxes, and, as well, the costs involved in shipping the boxes to the 1,500 addresses. It also goes without saying that defendant must have known that the Navy\rquote s portion of the solicitation, which called for 2,713 boxes to be sent to some 1,355 destinations, was the most costly and the least desirable segment of the contract. File: 99 - Emeco Industries Inc v U S.doc, Paragraph with $: At the time plaintiff received the $8,247.52 order for the 2,713 boxes, it was unaware of Art Steel\rquote s bid. In addition, the Government had concluded an on-site inspection, which is not normally done where contracts of less than $10,000 are involved. Further, defendant knew that plaintiff, not previously having manufactured such boxes, would have to purchase dies that cost several thousand dollars more than the $8,247.52 award. Under these circumstances alone, it was reasonable for plaintiff to conclude that the 2,713 box award, which dealt solely with the Navy\rquote s requirements, was only the first of several orders, and that it would shortly receive orders for the Army, Marine and Air Force requirements. File: 01 - Sylvania Elec Products Inc v U S.doc, Paragraph with $: In 1966, as a result of events not relevant to this case, the General Accounting Office (GAO) opened an inquiry into plaintiff\rquote s compliance with the Truth in Negotiations Act. The GAO found that the contract price of $4,614,000 had been increased by significant sums because plaintiff had failed to disclose to the Government accurate, complete and current cost and pricing data. The GAO report further found that proper disclosure before final price negotiations would have revealed plaintiff\rquote s use of incorrect quantities in computing the cost of some parts and components, and the use of noncurrent price quotations in computing the cost of others. On the basis of these findings, the GAO recommended that the Government seek a downward adjustment of $254,000 in the contract price. Accordingly, on August 28, 1968, the Air Force contracting officer ordered the contract price reduced by $254,304. This figure represented defective pricing under the Truth in Negotiations Act as follows: File: 01 - Sylvania Elec Products Inc v U S.doc, Paragraph with $: cost-reimbursement type, price redeterminable, or incentive subcontracts hereunder, and in any other subcontract hereunder in excess of $100,000 unless the price is based on adequate price competition, established catelog or market prices of commercial items sold in substantial quantities to the general public, or prices set by law of regulation. * * * (Emphasis added.) File: 03 - Dale Ingram Inc v U S.doc, Paragraph with $: In the alternative, plaintiff contends that the contract should be reformed on the ground of mistake. When reformed, the plaintiff says, the contract should contain (1) an express promise by defendant that the construction site when made available to the plaintiff would contain fill compacted to 90 percent of maximum density, and (2) an increase in the contract price of $134,895.60, the same being the minimum amount by which the plaintiff was mistaken. It asks this court to enter judgment for $97,000.60 plus the $37,895 already awarded by the Board for Redland\rquote s compaction effort (a total of $134,895.60). When this is done, the plaintiff asks the court to suspend proceedings so that it can return to the Board to prove it is entitled to an equitable adjustment in the amount of $196,984.58, which sum represents the costs of achieving compaction after the requirement was reduced to 80 percent density on April 24, 1961. File: 04 - Northeast Const Co v Romney.doc, Paragraph with $: The invitation for bids issued in January 1971 incorporated the provisions of the \u8220\'3fWashington Plan,\u8221\'3f which requires a prospective contractor to complete an \u8220\'3fAppendix A\u8221\'3f specifying his estimated total employment under the contract in designated trades over a four year period and the percentage of minority group employees to be included (\u8220\'3fminority\u8221\'3f being Negro, Spanish surname American, Oriental and American Indian), within prescribed ranges established by the Secretary of Labor. The execution of Appendix A, or its equivalent, is made prerequisite to eligibility for a contract award for federal construction projects costing in excess of $500,000 by an order promulgated by the Secretary of Labor on June 1, 1970, implementing File: 04 - Northeast Const Co v Romney.doc, Paragraph with $: (1) That no contracts or subcontracts shall be awarded for Federal and federally-assisted construction in the Washington, D. C., Standard Metropolitan Statistical Area on projects whose estimated cost exceeds $500,000 File: 20 - Shaw-Henderson Inc v Schneider.doc, Paragraph with $: The bids as received on February 23, 1971, were referred to the engineering firm of McNamee, Porter & Seeley, consulting engineers engaged by the City for that purpose. Shortly thereafter, Mr. John M. Holland of the engineering firm, by letter dated February 25, 1971, (exhibit I) made his report to the mayor and city councilmen of the City. In it Mr. Holland recommended that the three deductible alternates not be omitted from the construction project and in this case and on this basis determined that Clark was low bidder. He thereupon recommended awarding the contract to Clark in accordance with its base bid of $1,190,245. In a summary attached to his letter, Mr. Holland estimated the total project costs at $1,935,000 and listed as \u8220\'3ffunds available for project\u8221\'3f: cash in the amount of $190,240; general obligation bonds, $700,000; State and Federal aid, $1,064,250. File: 20 - Shaw-Henderson Inc v Schneider.doc, Paragraph with $: \u8220\'3f1. Clark\rquote s bid contained a $70,000.00 under statement of cost by its mechanical and plumbing subcontractor, Axtel Hardy. File: 20 - Shaw-Henderson Inc v Schneider.doc, Paragraph with $: It developed shortly after the opening of bids that the firm of Axtel Hardy had submitted to Clark a bid as subcontractor for the plumbing, heating, ventilating, and air conditioning which are set forth in item 36, appearing at page 5 of Exhibit A. This bid had been incorporated into Clark\rquote s final bid. Axtel Hardy had bid in the amount of $26,000 and then discovered that in fact it was in error and wished to withdraw its bid to Clark because it had understated its cost. The exact amount of the understatement is in dispute but was claimed by Shaw-Henderson to have been in the amount of $70,000. Clark thereupon allowed Axtel Hardy to withdraw its bid, but re-affirmed to the City that its total bid was firm and that it would submit to the City the name of another subcontractor in substitution therefor, subject to the approval of the City. File: 20 - Shaw-Henderson Inc v Schneider.doc, Paragraph with $: \u8220\'3fE. That plaintiff be awarded the approximate sum of $25,000.00, as shown and proved by the evidence herein, for the costs incurred in submitting its written bid to the CITY OF CHARLEVOIX, MICHIGAN, at the latter\rquote s invitation and solicitation, in respect to said contract. File: 20 - Shaw-Henderson Inc v Schneider.doc, Paragraph with $: No allegations are made that the nature of its bid by Clark would enable it to successfully obtain the contract on the basis that it could avoid conforming to the specifications for work as set forth in the proposed contract. So far as the court can ascertain, the entire difficulty encountered and all of the charges made by Shaw-Henderson were examined and placed before the City of Charlevoix for its consideration. The Director of the Federal agency, Mr. Schneider, was apprised and the president of the plaintiff Shaw-Henderson was given a full opportunity to make his arguments before the City Council. While the difference in total bid is narrow indeed, still the total amount of the Clark bid is in fact lower than that of Shaw-Henderson. It has not seriously been claimed by anyone that Clark desired to or could in any way legally avoid its obligation to do the work specified for the total amount of its bid. Nowhere has it been shown to the court that even if there were \u8220\'3fjob peddling\u8221\'3f, such would as a matter of law invalidate the bid. Presumably the City might have omitted the requirement of naming subcontractors altogether and then made an investigation of those proposed to be used after opening the bids and in the course of determining the competence of the successful bidder. If the practice can be a pernicious one, the court is unable to find even a suggestion of evil design in the facts here. Counsel for plaintiff attached to their brief a copy of proposed legislation before the Congress, H.R. 10, 92nd Congress, First Session (Plaintiff\rquote s Exhibit 3) which if enacted would presumably require that in contracts with any military or non-military department, independent establishment of the executive branch of the government, or any wholly owned government corporation for construction for a new building in the United States which is estimated to cost in excess of $100,000, all subcontractors must be named and any substitutions for those named may be authorized only under compelling circumstances as listed in the act. File: 22 - Jamsar Inc v U S.doc, Paragraph with $: Along with the invitation to bid, the defendant furnished specifications for the work to be done. Included was an \u8216\'3fEstimated Cost Range\u8217\'3f which provided for a cost limit of \u8216\'3fless than $25,000.\u8217\'3f Pursuant to these specifications and costs limitation, the plaintiff submitted its bid of $15,400 and on May 31, 1967 plaintiff was awarded the contract. File: 22 - Jamsar Inc v U S.doc, Paragraph with $: In addition, plaintiff explains that the specifications specifically set forth the type of paint to be used in the corridors and restrooms, while nothing as specific was included as to the workspaces or rooms. Moreover, plaintiff contends that the cost limitation of $25,000 intimated that the entire area of the second and third stories need not be painted. This again was based on the prior experience with the 1965 invitation to bid since the cost limitation in that bid was $40,000. All of the foregoing factors contributed to plaintiff\rquote s interpretation of the invitation specifications which were eventually included in the contract. File: 25 - Chris Berg Inc v U S.doc, Paragraph with $: The United States Navy sent plaintiff its invitation to bid on the construction or restoration of various facilities in the Trust Territory of the Pacific Islands. The mistake in the cost calculations resulted from a misplaced decimal in calculating a roofing job, and the omission of one of the original estimate sheets. The amount claimed totals $41,121; made up of $25,633 for the omitted sheet, $11,046 for the misplaced decimal, \u8216\'3fFee\u8217\'3f at $4,035, and all risk Bond at one percent\u8212\'3f$407. Plaintiff bid $616,000. There were three other bids ranging from $732,800 to $1,117,000. Defendant\rquote s estimate was $707,000. After bid opening the contracting officer suspected that plaintiff had made an error and requested review and reconfirmation. Plaintiff checked its figures and discovered the errors above-mentioned, the reality of which is not in dispute. The worksheets show that the computation before the bid resulted in a figure, including markup, of $618,128, reduced to $616,000 for bidding purposes. Whether this reduction of $2,128 was a \u8216\'3frounding out\u8217\'3f or a \u8216\'3fgross reduction\u8217\'3f is a semantic issue much debated by the parties. It was, at any rate, a reduction of approximately 1/3 of one percent in the bid price. File: 25 - Chris Berg Inc v U S.doc, Paragraph with $: Plaintiff performed the contract, meanwhile pursuing its administrative remedies. Apparently the instant claim is the only unsettled item under the contract. The last stop of the case before here was at the General Accounting Office. The Assistant Comptroller General held that the Navy violated the applicable Armed Services Procurement Regulation (ASPR hereinafter) set forth below in refusing to consider evidence of error when submitted for the purpose of increasing the bid price. But, he held, the evidence before him showed a \u8216\'3fgross reduction\u8217\'3f of $2,138, which made it difficult to determine to what extent the bidder would have relied on the correct costs to bid any specific amount higher than it did. \u8216\'3fIn view thereof the immediate claim * * * is for denial.\u8217\'3f B\u8212\'3f163284, reported File: 27 - Gorn Corp v U S.doc, Paragraph with $: . In Count I of its petition, plaintiff seeks the amount ($10,995.11) defendant has withheld in accordance with the ASBCA decision from amounts due to plaintiff on other contracts. In Count II, plaintiff seeks recovery for lost profits and for costs of labor, materials, tooling and other items caused by the wrongful termination of the contracts in the instant case. The case is now before the court on cross-motions for summary judgment. We have concluded that judgment should be entered for the plaintiff. File: 30 - Ruggiero v U S.doc, Paragraph with $: Mr. Michael Ruggiero testified under oath that there was a mistake: that he and his partners intended to bid for parcels B\u8212\'3f198, \u8212\'3f199, and \u8212\'3f201, only as a group and thought the form allowed them to state that intent only in the way they did. \u8216\'3fThere is always someone who doesn\rquote t get the word\u8217\'3f, and it is for such persons that the law of mistaken bids was invented. But for the unhappy letter of May 13, quot. supra, this sworn testimony might end the matter. Certainly the contracting officer and the GAO were not without reason for viewing anything Mr. Ruggiero might afterwards say with skepticism. It may be doubted, however, if Mr. Ruggiero really expected to be believed in his preposterous statements about the secretary, the carbon paper, etc., knowing as he must have that the addressee of his letter would have the original bid before him. That statement could only have been meant for other eyes. Of course plaintiffs cannot maintain a claim, especially one in equity, by fraud, but we do not consider the statement sufficiently reprehensible of itself to cost Mr. Ruggiero and his partners their entire bid deposits, $11,520.20. File: 31 - Poorvu v U S.doc, Paragraph with $: There remains for determination the amount plaintiffs are entitled to recover. Prior to trial plaintiffs submitted to the government a detailed claim for $392,854.84, and this claim has been audited by the POD. At the trial, an agreement was reached by the parties that if it were determined that the government is liable for the damage incurred, certain of the items presented in plaintiffs\rquote claim are properly recoverable. In fact, this agreement covered the vast majority of the items claimed. As stated in the accompanying findings, the defendant agreed that the $13,601.15 paid to Garber-Renne, engineers; the $27,728.38 paid to Radotinsky-Deardorff & Associates, architects and all but $1,360 of the $299,305.74 paid to Grant Renne & Sons, Inc., contractors, were properly recoverable. Furthermore, it was agreed that if government liability were found, plaintiffs would be entitled to $5,876, rather than the $14,000 claimed, to cover the cost of certain painting that was necessitated by the repairs. File: 36 - WRB Corp v U S.doc, Paragraph with $: that in those instances where the Government furnished plaintiff with faulty specifications which it either failed to correct or delayed unduly in correcting, defendant must respond in damages; that defendant is also liable to plaintiff where the specifications were ambiguous and plaintiff\rquote s interpretation, reasonable in the light of the language or trade custom, should have been followed; that defendant is liable to plaintiff where it prevented or hindered plaintiff from performing the contract work by too strict inspections, imposition of no-tolerance requirements, or long delays in acting upon reasonable requests; that defendant is not liable to compensate plaintiff for the cost of performing the contract work in accordance with proper specifications or for changes to which the plaintiff agreed voluntarily and not under duress; that defendant is liable to plaintiff where it obtained its compliance with a modification by means of coercion. Plaintiff is entitled to recover $310,277.48, of which $3,866.55 is for the benefit of Anderson Cabinet Corporation, $18,062.17 is for the use of Kitzman\rquote s Plumbing of Texas, Inc., and $7,811.46 is for the use of Maplewood Sheet Metal Company, plaintiff\rquote s subcontractors. File: 36 - WRB Corp v U S.doc, Paragraph with $: The plaintiff\rquote s cabinet subcontractor took the position that the plans did not require such blocking, and that its installation would involve an additional cost of $3.50 per house. A letter along this line dated January 15, 1960 from the subcontractor to the plaintiff was forwarded to the resident engineer. File: 36 - WRB Corp v U S.doc, Paragraph with $: In the early part of January 1960, the defendant\rquote s resident engineer notified the plaintiff that the plaintiff was to install blocking at the ends of the compartments in the the upper kitchen cabinets which contained the exhaust fan and recessed light. In accordance with the requirements of the resident engineer, the plaintiff (through its cabinet subcontractor) proceeded to install the blocking in approximately 150 units. However, the plaintiff\rquote s cabinet subcontractor took the position that the plans did not require such blocking, and that its installation would involve an additional cost of $3.50 per house. A letter along this line dated January 15, 1960, from the subcontractor to the plaintiff was forwarded to the resident engineer. On January 22, 1960, the resident engineer advised the plaintiff that a restudy had been made of the plans, that the blocking was not called for on the plans, and, therefore, that the blocking would not be required. File: 36 - WRB Corp v U S.doc, Paragraph with $: (a) In furnishing kitchen and bathroom cabinets, the plaintiff\rquote s cabinet subcontractor, Anderson Cabinet Corporation, used 112 feet of pine plywood per housing unit for the backs of the cabinets. Thus, the cabinet subcontractor used a total of 3,920 feet of pine plywood in the cabinets for the first 35 housing units, after the defendant rejected the cabinets initially furnished for the first 35 housing units because of the use of Douglas fir for the backs of such cabinets. The pine plywood cost $44 per thousand feet more than Douglas fir. Hence, the cost of the 3,920 feet of pine plywood File: 36 - WRB Corp v U S.doc, Paragraph with $: (b) The cabinet subcontractor used 407 feet of shelving in constructing the cabinets for each housing unit. Therefore, the cabinet subcontractor used a total of 14,245 feet of shelving in the cabinets for the first 35 housing units. The cost to the cabinet subcontractor of using grade \u8220\'3fC\u8221\'3f select pine shelving was $102 per thousand feet greater than the cost of No. 2 pine lumber for the shelving would have been. Accordingly, the additional cost of using grade \u8220\'3fC\u8221\'3f select pine shelving in the cabinets for the first 35 housing units aggregated $1,452.99. In addition, the evidence does not indicate that the 14,245 feet of No. 2 pine lumber that plaintiff had to remove was used or useable for any other purpose. At $96 per thousand feet, the cost of the lumber thus removed was $1,367.52. Therefore, the total cost of replacing the No. 2 pine in the 35 units was $2,820.51. File: 36 - WRB Corp v U S.doc, Paragraph with $: (c) The cabinet subcontractor incurred additional transportation costs amounting to $657.76 in returning the cabinets for the first 35 housing units after their rejection by the defendant on account of the use of Douglas fir for the backs of the cabinets and No. 2 pine lumber for the shelving. File: 36 - WRB Corp v U S.doc, Paragraph with $: (d) The cost of the labor and materials used by the cabinet subcontractor in the installation of blocking in a number of kitchen cabinets amounted to $320.13. File: 36 - WRB Corp v U S.doc, Paragraph with $: (e) The requirement that the cabinet subcontractor use molding along the sides of the cabinets, instead of scribing the cabinets to the walls, increased the subcontractor\rquote s costs to the extent of $740.45. File: 36 - WRB Corp v U S.doc, Paragraph with $: and the levelness of doors. Therefore, a finding in the nature of a jury verdict is made that, because of such refusal, it was necessary for the subcontractor to utilize 2,000 man-hours of labor more than would otherwise have been required; that the cost of this extra labor was $3.30 per hour ($2.75 plus 20 percent for taxes, insurance, and overhead); and that the aggregate cost of the 2,000 man-hours of extra labor amounted to $6,600. File: 36 - WRB Corp v U S.doc, Paragraph with $: (a) The cost to the plaintiff\rquote s plumbing subcontractor, Kitzman\rquote s Plumbing of Texas, Inc., of providing for 414 housing units a plumbing rough-in that was suitable for both the gravity-drain type dishwasher and the pump type dishwasher amounted to $14,864.88 for extra labor and materials, and overhead, that would not have been required if the subcontractor had been permitted to furnish a plumbing rough-in that was merely suitable for a pump type dishwasher. File: 36 - WRB Corp v U S.doc, Paragraph with $: The cost to plaintiff\rquote s subcontractor of insulating the pipes in the furred spaces above the ceilings in the deck and beam houses amounted to $9,499.46 in extra labor and materials. File: 36 - WRB Corp v U S.doc, Paragraph with $: (d) The plaintiff paid to the subcontractor mentioned in paragraph (c) of this finding the sum of $5,211 for cleaning the streets. However, if the streets had been paved when the plaintiff wished to do so, thus making it possible for the streets to be used by motor vehicles in connection with the construction of the project, it would have been necessary for the plaintiff to clean the streets and put them in good condition prior to the delivery of the project to the defendant. The evidence does not show that the cost of such cleaning would have been less than $5,211. File: 36 - WRB Corp v U S.doc, Paragraph with $: The installation of the insulation on the refrigerant lines in the 88 housing units where sheetrock had already been installed prior to the performance of the insulation work required 5 man-hours of labor per housing unit, at a cost of $3,35 per hour, over the amount of labor that would have been required for the performance of the insulation work in the same 88 housing units if the insulation work could have been accomplished prior to the installation of the sheetrock. Thus, the total increased cost to the plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, resulting from the defendant\rquote s unreasonable delay in approving a suitable type of insulation amounted to $1,474. File: 36 - WRB Corp v U S.doc, Paragraph with $: The evidence in the record does not show precisely the extent of the damages flowing from the circumstance that the closets which the plaintiff built for the heating and air-conditioning units in accordance with the defendant\rquote s architectural plans were too small to accommodate the equipment which the plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, was required to install. Therefore, a finding in the nature of a jury verdict is made that 1 extra man-hour of labor, at a cost of $3.35 per hour, was required for the installation of the heating and air-conditioning equipment in each of the housing units, over the amount of labor that would have been required for the installation of such equipment if the closets had been adequate in size. Accordingly, a finding in the nature of a jury verdict is made that the total extra cost to the subcontractor in connection with this operation on the entire project amounted to $1,681.70. File: 36 - WRB Corp v U S.doc, Paragraph with $: The evidence in the record does not show precisely how much extra labor was required to remove, and later to replace, the heating and air-conditioning equipment in 75 housing units so that the portions of the concrete slabs in the heater rooms could be reworked. Accordingly, a finding in the nature of a jury verdict is made that the plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, utilized 2 man-hours of labor, at a cost of $3.35 per hour, to remove the heating and air-conditioning equipment from each of the 75 housing units involved in this claim, and also utilized 2 man-hours of labor, at a cost of $3.35 per hour, to reinstall such equipment in each of the 75 housing units after the portions of the concrete slabs in the heater rooms had been reworked. Therefore, a finding in the nature of a jury verdict is made that the total cost to the subcontractor of removing and replacing such equipment in the 75 housing units amounted to $1,005. File: 36 - WRB Corp v U S.doc, Paragraph with $: The plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, incurred additional costs amounting to $2,137.91 in enlarging the return air duct and in adding acoustical lining. File: 36 - WRB Corp v U S.doc, Paragraph with $: The additional cost to the plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, of insulating the inside portions of the return air ducts amounted to $1,212.85. File: 36 - WRB Corp v U S.doc, Paragraph with $: The extra cost to the plaintiff\rquote s heating and air-conditioning subcontractor, Maplewood Sheet Metal Company, in removing high-wall registers in 13 housing units and replacing them with low-wall registers amounted to $300. File: 36 - WRB Corp v U S.doc, Paragraph with $: $315,283.71 between the plaintiff\rquote s estimated cost and actual cost of performing the concrete work on the Fort Hood job, although the defendant did not concede that the plaintiff was entitled to recover the $315,283.71, or any portion thereof, on claim 22. In this connection, the evidence fails to establish that the difference between the plaintiff\rquote s estimated cost and actual cost of performing the concrete work was attributable wholly, or even largely, to unwarranted requirements or other wrongful actions on the part of the defendant. For example, the evidence indicates that much of this difference between the estimated cost and actual cost was attributable to the circumstance that the plaintiff, in preparing its estimate, expected to pour the concrete for the perimeter and grade beams in each housing unit separately from, and prior to, the pouring of the concrete for the floor slab, whereas the defendant, in accordance with the provisions of the contract, required the plaintiff to follow the monolithic or single-pour method of placing the concrete for the perimeter and grade beams and for the floor slab at the same time. File: 36 - WRB Corp v U S.doc, Paragraph with $: furnishing of the carpentry labor by the subcontractors but which provided that if the actual cost to the subcontractors exceeded $458,000, the additional cost would be borne solely by the plaintiff, and that if the actual cost to the subcontractors was less than $458,000, the saving would be divided on a 50-50 basis between the subcontractors and the plaintiff; that the plaintiff\rquote s actual cost in connection with the carpentry labor amounted to $921,714; and that the plaintiff\rquote s costs for carpentry materials exceeded by $76,442.74 the amount estimated by the plaintiff for such materials. In this connection, the evidence fails to establish that the difference between the plaintiff\rquote s actual costs in connection with the carpentry work and the estimated costs-irrespective of whether the difference is regarded as being $380,647.74 or $540,156.74-was attributable wholly, or even largely, to unwarranted requirements or other wrongful actions on the part of the defendant. File: 36 - WRB Corp v U S.doc, Paragraph with $: The unwarranted requirements and other wrongful actions of the defendant increased, to an extent that cannot be determined precisely, the amount of time that would have otherwise been required for the performance of the contract and, accordingly, increased the plaintiff\rquote s costs for interest and overhead in an amount that is not specifically disclosed by the evidence in the record. It seems reasonable to estimate such increased costs as being equivalent to 6 percent of the total amount allowed in findings 435-450, or $17,562.98. File: 38 - National Movers Co v U S.doc, Paragraph with $: Also on June 8th, the Contracting Officer negotiated a contract with another firm to perform the required services for $15,800. The damages arising out of National\rquote s breach of contract are $3,838.00, representing excess costs incurred. File: 42 - Micrecord Corp v U S.doc, Paragraph with $: Plaintiff has also failed to show that it suffered any damages as a consequence of defendant\rquote s action. It claims to have expended some $96,607.04 on the contract, yet the only admissible evidence offered at trial shows that a total of only $71,864.09 was spent on the project. Although the processing of a greater number of roll size drawings would inevitably have entailed an increase in plaintiff\rquote s costs, it has not furnished the court with a reasonable approximation of what these costs might have been. It has not segregated its actionable costs (those sustained because of defendant\rquote s alleged mistake or misrepresentation) from the expenses it incurred as a result of purely extraneous factors. This failure must be regarded as a fatal impediment to its proof of damages, for these is an affirmative showing in the record that other causes, for which defendant was in no way responsible, contributed materially to plaintiff\rquote s financial difficulties. File: 42 - Micrecord Corp v U S.doc, Paragraph with $: Another cost-increasing factor is found in plaintiff\rquote s ancillary claim that it sustained damages in the amount of $3,647.28 as a result of allegedly having been compelled to film an overrun of 8,736 roll size drawings. The evidence shows that plaintiff did in fact produce an overrun of 8,736 frames (427,136 rather than 418,400), but there is no way of ascertaining how many of the frames involved were processed from roll size drawings. Plaintiff contends that it was given more drawings by defendant to film than it was required to accept under the contract, but it did not prove that defendant required it to process the additional frames, or that it was under any obligation to do so. Plaintiff did not at the time make any protest to defendant\rquote s representatives, nor did it attempt to stop production as soon as it had completed the 418,400 frames specified in the contract. Since plaintiff\rquote s records were not kept in such a manner as to enable it to know how many frames or drawings had been completed at a given time, it appears quite likely that the 8,736 extra frames had already been processed before plaintiff actually became aware of the overrun. This overproduction, for which defendant is not accountable, must also have had the effect of increasing plaintiff\rquote s costs. File: 42 - Micrecord Corp v U S.doc, Paragraph with $: On August 27, 1957, plaintiff wrote to the contracting officer requesting information relative to renegotiation of the contract \u8216\'3ffor reasons of excessive costs beyond our control.\u8217\'3f The desired relief was denied, and on August 23, 1958, plaintiff presented a claim to the General Accounting Office on the basis of the alleged misrepresentation in the request for proposals\u8212\'3fcontending that the number of roll size drawings actually filmed on the job amounted to 62.6 percent of the total, and asserting that the resulting extra costs amounted to $14,561.41. The General Accounting Office disallowed the claim, stating that only 21.6 percent of the drawings filmed could be shown to have been of roll size and that this percentage was reasonably in accordance with the estimates furnished by defendant. The decision also stated that plaintiff had been given the opportunity of limiting its contract costs by selecting job lots containing a larger proportion of flat drawings than roll size drawings, but that plaintiff\rquote s representatives had not taken full advantage of this privilege. File: 50 - Acme Process Equipment Co v U S.doc, Paragraph with $: forced All Metals to agree to pay.$23,500 to them through Gunn Engineering Company, a dummy corporation. It was understood that All Metals would pass this cost on to Acme by including it in the subcontract price. All Metals actually paid $12,000 to Gunn under the agreement. When the conspirators later became fearful of exposure, they attempted to expunge all evidence of the transaction from the subcontractor\rquote s books. Through an oversight, however, they left in the cost-structure of All Metals\rquote ultimate subcontract price to Acme the $12,000 already paid to Gunn Engineering Company (although this sum was more than offset by Tucker\rquote s waiver of certain commissions which All Metals owed him). Even after All Metals decreased its ultimate price to less than that contemplated prior to the extortion scheme, the reduced price still reflected some portion of the combined fees which All Metals had paid or agreed to pay to Tucker and Gunn. File: 50 - Acme Process Equipment Co v U S.doc, Paragraph with $: In offering cost figures to the Government on April 29, 1954, in support of its request under the price-redetermination clause for allowance of the maximum ceiling price, plaintiff included certain costs which, while actually expended, are said by defendant not to have been properly chargeable to this contract. These were: subcontractors\rquote costs which included without specification commissions which they had paid to the Tucker group; $12,000 which All Metals had included in its subcontract price to Acme as a result of the extortion scheme carried out by Tucker, Norris and Jack Epstein; payments of salaries and/or commissions by plaintiff to Tucker; $1,045.52 charged by Norris against the contract for personal services rendered by plaintiff\rquote s employees on Norris\rquote farm (the facts of which were first discovered by the Government in December 1953); $470 plus hotel expenses paid by plaintiff to Harold J. Lee, whose services have previously been described; and minor hotel, meal and entertainment charges for government employees. File: 50 - Acme Process Equipment Co v U S.doc, Paragraph with $: . In the Government\rquote s effort to supply such \u8216\'3fclear and convincing evidence,\u8217\'3f there is at least one large gap. Plaintiff\rquote s costs, exclusive of those challenged as improper, overwhelmingly exceeded the contract ceiling price for which the application in April 1954 was designed to obtain approval. In a letter sent to the Philadelphia Ordnance District in connection with the application, Acme\rquote s accountants noted that certain \u8216\'3frecommendations of the Army Audit Agent as to record keeping were not followed because the difference between the ceiling price and the actual costs incurred was so great that any further expenditures on this job should not be undertaken unless * * * absolutely necessary.\u8217\'3f At the same time, the accounting firm pointed out that the Army would have to disallow $600,000 of Acme\rquote s costs in order to fall below the ceiling price of $1,191,077. File: 50 - Acme Process Equipment Co v U S.doc, Paragraph with $: This matter was brought directly to the attention of Acme officials by the Federal Bureau of Investigation, but plaintiff failed to remove Norris\rquote personal expenditures from the charges claimed on Contract 1213. Finding 26. This $1,045 charge was subsequently included as a cost component in Acme\rquote s April 1954 request for the contract ceiling price. In that manner, plaintiff knowingly submitted a false claim and is subject to a fine of $2,000. File: 50 - Acme Process Equipment Co v U S.doc, Paragraph with $: The record before us is inadequate to determine whether Acme\rquote s costs were, in fact, excessive. Plaintiff\rquote s expenses appear to be inordinately high even if one takes into account its lack of experience in this manufacturing line and the prospective advantage to the Government of broadening the base of procurement. The contract ceiling price, for instance, was $384.95 per unit, but plaintiff\rquote s actual cost in manufacturing the first 446 rifles was $1,179.29, and its cost of production during the last six months of the contract was $690.21. See findings 7, 52(a), (c). Although it is conceivable that these expenditures accurately reflect the value of Acme\rquote s services, the present record does not provide enough information for a sufficiently accurate answer. In particular, it would seem important to compare Acme\rquote s costs with those of other manufacturers of the same rifles during that period, taking into consideration that Acme should be permitted greater reimbursement than established manufacturers because of its inexperience and the anticipated benefits of its entry as a competitor. Since this issue was not squarely presented at the original trial, the defendant had File: 51 - Wender Presses Inc v U S.doc, Paragraph with $: Nor is there anything shown to indicate that it should have been obvious to the contracting officer that plaintiff\rquote s bid on Item 34 was actually intended to apply to the adjacent Item 33. Item 33 was described as a vertical turret lathe, its condition also being set forth as \u8216\'3fUsed-Fair\u8217\'3f and its acquisition cost as $54,780. The bids on that item ranged from a high of $10,800 to a low of $288. Thus, it was the same general type of equipment as Item 34, in the same condition, in approximately the same acquisition cost area, and with a bid range going down as low as for Item 34. (Evidently the lower bidder considered that machine also to be worth only scrap value, although plaintiff says it had a much greater market value than Item 34.) There was thus nothing to make it apparent that plaintiff\rquote s bid was intended to apply to the Item 33 lathe instead of the Item 34 lathe. File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: Thereafter, the contracting officer computed the difference between plaintiff\rquote s contract price of $19.48 per thruster and American Optical\rquote s contract price of $32.87 per thruster, multiplied the difference by 548 for a total excess cost of $7,338.61 and demanded payment thereof from plaintiff. File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: reduced the contracting officer\rquote s excess cost figure by 85 cents per unit to a resulting total of $6,723.96. File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: Appellant\rquote s financial records disclosed for the fiscal year ending 31 July 1955 that current assets exceeded current liabilities by approximately $23,700 whereas for the year ending 31 July 1956 the situation had deteriorated to an excess of liabilities of approximately $33,000. Appellant\rquote s vice-president testified that in his opinion the flood from hurricane \u8220\'3fDiane\u8221\'3f probably cost the appellant in the neighborhood of $20,000 to $25,000 which is reflected not in the increase of cost on the books but in loss of anticipated profit on its commercial work. Net sales for the year ending 31 July 1956 amounted to $520,421, approximately $9,408 thereof representing payments under this contract which constituted a very small portion of appellant\rquote s business. Since on a comparable amount of business for the previous year there was an operating profit, appellant concludes that a portion of the changes in financial condition is due directly to the flood. However, File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: Passivation is done as a matter of course in the processing of stainless steel. However, plaintiff objected to the request that it passivate the firing pins and, after an exchange of correspondence, submitted a claim for $20, its cost \u8220\'3f*** to do passivation on parts to complete the entire contract.\u8221\'3f By letter dated December 21, 1955, the Ordnance Corps denied plaintiff\rquote s claim. In view of the specification requirement that \u8220\'3fAll parts shall be free of chips, dirt, grease and other foreign material ***,\u8221\'3f and in view of the fact that passivation is a normally followed practice when fabricating stainless steel, the Ordnance Corps\rquote denial of plaintiff\rquote s claim was clearly correct. File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: Meanwhile, on April 25, 1957, the contracting officer under plaintiff\rquote s contract issued his \u8220\'3fFindings and Demand for Excess Costs\u8221\'3f to plaintiff. The contracting officer found that 548 undelivered units under plaintiff\rquote s contract had been reprocured at a unit cost of $32.87163, for a total cost of $18,013.65. The contracting officer further found that the cost to the Government for the 548 units, had plaintiff performed its contract, would have been $10,675.04 (548 units at $19.48 each). Excess costs were thus found to be $7,338.61, and the contracting officer issued his determination to this effect, coupled with a demand for payment and a notice that plaintiff could appeal his decision to the Secretary of the Army \u8220\'3f*** in accordance with the provisions of Clause 12, \u8216\'3fDisputes\rquote of the numbered contract.\u8221\'3f Plaintiff appealed the determination, and the matter was calendared for a hearing by the Armed Services Board of Contract Appeals. File: 53 - H And H Mfg Co Inc v US.doc, Paragraph with $: Rev. 4 thrusters was approximately 85 cents per unit. The Board considered it \u8220\'3fonly equitable\u8221\'3f that this additional cost should be taken into account in determining the amount of excess costs assessable against plaintiff. By giving plaintiff credit for 85 cents per unit additional cost under Rev. 4, the Board reduced the contracting officer\rquote s assessment for excess cost from $7,338.61 to $6,723.96. File: 55 - Commerce Intern Co v U S.doc, Paragraph with $: Among other things, the Government was to supply reconditioned engines and 90mm. guns for all of the tanks. In addition, at the contractor\rquote s written request, the Government was to furnish, \u8216\'3fto the extent available from its existing stores,\u8217\'3f parts and materials \u8216\'3fwhich have been declared unserviceable by the Contracting Officer or which after inspection were found to be missing from the vehicles.\u8217\'3f If such replacement items could not be furnished, the contractor, when directed by the Contracting Officer in writing, was to manufacture or purchase the parts and would be reimbursed its actual costs in an aggregate not exceeding $500,000. File: 57 - American Anchor And Chain Corp v U S.doc, Paragraph with $: contemporaneous memorandum of the February 12th conference gives no intimation that plaintiff\rquote s officers repudiated the two disputed contracts; on the contrary, all the indications are that the officers, affirmatively conducting themselves as if they considered the contracts binding, sought some measure of administrative relief, such as concellation without cost or liability. Thereafter the plaintiff apparently attempted to perform the one contract not yet terminated or to subcontract the work; in that connection, plaintiff\rquote s representatives even gave the Navy some informal indication of possible dates of shipment. However, in March 1957, plaintiff wrote, with respect to the unterminated contract, that it had \u8216\'3fexhausted every effort to subcontract (the) parts involved\u8217\'3f and asked for a no-cost cancellation. The Navy\rquote s response was to end that contract, too, for default. About two months later, after the Navy had charged the company with $9,893.32 in excess costs, plaintiff first suggested that the contracts were not valid. File: 60 - Heers v U S.doc, Paragraph with $: On August 27, 1959, plaintiff again met with the contracting officer to discuss an adjustment based on the wage determination of August 21, which differed only in minor detail from the rates previously suggested by the Army. At this meeting, plaintiff requested adjustment in an amount approaching $800,000 on the ground that its financing costs would be more than it had anticipated and that it might also have to absorb the cost of title insurance. File: 60 - Heers v U S.doc, Paragraph with $: Since the FHA estimate of cost was $14,523,110, the contracting officer questioned the correctness of plaintiff\rquote s bid, but plaintiff assured him that the amount was correct, and that plaintiff would effect a prompt closing. File: 62 - Brown And Son Elec Co v U S.doc, Paragraph with $: Immediately after the award, plaintiff began compliance with the requirement in the Notice of Award that it submit a schedule of materials and equipment within 30 days. To obtain the necessary information, plaintiff was compelled (it alleges) to place purchase orders and subcontracts amounting to $265,000 and to obligate itself for other substantial costs (all before July 14th). On July 15th, plaintiff was orally notified to suspend all work because Torch (as well as the Associated General Contractors of America) had protested to the Comptroller General that the award to plaintiff was File: 67 - Anthony P Miller Inc v U S.doc, Paragraph with $: Plaintiff, a New Jersey contracting concern, submitted a bid of $519,875.00, together with bid security of $10,397.50, for the on-site Capehart housing and was determined, when bids were opened on November 20, to be the lowest qualified bidder. Later that day the bids for the off-site work were opened. However, all bids therefore were rejected as being higher than the Government\rquote s estimated cost, thus making readvertising necessary. The Corps of Engineers was willing to accept plaintiff\rquote s bid for the Capehart construction, but due to the interrelated character of the two projects, was precluded from doing so until it received an acceptable off-site bid. To avoid the necessity of readvertising for the Capehart units, and in order to preserve for plaintiff his low bid position, an understanding was reached by the parties that plaintiff would send to the Corps of Engineers a letter agreeing to receive a qualified Letter of Acceptability for the Capehart work contingent upon the Government\rquote s obtaining an acceptable bid for the off-site construction. A letter to this effect, drafted by the Corps of Engineers, was addressed by plaintiff to the District Engineer File: 67 - Anthony P Miller Inc v U S.doc, Paragraph with $: . Whether liquidated damages or a penalty is involved depends on the circumstances of each case, but here, where the total cost of the contract is $519,800, it can not be said-nor does plaintiff so contend-that a bid deposit requirement of $10,397.50 is excessive or disproportionate. File: 67 - Anthony P Miller Inc v U S.doc, Paragraph with $: that plaintiff\rquote s cost of financing had, in fact, increased by $13,179.33 in the period between his bid and the closing date. Even so, this would not be valid justification to excuse the default. For it is settled that performance of a contract is not excused by unusual or unanticipated expense. File: 69 - Paul v US.doc, Paragraph with $: appropriated funds, while that used in the clubs and exchanges is purchased with nonappropriated funds. Prior to January 1959, the milk supplies purchased with appropriated funds and used at those installations were obtained as a result of competitive bidding and on terms below the minimum prices prescribed by the Director of Agriculture of California. The Director advised distributors that the State\rquote s minimum price regulations were applicable to sales at Travis. Subsequently bids for milk-supply contracts at Travis were in strict compliance with California\rquote s regulations, the added cost to the Federal Government being about $15,000 a month. Later that year California instituted a civil action in the state courts against a cooperative that had supplied milk at Travis below the state minimum price, seeking civil penalties and an injunction. Thereafter the United States brought this suit in the District Court. The complaint alleged that state price regulation of milk sales at Travis, a federal enclave, was barred by the Constitution, since Travis is subject to the exclusive jurisdiction of the United States. File: 70 - G L Christian and Associates v U S.doc, Paragraph with $: There are a few items of cost, actually incurred, as to which the parties still disagree. With respect to Centex-Zachry, the Government disputes the allowance of the full $250,000 payment made by Centex-Zachry to the plaintiff, pointing out that $171,517 of that amount represents profit to the plaintiff and only $78,483 represents the costs of performance by plaintiff before it assigned the contract (see finding 46). The Commissioner took account of this $171,517 profit by allowing it as a cost to Centex-Zachry but deducting it in computing the latter\rquote s contemplated profit. In view of our disallowance of anticipated profits, we believe it preferable to include only the sum of $78,483, reflecting an actual cost to performance, in the contractor\rquote s costs. The defendant also attacks the allowance of $58,484 in legal fees, but we see no reason to disturb the Commissioner\rquote s finding that this was a reasonable allowance. We have also examined the few exceptions to the findings relating to the costs of the subcontractors of Centex-Zachry, but have not been persuaded that the Commissioner was wrong. File: 70 - G L Christian and Associates v U S.doc, Paragraph with $: we find that Centex-Zachry has received $34,630 more than its incurred costs; and that, of the subcontractors, Air-Way Corporation is entitled to $1,270 for unreimbursed costs, Kitzman\rquote s joint venture is entitled to $13,512.72 but owes the defendant $65,915.83 for plumbing materials, Mid West Contracting Company is entitled to $2,500, and Witte Gravel Company has been paid for all its costs. File: 77 - Rumley v U S.doc, Paragraph with $: On June 1, 1951, the defendant executed a number of contracts to secure replacements for the duffel bags which were not manufactured under Contract 3833. It attempted to assess plaintiff for the excess costs incurred in re-letting the work, but the Armed Services Board of Contract Appeals (ASBCA) held that the repurchases were not made within a reasonable time after the notice of termination and, therefore, were not made pursuant to the default article of the contract and could not be assessed against the plaintiff. Nevertheless, the contracting officer continued to assert a claim for excess costs against plaintiff and in November 1953, the General Accounting Office issued a settlement against him in the net amount of $15,665.44 after allowing an offset for the amount the Government owed under a later duffel bag contract, DA-30-280-QM-12130 (hereinafter referred to as File: 77 - Rumley v U S.doc, Paragraph with $: The bids submitted in mid December 1950, approximately one month before termination, averaged 53 cents per unit. The bids submitted in mid March 1951, approximately two months after termination, averaged 66 cents per unit. Both average figures include bids for export as well as domestic supply. If we assume that a reasonable date for requesting bids was immediately after the termination, to wit, mid-January 1951, and if we assume that bid prices rose uniformly between December and March, we arrive at an average unit price for mid-January of 61.7 cents. At that unit price, the cost of securing replacement items for the 190,000 units of Contract 3833 is $117,230. This figure is $27,930 more than the total price of the breached contract and represents the amount due the defendant on its counterclaim. File: 81 - Escote Mfg Co v U S.doc, Paragraph with $: $10,151.99, made payable to the Treasurer of the United States, to cover the cost of property to be delivered under this contract. File: 81 - Escote Mfg Co v U S.doc, Paragraph with $: Beyond question, an offer was made by plaintiff and beyond question the defendant accepted plaintiff\rquote s offer, as shown by the wording of the September 20, 1955 letter in which the contracting officer stated that the $2,600 deposit was being retained as partial payment for the property, and requested a check for the balance \u8216\'3f* * * to cover the cost of File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: Without detailing in extenso the variations between the invitation to bid and plaintiff\rquote s proposal and eventual contract, which appear in findings 12 to 23, inclusive, the conclusion is necessary that the variations were material. There was omitted the advertised requirement that the contract was to be subject to cancellation for failure of plaintiff to change the location of the system by reason of changes by the Government in the tube terminals, findings 12 and 14; that the Postmaster General might terminate the contract when the public interest might require, finding 12; and that the contractor should bear the expense of converting the system from DC to AC electricity, at a cost estimated between $125,000 and $350,000. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: Contract, variable costs, 2, Schedule A of contract, and finding 12. The cost turned out to be $214,870.13. Finding 32. Plaintiff\rquote s proposal and contract required the assumption of this cost with interest by the Government through amortization. Instead of a rate per annum for rent, as called for by the advertisement for bids, the contract makes the rental vary from year to year, depending upon operating and general expenses, e.g., File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: should reimburse that expense in accordance with the terms of the contract, i.e., $141,564.47. Plaintiff should also recover for the same reason the cost or the new set of carriers purchased for use on the system, $27,551.52. As the removal of equipment from Government-owned stations would have been necessary whether or not the contract had been made, that claim is denied. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: During 1951 and 1952 plaintiff spent $214,870.13 to acquire and install conversion equipment, and reported such charges to the Post Office Department, as required by the contract. Following an audit by the Post Office Department of plaintiff\rquote s books and records for the years 1951 and 1952, the Department accepted the charge as the cost of conversion for the purpose of calculating the monthly payments to be made to plaintiff under the contract in reimbursement of such cost. During the years 1951, 1952 and 1953, the Post Office Department reimbursed plaintiff on account of such conversion expenditure in the sum of $73,305.66 as principal and $10,995.84 as interest at 3% on the unpaid balance. Such reimbursement payments were included in the monthly payments made by defendant to plaintiff under the contract. No further payments in connection with this item have been made by defendant to plaintiff. Accordingly, there is due and owing plaintiff from defendant the principal amount of $141,564.47 ($214,870.13\u8212\'3f$73,305.66), plus interest on such unpaid principal at the rate of 3% per annum from December 1, 1953, to date of settlement. Defendant\rquote s arguments against plaintiff\rquote s right to recover on this item, completely ignore the clear provisions of the contract under which the Post Office Department obligated itself to reimburse plaintiff for this expenditure. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: The termination charges of Lamson Corporation to the plaintiff included no item for profit. The total adjusted cost to plaintiff on such cancellation and termination of its contracts and arrangements for the purchase of the new carriers was in the amount of $30,290.56. Included in the termination charges of Lamson Corporation to plaintiff was the sum of $2,739.04 representing inventory of the Lamson Corporation in existence prior to its receipt of plaintiff\rquote s purchase order in June 1953. Although the record establishes that of this amount $1,233.86 would have been expended in the production of the contract for the set of new carriers, if that contract had been completed, it is not shown that the inventory represented by that amount was purchased for this contract or could not have been used on other work of the manufacturer. I am of the opinion that plaintiff\rquote s claim of $30,290.56 is excessive by the amount of $2,739.04. Plaintiff should recover $27,551.52 which is reasonable and no part of which has been paid by defendant. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: The contract obligated the Post Office Department to pay the plaintiff monthly amounts calculated in accordance with the terms of the contract. The amount which became due to plaintiff for the month of December 1953, excluding any amount representing reimbursement of principal cost of conversion equipment or interest thereon, disposed of hereinbefore, was the sum of $27,960.94. Plaintiff should recover this amount, no part of which has been paid by defendant to plaintiff. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: \u8216\'3f* * * It is, accordingly, agreed that the compensation to be paid the contractor for its services hereunder, and as rental for the leased property shall be for the calendar year 1951, the sum of $352,912.08 and shall be for each succeeding year the sum of $163,972.31, and in addition to said sum in each succeeding year the amount of the contractor\rquote s costs for the preceding calendar year of those items listed on Schedule A, annexed hereto and made a part hereof, but in no event shall the total compensation payable for any calendar year exceed the sum of $387,628.65. * * *\u8217\'3f File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: In 1953 plaintiff received payment in the sum of $324,149.95 at a rate which would reimburse it for its 1952 costs with the qualifications stated in finding 46. Nothing was paid to represent the 12th month of 1953 during which time contract operations were suspended by defendant\rquote s notice to plaintiff. Plaintiff\rquote s claim for that month has been discussed hereinbefore. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: Out of the sum of $163,972.31 provided in the contract as the fixed sum plaintiff was to receive for each year (plus variable costs) the plaintiff was to meet its other expenses of carrying on its business and realize its profits. Plaintiff\rquote s theory for computing its net profits is to deduct from $163,972.31 its constant costs each year, actual or estimated, which are not costs such as included in Schedule A to the contract. Plaintiff\rquote s claim for the years 1954 through 1960 is as follows: File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: Thus, the actual expense for variables during the last year of contract operations would never be recovered. The variable expenses paid during the first year of operation under this contract, i.e., in 1951, were based upon estimated sums which included an allowance of $40,250 for the amortization of the power conversion cost. The actual amortization taken by plaintiff in its 1951 variable costs was only $18,494.60. Thereafter, the amortization was at the rate of $22,983.41 annually. The calendar year 1953 was the last year of plaintiff\rquote s operations under this contract. Under the circumstances and under the terms of the contract there is no basis for allowing plaintiff to recover as damages this item of variable costs. However, plaintiff\rquote s 1953 variable costs actually incurred in that year have been included in the estimates which I have projected over the following years for the purpose of determining plaintiff\rquote s anticipated profits for those years. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: One of the items of variable costs under Schedule A of the contract is \u8216\'3fSpecial Franchise Taxes\u8212\'3fManhattan.\u8217\'3f The second half of plaintiff\rquote s special franchise tax on its pneumatic-tube system for the tax year July 1, 1953 to June 30, 1954, was due on April 1, 1954 in the amount of $12,792.18, and had the contract continued during its term, this tax payment of $12,792.18 would have been included as a variable cost for the year 1954 to which plaintiff would have been entitled to reimbursement. Plaintiff says that it owes such File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 16. Defendant\rquote s advertisement provided that proposals submitted thereunder should specify the rate per annum for the rental of the tube system. Plaintiff\rquote s proposal, in response thereto, provided for a computation of the rental to be paid annually for the leased property to permit the plaintiff to realize substantially the sum of $144,000 a year, covering allowance for depreciation, interest and return on investment, in addition to the contractor\rquote s costs properly chargeable against the leased property. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 19. Pursuant to the foregoing suggestion, plaintiff, on December 7, 1950, submitted an amended proposal, also in contract form. Substantially, it was the same as the proposal of May 26, 1950, except that a new section entitled Variable Costs was attached and paragraph 3 of the May proposal was changed to provide that the defendant should pay plaintiff an annual calendar year rental for the leased property in the sum of $352,912.08 or such other sum as due under the variable costs section of the amended proposal. The sum of $352,912.08 was the amount of $14,111.80 per mile of double lines of tubes for the 25.0083 miles of such tubes in plaintiff\rquote s system. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 21. In 1950 the Consolidated Edison Company of New York, Inc., which had supplied direct current for operation of the tube system, notified the Post Office Department it would discontinue the supply on December 31, 1950, unless it received assurance before that time that arrangements would be made to convert the tube system to the use of alternating current. Such conversion costs were estimated to be from $125,000 to $350,000. Plaintiff insisted that for it to bear this expense it would have to receive a rental in excess of the statutory limit of $12,000 per mile sufficient to amortize the cost of the conversion equipment over the term of the contract. Hence, the figures set forth in finding 19 which are in excess of such statutory limit. Defendant was agreeable to a change in the statute and on December 27, 1950, Public Law 889 (81st Congress, 2nd Session) was approved, authorizing in New York a maximum annual rate of $15,500 per mile for ten years, after which the maximum was to revert to $12,000 per mile. This law repealed all previous laws in conflict with it and specified some of them. The statute required that contracts for the transmission of mail by pneumatic tubes should be subject to the provisions of laws relating to the letting of mail contracts but said nothing about postal regulations. The statute provided also that advertisements should state in general terms only the requirements of the service and be in a form best calculated to invite competitive bidding. No contract was to be let except to the lowest responsible bidder able to guarantee satisfactory performance. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 23. The contract of December 29, 1950, approved as to form and legality by the Solicitor for the Post Office Department and signed by the Postmaster General, provided for payment of fixed sums of money by the defendant as an annual calendar year rental for the leased property, plus variable sums depending on whether certain variable costs of plaintiff increased or decreased, with an annual ceiling of $387,628.65. Payments were to be calculated on an annual basis and paid monthly. Further, the contractor, relying upon the document as a binding contract for ten years, committed itself to expend a sum estimated at $350,000 for conversion to alternating current, the sum to be amortized over the ten-year term of the contract and the ultimate cost thereof to be borne by defendant at three percent interest. Provisions of the contract are more fully described in subsequent findings dealing with damages. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 29. For the months from January 1, 1951, through November 1953, the defendant paid to plaintiff, under the contract of December 29, 1950, the sum of $1,027,753.72. The payments made for 1951 total $352,912.08, the exact amount called for by the contract. Payments for 1952 reflect changes after March of that year, at which time plaintiff made its report to the Post Office Department setting forth its charges for the preceding calendar year as provided for under the variable costs section of the contract. The payments made in 1953 reflect, for the period from July through November, a dispute between the parties concerning the allowance of a certain $7,200 item and the final payment of that item upon the dispute being resolved in favor of the plaintiff. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 32. During 1951 and 1952, plaintiff expended the sum of $214,870.13 to acquire and install equipment to convert direct current to alternating current for the operation of the tube system, and reported its charges to the Post Office Department, as required by the contract. The charges for this work were fair and reasonable, and following the audit by the Post Office Department of the books and records of the plaintiff for the years 1951 and 1952, defendant accepted said sum of $214,870.13 as the cost of such power conversion equipment for the purpose of calculating the monthly payments to be made by the defendant to the plaintiff under the contract in reimbursement of such cost. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 38. The total adjusted cost to plaintiff on such cancellation and termination of its contracts and arrangements for the purchase of such set of new carriers is the sum of $30,290.56. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 40. As set forth in the contract, the defendant was obligated to pay plaintiff monthly amounts calculated in accordance with the terms of the contract. The amount which became due to plaintiff for the month of December 1953, excluding any amount representing reimbursement of principal cost of conversion equipment or interest thereon, was the sum of $27,960.94, no part of which has been paid by defendant to plaintiff. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: plaintiff thereupon released its employees as rapidly as possible. Wages and salaries paid by plaintiff to its employees for services in January 1954 and other normal expenses incurred in January 1954 aggregate the sum of $8,241.69. Such expenses were reimbursable costs under the contract. However, $2,000 included in this item represents the 1953\u8212\'3f1954 Special Franchise Tax allocable to January 1954. The assessment for the second half of the fiscal year 1953\u8212\'3f1954 is included in finding 47 herein. Accordingly, the expense for January 1954, paid by plaintiff, is $6,241.69. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: \u8216\'3f* * * It is, accordingly, agreed that the compensation to be paid the contractor for its services hereunder, and as rental for the leased property shall be for the calendar year 1951, the sum of $352,912.08 and shall be for each succeeding year the sum of $163,972.31, and in addition to said sum in each succeeding year the amount of the contractor\rquote s costs for the preceeding calendar year of those items listed on Schedule A, annexed hereto and made a part hereof, but in no event shall the total compensation payable for any calendar year exceed the sum of $387,628.65. * * *\u8217\'3f File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: The Schedule A referred to above included various taxes and operating expenses, salaries, pensions, maintenance and repair, patterns, jigs, fixtures and amortization of the cost of power conversion equipment. The sum of $352,912.08 quoted above included an estimated amount to cover the 1951 Schedule A costs. In 1952 the sum of $350,691.69 paid to plaintiff included the exact amount of its Schedule A 1951 costs and the $163,972.31. In 1953 plaintiff received payment in the sum of $324,149.95 at a rate which would reimburse it for its 1952 costs with the qualifications stated in finding 46. Nothing was paid to represent the 12th month of 1953 during which time contract operations were suspended by defendant\rquote s notice to plaintiff. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 43. Out of the sum of $163,972.31 provided in the contract as the fixed sum plaintiff was to receive for each year (plus variable costs) the plaintiff was to File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: meet its other expenses of carrying on its business and realize its profits. Plaintiff\rquote s theory for computing its net profits is to deduct from $163,972.31 its constant costs each year, actual or estimated, which are not costs such as included in Schedule A to the contract. Plaintiff\rquote s claim for the years 1954 through 1960 is as follows: File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 44. The constant costs which plaintiff would deduct as illustrated above are not defined or referred to in the contract. As used by plaintiff they included, among other things, such general expenses as life and health insurance, supplies, travel, professional services, directors\rquote fees, postage, and, as operating expenses, clerical and stenographic salaries, rent, depreciation of machinery, telephone, and supplies. Plaintiff\rquote s claimed actual constant costs for 1949 were $19,972.31. In 1950 they were $25,050.67; 1951, $23,396.83; 1952, $27,984.01; 1953, $27,626.10. The estimate of such costs for 1954 is $27,670.72 and for 1955 and subsequent years to 1960, inclusive, $24,730.72 for each such year. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: during the last year of operations under the contract would never be recovered. The variable expenses paid during the first year of operation under this contract (1951) were based upon estimated sums which included an allowance of $42,250 representing an estimated sum for the amortization of the power conversion costs. The actual amortization taken by plaintiff in its 1951 variable costs was only $18,494.60. Thereafter the amortization was at the rate of $22,983.41 annually. The calendar year 1953 was the last year of contract operations. There is therefore no basis for allowing recovery of any of plaintiff\rquote s 1953 variable costs. However, plaintiff\rquote s 1953 variable costs actually incurred in that year have been included in the estimates projected over the following years for the purpose of determining plaintiff\rquote s anticipated profits for those years. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 47. Plaintiff is obligated to pay to the city of New York a tax payment due on April 1, 1954, being the second half of the special franchise tax levied on plaintiff\rquote s pneumatic tube system for the tax year July 1, 1953, to June 30, 1954. The item \u8216\'3fSpecial Franchise Taxes\u8212\'3fManhattan\u8217\'3f is one of the items of variable cost under Schedule A of the contract. This tax bill due and payable on April 1, 1954, was such a special franchise tax. Had the contract continued during its term, such tax payment due on April 1, 1954, in the sum of $12,792.18 would have been included as a variable cost for the year 1954 and plaintiff would have been entitled to be reimbursed therefor under the contract. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 52. Plaintiff sought purchasers and entered into a contract with a salvage company on March 24, 1954, for the purchase of all of plaintiff\rquote s equipment in both Government-owned and Government-leased post office premises for the price of $60,000. The contract also provided that the plaintiff should pay to the salvage company the sum of $25,650 as the cost of removal of equipment from Government-owned premises. This was the best offer made to plaintiff and was reasonable. All of the property was removed by August 1954. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 55. Defendant asserts that plaintiff was under obligation to remove its equipment from defendant\rquote s premises and to restore and repair damages caused thereto by installation and removal of such equipment. Defendant pleads that the reasonable cost to defendant to repair the buildings properly is approximately $28,600. There was no provision in the contract of December 29, 1950, relating to the repair or restoration of any premises in which plaintiff had installed its tubes and equipment, and the only provisions concerning the obligation of plaintiff to remove its property from post office premises at the termination of a contract related to removal from leased premises, with no mention of Government-owned premises. Some of the contracts between plaintiff and defendant prior to July 1, 1948, included provisions requiring plaintiff, at the request of the Postmaster General, to remove its property at the termination of the contract and to restore the premises to their condition existing before such alterations as were made for installation. File: 85 - New York Mail And Newspaper Transp Co v U S.doc, Paragraph with $: 57. The defendant offered proof that the reasonable cost of repairing leased post office premises would be $39,685. It estimates the cost of reasonable repairs to Government-owned buildings at $1,295. Plaintiff denies liability for these repairs under the contract but offered evidence that their total cost, if allowable to defendant, as a matter of law, should not exceed $16,616. All of the foregoing figures include reasonable allowances for profit and overhead. In addition, defendant\rquote s figures include 15 percent for drawings, specifications and supervision which would be required by the defendant but not by a private contractor for this type of job. A reasonable allowance for the repairs in question would be $20,000, if allowable as a matter of law. File: 91 - Arcole Midwest Corp v US.doc, Paragraph with $: Plaintiff entered into a contract with the United States Corps of Engineers of the Department of the Army of the United States for the construction of a dam on the Fall River, Greenwood County, Kansas, for the sum of $6,107,053.90. The contract was fully performed and the plaintiff has been paid the contract price. It sues for excess costs which it incurred as a result of an alleged misrepresentation by the Government. File: 94 - Singleton v District of Columbia.doc, Paragraph with $: Contractors, whose bid for school supplies amounting to $7,530.15 was accepted by contracting officers of the District of Columbia, could not relieve themselves of performance of the bid by refusing to execute contract forms on ground that no binding contract was entered into prior to approval of commissioners and, on failure to perform, contractor was liable for difference between contract price and cost of the supplies procured elsewhere. D.C.Code, 1940, \u167\'3f 1-245. File: 94 - Singleton v District of Columbia.doc, Paragraph with $: The contract not being executed, the District government purchased the materials from another source at a cost of $813.61 in excess of the bid price. The District of Columbia then filed in the Municipal Court for the District of Columbia a complaint against Singleton & Yutzler Co. for the recovery of $813.61 plus interest and costs. The court granted the defendant\rquote s motion to dismiss the complaint on the ground that under the admitted facts there was not valid contract but only the submission of a bid which was conditionally but not finally accepted. File: 96 - Beuttas v US.doc, Paragraph with $: The evidence does not establish that Beuttas paid $5.80 more per thousand board feet for 117,000 board feet of oak flooring. There was no delay in the purchase of this lumber caused by the defendant. Oak flooring was not a critical material at the time these contracts were made and performed, and no priority was needed to purchase it. If Beuttas delayed in making the purchase of this flooring, it was not because of a lack of priority. Beuttas paid $79.00 per thousand board feet. In making up his estimate sheet, he estimated his oak flooring requirements at $80.00 per thousand board feet, or $1.00 above what he actually paid. The $79.00 that Beuttas claims as the cost of this lumber is made up of two figures, $76.50 for the flooring and $2.50 File: 97 - Pottsville Casting And Mach Shops v US.doc, Paragraph with $: The plaintiff duly performed this contract and a second one for the conversion of 40,000 shells which provided that the unit price for those shells should be the price determined for those converted under the first contract. At an appropriate time the plaintiff submitted to the Government reports showing its costs during the preliminary and test runs under the first contract. The accountant who prepared these reports first conferred with a representative of the fiscal branch of the Philadelphia Ordnance District, and was told to prepare them in accordance with the job order system of accounting used by the plaintiff. The reports showed that the unit cost during the preliminary run was $4.286 per shell and during the test run $3.5312 per shell. File: 97 - Pottsville Casting And Mach Shops v US.doc, Paragraph with $: The contracting officer then made his written findings of fact, quoted in part in Finding 13, in which he adopted the recommendations of the fiscal branch and reduced the plaintiff\rquote s indirect factory costs from the $78,389.78, shown in the plaintiff\rquote s report, to $45,303.11. The plaintiff sues for this difference. File: 98 - Lym-Horman Const Co v US.doc, Paragraph with $: The cost to plaintiff to complete the work was $408,593.55. Although the work was not fully completed until September 1944, the main construction was completed around July 1, 1944, at which time the painting, the roads, and the landscaping had not been completed. On July 3, 1944, plaintiff prepared a formal application that the contract be opened \u8220\'3fto review certain deficiencies in the specifications and critical delays on the part of others\u8221\'3f which forced the work into winter months and resulted in higher costs. The letter recited four items of importance, namely: File: 98 - Lym-Horman Const Co v US.doc, Paragraph with $: In this application plaintiff set out that the bids, of which plaintiff\rquote s was the lowest, ranged from $459,487 to $314,519 (actually, plaintiff\rquote s contract price was $313,519), and that plaintiff anticipated completing the work at a profit of $31,000. It was therein stated that the project cost $370,999.30, and the purpose of the application was to obtain an upward revision of the contract price by $77,915.48 to cover the loss sustained by plaintiff on the contract. The application was transmitted by a letter of July 6, 1944, to the Federal Public Housing Authority in Kansas City, Missouri. Plaintiff was advised that time did not permit a careful consideration of the application because of the imminent dissolution of the Kansas City branch. File: 98 - Lym-Horman Const Co v US.doc, Paragraph with $: It cost the plaintiff $408,593.55 to perform the contract, and it seeks to recover its loss, plus a reasonable profit, on the ground that its loss resulted from breaches of contract by the Government. Most of its unanticipated costs, and therefore its losses, probably resulted from the fact that it did not get as far along with its work as it had expected to before the onset of winter weather which, in particulars recited in our findings, made construction difficult and expensive. File: 01 - Pfotzer v US.doc, Paragraph with $: Plaintiff sublet part of the work for the wash racks and booster pumps to its plumbing subcontractor. On the basis of this sub-bid and the cost of such work as plaintiff would perform, exclusive of excavation and concrete floor slabs, plaintiff bid $1,200 for each wash rack. Plaintiff performed 109 cubic yards of excavation for the installation of two wash racks, and claimed payment therefor at $2 a cubic yard, or $218, under unit price Item 2. Plaintiff also produced and placed 60 cubic yards of reinforced concrete floor slabs for the two wash racks and claimed payment therefor at $30 a cubic yard, or $1,800, under unit price Item 6. Gravel fill under the floor slabs was used as an extra and that item was paid for under unit price Item 3 at $5 a cubic yard. File: 01 - Pfotzer v US.doc, Paragraph with $: In view of the provisions of the contract documents above referred to and the evidence submitted, we think the defendant\rquote s interpretation of bid Item 33 was clearly erroneous. Plaintiff has shown what costs entered into its bid price of $1,200 for each wash rack, and also that the cost of excavation and concrete was not included therein. File: 01 - Pfotzer v US.doc, Paragraph with $: Plaintiff claimed that this change would increase its costs for the buildings involved by $4,464.90, which was based on its estimate of from $25 to $155 per building, and asked for a change order increasing the contract price by that amount. The request was denied. After the work had been completed plaintiff renewed its request and submitted its claim for payment of $4,464.90. The claim was denied by the contracting officer and the head of the department on the ground that no extra costs had been incurred, and they made findings to that effect. File: 04 - Albert And Harrison v US.doc, Paragraph with $: Where government represented in invitation to bids for renovation of government buildings that prevailing hourly rate of bricklayers in area in question as determined by Secretary of Labor was $1.50, while in fact it was $1.75, and contractor was advised by government that he was required under statute to pay not less than rates as determined by Secretary of Labor, contractor, who in reliance on lower rate underestimated costs of bricklaying, was entitled to recover amount which it was obliged to pay to bring wages up to higher rate. File: 04 - Albert And Harrison v US.doc, Paragraph with $: 4, 1941, the new rate was determined some weeks before the contract was made, and the plaintiff should have been advised of it. Not being so advised, the plaintiff underestimated the costs of bricklaying, and may recover the amount, $1,216.95, which it was obliged to pay to bring its wages up to the newly determined rate. We recognize, of course, that the statute requires the payment of the determined rate as a minimum, and does not forbid the payment of a higher rate. But the rate determined to be the prevailing rate is, by hypothesis, the rate customarily paid, and the rate at which a contractor could expect to hire his labor. Here the claim of the bricklayers for $1.75 was based entirely upon the fact that the prevailing rate as determined by the Secretary of Labor was, in fact, $1.75. But the Government had represented that it was $1.50, File: 05 - Miller v US.doc, Paragraph with $: Where plaintiffs, contractors, in response to an invitation from the National Housing Agency for bids for the construction of a Government housing project, submitted a bid for $693,000.00, plus costs of bonds; and where said bid was received by the Authority prior to 2 p.m. on October 22, 1942, the day and hour named in the invitation; and where plaintiffs on the same day before 2 p.m. filed with the telegraph company a telegram to the Authority reducing their bid by $50,000.00; and where the telegram was not received by the Authority before the opening of bids, at which time the bid of plaintiffs for $693,000.00 was found to be the lowest bid; and where, upon learning that their bid was lowest and before their telegram had been received by the Authority, plaintiffs on the same day dispatched a second telegram to the Authority requesting that the previous telegram be disregarded \u8220\'3fas same was not received prior to the hour set for opening of bids as required by specifications; \u8221\'3f and where, meanwhile, by oral message plaintiffs had informed the Authority, before the receipt of either telegram, that the earlier telegram was to be disregarded; it is held that plaintiffs did not make an effective offer to reduce their bid and that the amount of plaintiffs\rquote bid was $693,000.00. File: 05 - Miller v US.doc, Paragraph with $: \u8216\'3f(4) Bids in excess of $2,000 shall be accompanied by a bid guarantee of not less than two per cent (2%) of the amount of the bid, which may be: Bid Bond on U.S. Standard Form No. 24, Money Order, Certified Check or Cashier\rquote s Check, made payable to the Treasurer of the United States. Such money order or check shall be submitted with the understanding that it shall guarantee that the bidder will not withdraw his bid within thirty days after the date of the opening of the bids; that if his bid is accepted he will enter into a formal contract with the Government, and give bonds as may be required; and that in the event of the withdrawal of said bid within said period, or the failure to enter into said contract and give said bonds within the time specified, the bidder shall be liable to the Government for the difference between the amount specified in his bid and the amount for which the Government may otherwise procure the required work, if the latter amount be in excess of the former, and the Government shall have the right to retain the proceeds of said money order or check to apply on account of such excess cost. File: 05 - Miller v US.doc, Paragraph with $: 17. In the contract, plaintiffs for a consideration of $643,000, plus the cost of bonds, not to exceed $7,500, agreed to furnish the materials and perform the work of constructing the Housing Project involved in their bid in accordance with the Government\rquote s specifications and drawings. The language of the reservation was as follows: File: 05 - Miller v US.doc, Paragraph with $: \u8216\'3fNotwithstanding anything to the contrary herein, it is mutually understood and agreed by and between the parties hereto that neither the execution of this Contract nor any action taken thereunder, nor the recital of the contract sum herein, shall constitute or be construed as a waiver by the contractors of any right which the said contractors might have to establish, by such lawful process as the said contractors shall deem expedient, the true contract price to be the sum of $693,000, being the amount of the written bid submitted plus the cost of the Performance and Payment Bonds as hereinbefore stated. File: 05 - Miller v US.doc, Paragraph with $: \u8216\'3fNotwithstanding anything to the contrary herein, it is mutually understood and agreed by and between the parties hereto that neither the execution of this Contract nor any action taken thereunder, nor the recital of the contract sum herein, shall constitute or be construed as a waiver by the contractors of any right which the said contractors might have to establish, by such lawful process as the said contractors shall deem expedient, the true contract price to be the sum of $693,000 being the amount of the written bid submitted plus the cost of the Performance and Payment Bonds as hereinbefore stated. The government grants the aforesaid right of action to the contractors and shall not interpose the defense of waiver or estoppel. File: 06 - Leitman v US.doc, Paragraph with $: \u8216\'3fWe are now in respect of Contract E741\u8211\'3fORD\u8211\'3f5907 P. O. 41\u8211\'3f1525, and notice that the contract price is $1,340.00 per M instead of $1,440.00 per M as per our regular bid submitted in response to Circular Advertisement. This, we presume, is due to our telegrams which you received after the set time for the opening of bids, and which were based on an error and miscalculation as it was explained by us to the authorities at Rock Island and Washington. The error was due to the fact that in rechecking our figures the morning before the opening of bids, we have erroneously assumed that we could cut complete leather linings from two (2) feet of leather. However, since then, we have definitely established that the least leather required for manufacturing a complete lining is 2 1/4 to 2 1/3 square feet. Your own experience in manufacturing these linings will, we are convinced, substantiate our claim. Our visit to Rock Island Arsenal to watch the manufacture of the helmet linings with a view towards a possible saving on labor costs, has convinced us beyond any doubt that our hopes to save on labor costs are doomed to disappointment. File: 07 - Massman Const Co v US.doc, Paragraph with $: The column headed \u8216\'3fCost\u8217\'3f and showing a total of $308,000 is made up of salaries, wages, and other expenses as outlined on the second and third sheets prepared by Owens and set out in finding 7. The column headed \u8216\'3fAdd\u8217\'3f in the total amount of $59,800 is the amount of expected profit which Owens included. The column headed \u8216\'3fUnit Bid\u8217\'3f is the unit cost for stone as used in the \u8216\'3fCost\u8217\'3f column plus the unit profit used for the purposes of determining the amount shown in the \u8216\'3fAdd\u8217\'3f column. The fourth column in the total amount of $367,000 represents the amount which Owens submitted as plaintiff\rquote s bid for the contract at the unit prices stated. File: 07 - Massman Const Co v US.doc, Paragraph with $: 11. A charge for equipment to be used on this job was one of the elements of cost which should have been included in the preparation of the estimates for the bid. The equipment set forth in the estimate sheet which was prepared by Owens but was not considered by him in preparing plaintiff\rquote s bid was reasonable and necessary for the prosecution of the proposed project and the proposed charges therefor contemplating the use of its own equipment were reasonable and proper. The cost of renting such equipment instead of using its own equipment would have been substantially in excess of the $88,000 computed by Owens on his estimate sheet. The two major items of cost entering into plaintiff\rquote s contract were labor and equipment and, as shown from the estimate sheets, labor constituted the larger item. File: 07 - Massman Const Co v US.doc, Paragraph with $: The Government estimate was an estimate of the cost of the work to the Government if done by the Government with its plant and forces. It included items for supervision, surveys, and inspection in the amount of $53,200 which were not included in the estimates of contractors and which may accordingly File: 07 - Massman Const Co v US.doc, Paragraph with $: The plaintiff\rquote s home office was in Kansas City, Missouri. It had been in the contracting business for 25 years, and for 15 years its work had been principally on contracts with the Army Engineers, the contracts having amounted to some $60,000,000. When the plaintiff learned of the advertisement for the jetty project, it was about to complete other work where it had equipment suitable for the jetty job. George E. Owens, its general superintendent and chief estimator was away from Kansas City and returned there about November 4. It was decided that a bid would be made on the jetty job, and that Owens should go to New Orleans and there, after inquiry about local wage rates, fuel costs, freight rates, etc., prepare the bid. File: 08 - Virginia Engineering Co v US.doc, Paragraph with $: Plaintiff contends that it is entitled to recover the additional cost of $3,936.06 incurred by reason of encountering water at an elevation higher than that shown on the contract drawings upon the theory (1) that the defendant\rquote s drawing 110-25 made a positive representation of a material fact File: 10 - Board of Trustees of National Training School for Boys v OD Wilson Co.doc, Paragraph with $: Thereupon appellee executed a written contract in accordance with the bid. It notified appellant that it was doing so under protest, \u8216\'3freserving\u8216\'3f all rights arising from its estimator\rquote s mistake. Appellee performed the contract and collected the entire contract price, $5,937. The cost of performance to appellee was $6,931.32. File: 16 - Ship Construction And Trading Co v US.doc, Paragraph with $: Between December 30, 1921, and June 30, 1922, the defendant, under contracts with nine several firms, caused 18 of the fleet of 268 ships to be scrapped. Under these contracts the net receipts realized amounted to $37,106.08, which is an average of $2,061.45 for each vessel. The net receipts were determined by deducting from the gross receipts obtained from the sale of the material scrapped only the cost of direct labor and superintendence. File: 16 - Ship Construction And Trading Co v US.doc, Paragraph with $: On February 28, 1922, the Shipping Board Emergency Fleet Corporation stated an account with reference to the cost of construction of the two hulls in accordance with the two contracts which account showed a balance of $488,310.24 due from plaintiff. The account, as so stated, and a demand for payment by plaintiff of the balance shown to be due, which balance included the amount here stipulated to be due, were duly delivered to plaintiff on or before March 18, 1922. Subsequent demands for payment were made by the General Counsel of the United States Shipping Board, and acting also as special counsel for the United States Shipping Board Emergency Fleet Corporation. No payment thereon was ever made by plaintiff. File: 16 - Ship Construction And Trading Co v US.doc, Paragraph with $: In view of our conclusion that there was no contract between the parties upon which a suit for damages could be based, it is unnecessary to discuss in detail the contentions of plaintiff with reference to the number of ships, etc., to which it alleges it was entitled and the fair market value thereof and, also, the contention of plaintiff that the board had duly and properly made an appraisal of the ships as required by the act of June 5, 1920. We have studied the record in this regard and carefully considered plaintiff\rquote s contentions and our decision as to the facts established by the record with reference thereto is disclosed in the facts set forth in findings 5 and 11. Plaintiff\rquote s contentions with reference to market value are not established by any substantial and convincing evidence with reference, either to the value of the ships for dismantling or for probable profitable operation. The record shows that in September 1920 there was a complete collapse of the shipping industry and that thereafter and during 1921 there was no market for wooden ships for the purpose of operation and that the cost of maintaining and operating them would, in all probability, equal or exceed any earnings thereform. But in addition to this the record establishes that 235 ships of the 268 on which plaintiff bid, and which constitute the subject matter of this suit, were sold to one George D. Perry in 1922 and 1923 for dismantling at an average price of $3,318.58 and that the purchaser sustained a loss of $281,098.80 on the undertaking, or an average loss of $1,196.16 a ship. This, we think, is the best evidence of the fair market value of the fleet as a whole. On this evidence the fair value of the ships was not in excess of $2,122.42 each. Plaintiff\rquote s testimony with reference to the matter of profitable operation of some of the ships on which it bid is conjectural and based on estimates not supported by any substantial or convincing facts. File: 17 - Alta Electric And Mechanical Co v US.doc, Paragraph with $: which bid included the subcontractor\rquote s bid of $1,850.00, which amount plaintiff assumed to include not only the price of but the installation cost of the aforesaid burners. File: 17 - Alta Electric And Mechanical Co v US.doc, Paragraph with $: Thereafter plaintiff checked its bid to ascertain the cause of the extreme discrepancy between its bid and that of R. G. Meyler Corp., the next lowest bidder, and it was found that the bid of plaintiff\rquote s subcontractor in the sum of $1,850.00, contained in its letter dated January 9, 1934, was a proposal for the installation of the four burners only and that the cost price of the burners had been quoted in the sum of $5,650.00 in a letter written by the subcontractor to plaintiff prior to January 9, 1934. Said prior letter was never received by plaintiff. File: 17 - Alta Electric And Mechanical Co v US.doc, Paragraph with $: voucher with the direction that the check issue to the \u8220\'3fTreasurer of the United States for deposit as by claimant as a set-off against its indebtedness to the United States in a like amount, on account of default in failing to execute a contract and bond and to perform in accordance with accepted bid calling for installation upon a concrete floor to be furnished by the Government at the Navy Yard, Mare Island, Calif., of two 200-horsepower horizontal type boilers, with solid brick settings, etc., necessitating award to the next lowest bidder at an excess cost to the United States of $5,750.00. File: 17 - Alta Electric And Mechanical Co v US.doc, Paragraph with $: There can be no doubt that plaintiff\rquote s bid on the Mare Island project was based on a mistake. The bid was based on an estimate furnished by plaintiff\rquote s subcontractor and included $1,850 as the cost of the oil burners and their installation, when in truth and in fact the sum of $1,850 covered only the work of installation of the burners and did not include their cost which had previously been quoted to plaintiff by the subcontractor at $5,650 in a letter which plaintiff had not received. The error of $5,650 was so large that it would be unreasonable to suppose that plaintiff would have made the bid it did had it not believed that the cost price of the burners was included in the estimate submitted by the subcontractor. File: 17 - Alta Electric And Mechanical Co v US.doc, Paragraph with $: 1. A, in answer to an advertisement of B for bids for the construction of a building according to stated specifications, sends B a bid of $50,000. B accepts the bid. A, in the calculations that he makes prior to submitting his bid, fails to take into account an item of construction that will cost $5,000. If B knows, or because of the amount of the bid or otherwise, has reason to know that A is acting under a mistake, the contract is voidable by A; otherwise not. File: 18 - Graybar Electric Co v US.doc, Paragraph with $: As specified in Purchase Order No. SC-132372. Liquidated damages will be deducted at the rate of one-tenth of one per cent (.1%) per day of the cost of material included in the contract not delivered within the time specified therein, provided that in the event the damages fall below the rate of $10.00 per day, a minimum of $10.00 per day will be charged for any undelivered portion of the order. File: 20 - Northeastern Const Co v City of Winston-Salem.doc, Paragraph with $: After the Construction Company refused to execute the contract, the plaintiff relet the work to the lowest bidder, and the cost to the city was approximately $25,000 more than the Construction Company\rquote s bid. File: 21 - Moran Towing And Transportation Co v City of New York.doc, Paragraph with $: \u8216\'3fResolved, That the Board of Estimate and Apportionment, pursuant to the terms and conditions of the 1926 Budget, hereby approves of form of contract (No. 1869), specifications and estimate of cost in the sum of twenty-three thousand four hundred and twenty-five dollars ($23,425.) for towing and scow hire (Class 1 to 3, inclusive), for the period between January 1, 1926, and June 30, 1926, under the jurisdiction of the Department of Docks, the cost thereof to be charged to the 1926 Budget appropriation \u8216\'3fCode 2820, General Plant Service;\u8216\'3f provided, however, that if no bids are received for said work within the estimate of cost herein approved, the amount of such estimate of cost may be reconsidered by the Board of Estimate and Apportionment, or its duly authorized representative.\u8216\'3f File: 24 - Sequoia Mills v US.doc, Paragraph with $: XIII. The 22,500 yards of cotton cloth purchased from Cumner, Jones & Company cost contractor approximately 30 cents per yard. Subsequent to the cancellation of the award contractor made all reasonable efforts to sell this cloth to various dealers. Contractor also made an effort to have Cumner, Jones & Company, the vendors, to take the same back, but was unsuccessful. The highest offer received for the cloth was 13 cents per yard. It was finally sold in 1921, in bulk, as a part of the material and equipment sold to one B. P. Sawyer, the price paid for all of this material and equipment being $5,000. There is no evidence in the record showing the consideration for the sale of the 22,500 yards of cotton cloth. Plaintiff has estimated a loss of 4 cents per yard on the 22,500 yards of cloth purchased from Cumner, Jones & Company. It appears that this is a reasonable estimate. File: 24 - Sequoia Mills v US.doc, Paragraph with $: XIV. It cost contractor approximately $5,400 to make the 90,000 strappings for the 15,000 jackets covered by contract No. 1259 and award No. 1423. It is shown that some of these strappings (the exact number does not appear from the evidence) were salvaged at 3 cents per yard. It does not appear from the evidence what disposition was made of the remainder of the strappings. Contractor has estimated its loss on the strappings at $2,700. The evidence on this item fails to show the loss, if any. File: 24 - Sequoia Mills v US.doc, Paragraph with $: XV. If the jackets covered by the contracts had been manufactured they would have cost plaintiff approximately $3.04 each. This amount does not include overhead expenses that would have been incurred. Plaintiff has estimated that it would have made a gross profit of 25 per cent. It is not shown by the evidence what the overhead would have been. File: 37 - Lord v US.doc, Paragraph with $: Agriculture, to the end that all plans may be consistent with each other, and accomplish the purposes for which the building is required. The supervision of the construction work will be in the hands of an officer appointed under the terms of the act authorizing the building. This officer will determine when the plans and specifications have been complied with, will certify payments due, and will directly control all contractors engaged upon the work; but the architects must give him such counsel and advice, in person and on the spot when necessary, as will enable him to correctly interpret the artistic intent of the drawings and specifications. The plans for foundations, structural work, fireproofing, and everything coming within the limits of civil engineering will be developed by the architects in consultation with the officer supervising the construction of the building; of fixtures and appurtenances forming part of the finished building, such as chandeliers, light brackets, elevator enclosures and screens for direct-indirect radiators, if any are used; those which affect its artistic value will be designed or selected by the architects or with their advice, and will be classified with the architectural work; but the cost of wiring and equipping such fixtures and appurtenances, and the total cost of all fixtures and appurtenances having a purely utilitarian value, will be charged to mechanical equipment. The said party of the first part will, for and in behalf of the United States of America, cause to be paid to the said firm of Lord & Hewlett, from the appropriation for the construction of the building, as full compensation for the designs, drawings, specifications, and advice called for herein, three and one-half per cent (3 \u189\'3f%) of the cost of work actually covered by the drawings and specifications furnished by the parties of the second part; and in addition thereto such reasonable actual traveling expenses as may be incurred at the request or by authority of the party of the first part, subsequent to the execution of this contract. Such traveling expenses shall consist of the actual cost of a first-class railroad ticket, a double berth or seat in a Pullman car, necessary transfers at a rate not exceeding fifty (50) cents each, and actual cost of lodging and subsistence at a rate not exceeding six dollars ($6.00) per day for each person. Accounts for traveling expenses must be approved by the party of the first part before being paid. The compensation of three and one-half per cent (3 \u189\'3f%) herein provided for shall be paid as follows: Upon the receipt and approval of general elevations, plans, sections, and one perspective view, one per cent (1%); upon the receipt and approval of the foregoing drawings and, in addition thereto, of general working drawings and specifications, File: 37 - Lord v US.doc, Paragraph with $: work, fireproofing, and everything coming within the limits of civil and mechanical engineering will be developed by the architects in consultation with the officer supervising the construction of the building. The said party of the first part will, for and in behalf of the United States of America, cause to be paid to the said firm of Lord & Hewlett, from the appropriation for the construction of the building, as full compensation for the designs, drawings, and specifications called for herein, three and one-half per cent (3 \u189\'3f%) of the contract cost of work actually covered by the drawings and specifications furnished by the parties of the second part. And in addition thereto actual traveling expenses and a per diem compensation for the rendition of such services and advice as may require the presence of the architects at the site of the building. Traveling expenses shall consist of the actual cost of a first-class railroad ticket, a double berth or seat in a Pullman car, necessary transfers at a rate not exceeding fifty cents each, and actual cost of lodging and subsistence at a rate not exceeding six dollars ($6.00) per day for each person. When the advice is given by a member of the firm of Lord & Hewlett, the per diem compensation will be at the rate of fifty dollars ($50.00) per day for each person; the time to be paid for will be computed on the basis of a day of twenty-four hours, and will include only time spent in actual consultation and advice at the site of the building in Washington, D. C.; a fraction of a day will be allowed as a whole day; in case the architects are represented by anyone not a member of the firm, the per diem compensation will be reduced to ten dollars ($10.00) per day for each person. The compensation of three and one-half per cent (3 File: 38 - Ceballos v US.doc, Paragraph with $: But in that connection the Secretary requested an opinion as to the construction of the treaty of peace in regard to the scope of the description of Spanish prisoners, whether and to what extent the treaty included the repatriation of noncombatants at the cost of the United States. The Secretary further requested a construction of the contract rate of compensation which might be allowed and paid per capita for each class of persons charged for under the terms of the contract with Ceballos & Co. On January 6, 1900, the Attorney-General answered this official communication of the Secretary of War and construed the contract substantially as follows: That it was questionable whether all the persons tendered and transported were not within the purview of the treaty, but that this was a question for the United States authorities and not for the carrier who would have been guilty or might have been guilty of a breach of his contract in refusing to carry persons designated to be carried by the United States. The Attorney-General further informed the Secretary of War that the contract related to the transportation of prisoners; that as between the contracting parties it rested alone with the United States to say who it would send back to Spain, and in doing so to alone determine who were prisoners and who came within the purview of the treaty or the contract. That the words \u8220\'3fother persons\u8221\'3f were included within \u8220\'3fenlisted men,\u8221\'3f and that as to all enlisted men and all persons other than officers, military and civil, $73.75, and no more, was payable by the United States to plaintiffs under the contract. File: 42 - Sanger And Moody v US.doc, Paragraph with $: The claimants accordingly recut and dressed said stone to a higher grade of finish in accordance with the specifications, as construed by the engineer officer in charge, at the cost to them additional to the cost of cutting before the execution of said contract of $12,703.55. File: 42 - Sanger And Moody v US.doc, Paragraph with $: All the cut stone and special stone used in the Lagrange lock was required by the engineer officer in charge to be likewise cut and dressed, the cost of which, over and above what the cost would have been had said stone been cut as the 1,435.43 cubic yards were cut before the execution of said contract, was more than $3,000. File: 43 - Moran Bros Co v US.doc, Paragraph with $: The substance of the findings, stated briefly, is as follows: The claimant, a corporation created by the laws of the State of Washington, in the year 1900 was, by contract, building a steamer known as the George W. Dickinson, for Capt. E. E. Caine, of Seattle; and on the 11th day of April, 1900, Capt. W. W. Robinson, assistant quartermaster at the city of Seattle, received instructions from the Quartermaster-General in Washington to purchase said vessel of Captain Caine at the price of $145,000, upon the condition that claimant should proceed with the construction of the same under the contract with Caine, and upon the further condition that the rate of speed should be at so many knots per hour, and upon the further condition that in the future construction of the vessel if any changes were made diminishing the cost of such vessel the diminished price was to be deducted from the contract price of $145,000, as stated. File: 43 - Moran Bros Co v US.doc, Paragraph with $: the claimant and the officers in charge of the immediate work, which increased the cost of the vessel above the contract price nearly $15,000. Nine thousand nine hundred and sixty-four dollars and seventy-five cents was the amount of the first changes, which amount has been paid and about which there is no controversy. File: 44 - Utah Nevada And California Stage Co v US.doc, Paragraph with $: 32 additional wagons, from 33 to 50 additional men, and involved an additional mileage service, estimated by the claimant\rquote s witnesses at 463,000 miles per annum, and conceded by the defendants to be at least 311,939.47. The increased cost to be borne by the contractor is also significantly shown by the fact that the increased expense for the ferriage of wagons which had to cross the North and East rivers in the delivery of mails to the railroads was $9,950.22. File: 46 - City of Newport News v Potter.doc, Paragraph with $: This is an action of assumpsit brought in the Circuit Court for the Eastern District of Virginia by Alexander Potter, a citizen of New York, against the city of Newport News. There was a verdict and judgment for $4,000 and costs in favor of the plaintiff below. The case is brought here by the city on writ of error. In March, 1898, bids were invited by the city for the construction of a sewer system, the plans and specifications for which had been previously prepared by Mr. Potter, and on June 23, 1898, the city council by resolution awarded the contract to the lowest bidders, M. Honan & Sons. On June 25th a written contract, which had been drafter by Potter, was signed by Honan & Sons, and was executed under its seal by the city. Clauses 10 and 23 of this contract, which will be called the Honan contract, must be here set out for a proper understanding of some of the controverted questions in this case. File: 46 - City of Newport News v Potter.doc, Paragraph with $: This so much increased the difficulties and cost of the work that Honan & Sons, after some months of effort, ceased to attempt a compliance with their contract, and on January 24, 1899, abandoned the still incomplete work. Under clause 10 of the contract, notice having been given without effect, the council by resolution of February 4, 1899, formally ordered Honan & Sons to cease work. When Honan & Sons made the contract with the city they gave a bond for $40,000, conditioned on compliance with the contract. The surety on this bond had been indemnified by a counter bond made by the Delaware County Trust, Safe Deposit & Title Insurance Company, and to this company\u8212\'3f to be hereafter called the Delaware Company\u8212\'3f Honan & Sons assigned their contract with the city. On February 8, 1899, the Delaware Company proposed that it would take up and finish the contract of Honan & Sons. By resolution of March 8, 1899, this proposition, with some additions to be hereafter mentioned, was accepted. The Delaware Company took up the work on or very shortly after March 8th, and continued at it until October 3, 1899, when it ceased work, leaving the system in an unsatisfactory condition. The city paid the Delaware Company in installments until July 1, 1899, but refused to pay for the work done between July 1 and October 3, 1899, and it was not until a compromise was effected File: 47 - Moffett Hodgkins And Clarke Co v City of Rochester.doc, Paragraph with $: We are unable to concur in either of these conclusions. The mistake in tunnel excavations arose from inadvertently making the cost of one item\u8212\'3fmere earth digging and putting the dirt into cars\u8212\'3fthe total cost without making \u8216\'3fany allowance for any work preparatory to it or connected with it,\u8217\'3f to quote the testimony of complainant\rquote s engineer. And it seems impossible for the error to have escaped the notice of the board. Other contractors charged for the same work $12 and $15. File: 50 - Moffett Hodgkins And Clarke Co v City of Rochester.doc, Paragraph with $: The evidence satisfactorily proves that the complainant made a clerical error in inserting in the proposal for contract No. 2, route B, the price of 50 cents, instead of 70 cents, per cubic yard for certain earth excavation (of the estimated quantity of 184,000 cubic yards), whereby the total amount of the bid, when the various items were tabulated, was $36,800 lower than it would otherwise have been. The evidence also indicates that the complainant made an erroneous estimate of the cost of certain tunnel excavation by omitting to take into consideration certain features of the work, and in consequence inserted in that proposal the price of $1.50 per cubic yard, whereas it would have otherwise inserted a price of $15. At the estimated quantity of this excavation, the bid was $27,000 less than it would have been at $15 per cubic yard. These errors were doubtless attributable to the haste in which the specifications were considered and the proposals prepared by the complainant,\u8212\'3fa haste which was unnecessary and almost inexcusable. At the time of the public reading of the bids the complainant called the attention of the board to the mistake in the price for the earth excavation, but did not mention the other alleged error. It did not ask to withdraw the bid, and took no further action in that behalf until about 20 days thereafter, and when the board had already awarded contract No. 1 to the lowest bidder. The complainant then sent a communication to the board, insisting that its bid for the whole work included in contracts No. 1 and No. 2 was a single proposal, protesting against letting the two contracts to different contractors, and stating that clerical errors had been made in the proposal for contract No. 2, route B, in the prices for earth excavation and tunnel excavation, and the details of the errors. The communication concluded as follows: \u8216\'3fWe therefore respectfully request either that the contract in its entirety for both sections of the work be awarded to us, at the corrected prices, or that we may be allowed to withdraw our proposal.\u8216\'3f The board, after receiving this communication, adopted resolutions awarding contract No. 2, route B, to the complainant. Thereupon the complainant commenced the present action. File: 55 - Safety Insulated Wire And Cable Co v City of Baltimore.doc, Paragraph with $: The city of Baltimore itself had a system of telegraph and telephone wires carried on poles in said city, used exclusively by the city for the use of the police and fire departments, respectively. At the time of the passage of the ordinance of 1893 next mentioned, out of which this case arose, the city of Baltimore had given to the Chesapeake & Potomac Telephone Company the privilege of constructing conduits for its wires under the streets, lanes, and alleys of the city, reserving to the city the right to use the conduits and subways of that company for its own wires without cost to the municipality. Under these circumstances the mayor and city council of Baltimore, on 1st May, 1893, passed an ordinance No. 106. The title of the ordinance is \u8216\'3fAn ordinance to place the wires of the police and fire alarm telegraph and police patrol systems under ground.\u8216\'3f It puts the matter in charge of the board of fire commissioners and the superintendent of the police and fire alarm telegraph, and authorizes and directs them to advertise for proposals to furnish cables, conduits, and trenching, separately or as a whole, when it may be necessary. It directs that the subways and conduits of the Chesapeake & Potomac Telephone Company be used, as far as practicable, under the right reserved to the city to place therein the wires of the police and fire alarm telegraph and police patrol telegraph. It empowers them, after deciding upon the cable or cables best in their judgment, to award the contract to the lowest responsible bidder or bidders. It appropriates for this work $100,000 of the $250,000 \u8216\'3fset apart for laying conduits for underground wires\u8216\'3f in the ordinance distributing the $6,000,000 loan. The board of fire commissioners and the superintendent of the police and fire alarm telegraph, acting under this ordinance, advertised for bidders to do this work. The Safety Insulated Wire & Cable Company put in a bid for $97,985, and it was accepted on 28th June, 1893. On 30th June, 1893, this company declared itself ready to begin and conclude the work. On the same day it was informed by the board of fire commissioners and the superintendent of the police and fire alarm telegraph, by a File: 56 - Worthington v City of Boston.doc, Paragraph with $: In the year 1877 the water board and Henry R. Worthington contracted for an engine, at a cost of $20,000, without advertising therefor, and the price stipulated therein was paid by the city. File: 56 - Worthington v City of Boston.doc, Paragraph with $: An ordinance of a city council establishing a water board provided that no contract or purchase estimated to involve an expenditure of more than $10,000 should be made by the board without advertising for proposals. Afterwards, for the purpose of an extension of the water supply, the plans for which involved the use of a patented pumping engine and machinery, estimated to cost more than $100,000, the city council passed an order authorizing the board to exchange engines and machinery of insufficient capacity for those of the capacity required by such plans and estimates, the expense to be charged to the appropriation for the extension. Held, that this dispensed with advertising for proposals for such exchange, although any expenditure exceeding $10,000 was involved. File: 80 - McKinney v US.doc, Paragraph with $: Under these circumstances the claimant demanded payment according to the terms of his contract for four thousand eight hundred and forty-four and eleven sixteenths cords of wood at six dollars per cord, amounting $29,068 12, and also for the rest of the wood, one thousand four hundred and fifty-five and five-sixteenths cords, less the cost of hauling, ranking, &c. He shows that it would have cost him about one dollar and forty cents per cord to deliver the wood, which would leave four dollars and sixty cents per cord as the amount to which he is entitled under his contract. One thousand four hundred and fifty-five and five-sixteenths cords at this price will make the sum of $6,694 44, which, added to the contract value of the wood delivered, amounts to $35,762 56. This was the amount claimed. File: 84 - Fowler v US.doc, Paragraph with $: The actual cost of performing the work, according to the evidence, was $130,747. The difference between that sum and the contract price is claimed as damages for the breach. File: 84 - Fowler v US.doc, Paragraph with $: The best criterion of the cost of the work is what it actually cost the party who performed it. That, Mr. Cheney, the gentleman who superintended the performance of the work under the contract with the Architectural Iron Works, swears was $130,747. File: 84 - Fowler v US.doc, Paragraph with $: To which is to be added the sum of $9,000 received from old material out of the library, making the entire cost $139,747. But these old materials in the specifications, No. 29, would have belonged to the contractor, so that the exact cost of the work is the sum first stated. File: American Federation of Government Emp Local 1858 v Callaway.doc, Paragraph with $: of the remaining 29 years of man effort that would have to be contracted out. The court finds that the computation of this figure arbitrarily violated AR235-5, paragraph 4-2(3), and was so clearly erroneous as to shock judicial conscience. The court wonders why the consciences of those officials approving the cost analysis on September 9, 1974, were not similarly shocked. The court bases its findings upon the following facts: The line 26 \u8216\'3fother contractor cost\u8217\'3f was calculated on the basis of solicitation responses offered by comparative technological contractors on two totally unrelated contracts. It asserts a cost of $76,869.00 and $76,156.00 respectively as the total cost per man year of direct labor and overhead to perform this highly technical SETAC function. In direct contravention of its own regulations, it did not base the actual cost upon the previous contract experience for the services. Instead, it arrived at a figure of over $2,300,000.00, although the contractor was obviously performing at a much lower cost. This evidence is directly presented in the form of File: American Federation of Government Emp Local 1858 v Callaway.doc, Paragraph with $: cost to contract this effort out. Assuming for the sake of argument that, as line 26 indicates, overhead equals 100 per cent of direct labor, would the cost of performing this function equal the figure given by line 26? Based upon actual contract experience, the contractor had a direct labor cost for its 29 highest-paid personnel of $661,511.00. If, for the sake of argument, overhead would be 100 per cent of direct labor cost, actual contract experience indicates the total cost of these services to be $1,323,022.00, or approximately $1,000,000.00 less than the amount represented by line 26. The court conclusively finds that the computation and representation of line 26 and the determination based upon that entry were patently erroneous. Consequently, the conclusion that it would cost more to have the contract services performed by File: American Federation of Government Emp v Hoffmann.doc, Paragraph with $: Plaintiffs have failed to show that such a contract in fact would not have been required. Their own witness, Mr. Sadler, recognized that these highly technical tasks had to be performed by Teledyne-Brown, or some other similar contractor, and that it would take 3-5 years to bring the entire SETAC effort in-house if possible. (HT 125, 127, 135). Plaintiffs contend that a fully loaded figure of $58,000 per man year rather than the $80,000 per year used was a more accurate depiction of Teledyne-Brown\rquote s cost experience. The former figure, which plaintiffs called the actual costs preferred under AR File: American Federation of Government Emp v Hoffmann.doc, Paragraph with $: 235-5, was computed by Mr. Gibbs using the 29 highest paid Brown labor categories listed in the backup materials to the approved CCA. The $80,000 was extracted from a letter from Brown to BMDSCOM quoting an estimated cost for this level of effort (Plaintiffs\rquote Exhibit 34) and was verified by Mr. Gibbs by examining several contracts for similar highly technical effort (TT 410-12). Mr. Gibbs made it clear that he did not consider the 29 man years of highly technical effort the equivalent of the 29 highest paid individuals (TT 424, 442). He testified: File: American Federation of Government Emp v Hoffmann.doc, Paragraph with $: The same reasoning that applied to plaintiffs\rquote criticism of Mr. Gibbs\rquote use of the $58,000 figure governs here. The quote requested for 29 man years of highly technical expertise was not the equivalent of requesting the 29 highest paid Teledyne-Brown employees. This was established by the earlier testimony of Mr. Gibbs and Mr. McCarter (TT 442, 558-60). There were substantially more than 29 Teledyne-Brown employees working on the SETAC effort overall. (Defendants\rquote Exhibit 9, TT 605). Further, Mr. McCarter testified that some 55 Brown people were working on the 29 man years of highly technical effort at that time (TT 573-74). Based on this it must be concluded that the loaded cost of the 29 highest paid Brown employees cannot be equated with the cost of these 29 man years. Further, Teledyne-Brown had not been providing only 29 man years of highly technical effort. The level of effort under the SETAC scope of work in connection with the approved CCA totaled 129 man years, including other than just the highly technical work which was the subject of the Teledyne-Brown quote. (Plaintiffs\rquote Exhibits 45, 51-54, TT 999-1001, 1004). Thus even if there were an equivalency between the 29 highest paid and 29 highly technical man years the difference in work parameters between the contractor cost proposal, reflecting its actual experience under the contract, and the proposal for 29 man years would mitigate against using the former as a basis for predicting the cost of the latter. File: American Federation of Government Emp v Hoffmann.doc, Paragraph with $: to contractor cost. To verify the $80,000 quote made by Teledyne-Brown in their letter of 19 September 1974 Mr. Ratliff did use contracts for similar type effort at varying man year levels with similar type contractors. File: Armstrong And Armstrong Inc v U S By and Through Morton (1).doc, Paragraph with $: Action by contractor alleging that the Bureau of Reclamation acted negligently, arbitrarily and capriciously in denying award of contract, in which contractor sought damages alleged to have been sustained in bid preparation costs, and $142,000 for loss of profits. The District Court, Powell, J., held that plaintiff contractor was entitled to recover its bid preparation costs of $9,414.13, but contractor waived remainder of its claim in the event jurisdiction and recovery in the district court was predicated upon the Tucker Act, which limits jurisdiction of the court to claims not in excess of $10,000. File: Armstrong And Armstrong Inc v U S By and Through Morton (1).doc, Paragraph with $: Plaintiff contractor, which alleged that Bureau of Reclamation officials acted negligently, arbitrarily and capriciously in denying award of government contract, was entitled to recover its bid preparation costs of $9,414.13, but contractor waived remainder of its claim in the event jurisdiction and recovery in the district court was predicated upon the Tucker Act, which limits jurisdiction of the court to claims not in excess of $10,000.00. File: Armstrong And Armstrong Inc v U S By and Through Morton (1).doc, Paragraph with $: The plaintiff claims that Bureau of Reclamation officials acted negligently, arbitrarily and capriciously in denying the award of this contract to the plaintiff. Damages of $9,414.13 are alleged to have been sustained by the plaintiff in bid preparation costs and $142,000.00 in loss of profits. File: Barr v Rhodes.doc, Paragraph with $: Where interests of the plaintiffs in action to enjoin government officer from letting contract for construction of levee were separate and distinct demands, allegation in complaint that the matter in controversy exceeded, exclusive of interests and costs, $3,000, but not alleging that amount involved as to any one or more of plaintiffs individually exceeded the jurisdictional amount of $3,000 was insufficient to confer jurisdiction on federal District Court. File: Barrett v Craven County Bd of Ed.doc, Paragraph with $: All decisions and actions by the School Board on the new Middle Grades School have been given wide and thorough publicity by the local newspaper and all have been done with the knowledge of the plaintiffs themselves and their duly elected representatives. In addition to the time and funds already expended, at the time of the institution of this action, the defendants were prepared to advertise invitations to contractors to bid for the construction of the new school. Should the same school be re-located on a different site, the estimated additional cost of required engineering and re-design work would be $20,500.00. File: City of Devils Lake v St Paul Fire And Marine Ins Co.doc, Paragraph with $: Barbarossa had contemplated a $75,000.00 profit. If forced to enter into the contract on the basis of its bid it would have been commencing construction with the knowledge that it was starting a project on which there would be an estimated loss in excess of $40,000.00. It immediately notified plaintiff of its mistake and requested that if awarded the contract it be permitted to proceed on the basis of open cut construction, or on some other basis that would compensate it for the additional cost of jacking. File: City of Devils Lake v St Paul Fire And Marine Ins Co.doc, Paragraph with $: By reason of its unilateral mistake, Barbarossa underbid the project by approximately $112,000.00. This would have placed it in a substantial loss position from the inception of the contract. The mistake was brought to plaintiff\rquote s attention within two days of the bid opening, and Barbarossa offered to construct the project if plaintiff would increase the contract amount by $112,000.00. Such an increase would have given the plaintiff its project for an amount $400,000.00 less than the Haggart bid. Instead, plaintiff awarded the contract to Haggart on its bid, and sued on Barbarossa\rquote s bid bond. It thereby increased its total cost by $400,000.00, from which it could have expected a maximum recovery on the bid bond of only $121,000.00. Under these circumstances the position of the File: Clement Martin Inc v Dick Corp.doc, Paragraph with $: the Citizens General Hospital, desirous of constructing an addition, applied for and was granted 40% of the costs of construction from the United States Treasury; the balance was to be financed by private funds. In June of 1950, the Hospital advertised for bids for the construction project. The advertisement specified among other things that the Hospital \u8216\'3freserved the right to reject any and all bids and to waive informalities.\u8217\'3f Three bids were received. The plaintiff, a responsible contractor, bid the sum of $798,666 which was the lowest acceptable bid. Notwithstanding, the Hospital accepted the bid of File: CN Monroe Mfg Co v US.doc, Paragraph with $: More than 10 pounds of bar steel was required to produce the bushing and approximately 32 pounds of cast steel was needed to produce the lifter body. The reasonable market price for the 42 pounds of raw material was $9.14. The sub-contracted cost for lubriting and heat treating paid by the plaintiff amounted to $2.92 for both items. Plaintiff\rquote s total cost of material and sub-contracted treatment amounted to $12.60 for each complete assembly. Labor on the two items came to $2.52 per unit. The factory burden was $3.13 per unit, and the general administrative expense amounted to $2.15 per unit. Plaintiff\rquote s total cost without profit for manufacturing the assembly was $19.80, with the lifter body costing approximately four times more than the bushing. There was uncontradicted testimony that the assembly could not have been produced by any other contractor for less than $18 per unit allowing for a reasonable margin of profit. File: CN Monroe Mfg Co v US.doc, Paragraph with $: It is to be noted that all but the two lowest bids were for $18 or more, excluding the highest bid of $300, which under the proof in this case was clearly out of line. The average of the next seven bids above the two lowest bids is $24.96. This is six times the amount of plaintiff\rquote s bid of $3.91 and approximately four times the second bid of $6.40. Clearly under the evidence in this case plaintiff\rquote s bid and the next lowest bid were the result of a mistake by the bidders in omitting the larger item of the assembly in computing their bids. Both of their bids were less than the cost of the raw material required to produce them. As the contracting officer who awarded this contract testified, if he had seen the two items of equipment which were exhibits at the trial, or if he had looked at the drawings of them, he would have been put on notice that something was wrong. He testified that even a layman could tell that the two items could not be manufactured for $3.91, the amount of plaintiff\rquote s bid, or $6.40, the amount of the second lowest bid. The presence of the two erroneous low bids was the reason the defendant overlooked the error, and if the two mistakes had not coincided, as the contracting officer testified, the award would not have been made without verification of plaintiff\rquote s bid. File: CN Monroe Mfg Co v US.doc, Paragraph with $: bids had not been submitted, and the record shows that $18 is a fair and reasonable price for the production of the assembly. The Government therefore would not be prejudiced in giving the relief the plaintiff is seeking other than its loss of a bargain that was brought about through a gross and obvious mistake. Upon completion of the contract the plaintiff was paid $3,077.17, the Government having agreed to accept a variation in the quantities of the assembly pursuant to the contract by accepting 787 assemblies instead of 750 assemblies. The cost to the Government would have been $14,166 if the third lowest bid had been accepted, which is $11,088.83 more than paid to the plaintiff. While the Government has been unjustly enriched in the above amount, plaintiff has recognized in its complaint that recovery under File: Cofan Associates Inc v US.doc, Paragraph with $: Plaintiff is a disappointed bidder for a construction contract on the regional park project advertised by the municipality of Caguas. Plaintiff alleges that it was low bidder but the municipality\rquote s procurement official improperly failed to award it the contract. It claims damages totaling $17,477,484 for its bid preparation costs, delays, employees\rquote wages and salaries, depreciation, overhead, lost profits and other items. It seeks to have the United States held liable for these damages because the construction project was funded and sponsored by BOR and HUD. File: Delta Data Systems Corp v Webster.doc, Paragraph with $: First. The government vastly overstates its financial injury from the termination of the contract. Thus, the FBI claims that it has already spent over $4 million under its contract with Burroughs, and it estimates that it would cost the agency an additional $10 million to terminate the contract. However, some or much of the Burroughs equipment delivered to the FBI is fully compatible with File: Delta Elec Const Co Inc v US.doc, Paragraph with $: proposed to furnish a readily available commercial standard size precast manhole of slightly different dimensions than those specified in the contract specifications and drawings for a reduction in the contract performance cost of $1,400.00. On February 7, 1974, plaintiff was advised by defendant\rquote s district value engineering officer that the proposal had been approved subject to negotiation of change order and savings and was being forwarded to defendant\rquote s construction division with the recommendation that a value engineering change order be issued. Upon recommendation of the district value engineering officer, plaintiff\rquote s proposal was approved by the contracting officer on February 11, 1974, subject to negotiation of the change order and savings. On February 8, 1974, the district value engineering officer requested that a government estimate on plaintiff\rquote s proposal be prepared and furnished to the construction division. Sometime between March 6 and March 9, 1974, the government\rquote s electrical estimator, Wendell H. Lester, received the assignment to prepare the government estimate. The government\rquote s estimator was instructed to prepare an estimate based upon a comparison of costs of a precast manhole and a manhole poured in place. The time required to prepare a construction cost estimate such as the government\rquote s estimate in this action requires from 30 minutes to 1/2 a day to reduce to writing. (Evidence at trial conclusively proved that it would take at least a full week to gather the necessary material to put it in writing.) The government\rquote s estimate was completed and forwarded to the construction division on March 11, 1974. Representatives of plaintiff and defendant met March 21, 1974, to negotiate the savings to be realized by plaintiff\rquote s proposal. At the conference of March 21, 1974, the representatives of the parties were unable to reach any agreement or to reconcile any portion of the difference between the government\rquote s estimate of $11,956.00 and the plaintiff\rquote s estimate of $1,400.00. Following the conference of March 21, 1974, the government\rquote s representative reviewed the government\rquote s estimate, determined that it was too high and, on March 25, 1974, telephoned plaintiff\rquote s representative to advise that the government\rquote s estimate had been cut in half, but such reduced estimate was still not acceptable to plaintiff. Plaintiff thereupon, without further ado, requested the contracting officer to forward him a letter refusing to issue any change order in this case with reference to the value engineer incentive clause. By letter dated April 2, 1974, the contracting officer advised plaintiff that its proposal had been reviewed and found technically acceptable except for two (2) minor changes but that plaintiff\rquote s estimate of the reduction in performance cost of $1,400.00 was not considered an equitable adjustment and therefore plaintiff\rquote s proposal was not approved. File: Eastern Service Management Co v US.doc, Paragraph with $: The uncontested affidavit of plaintiff\rquote s president indicates that it incurred additional costs and loss of profit totalling $8,164.62 for the contract period in File: Eastern Service Management Co v US.doc, Paragraph with $: The specifications recited that the office space to be cleaned consisted of 129,300 sq. ft., when actually, with the omitted corridors, lobbies and rest rooms in the area, the number of square feet exceeded 138,300, a variation of about 7%. The materiality of this difference is further revealed by the added cost to the contractor for this extra area. The contract price for cleaning the entire building, including the cafeteria and warehouse space, was $40,437.08. The extra cost to clean the total space exceeded $8,000.00, a difference of about 20%. Under these circumstances it is not reasonable to say that the original specifications \u8216\'3fapproximated\u8217\'3f the actual amount of space to be File: Fabrizio And Martin Inc v Board of Ed Central School Dist No 2 of Towns of Bedford Et Al.doc, Paragraph with $: claims it had paid Mars-Normel $428,164 for its completion work whereas the Mars-Normel guaranteed maximum cost contract was for $403,000. Differences are alleged to exist between amounts paid and amounts certified as unfinished for masonry and carpenter work. Discrepancies are also claimed as to work performed and amounts paid to MacNamee and Bradhurst. Aetna is entitled to question these alleged payments, since the items may come within its performance bond. Naturally, if any of the work so performed did not fall within File: Florsheim Co v Miller.doc, Paragraph with $: This is a declaratory judgment action, brought by a building contractor and her surety, against the County Judge and Commissioners, in their official capacities, of Bowie County. The contractor made a $1,078,000.00 mistake in tabulating her estimate of the cost of a building for the county, making her low bidder by $443,000.00. The court here considers her motion for summary judgment. File: Florsheim Co v Miller.doc, Paragraph with $: The facts are simple and essentially undisputed. The Plaintiff worked on the estimate for three weeks but could not complete it until nearly the last minute before the deadline. Although that appears to be an unbusinesslike procedure, it is the custom in the industry. Generally, contractors find it impossible to tally an estimate earlier than the last hour or two before the bid is due. Subcontractors and suppliers invariably wait until then to submit their quotations to the general contractors, fearing their bid will be \u8220\'3fshopped,\u8221\'3f or \u8220\'3fpeddled,\u8221\'3f if given earlier. In her final tabulation of subtotals, the Plaintiff correctly wrote the mechanical and electrical cost of $1,197,779.00 on the worksheet. But she inadvertently entered only $119,779.00 when adding the subtotals. That this happened is manifest from a glance at the actual worksheet. The Defendants do not dispute that this error occurred as described. Rather, they contest the consequences of the miscalculation. File: Florsheim Co v Miller.doc, Paragraph with $: Ultimately the county\rquote s claim for relief hangs on its bald assertion that failing to double check an act of addition is such culpable negligence as should cost the Plaintiff $443,000. The Defendants offer no examples of what constitutes a breach of positive duty to a public authority. The court can imagine, for example, situations where an irresponsible contractor might hastily make a \u8220\'3fhip pocket\u8221\'3f estimate on a project, hoping to be lucky but prepared to claim mistake if he bid too low. Such lack of care in preparing an estimate\u8212\'3famounting to virtually no care whatever\u8212\'3fif not culpable negligence or fault, at least File: Funderburg Builders Inc v Abbeville County Memorial Hospital.doc, Paragraph with $: , where the cost thereof will exceed twenty-five ($25) dollars, and the contract therefor according to plans and specifications, a duplicate of which shall be kept on file in the office of the Board, Shall be awarded to the lowest responsible bidder. (Emphasis added). File: Gamewell Co v City of Phoenix.doc, Paragraph with $: He estimated that the work would take about forty man weeks. That means one man working for forty weeks. In view of the fact that the bidding document only gave one about fifteen to seventeen days, it would mean that one would have to work that down to a point where one would need a force of twenty men for two weeks or forty men for one week to perform the functions required by Paragraph Two of H, and that would be a terrific burden to place on a prospective bidder, and most of the contractors do not maintain an organization of such magnitude to comply with these requirements. It would mean he would have to hire a special firm of consultants to do this work, or if he couldn\rquote t hire such a firm, set up his own organization. It would cost a contractor \u8216\'3fas much as $10,000.00\u8217\'3f to prepare this bid \u8216\'3fwhich\u8217\'3f, he thought, \u8216\'3fwas a little unjust for public works\rquote . A consulting firm would charge between 45 and 50 thousand dollars. At the time the bids were called, it would have been impossible to assemble a crew and gotten the work done as there are not many men trained in this work. And you couldn\rquote t assemble them in so short a time. Time would be needed to communicate with manufacturers of fire alarm equipment which usually takes ten to twelve days, and also manufacturers of cable and duct equipment and other items necessary to install the system. The map that accompanied the specifications had spotted on it the location of the fire alarm boxes throughout the File: General Engineering Corp v Virgin Islands Water and Power Authority.doc, Paragraph with $: A suggested letter of intent was approved by WAPA in a board meeting on March 14; Westerbaan dissented from this approval and walked out of the meeting. After some revisions, a contract embodying the proposal was approved at a board meeting on May 23, 1985, with Westerbaan again the sole dissenter. Among its provisions was one declaring that no relationship of agency would exist between the parties. App. 2198. Under the terms of the contract, WAPA is obligated to purchase at least 140 million kilowatt-hours of electricity per year, at 4.5 cents per kilowatt-hour. It must also purchase at least 630 million pounds of steam each year, at $2 per thousand pounds. Both of these prices are subject to adjustment over the term of the contract. WAPA must supply the plant with fuel, lubricating oil, and water as required. The district court found that the total cost to WAPA will compare favorably with what it presently costs WAPA to produce energy at its existing plant, describing the potential savings to WAPA and its customers as \u8220\'3fimpressive.\u8221\'3f File: Hayes Intern Corp v McLucas.doc, Paragraph with $: The aerial boom is the nozzle by which fuel is transferred in mid-air from the KC\u8212\'3f135 tanker to other aircraft. The alterations in it which Boeing performs under its IRAN/Modification contract have an estimated cost of $2,000,000. File: Hayes Intern Corp v McLucas.doc, Paragraph with $: The two sets of wing modifications were issued in the form of so-called \u8216\'3fWing Fatigue packages,\u8217\'3f both of which Boeing performed. Wing Fatigue Package IV was issued to Boeing under the IRAN/Modification contract 3366. Wing Fatigue Package V involved far more extensive changes in the wings of every KC\u8212\'3f135 aircraft, and at a unit price of $313,934.00 amounts to a total cost for a modification of the entire fleet of over $200,000,000. This modification was later issued to Boeing under a separate contract, No. F34601\u8212\'3f72\u8212\'3fC\u8212\'3f4213\u8212\'3fPZ0003, as opposed to being assigned to Boeing under its IRAN/Modification contract. File: Hicks v Town of Hudson.doc, Paragraph with $: to employ another contractor to repair the defects at a cost of $4,079.00. File: In re D Federico Co Inc.doc, Paragraph with $: Due to the encountering of a mass of reinforced concrete located under Aiello\rquote s and Parisi\rquote s buildings on Homer\rquote s Wharf and not anticipated in the original contract, it was necessary for the Authority to issue Change Orders No. 2 and No. 3. These Change Orders covered the drilling and boring through the concrete that would permit installation of the sheet tie-back system under the buildings. Change Order No. 2 was approved by the Authority on June 13, 1977 \u8220\'3fin an amount not to exceed One Hundred and One Thousand ($101,000.00) Dollars.\u8221\'3f Due to an increase in the cost of labor, equipment, and materials necessary to complete the work as described in Change Order No. 2, Change Order No. 3 was issued on August 30, 1977, increasing the contract price another $175,000. In addition, $50,000 in \u8220\'3fcredits\u8221\'3f File: In re D Federico Co Inc.doc, Paragraph with $: The contractor was paid $327,552.26, less $31,587.11 in retainages, for work performed pursuant to Change Orders No. 2 and No. 3 but seeks an additional $13,668.00 for equipment rental charges and fuel costs. The contractor contends that it used, both in its pre-Change Order written proposals and in its computations of actual expenses for work performed, monthly equipment rental rates rather than daily or weekly rental rates because the monthly rates were the most favorable to the Authority. Further, it is industry practice that when a monthly rate is used, the lessor is paid the full amount of the monthly rental rate no matter how many hours the equipment was actually used during the month. On the daily rate, which is higher than the pro-rata monthly rate, the lessor is paid only for the actual number of hours the machine is in use. It is the contractor\rquote s contention that the Authority paid only for the actual hours each piece of equipment worked but applied the lower pro-rata monthly rate and that it is entitled to the full monthly rate. In addition, the contractor believes it is entitled to compensation for fuel used in the operation of the equipment since it is the practice in the industry for the lessee to pay fuel costs when equipment is rented on a monthly basis. There was testimony that oral demands for payment of these items were made on the Authority and refused. File: In re D Federico Co Inc.doc, Paragraph with $: First, the June 17, 1977 letter from the Authority to the contractor states that reports were to be kept covering equipment used, labor supplied and work performed, and that these reports be signed by representatives of both parties. \u8220\'3fDiscrepancies or disagreements shall be resolved no later than the next day by Mr. Viveiros or (Mr. Horn). Objections or exceptions shall be noted and signed by both parties.\u8221\'3f This certainly should have been done for at least the fuel supplied and was not. More importantly, the Change Order documents clearly show that the total contract price for the work being performed pursuant to these Change Orders was.$326,000. Moreover, they make clear that the work was to be performed on a cost-plus limited basis in accordance with Section 109 sub-paragraph d(2) of the Specifications. A \u8220\'3fcost-plus-limited basis\u8221\'3f is defined in sub-paragraph d(2) as File: Insley v Shepard.doc, Paragraph with $: As to the last point, the act of June 23, 1883, in force at the time this contract was made, requires the commissioners of highways to give at least 10 days\rquote notice of the letting of all contracts for the construction and repair of roads and bridges where the amount to be expended exceeds $75. In this case the commissioners advertised for bids for the building of a bridge across the Illinois river, opposite Peoria, stating the class and kind of work. At that time the location of the bridge was not fixed. Plaintiffs put in a bid for certain kinds of bridge-work, draw-piers, trussed draw-spans, fixed truss spans, and trestle-work. Their bid was accepted, with the understanding that, when the location was decided, the amount to be paid for the work would be determined by the length of the bridge, upon the basis fixed by the bid. The bridge contracted for was the same kind of bridge as that bid for, with some slight modifications as to the style of the truss and the piers, and a great diminution in the amount of wooden trestle-work for the approaches to the bridge. I do not think, upon these facts, a new advertisement was necessary after the location had been decided upon. The object in advertising for bids upon the work is to ascertain and obtain the views of builders as to the cost of such work; and when that fact is determined, and the competition has been invited, and the competing bidders have made their offers, the town authorities may properly accept such bid as they deem best under all the circumstances, and, in the contract for the work, make such modifications from the plans and specifications as seem desirable, where there is no radical departure from the proposition; and here, it seems to me, there was no such departure. File: Insley v Shepard.doc, Paragraph with $: The plaintiffs have submitted proofs in regard to various elements of damage, as follows: (1) Proof that the cost of constructing the bridge according to the plans and specifications in the contract would be $35,206, which, deducted from the contract price, would leave a profit of $15,594; (2) that plaintiffs purchased a portion of the material for this bridge before the contract was repudiated by the defendants, on which they sustained a loss of $2,500 in adapting such material to other uses; (3) cost of patterns made specially for this work, $370; (4) cash paid to subcontractors for work on pier, $824; (5) expenses of plaintiffs\rquote agents in traveling to and from Peoria, making plans and specifications, telegrams, etc., about $2,145. File: Lombard Corp v Resor.doc, Paragraph with $: In October, 1968, plaintiff was invited to submit a bid for the design and manufacture of two 155 mm. forging press lines, to be installed in the Scranton Army Ammunition Plant, owned by the U.S. Government and operated by Chamberlain on a cost-reimbursable basis for the Army. Plaintiff submitted its proposal on October 25, 1968, quoting a total price of $1,375,000 for the two press lines. Only one other bid was received, that being from Verson All Steel Press Co., for roughly twice the amount of plaintiff\rquote s bid. Chamberlain was required under the terms of its cost-reimbursable facilities contract with the Army to have all subcontracts totalling over $100,000 approved before work was begun. In this instance, because of the importance of the project and the large disparity in price, Chamberlain requested that the Defense Contract Administration Services Office (hereinafter referred File: McMullen v Hoffman.doc, Paragraph with $: I was of opinion that it was within the principle of those cases involving agreements for a division of the fees of public offices and for compensation for services in lobbying. This, I am convinced, was an erroneous view of the question. In one of those cases the court is asked to compel, by its judgment, the very thing prohibited by public policy, while in the other it is asked to compel payment for a service forbidden by such policy. The question of division of profits between two parties having equal rights is a very different one. The distribution of the profits of this contract, which are as much the property of one of the parties as of the other, does not violate any rule of morals or of public policy. Moreover, the case on the facts differs materially from that presented on the exceptions to the answer. It is alleged in the answer that the plaintiff was prepared to bid, and, but for the secret agreement alleged to have been made, would have bid, for the work, at a figure some $40,000 less than that at which the contract was let. This put the plaintiff in the position of seeking to recover in the suit for withholding a lower bid, by which the work was made to cost much more than it would otherwise have cost, and brought the case within the principle of File: McMullen v Hoffman.doc, Paragraph with $: If the second bid in this case was in effect a misrepresentation made with a fraudulent intent, it must, in order to avail the defendant, appear to have been acted upon by the committee,\u8212\'3f to have influenced their action to the public detriment. however reprehensible the act of the parties was in making the second bid, there is no presumption of fraud arising from it, and it does not appear from the evidence in the case that the water committee was in any degree influenced by it in awarding the contract. On the contrary, the testimony of the chairman of the committee is that the bid of the San Francisco Bridge Company did not have the slightest influence with him, and it appears that the engineer of the water committee had, some three months previously, made for the information of the committee an estimate of the cost of the work covered by these bids, and that such estimate was higher than the bid of the San Francisco Bridge Company. That bid, as already stated, was $514,664. How much higher the city engineer\rquote s estimate was than this figure is not stated. But with this estimate, higher than the second bid, and nearly $50,000 higher than the bid of File: Merriam v Kunzig.doc, Paragraph with $: To determine the zone of interests to be protected by the I.O.A.A. requires analysis of its legislative history. The language requiring GSA to submit a prospectus to Congress prior to entering into a lease construction contract for a building costing more than $200,000 first appeared in the I.O.A.A. of 1963. File: Merriam v Kunzig.doc, Paragraph with $: \u8220\'3fThe General Services Administration wants to build several new buildings in the District of Columbia under a lease construction program to provide 1 million square feet of additional space. The entire space in each building is to be rented by the Government. With this procedure the Committee disagrees since they are completely financed new buildings under lease construction contracts. The Committee believes that the Government should own the buildings instead of giving somebody a ten to fifteen year payout. The concern of the Committee is that lease construction is clearly the most expensive method of providing Government space. Under this method the Government pays rent at $4 to $4.25 per square foot per year and never obtains title to the property. A limitation on use of funds for lease construction projects costing over $200,000 has therefore been included in the bill, but it provides that a project may proceed after obtaining legislative approval in advance of a commitment in the same manner as for public building construction projects financed by direct appropriations pursuant to the Public Buildings Act of 1959.\u8221\'3f File: Missouri Public Service Corp v Fairbanks Morse And Co.doc, Paragraph with $: funds.\u8216\'3f Certainly the contracts which were entered into by this board were \u8216\'3ffor the * * * construction of (an) * * * improvement * * * the total cost of which\u8216\'3f exceeded both $10,000 and $35,000. Upon what possible theory then is it contended that the section does not apply to the city council of Trenton? File: Missouri Public Service Corp v Fairbanks Morse And Co.doc, Paragraph with $: , 1899, relating to and entitled \u8216\'3fContracts and promises,\u8216\'3f by adding two (2) new sections thereto, to be known as sections 899a and 899b, providing that no officer of this state or any board or organization existing under the laws of this state or any political subdivision thereof containing 500,000 inhabitants or over, shall contract for the erection or construction of any building, improvement, alteration or repair to cost more than ten thousand dollars ($10,000), until File: Nev-Cal Elec Securities Co v Imperial Irr Dist.doc, Paragraph with $: The contract provided for the manufacture, construction, and erection of three Diesel engines and various other electrical generating equipment, at an aggregate cost of $229,466, including principal and interest, of which sum $35,000 was paid by check, on account, from the funds of the district, and of which latter sum \u8216\'3fneither the whole or any part * * * has been repaid to said District.\u8216\'3f A copy of the contract is set out, with some immaterial omissions, in the bill of complaint. File: Ogden Development Corp v Federal Ins Co.doc, Paragraph with $: in 1971 inaugurated a contest among selected contracting firms who were invited to submit proposals for the design and construction of a residential and educational complex on University property in Vermont. Over the period pertinent to our consideration Mr. Melvin A. Dyson was Chief Financial Officer of the University. His letter in the front of a pre-qualification \u8216\'3fBrochure\u8217\'3f had notified the prospective contestants that the University ultimately would select a single proposal according to quality and design, with the project cost fixed in the neighborhood of $5 750,000. A \u8216\'3fRequest\u8217\'3f for proposals would be issued on June 21, 1971, only to those who had qualified in all respects. Each Design/build Team, so-called, was informed further that the posting of an acceptable Proposal Performance Bond was a prerequisite to establishing eligibility for further consideration. File: OReilly v City of Cambridge.doc, Paragraph with $: As it turned out, this was a substantial item. If the top soil removed was one yard deep, the area cleaned would be less than one acre, and the cost per acre, at 75 cents per cubic yard would be approximately $4,000. Any intention to include this work in the price of $35 per acre would be against all reasonable inference. The amount of top soil to be removed was not named in the estimates, and if it was too uncertain to be estimated it was too uncertain to be bid for, except at a per yard price. The statement in the specifications that the price bid for the per acre clearing \u8216\'3fshall include all such removal\u8216\'3f refers only to the things which had been named, and not to that cleaning off top soil which was thereafter named. Considering all the elements, we cannot doubt that the mere reference to this work under the heading \u8216\'3fCleaning and Grubbing\u8216\'3f does not operate to make it a part of that cleaning and grubbing which was to be bid for at a per acre price. On the contrary it was \u8216\'3fexcavation,\u8216\'3f and since the contract was intended to fix prices for everything which it required, and no price is fixed for this excavation, unless it was \u8216\'3fextra,\u8216\'3f it must be so classified. File: Ottinger v Blackwell.doc, Paragraph with $: It is contended by the plaintiff, however, that such threatened actions are illegal because he is not a licensed contractor as required by law; and he argues that this fact brings this case within the rule heretofore announced. The fallacy of this argument is that there is nothing in the statutes which indicates that before a contract can be let it is necessary that the contractor have a license, nor do the pertinent statutes characterize a contract awarded to an unlicensed contractor as illegal or void. Ark.Stats., \u167\'3f 71-713, simply makes it a misdemeanor for a contractor to bid, or to contract to construct improvements within the State without having obtained a license if the cost of the work equals or exceeds $20,000. While the statute says that it is a misdemeanor to contract to construct without having obtained a license, it does not say expressly that a contract cannot be made. In File: Ottinger v Blackwell.doc, Paragraph with $: Ark.Stats. \u167\'3f 71-701 provides that a contractor is defined as any person or firm who bids to construct or undertakes to construct, or has constructed any building, highway grading or any other improvement or structure in the State of Arkansas which costs $20,000 or more. Section 71-713 provides that any contractor who attempts to or submits a bid or bids to construct, or contracts to construct, or undertakes to construct a highway, grading or any other improvement or structure, \u8216\'3fwhen the cost of the work to be done by the contractor, including but not limited to labor and materials, is $20,000 or more, without first having procured a license to engage in the business of contracting in this State, * * * shall be deemed guilty of a misdemeanor, and shall be liable to a fine of not less than $100.00 nor more than $200.00 for each offense, each day to constitute a separate offense\u8217\'3f. The statute further provides that: \u8216\'3fNo action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act. The doing of any act or thing herein prohibited by any applicant or licensee shall in the discretion of the Board constitute sufficient grounds to refuse a license to an applicant or to revoke the license of a licensee.\u8217\'3f File: Potts v City of Utica.doc, Paragraph with $: In an action at law tried to a jury in the District Court for the Northern District of New York, a verdict for the plaintiff was returned on which judgment was entered for $39,732,27 and costs, and the defendant has appealed. This was the remainder found due the plaintiff for services and disbursements under a contract to perform professional work for the defendant as an engineer under the circumstances about to be stated. Diversity of citizenship is the basis of jurisdiction. File: Prudential-Maryland Joint Venture Co v Lehman.doc, Paragraph with $: NASSCO further agreed that if the vessels were acquired for a cost of less than $30 million, the contract price would be reduced accordingly. File: Richardson v Grant County.doc, Paragraph with $: buildings to cost more than $500, unless made with the lowest bidder according to plans and specifications, apply to contracts for parts of such structures; and, if, in the course of construction under a legally made contract, any alteration or addition to the plans, exceeding $500 in cost, is made without specifications and bids, the File: Richardson v Grant County.doc, Paragraph with $: building, under a contract made in accordance with the law, changes may be made in the plans and contracts for additional work entered into, though the cost thereof be greater than $500. I cannot concur with this view. Under such a construction, the law would apply only to contracts for the construction of an entire building, and could be evaded and practically nullified in most cases by making, without plans and specifications, and without advertisement, separate contracts for the different parts of the structure. File: Saligman v US.doc, Paragraph with $: 4. About two weeks after the acceptance of their contract and before they had begun work thereunder, plaintiffs discovered that in computing the cost for the manufacture of the head bands prior to the submission of their bid they had omitted the cost of the wool to be used, which amounted to approximately $.125 per head band, and immediately notified, by telephone, the Quartermaster Depot of this error. File: Saligman v US.doc, Paragraph with $: The Kemp case is an excellent illustration of the application of this principle. In that case the government solicited bids on a motor-driven drilling machine. Plaintiffs\rquote bid was the lowest, namely, $2,953.65, and the contract was awarded to him. The other bids were for $10,112 and $12,133. After entering into the formal contract, plaintiff discovered that he had made a gross error. The government refused to permit him to avoid the contract and subsequently deducted the additional cost incurred from the payment due plaintiff on other contracts. The court held that the plaintiff was entitled to recover, for not only was the difference in the bids sufficient to put one on notice that something was wrong, but the Army officer in charge also admitted that he was struck by the great discrepancy and that the government was obviously getting something for nothing. File: U S v Brookridge Farm.doc, Paragraph with $: Under date of March 26, 1938, the Quartermaster, Purchasing and Contract Officer, at the hospital wrote the Quartermaster General requesting authority to issue to dairies in the vicinity of Denver invitations for bids to furnish milk for the hospital throughout the fiscal year commencing July 1, 1938, and ending June 30, 1939. The authority was granted, and invitations were mailed on April 14 inviting bids to be opened on April 19. Plaintiff submitted a bid to furnish the estimated quantity of milk at a total cost of $61,830, and City Park Dairy submitted a similar bid at a total cost of $43,867. Each bid was accompanied by a surety bond conditioned for the performance of the contract. The bid of plaintiff was accepted, the contract was awarded to it, and the formal contract was executed April 30. Within a day or two thereafter, plaintiff placed an order for a large quantity of bottles and cases and began the purchase of additional cows necessary for the performance of the agreement. On May 9, the Quartermaster, Eighth Corps Area, radiogramed the Quartermaster at the hospital to suspend the award pending a decision of the Comptroller General concerning the legality thereof, and on the same day the Quartermaster at the hospital mailed a copy of the radiogram to plaintiff. Despite such notice, plaintiff continued its preparations for the performance of the contract, and by July 1 it had purchased ninety-six additional cows, a truck for the transportation of the milk, and a large number of bottles and cases, and had made enlargements and improvements of its plant necessary for the fulfillment of the contract. On June 30, plaintiff was advised that the contract had been cancelled, that no milk would be accepted and that the truck would not be allowed to come on the premises. Plaintiff sold at a loss milk which had been bottled for delivery on July 1; during the remainder of the month it furnished milk to the hospital on a day-to-day basis at the same prices as those contained in the contract; and in August and September the hospital purchased its supply of milk from City Park Dairy. Invitations were issued early in September for the furnishing of milk from October 1, 1938, to June 30, 1939; plaintiff submitted a bid containing lower prices than those contained in its former bid; the bid was accepted and a contract was entered into; and plaintiff furnished the milk throughout the remainder of the fiscal year. File: U S v Brookridge Farm.doc, Paragraph with $: The letter of the Quartermaster at the hospital addressed to the Quartermaster General requesting authority to issue invitations to the dairies to submit bids made reference to the regulations which provided that Grade A pasteurized milk should be procured for the Army whenever available; it stated that an extensive survey disclosed that none of the dairies in the vicinity of the hospital was in position to furnish milk of that grade but that several had expressed a desire to make the necessary changes in their plants and to increase their stock of dairy cows to enable them to furnish it, provided they were able to secure the business for at least a year, and that in order to insure an uninterrupted supply of milk it would be necessary to mail bidding forms at the earliest practicable date in order to allow time to enter into contract with the successful bidder and to enable it to make the necessary changes in its dairy and pasteurized plants. Standard forms of invitations for bids were sent to the dairies. Standard forms of instructions and specifications which accompanied and were a part of the invitations provided that the award of contracts would be limited to bidders whose establishments had passed an army sanitary inspection within the calendar month preceding the opening date of the bids and were listed as approved sources of supply, and that provision was in strict conformity with existing general instructions issued by the Quartermaster General. The medical inspector at the hospital filed with the Quartermaster there a certificate dated April 29, in which he certified that he had inspected the respective plants of plaintiff, City Park Dairy, and Carlson-Frink Company, and that as the result it was considered that plaintiff was the only dairy company qualified to deliver fresh, Grade A milk. The inspector made a second certificate under date of May 16, in which he certified that in conjunction with the station veterinarian he had made inspections of the respective plants of plaintiff and City Park Dairy with a view to determining whether either or both were in position to furnish Grade A pasteurized milk; that as the result it was his opinion that on the date of the award plaintiff was a model and up-to-date dairy that met all requirements for furnishing such milk, provided a plate glass partition 32 x 12 in size be installed between the bottle washer and the bottle filler; that the estimated cost of such partition was $200, and would require less than a week of labor; that according to his understanding it was then in process of construction; that he considered the installation of such partition would in no way File: US v Conti.doc, Paragraph with $: Where invitation for sealed bids for construction of building at coast guard station stated that performance bond in full amount of bid price would be required and that a \u8220\'3fbid security\u8221\'3f in the sum of $200 would be required and invitation directed attention to condition of government form No. P.W.A.\u8211\'3f51 providing that,if contractor refused or failed to prosecute the work, government might take over the work and prosecute it to completion and that contractor and surety should be liable to the government for any excess cost occasioned thereby, parties did not intend that the small sum of $200 should be regarded as File: US v Conti.doc, Paragraph with $: On November 1, 1933, the defendant was notified by wire that there was no authority to allow the withdrawal. On November 7, he was informed that his refusal to perform would result in his being charged with the excess cost of having the work performed elsewhere. Defendant did not execute any formal contract nor furnish the performance bond and did not furnish any labor or material under the contract at any time. On November 2, 1933, the Coast Guard returned to Samuel Pasquale, second lowest bidder, his bid security. On December 4, 1933, the plaintiff accepted the proposal of Durso Construction Company of Lawrence, Massachusetts, dated October 23, 1933, to furnish the labor and materials and to perform all the work called for under the first agreement for the sum of $17,839. This contract was completed by Durso Construction Company and it was paid the full construction price of $17,839. On October 15, 1934, the defendant was informed that he had been charged with the excess cost in the sum of $2,344 less the $200 which had been forfeited. File: US v Conti.doc, Paragraph with $: It follows that the Government\rquote s case should have been submitted to the jury, and that a new trial will be necessary. The measure of damages will be the sum by which the reasonable cost of having the work done by another contractor exceeds the defendant\rquote s contract price. A question may arise on the new trial whether the United States had not unnecessarily enhanced its damages by releasing the next lowest bidder, Pasquale, whose bid was $16,250, and awarding the contract to the third lowest bidder at $17,839. File: US v Heller.doc, Paragraph with $: to pay out the money, acted illegally\u8212\'3f at least, that was the prima facie objection that was made by the Comptroller General\rquote s Office. The facts are within a fairly narrow compass, and they are that shortly after the war the government found that it had a large surplus of caskets which it had bought for interment purposes of soldiers. At that time it was not thought they would be needed\u8212\'3fthey were declared surplus material\u8212\'3fand in due course they were sold to a concern known as the Lincoln Surplus Company, and that company, apparently, did not carry through the purchase, but undertook to assign the contract, and the War Department permitted the assignment, or acquiesced in it, and joined in making a new contract to a new purchaser known as one Hering, and Hering bought some 2,190, I think, caskets from the government at $4 apiece, and then later on Hering took delivery of 550 of those caskets, for which he paid $4 each, plus the cost to him of the carrying charges across the Atlantic Ocean to the United States, which amounted to about another $4 per casket, and, when the first consignment of caskets arrived, he accepted and paid for it, but found, due to their exposed condition to the weather, some of them had deteriorated, and in shipment they were further damaged, and he made a complaint about it, and asked to have the time of delivery of the other remaining caskets extended so that he could have certain repairs made to them in France. File: US v Lipman.doc, Paragraph with $: a bidder attempted to withdraw his bid after the bids had been opened but before any bid had been accepted. When the bids were opened the lowest bidder discovered that his bid was $5,750 lower than the next lowest bid. He then rechecked his bid and discovered that he had misunderstood a quotation from a prospective subcontractor and that the cost of the work to be done by the prospective subcontractor was much higher than he had calculated it to be. It was this information which caused him to attempt to withdraw his bid. The Court had no doubt about the honesty of the plaintiff\rquote s mistake and because of this it entered judgment in favor of the plaintiff permitting him to recover the deposit he had made with his bid. File: US v Pan-American Petroleum Co.doc, Paragraph with $: products in storage through exchange therefor of additional royalty crude oil belonging to the government in said California naval reserves, the probable cost of the additional products and storage immediately planned for being estimated at $15,000,000, more or less.\u8216\'3f It states the willingness of the contractor to do the work and furnish the oil, and then continues: \u8216\'3fAnd whereas, the furnishing of such additional amounts of fuel oil and other products in storage on the basis of exchange for the government royalty crude oils cannot be accomplished from the present leases in the California naval reserves.\u8216\'3f Mention is then made of the preferential right of the File: US v Pan-American Petroleum Co.doc, Paragraph with $: It was understood and agreed that deliveries of fuel oil would be made by the contractor at different times thereafter, and that the price thereof might at the date of delivery of a given quantity vary from the reference price of $1.50 specified in the contract. It was also stated that the delivery of royalty oil would be made at various times until the cost of the Pearl Harbor storage and the fuel oil to fill it was defrayed, and that at such times the published field price or such royal crude oil might also vary from the specified reference price of $1.10 per barrel, and therefore, in order to protect the interests of both parties to the contract, and avoid making a purely gambling contract, it was provided that the quantities of crude oil delivered on the one hand and of fuel oil delivered on the other should be subject to change from amounts originally estimated; such change being proportionate to the changes in price above stated of these respective commodities. File: US v Russell Elec Co.doc, Paragraph with $: In reply to your letter of March 24, we are very sorry that we have been unable to return your change order number 5 sooner. We will manufacture the additional 400 units at a price of $30.12 each. This increase is due to the increased cost of procuring and processing small lots of material. Terms would be the same as present contract terms with delivery to follow the completion of present contract * * *. File: US v Thompson.doc, Paragraph with $: On June 17, 1952, the plaintiff awarded replacement contracts at an excess net cost of $16,007.31 for the two shafts which are the subject of Count I. The Government was indebted to the defendant on another matter in the amount of $1,681.86, which amount was credited by the plaintiff against the excess costs, leaving a net amount of $14,325.45 claimed by the plaintiff under Count I. Counts II and III. File: US v Thompson.doc, Paragraph with $: Subsequently, the Corps of Engineers awarded replacement contracts for the spare parts required under the defendant\rquote s defaulted contracts at excess net costs of $562 and $462.58, respectively. Count IV. File: US v Thompson.doc, Paragraph with $: Subsequently, on July 23, 1951, the Corps of Engineers awarded a replacement contract for the propeller tailshaft required under the defendant\rquote s defaulted contract at an excess net cost of $2,078.13. File: Valley Const Co v Hoffman.doc, Paragraph with $: When the original invitation was issued, no specifications were included for bid item No. 8 (Additive No. I), the platform crane system. The emphasis as to specifications was on the primary facility (bid item Nos. 1-7). The Government\rquote s own estimate of the contract cost of Additive No. 1 alone was $18,395 in excess of the $300,000 appropriation. See Gov\rquote t. Ex. 1, Tab H. However, after the original IFB went out, the Government determined that it was possible that two additional cranes (Additives II and III) might be obtained within the limit of the $300,000 of available MMHS funds. File: Wampler v Goldschmidt.doc, Paragraph with $: The person with contracting authority employed by the State of Minnesota is Richard P. Braun, Commissioner of Transportation for the state. Mr. Braun noted that the cost difference between Cleco Corporation\rquote s bid and the next lowest bid using domestic steel exceeded $938,000. The Commissioner determined that this dollar figure was unreasonably excessive. This Court will not disturb the Commissioner\rquote s finding. File: 004 - Per Aarsleff AS v United States.doc, Paragraph with $: The Justification and Approval indicated that the period of performance of the bridge contract would be \u8220\'3fup to one year ... which may consist of one 3\u8211\'3fmonth base period with nine 1\u8211\'3fmonth option periods,\u8221\'3f with a total estimated cost for the twelve-month period of $[* * *]. AR 291\u8211\'3f29596. The Air Force later proposed to change the period of performance to one six-month base period with six one-month option periods. AR 301\u8211\'3f29906 (Approval to Use Undefinitized Contract Action); File: 013 - Agility Defense And Government Services Inc v United States.doc, Paragraph with $: Contractor filed suit against United States, under Contract Disputes Act (CDA), seeking equitable adjustment in amount of $6.9 million in labor costs for processing surplus military property in Middle East in excess of anticipated quantities, under firm-fixed-price contract that was terminated for convenience by Defense Reutilization Management Services, as arm of Defense Logistics Agency. File: 013 - Agility Defense And Government Services Inc v United States.doc, Paragraph with $: Government\rquote s failure to provide estimates of future troop movements and scrap material did not constitute nondisclosure of superior knowledge, as required for constructive change of contract to dispose of surplus military property in Middle East for which contractor sought equitable adjustment for $6.9 million in labor costs to process property in excess of anticipated quantities, where government reasonably provided historical data that were more reliable than any scrap estimates or troop movement forecasts of which government had no specific knowledge. File: 013 - Agility Defense And Government Services Inc v United States.doc, Paragraph with $: Government provided reasonably available historical data rather than negligently estimating its needs in solicitation for firm-fixed-price requirements contract to dispose of surplus military property in Middle East, thus foreclosing equitable adjustment to contractor for $6.9 million in labor costs to process property in excess of anticipated quantities, where government did not carelessly form any estimates by guessing at its upcoming needs, but rather provided objective historical workload data from which bidders could extrapolate government\rquote s future needs, government informed bidders that property turn-ins would increase, and troop drawdowns were publicly anticipated. File: 013 - Agility Defense And Government Services Inc v United States.doc, Paragraph with $: and the Defense Reutilization Management Services, an arm of the Defense Logistics Agency. The contract called for Agility to dispose of surplus property received from the military services as troops were departing from areas of operation in Iraq, Afghanistan, and Kuwait. Agility seeks approximately $6,900,000 in labor costs it incurred to process property in excess of anticipated quantities. The case is governed by the Contract Disputes Act, File: 013 - Agility Defense And Government Services Inc v United States.doc, Paragraph with $: On November 13, 2008, the Government exercised the first option year. JX 31. During the entire period of contract performance, Agility realized $44,182,364.35 in scrap sales. DX 7 at 11. In the fall of 2009, Public Warehouse Company (\u8220\'3fPWC\u8221\'3f), the parent company of Agility, was accused of fraud against the United States, and PWC and its affiliates, including Agility, were barred from contracting with the Government. On June 30, 2010, the Government terminated the contract for convenience. Stip. \u182\'3f 23. On June 29, 2011, Agility submitted a claim for termination settlement costs in the amount of $2,194,509.56. JX 48 at 2. On December 20, 2012, the parties negotiated a settlement of this claim for $757,972.63. File: 023 - WHR Group Inc v United States.doc, Paragraph with $: Bidder\rquote s requested attorney fees and costs of $110,657.59 were reasonable, as required for award under Equal Access to Justice Act (EAJA), after prevailing in bid protest; although government objected to 29.6 hours of fees incurred between time that protest was ripe for decision and time that decision was issued when bidder\rquote s attorneys allegedly continued to bill time after protest had been fully briefed and also billed for unnecessary work or for work related to other litigation, bidder explained that 29.6 hours were predominantly spent responding to FBI\rquote s notices of intent to continue unlawful noncompetitive contract extensions, rather than obtaining services through bidder\rquote s validly awarded contract, and fees for 29.6 hours were only 5% of total fees requested. File: 024 - Guam Industrial Services Inc v United States.doc, Paragraph with $: When the court asked the Intervenor how much it had been paid, the Intervenor replied that it had one invoice for over $500,000 and itemized additional costs of $684,000. Plaintiff expressed concern that if the Intervenor had already spent $1.1 million and the total contract award was $1,722,848.84 (Compl. \u182\'3f 15), there would be little left to do on the contract. The Government responded that Plaintiff waived the right to complain, since it waited ten days after the contract start date to file this protest. The court rejected this argument. File: 029 - XP Vehicles Inc v United States.doc, Paragraph with $: implied duty of good faith and fair dealing harbored within the parties\rquote implied-in-fact contracts. Plaintiffs collectively request no less than $450 million in consequential and punitive damages, reimbursement of their respective application fees, damages for defendant\rquote s alleged breach of its duty to fairly consider their applications, final agency review of Limnia\rquote s Section 1703 LGP application on the merits, and actual costs and attorney\rquote s fees. Defendant filed a motion to dismiss plaintiffs\rquote claims pursuant to File: 035 - Per Aarsleff AS v United States.doc, Paragraph with $: at 61. Alternatively, the government argues that a contractor given an award after the court\rquote s decision \u8220\'3fwould not be able to take over performance until July 2016[,] ... which would result in another nine months of performance by Greenland Contractors at a cost of approximately $[* * *] to $[* * *], plus re-procurement costs and any additional costs resulting from the award to a higher-priced offeror.\u8221\'3f File: 036 - US v Bowling.doc, Paragraph with $: \u182\'3f 21. The IGCE indicated an estimated annual cost of approximately $840,000 for the next three-year maintenance contract for the HMX\u8211\'3f1 squadron. File: 039 - United States ex rel Watkins v KBR Inc.doc, Paragraph with $: Because of the limited number of flights into and out of Dubai and restrictions on the timing of charter flights out of Baghdad, KBR personnel traveling to or from Baghdad through Dubai generally have long layovers ranging from several hours to a full night. KBR arranges for lodging, meals for its employees and subcontractor employees during such layovers, and certain administrative processing necessitated by the layover in Dubai. The cost of food, lodging, and the travel operations staff needed to process KBR travelers in Dubai for over 40,000 travelers per year is substantial. For example, in one twelve month period from mid\u8211\'3f2005 to mid\u8211\'3f2006, the cost to KBR of the Dubai layover was $84,650,000. Relator understands that KBR has incurred Dubai layover costs of similar magnitude throughout the duration of Task Orders 59, 89, and 139. File: 039 - United States ex rel Watkins v KBR Inc.doc, Paragraph with $: tribunal found that the contractor was not required to open and disclose to the Government the actual bid prices, yet it nevertheless found that Aerojet was required to disclose the bids existed. This makes little sense because the Government would not be able to assess the soundness of the estimates of future costs or the validity of determinations of costs under the nitroplasticizer contract without either knowing what the actual bid prices of the nitroethane were or at least knowing that the bids were lower than the original $1.98 unit price. File: 045 - Raytheon Company v United States.doc, Paragraph with $: at 73326. It also indicated that all of the proposed costs and prices were reasonable and realistic, and that each contractor received the full $155 million decrement for exceeding the specified threshold range capability. File: 050 - Cecort Realty Development Inc v Llompart-Zeno.doc, Paragraph with $: . Such is the case here. Prior to entering into the Lease Agreement, the OAT met with the architect to convey its needs and design for the two buildings. The two buildings were tailor made to the OAT\rquote s specifications at a cost of more than $80 Million, complete with two appellate courtrooms, built-in security features, custom offices, and divided parking to separate the employees from the public. As previously mentioned, it is clear that the parties to the contract intended this to be a long-term commitment, with no intent to terminate after the first ten-year term. File: 062 - Visual Connections LLC v United States.doc, Paragraph with $: to all other offerors. KPS\rquote [Knight Point Systems] proposed cost outlined in their business response was reasonably under AHRQ\rquote s independent government cost estimate, which the government deemed fair and reasonable based off of current and historical data. Furthermore, their proposed labor mix and commitment to retain senior staff demonstrated their complete understanding of the project and the skill sets required to ensure IT service delivery for the four defined task areas. Personnel were the largest evaluation factor and KPS presented by far the highest caliber of personnel with all required skill sets and certifications. Additionally, the hours proposed and cost were in direct line with the government\rquote s estimate for the scope of work. Conversely, the four other Offeror\rquote s cost and technical responses demonstrated they did not possess an accurate or complete understanding of the project. In some instances either the cost or overall hours bid were not consistent or in line with government estimates, which were determined using significant historical data from previous contracts, for the scope of work defined in the SOW [Statement of Work]. The Knight Point Systems response is technically superior to all other offerors. Although their quote was offered at a higher total estimated price, the technical benefits of their response outweigh the technical deficiencies and risks presented by the other offerors despite their lower costs. It is determined that the response submitted by Knight Point Systems represents the best value to the Government. Based on the above, the Contracting Officer selects Knight Point Systems for award of this task order in the total amount of $27,458,456. The base period amount funded at time of award is $3,991,691.20. File: 068 - Hyperion Inc v United States.doc, Paragraph with $: On September 18, 2014, Hyperion filed suit in this court, seeking bid preparation and proposal costs and \u8220\'3funreimbursed legal fees\u8221\'3f in the amount of $402,583.22, a \u8220\'3f[d]eclaration that the contested [s]olicitation was a sham [c]ompetition,\u8221\'3f and \u8220\'3fsuch further and other relief as the [c]ourt may deem just and proper.\u8221\'3f Compl. \u182\'3f\u182\'3f 1, 3, 7; Compl. at 15. Hyperion avers that the result of the Army\rquote s solicitation was \u8220\'3fpre-ordained\u8221\'3f because \u8220\'3fthe Army had decided before the [c]ompetition to make an [a]ward to T[echnical Communications]\rquote s proposed [s]ubcontractor, doing so in the guise of an [a]ward to T[echnical Communications] as the prime [c]ontractor,\u8221\'3f evidenced by the fact that the Army knew but did not disclose subsurface conditions for the fiber-optic cable installation to bidders. Compl. \u182\'3f 14. On November 24, 2014, the government filed its motion to dismiss or, in the alternative, motion for summary judgment. File: 074 - Raymond Express International LLC v United States.doc, Paragraph with $: It is undisputed that the transportation subsidy for the Pacific Area comes at a substantial cost to the taxpayer. One estimate for the annual cost of the subsidy for REI\rquote s contract is $36 million. Oral Argument Transcript (Tr.) at 25. DeCA has been able to contract elsewhere for FFV without providing the transportation subsidy, which reduces the costs of the commissary program. AR at 298, 491 (no transportation subsidy for FFV for commissaries in Alaska, Hawaii and Puerto Rico); Tab 43 (no transportation subsidy for FFV for commissaries in Germany, Belgium and the Netherlands); Tab 44 (no transportation subsidy for FFV for commissaries in the United Kingdom). With the transportation subsidy removed, the FFV contracts in other regions utilize the delivery term \u8220\'3fF.O.B. Destination,\u8221\'3f where the contractor delivers the produce to each commissary and title to the goods passes to the government only upon delivery to that commissary. File: 076 - Red River Computer Co Inc v United States.doc, Paragraph with $: The ceiling cost for the ITES\u8211\'3f3H project is $5 billion over a five-year period of performance, which consists of a base period of three years and two one-year agency options. Each offeror is guaranteed a minimum of $10,700 in orders under the IDIQ contract. File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with $: Contractor\rquote s claims submitted to contracting officer, requesting reimbursement of $1,534,490.86 pursuant to termination for convenience clause in contract to provide broadband and very small aperture terminal (VSAT) network for installation at Defense Commissary Agency (DeCA) sites, and also requesting $2,273,022.70 as damages arising from government\rquote s breach of contract, were two separate claims, thus precluding jurisdiction under Contract Disputes Act (CDA) over any claim challenging contracting officer\rquote s partial denial of termination for convenience costs, since contractor\rquote s complaint and opposition brief before Court of Federal Claims failed to mention any claim founded on termination for convenience clause. File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with $: Def.\rquote s Mot.App. Tabs 53\u8211\'3f55. As discussed in more detail below, the certified claim contained two separate and distinct claims. The first claim was for termination for convenience costs, in the amount of $1,534,490.86, a figure which was later reduced by E & E to correct a $20 math error, to $1,534,470.82. Def.\rquote s Mot.App. at 615, 707. The second claim was for a wrongful, bad faith termination of the contract, in the amount of $2,273,022.70. File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with $: The contracting officer denied the second claim, the wrongful termination breach of contract claim for $2,273,022.70, in its entirety. Def.\rquote s Mot.App. at 727\u8211\'3f28. As to the claim for $1,534,470.82 in termination for convenience settlement costs, the contracting officer only awarded $97,900.53. File: 077 - E And E Enterprises Global Inc v United States.doc, Paragraph with $: The court has duly examined the entire complaint. There is no indication that E & E appealed the contracting officer\rquote s decision as to the amount owed to plaintiff under the contract\rquote s termination for convenience clause. Instead, there is a series of allegations of contract breach, with accompanying legal theories, and an unexplained request for $3,296,543.18, the amount of damages requested for each of the four counts in the complaint. The court concludes that there is no appeal of the contracting officer\rquote s final decision on the certified claim\rquote s Alternative I, the termination for convenience costs claim, within the complaint. File: 100 - Framaco International Inc v United States.doc, Paragraph with $: On July 23, 2014, Framaco submitted, what it referred to as, a \u8220\'3fjoint (a) request for reconsideration of the U.S. Department of State, Bureau of Overseas Building Operations\rquote ... July 21, 2014 \u8216\'3fFinal Decision\u8217\'3f and (b) request that the agency protest official Daniel J. Walt consider this additional submission in support of the protest.\u8221\'3f In the July 23, 2014 request, Framaco argued that \u8220\'3f[t]he agency\rquote s July 21, 2014 letter is inconsistent with the solicitation and recent developments known to the agency\u8221\'3f insofar as it \u8220\'3finappropriately compares Framaco\rquote s Belgrade project to an asserted range for the total Harare project cost estimate of $165 to $210 million to claim that Framaco\rquote s Belgrade project is $42 million lower than required by the solicitation\u8221\'3f because the Solicitation does not require offers to be within the range of $165 to $210 million. In the next line, however, the protestor acknowledged, through its attorney, that, \u8220\'3f[t]he only relevant threshold for qualification is the $124 million amount provided in the FedBizOpps (\u8216\'3fFBO\u8217\'3f) posting.\u8221\'3f Framaco argued that the agency \u8220\'3fcannot change the ground rules in the middle of the procurement.\u8221\'3f Framaco further stated that \u8220\'3fthe agency analysis ignores the actual contract value for the Belgrade project.\u8221\'3f Moreover, Framaco asserted that \u8220\'3f[a]ny reasonable analysis shows that the Belgrade project exceeds the agency\rquote s File: 100 - Framaco International Inc v United States.doc, Paragraph with $: In addition, the true contract value for the Belgrade project exceeds $124 million even without an inflation adjustment. The agency has failed to take into account the approximately $[redacted] million in REAs that are outstanding on the Belgrade, Serbia project. The Belgrade project is not subject to any liquidated damage assessment and any reasonable analysis shows that the contract value exceeds $124 million. Even if only a portion of the outstanding REAs are recognized by OBO, the total project cost certainly exceeds the threshold and establishes that Framaco meets this qualification requirement. File: 004 - Lynxnet LLC v United States.doc, Paragraph with $: but that amount was reduced to $77,515,540 in the final proposal. AR Tab 3c, at 760; AR Tab 40, at 3169. Lynxnet\rquote s total prime contractor labor cost was approximately 52%. File: 012 - Walsh Const Co II LLC v City of Toledo.doc, Paragraph with $: Events leading up to the contract award involved a number of individuals, government agencies, and private firms. Walsh and Kokosing are both large construction firms, each sophisticated enough to bid on a project estimated by the Engineer to cost almost $80 million (PX 16). At Walsh, Matthew Glaz served as Lead Project Director, working with Program Manager Bo Boulier and other Walsh employees to prepare Walsh\rquote s bid, and to communicate with the City and its consultants in the post-bid period. File: 014 - RLB Contracting Inc v United States.doc, Paragraph with $: Plaintiff presented us with two documents at oral argument generated by the agency but not included in the administrative record. One is a letter sent to RLB after the award of the contract to another awardee prior to the GAO protest. That letter presents the cost break down of the successful awardee\rquote s proposal. In it, item 7 constitutes nearly 75 percent of the total price. The second document is a spreadsheet, given to plaintiff at its debriefing following that initial award, which reflects the government\rquote s internal cost estimate compared with those of RLB and the awardee. The agency estimates $13,942,600 for Marsh Creation Dredging, item 7, out of a total estimated price of $24,280,506. Item 7 thus represented 57 percent of the government\rquote s anticipated cost. File: 024 - Trust Title Company v United States.doc, Paragraph with $: Contractor sued United States, challenging Department of Housing and Urban Development\rquote s (HUD) termination for default of two separate contracts to provide real estate closing services, consisting of settlement and title services, in connection with sale of HUD-owned properties to private buyers, and seeking conversion to termination for convenience and reversal of $620,998.16 estimated excess reprocurement costs assessed by contracting officer. Government counterclaimed to recover actual excess reprocurement costs and for liquidated damages for overall total of $819,043.16. File: 024 - Trust Title Company v United States.doc, Paragraph with $: Trust Title also seeks the reversal of estimated excess reprocurement costs assessed against it by the contracting officer in the total amount of $620,998.16. Compl. \u182\'3f\u182\'3f 159\u8211\'3f60. Those costs are also at issue in connection with the government\rquote s counterclaim, which seeks recovery of the government\rquote s actual excess reprocurement costs for closing agent services in Eastern and Western North Carolina, plus liquidated damages, missing sales proceeds, and other File: 024 - Trust Title Company v United States.doc, Paragraph with $: On May 16, 2011, the HUD contracting officer wrote to Trust Title demanding $560,176.00 for estimated excess reprocurement costs, based on the difference between Trust Title\rquote s prices and those of the replacement contractors. DX 23 (HUD\rquote s Demand Letter). She also demanded the payment of liquidated damages for the late wire transfers. File: 024 - Trust Title Company v United States.doc, Paragraph with $: Tr. 583:4\u8211\'3f14 (Fussell). Mr. Fussell testified that by getting the third-party attorneys to sign closing instruction sheets, he was able to threaten them with a state bar complaint if they failed to comply. Tr. 583:15\u8211\'3f20 (Fussell). Moreover, if a third-party attorney proved unable to wire the funds on time or record on time, then he would cancel the closing and reschedule it for another day. Tr. 589:17\u8211\'3f22 (Fussell). Trust Title asserts that its problems with third-party attorneys stemmed, in part, from a shift in contract requirements between its contract and O\rquote Brien\rquote s contract. One such issue revolved around the $5,000 credit HUD provided to buyers to help cover closing costs. When O\rquote Brien had the contract, that credit was permitted to cover the costs of a buyer\rquote s attorney, but Trust Title was told by its government technical representative that the credit could no longer be applied towards a buyer\rquote s attorneys\rquote fees. Tr. 666:14\u8211\'3f23 (Gardner); File: 026 - ARKRAY USA Inc v United States.doc, Paragraph with $: . Setting aside the award in this case would not deny TRICARE beneficiaries from receiving test strips because test strips are presently available through a different contract (albeit at a higher price) with ADCSC and other manufacturers. The government has, however, indicated that it will save as much as $64.8 million per year by implementing the P & T Committee\rquote s recommendation to transition entirely to ADCSC\rquote s test strips. Def.\rquote s Cross\u8211\'3fMot. 51. Elsewhere in its briefing, the government contends that it will save $5 million per month. Def.\rquote s Reply 36, ECF No. 70. Defendant-intervenor claims that the government will lose over $3.1 million per month. Intervenor\rquote s Reply 19. It is not disputed that the government will save money under the new BPA. Plaintiff argues, however, that the government\rquote s cost savings are not sufficient to tip the balance of hardships in its favor, where any delay in cost savings is due to the government\rquote s own mistakes in the procurement process. The court agrees with plaintiff that although the financial cost is not insubstantial, the government and defendant-intervenor have not demonstrated any special consequence to delaying the BPA award. File: 027 - Compliance Solutions Occupational Trainers Inc v United States.doc, Paragraph with $: , and under the CDA, requiring OSHA to reimburse plaintiff $365,984.09 for costs associated with the alleged performance of the contract in question. While the complaint listed categories of expenses and lost revenue, it did not reveal when the expenses in question were incurred. File: 031 - CGI Federal Inc v United States.doc, Paragraph with $: and most expressed concern about their ability to financially tolerate the delayed invoicing requirements. One contractor, HDI, related to CMS that it anticipated the new delayed invoicing terms would cost it more than $[ ] per/year. AR Tab 161 at 10530. Similarly, Performant objected to the \u8220\'3funilateral changes to material contract terms\u8221\'3f and contended that it would have a \u8220\'3fnegative impact on the RAC\rquote s financial capacity.\u8221\'3f File: 034 - Gray Owl Services Inc v United States.doc, Paragraph with $: Moreover, this alleged breach cost Plaintiff the opportunity to secure other business opportunities while it was bidding on the Summer 2011 Task Orders. Specifically, Plaintiff claims that because of this reliance, its 2011 income was \u8220\'3fless than half of what [it] would otherwise have been, and [has] been in the years before and after 201 1.\u8221\'3f Compl. \u182\'3f 36. As relief, Plaintiff asks for $48,251.49 which \u8220\'3fis estimated to be the earnings the Plaintiff and his employees would have earned on the three Task Orders the contractor was low bidder on and had a reasonable expectation of award, but was not awarded.\u8221\'3f Compl. \u182\'3f 43. File: 035 - Sotera Defense Solutions Inc v United States.doc, Paragraph with $: The court agrees that the cost evaluation of Raytheon\rquote s proposal was rational and in accordance with the solicitation\rquote s stated evaluation methodology. The court must agree, in particular, with the government\rquote s contention that Sotera\rquote s proposed adjustments to Raytheon\rquote s costs over the life of the entire contract are too speculative to invalidate the Army\rquote s evaluated cost for Raytheon\rquote s CD1\u8212\'3f$11,258,505. Def.\rquote s Reply at 20 (citing AR at 9292, 9302). The court must also concur with Raytheon\rquote s contention that [ ] do not necessarily indicate higher future costs. As pointed out by Raytheon, despite [ ] a contractor\rquote s overall future costs may well be offset by the deployment of heightened employee efficiencies and superior processes, as compared to those of its competitors. Tr. at 80\u8211\'3f81. Thus, projecting Raytheon\rquote s costs of performance over the life of the contract is not as simple as plaintiff appears to suggest. File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with $: (\u8220\'3fA procurement offered and accepted for the 8(a) [Business Development] Program must be competed among eligible participants if: the anticipated award price of the contract, including any options will exceed $6.5 million for contracts assigned with NAICS codes and $4 million for all other contracts.\u8221\'3f) GSA had to reduce both personnel and the contract duration for a nine-and-half-month period (March 21, 2014\u8211\'3fDecember 31, 2014) to meet this threshold, and estimated the cost of procuring this requirement would be $[...]. File: 042 - Applied Business Management Solutions Inc LLC v United States.doc, Paragraph with $: Shortening the performance period of ABMSI\rquote s contract could have been achieved under \u8220\'3fTerms that Affect Price\u8221\'3f clause at a lower cost. A comparison of the same number of personnel (43 employees) and the same time frame (nine months) under a modified ABMSI contract versus the Premier contract yields a cost of $[...] by ABMSI and $[...] by Premier. File: 048 - Hymas v United States.doc, Paragraph with $: allowed Refuge staff to manage all crop production and required them to farm 360 acres, at an estimated $429,000 in startup costs and $92,890 in annual production costs. AR 67\u8211\'3f68. Alternative 2, \u8220\'3fContract Farming,\u8221\'3f allowed the Service to contract out the costs of farming the same 360 acres identified in Alternative 1. The costs of Alternative 2 were estimated to exceed Alternative 1. AR 69. Alternative 3, \u8220\'3fCooperative Agreement Farming,\u8221\'3f allowed the Service to negotiate crop development and harvesting by private farmer-cooperators, who were responsible for all costs of production, but were required only to grow crops that could be utilized to feed migratory birds and wildlife. AR 69\u8211\'3f70. The cost of Alternative 3 to the Service was minimal, but substantial land rental revenue would be lost that otherwise could be used to pay for feed. AR 70. The Service selected Alternative 3 as the preferred production method. AR 69. Before the Umatilla Plan was implemented, two farmers harvested 1,383 acres, from which Umatilla Refuge wildlife received the benefit of 344 acres of crop feed. AR 69, 73. File: 052 - Foster v Michigan.doc, Paragraph with $: When the value of a service contract exceeds $25,000, MDOT uses a selection team to evaluate proposals. The selection team assigns scores to each proposal based on a scoring worksheet, then tallies the scores and forwards them to the Central Selection Review Team in Lansing for final approval. The project manager will then request a \u8220\'3fpriced proposal\u8221\'3f from the highest-scoring firm and start negotiating costs. If these negotiations fall through, File: 055 - Metropolitan Washington Chapter v District of Columbia.doc, Paragraph with $: The Act imposes additional requirements on government-assisted projects that cost more than $100,000. For these projects, 51 percent of new employees must be District residents unless: (1) the beneficiary made a good faith effort to comply; (2) the beneficiary is located outside of the \u8220\'3fWashington Standard Metropolitan Statistical Area\u8221\'3f and none of the contract is performed inside that area; (3) the beneficiary enters into a workforce-development training program with DOES; or (4) DOES certifies that there are not enough qualified District residents to staff the project. Compl. \u182\'3f 19; File: 056 - SEK Solutions LLC v United States.doc, Paragraph with $: AR 433\u8211\'3f54 (September 26, 2013 Market Research Memorandum). First, the CO estimated that moving from the TLSP to a multiple award contracting vehicle would save the agency between $[redacted] and $[redacted] of \u8220\'3fpass through costs\u8221\'3f per year. AR 434. Then as part of its market research, the agency contacted eleven soft shelter manufacturers, eight of which were small businesses. Each of the manufacturers contacted \u8220\'3fexpressed a willingness to submit offers.\u8221\'3f AR 433. File: 060 - Science and Management Resources Inc v United States.doc, Paragraph with $: Finally, SMR\rquote s argument that the Air Force violated the terms of the solicitation and applicable regulations by abandoning tradeoff source selection procedures\u8212\'3fthat is, the tradeoff between past performance and cost/price\u8212\'3fin its award of the contract to Goldbelt, is without merit. The solicitation explains that \u8220\'3f[a]ll offerors rated as Substantial Confidence will be considered equal for Factor 2 Past Performance.\u8221\'3f AR 14:468, \u182\'3f 2.3.1. Goldbelt, like SMR, received a Substantial Confidence rating. The only material difference between the proposals was that Goldbelt\rquote s TEP was $[...] [...] than SMR\rquote s. In a case like this one, where all offerors are rated as Substantial Confidence, a tradeoff analysis between past performance and cost/price is not possible. File: 065 - American Auto Logistics LP v United States.doc, Paragraph with $: The record contains two independent government cost estimates, which include an estimated cost to the government for each period of performance of the GPC III contract. The cost estimates were both broken down into the following seven categories: \u8220\'3fFull Service,\u8221\'3f \u8220\'3fPartial Service,\u8221\'3f \u8220\'3fOcean Transportation,\u8221\'3f \u8220\'3fHomeport Move,\u8221\'3f \u8220\'3fStorage,\u8221\'3f \u8220\'3fDoor to Door,\u8221\'3f and \u8220\'3fOut of Pocket.\u8221\'3f In a March 6, 2013 estimate, the government estimated that the cost to the government of the GPC III effort would be $1,348,114,177.44 for the maximum 65 month term of the contract. In an October 4, 2013 estimate, the government estimated that the cost to the government of the GPC III effort would be $1,189,863,420.21 for the maximum term of the contract. The October 4, 2013 estimate was used in the government\rquote s final \u8220\'3fprice analysis,\u8221\'3f signed October 17, 2013. File: 065 - American Auto Logistics LP v United States.doc, Paragraph with $: As a result, AAL received a Substantial Confidence past performance rating. AAL\rquote s proposed price is $38,301,734.66 higher than the lowest priced offeror. While the solicitation permits the Government to award to an offeror with a higher price, where superior past performance of the higher priced offeror outweighs the cost difference, the Government will not pay a price premium that it considers disproportionate to the benefits associated with the proposed margin of service superiority. In the present case, AAL\rquote s higher past performance does not outweigh the $38,301,734.66 price premium. A distinguishing difference in the past performance rating of AAL and IAL is that AAL\rquote s performance occurred under a single contract, and was of the same scope and magnitude as the solicited requirement. On the other hand, IAL demonstrated performance of similar or the same tasks [sic] under separate contracts, and was not the same scope and magnitude of the solicited requirement. In other words, both proposals demonstrated successful performance of essentially the same commercial services, but only AAL\rquote s performance was under a single contract with similar scope. In order to award to AAL, the Government would be required to trade-off a $38,301,734.66 price premium for award to an offeror whose past performance score is higher because it performed the same recent and relevant commercial services under a single contract versus multiple contracts. Under the current Global POV Contract, AAL performs the work of a third-party logistics provider and is responsible for dividing and managing work between its subcontractors. The experience of providing logistics services for the same work (of greater scope) under a single contract versus multiple commercial contracts (of lesser scope), for purposes of actual contract performance, is not significant enough to justify the higher price. Awarding to AAL, with a $38,301,734.66 higher price would represent a price premium disproportionate to the benefits associated with the proposed margin of service superiority. As detailed above, the primary margin of service superiority represented in AAL\rquote s higher past performance score is not in specific performance areas, but rather contract integration, which in the current commercial marketplace is not worth the $38,301,734.66 price premium. Therefore, AAL does not represent the best value to the Government. File: 065 - American Auto Logistics LP v United States.doc, Paragraph with $: In accordance with the solicitation, which indicated that past performance would be evaluated on a basis approximately equal to price, I have determined that the additional cost of $38,301,734.66 is not proportionate to the benefit associated with the higher past performance rating which was based on the fact that AAL had successfully performed the current effort for the services required under this solicitation under a single contract. File: 065 - American Auto Logistics LP v United States.doc, Paragraph with $: In accordance with the solicitation, which indicated that past performance would be evaluated on a basis approximately equal to price, I have determined that the additional cost of $38,301,734.66 is not proportionate to the benefit associated with the higher past performance rating which was based on the fact that AAL had successfully performed the current effort for the services required under this solicitation under a single contract. File: 091 - Hyperion Inc v United States.doc, Paragraph with $: This interpretation is supported and informed by other pricing spreadsheets included by TCSC in its proposal, which are particular to the costs for long-haul and last-mile trenching and laying. TCSC states that it will pay its subcontractors $[* * *] and $[* * *] specifically for excavation for the last-mile and long-haul trenching and laying, respectively. AR 26\u8211\'3f2081 to \u8211\'3f91. On these same spreadsheets, TCSC includes a separate cost for equipment and materials, leading the court to believe that the $[* * *] and $[* * *] figures are for subcontractor labor. File: 091 - Hyperion Inc v United States.doc, Paragraph with $: AR 23\u8211\'3f1700 to \u8211\'3f01. [Offeror A] stated that [* * *] would be its major subcontractor for the project and that an [* * *] employee would be the Project Manager. AR 6\u8211\'3f233 to \u8211\'3f242 (resume of proposed project manager, [* * *] ). The proposal also stated that the field installation teams would mostly be composed of [* * *] engineers and technicians. AR 6\u8211\'3f235. The price spreadsheet submitted by [Offeror A] confirms that it proposed to spend $[* * *], on labor in total. Of that total cost, $[* * *] was to be spent on \u8220\'3fLabor in Jordan.\u8221\'3f AR 23\u8211\'3f1700. The labor costs for the project manager and the labor costs associated with the physical trenching and laying, to be performed by [* * *] technicians and engineers, represented $[* * *]. File: 091 - Hyperion Inc v United States.doc, Paragraph with $: The remaining \u8220\'3fLabor in Jordan\u8221\'3f costs total $[* * *]. To meet the subcontracting limit, only an additional $[* * *] could be spent on subcontractor labor costs. File: 091 - Hyperion Inc v United States.doc, Paragraph with $: For the trenching and laying of the long-haul and last-mile fiber optic cable, [Offeror B] estimated it would spend $[* * *]. AR 24\u8211\'3f1777 to \u8211\'3f78. Its description of the trenching and laying costs does not include any breakdown of labor versus material costs; nor does it include an indication of what tasks will be performed by [Offeror B]\rquote s employees or [* * *]\rquote s employees. Although [Offeror B] states that it will have a number of full time [Offeror B] employees dedicated to the project, unlike [Offeror A], it omits any information about whether those employees would constitute at least 50% of all personnel costs. Because subcontracting all or nearly all of the most labor intensive aspect of the contract, the trenching and laying, would likely render an offeror non-compliant with the limitation-on-subcontracting clause, the contracting officer had no reasonable basis to conclude that [Offeror B] would comply with the requirement. Overall, like [Offeror A]\rquote s proposal, [Offeror B]\rquote s proposal demonstrates a significant likelihood that it would not comply with the limitation on subcontracting, and it was irrational for the Army to find otherwise. File: 091 - Hyperion Inc v United States.doc, Paragraph with $: To meet the limit on subcontracting, [Offeror A] could spend up to $[* * *] on subcontractor personnel costs, and $[* * *] minus $[* * *] equals $[* * *]. File: 096 - Ocean Ships Inc v United States.doc, Paragraph with $: In accordance with the Source Selection Plan and the RFP, I have determined that award of the proposed contract should be made to Patriot. Said contract, if all options are exercised and all work is fully performed, will result in a total cost to the Government of $ * * *. File: 096 - Ocean Ships Inc v United States.doc, Paragraph with $: Pl.\rquote s Reply at 24. According to plaintiff, Patriot \u8220\'3fstood alone as the only offeror associated with unions that do not have officers or crew already trained and certified to serve aboard the Watson Class LMSRs.\u8221\'3f Pl.\rquote s Mot. 26. Plaintiff argues that if MSC had considered training costs in its price evaluation, MSC would have recognized that Patriot\rquote s contract price could have been as much as $ * * * million higher than its evaluated price. File: 001 - FCN Inc v United States.doc, Paragraph with $: After receiving a written debriefing, FCN filed a protest with the GAO on May 13, 2013, claiming that the Air National Guard had conducted an improper price evaluation of the RGS proposal. Specifically, FCN claimed that the \u8220\'3fANG failed to evaluate the RGS/AtHoc proposal adequately,\u8221\'3f that the RGS price proposal was unrealistic, and, therefore, that RGS should have been awarded a lower technical score. FCN alleged that the RGS \u8220\'3fproposed price of $1,316,357.58 should have been found to be well below a realistic cost for this project and indicative of \u8216\'3fbuying-in\u8217\'3f to this contract.\u8221\'3f Additionally, FCN claimed that the United States Air Force communicated to the Air National Guard previously, regarding the \u8220\'3fAtHoc/RGS claims of \u8216\'3ffree licenses\u8217\'3f that, in fact, these \u8216\'3fseats\u8217\'3f do not exist and even if they did exist, there is no legal way to move these \u8216\'3fseats\u8217\'3f to the this [sic] procurement.\u8221\'3f At the GAO, FCN asked for an automatic stay of performance \u8220\'3fpursuant to File: 015 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: Even if plaintiff who successfully challenged United States Air Force\rquote s award of software contract was eligible to recover its bid preparation and proposal costs under federal statute governing such awards, the amount of costs it claimed were not reasonable or sufficiently documented; plaintiff claimed an hourly rate of $80.90, which likely included unrecoverable profit, amount claimed exceeded appropriate hourly cap of $62.06, and supporting documentation failed to accurately detail number of hours spent on specifically identified tasks. File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with $: On January 3, 2007, while the second bid protest was pending, plaintiff sent the contracting officer a request for an equitable adjustment relating to the first stop work order period in the amount of $1,884,097.65. Plaintiff asserted entitlement to $385,455.48 in rent for the first stop work order period, which included a third of the cost of utilities for the building in which plaintiff\rquote s offices were located. Although not noted in plaintiff\rquote s request for equitable adjustment, the building in which plaintiff\rquote s offices were located was owned by 925 Keynote Circle Corporation, a separate company owned by Frank Chapman, plaintiff\rquote s Chief Executive Officer. Plaintiff also asserted entitlement to $245,632.79 for wages paid to its employees. Plaintiff separately asserted entitlement to File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with $: during plaintiff\rquote s performance of the contract, $50,000.00 for the services of John Goss, plaintiff\rquote s Vice President of Operations and Contract Compliance during plaintiff\rquote s performance of the contract, as well as a technology specialist for plaintiff, and $437,500.00 for the services of Frank Chapman. In addition, plaintiff asserted entitlement to compensation for its \u8220\'3freoccurring expenses,\u8221\'3f such as payments made for telephone lines and office supplies. Plaintiff separately asserted entitlement to compensation for payments made through Frank Chapman\rquote s credit card and a checking account in the amount of $320,152.54, which included costs related to maintaining cellular phones and the purchase of gas and supplies by plaintiff\rquote s employees. Plaintiff also sought fifteen percent of what it viewed to be recoverable expenses relating to the stop work order period, which plaintiff characterized as \u8220\'3f[p]rofit[s].\u8221\'3f File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with $: On January 18, 2007, the HUD contracting officer, Maureen Musilli, responded to plaintiff\rquote s request for equitable adjustment relating to the first stop work order period. The contracting officer explained that, to be recoverable under the Federal Acquisition Regulation (FAR), claimed costs must be both allocable to the parties\rquote contract and reasonable. The contracting officer indicated that, because \u8220\'3fChapman Law Firm existed prior to the award of C\u8211\'3fPHI\u8211\'3f00958 (the contract) and has other business interests besides this HUD contract,\u8221\'3f HUD would only reimburse plaintiff a portion of the cost of its rent and utilities, as well as a portion of plaintiff\rquote s payroll expenses. The contracting officer indicated that HUD only would pay a portion of salaries actually paid, rather than the reduction in the salaries of plaintiff\rquote s employees with the promise of later reimbursement, and noted that Frank Chapman\rquote s salary of $350,000.00 per year was \u8220\'3fquite excessive and unreasonable.\u8221\'3f The contracting officer informed plaintiff that it had not submitted evidence that the other expenses to which plaintiff asserted entitlement for reimbursement were allocable to the HUD contract, and that travel expenses were not necessary during a stop work order period. Although the contracting officer did not challenge plaintiff\rquote s assertion that it was entitled to a percentage of its expenses as profits, she indicated that plaintiff needed \u8220\'3fto reduce the profit percentage drastically.\u8221\'3f File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with $: On April 19, 2007, plaintiff\rquote s current attorney of record, in his role as outside counsel for plaintiff, responded to the contracting officer\rquote s January 18, 2007 letter. Plaintiff\rquote s counsel maintained that all of plaintiff\rquote s costs were allocable to the contract because plaintiff was forced to refrain from taking on other work during the first stop work order period due to the nature of its previous bankruptcy and personal injury practice. Plaintiff\rquote s counsel also stated that plaintiff \u8220\'3fwas not generating income during the stop work period and was surviving on capital contributed by Mr. Chapman from his personal resources.\u8221\'3f With respect to Frank Chapman\rquote s salary, plaintiff\rquote s counsel stated: \u8220\'3fI do not see how you can assert that a salary of $350,000 is not reasonable for the Chief Executive Officer managing at least $25 million in contracts per year.\u8221\'3f In addition, plaintiff\rquote s counsel amended plaintiff\rquote s request for equitable adjustment relating to the first stop work order period to include an additional claim for \u8220\'3f$300,000 in income\u8221\'3f that Frank Chapman lost as a result of his divestment from Lakeside Title \u8220\'3fat the direction of the Government.\u8221\'3f File: 023 - Chapman Law Firm LPA v United States.doc, Paragraph with $: While plaintiff\rquote s management was attempting to gain SAMS access for plaintiff\rquote s employees, a number of disputes arose between the parties. On April 30, 2007, soon after plaintiff began performance of the contract, plaintiff requested that HUD transfer into plaintiff\rquote s inventory \u8220\'3f35 homes which were transferred out of our inventory and into MCB\rquote s [Michaelson Connor and Boul, Inc.\rquote s] inventory after we completed approximately 100k of work.\u8221\'3f Frank Chapman represented to the contracting officer that plaintiff \u8220\'3fcleaned these homes, ordered appraisals, quality control inspections, and lawn care.\u8221\'3f Frank Chapman also informed the contracting officer that plaintiff performed work on each of the thirty-five homes at the direction of Mr. Kellett. Frank Chapman asked the contracting officer to either: (1) return the transferred homes to plaintiff\rquote s inventory, (2) compensate plaintiff for $96,150.00 \u8220\'3frepresenting our contractual fees,\u8221\'3f or (3) reimburse plaintiff for the costs it had incurred in providing services to the properties, which Frank Chapman estimated to be $110,250.00. File: 036 - Miles Construction LLC v United States.doc, Paragraph with $: Contractor was entitled to award of $385.84 in paralegal fees, under Equal Access to Justice Act (EAJA), following judgment in its favor in pre-award bid protest action, even though neither contractor nor government provided any information regarding prevailing market rate for paralegals in relevant area, based on rate for paralegal time most recently used in somewhat comparable urban area in another suit, which, following cost-of-living adjustments, resulted in rate of $96.46 per hour. File: 047 - Rockies Exp Pipeline LLC v Salazar.doc, Paragraph with $: The burden to determine the quantum of Rockies Express\rquote s compensatory damages rests on the Board. We observe that by claiming two alternative entitlements to the balance due on the contract ($173,230,601 or $130,975,417), Rockies Express is requesting not only its profits throughout the full term of the Precedent Agreement, but also the costs it avoided having never shipped natural gas to Interior on Rockies Express East. Recovery of the full contract price presumes that Rockies Express was unable to find another shipper willing to assume Interior\rquote s 2.5% reservation after undertaking reasonable efforts. This decision is not for this court to make and we File: 052 - Sikorsky Aircraft Corporation v United States.doc, Paragraph with $: Government contractor filed actions challenging contracting officer\rquote s (CO) demand for reimbursement of approximately $80 million for allegedly improper allocation of indirect costs under contract for aircraft and spare parts and challenging CO\rquote s rejection of contractor\rquote s affirmative defenses. Following consolidation, the Court of Federal Claims, Lettow, J., File: 052 - Sikorsky Aircraft Corporation v United States.doc, Paragraph with $: No changed circumstances warranted modification of prior order protecting contractor\rquote s confidential and proprietary cost information from public disclosure, following judgment for contractor in action challenging government\rquote s demand for reimbursement of $80 million under contract to provide aircraft and spare parts, where nothing had occurred to affect contractor\rquote s posture regarding confidentiality of its cost data after parties jointly moved to unseal portions of trial transcript following trial, and government did not establish any need to reopen that matter. File: 052 - Sikorsky Aircraft Corporation v United States.doc, Paragraph with $: Continuance of order protecting contractor\rquote s confidential and proprietary cost information from public disclosure was justified, following judgment for contractor in action challenging government\rquote s demand for reimbursement of $80 million under contract to provide aircraft and spare parts, since order was narrowly drawn to protect contractor\rquote s cost-of-production data, including direct materiel and labor costs as well as indirect costs for military and commercial applications, that would cause substantial competitive harm to contractor if made publicly available. File: 052 - Sikorsky Aircraft Corporation v United States.doc, Paragraph with $: On the merits, these cases concern the application of the government\rquote s Cost Accounting Standards (\u8220\'3fCAS\u8221\'3f) set out at 48 C.F.R. Chapter 99, Subchapter B, Part 9904. Sikorsky has and has had a number of contracts with the government to manufacture and supply aircraft and spare parts to the government, primarily for military use. The government challenged Sikorsky\rquote s allocation of indirect costs to its government contracts and sought reimbursement of approximately $80 million plus interest. File: 053 - ST Net Inc v United States.doc, Paragraph with $: On December 27, 2011, DHS posted Solicitation No. HSHQDC\u8211\'3f12\u8211\'3fR\u8211\'3f00005 (\u8220\'3fFirstSource II\u8221\'3f), which was designed as a five-year follow-on to the competitively awarded suite of IDIQ contracts under FirstSource I. AR 2. FirstSource I, awarded in 2007, facilitated streamlined purchase, delivery, and installation of IT commodity products and solutions by DHS. AR 12. In a similar vein, the stated objective of FirstSource II, which has a total cost-ceiling of $3 billion, is \u8220\'3fto establish contracts with experienced Information Technology Value\u8211\'3fAdded Resellers to provide a variety of commercially-available IT commodities, solutions, and value-added reseller services to support DHS programs....\u8221\'3f AR 2, 9. File: 071 - BCPeabody Construction Services Inc v United States.doc, Paragraph with $: Respecting the amount of security to be provided, the court finds that the projected costs of a delay of two months in Eden Construction\rquote s proceeding is greatly overstated. Edens Construction estimated that the cost of such a delay to the Corps would total $1,331,021.57. This amount, however, appears to ignore the Protest After Award Clause of the contractual award, which requires Edens Construction to take all reasonable steps to minimize the incurrence of costs upon a post-award bid protest. The court finds that security in the amount of $300,000 should be sufficient to cover reasonable costs and damages sustained by defendants if they are found to have been wrongfully enjoined. File: 073 - MilMar Century Corp v United States.doc, Paragraph with $: Government\rquote s price realism analysis in awarding an Army contract for production of bulk water distribution systems was rationally based; Government compared successful bidder\rquote s estimated material costs and labor hours to those of other bidders in concluding that successful bid was not unrealistically low, it examined total material costs and costs of parts below $500, which represented overwhelming majority of total costs involved in performance of contract, it relied on reviews of other Army engineers in evaluating labor hours needed to fabricate system\rquote s frame, and it compared bidder\rquote s total labor hours to those of four other bidders who planned to purchase same frame. File: 073 - MilMar Century Corp v United States.doc, Paragraph with $: Under this factor, offerors were to list all proposed prices in a Microsoft Excel spreadsheet labeled as Attachment 16, including proposed material costs, subcontractor costs over $5,000 and labor-related costs (broken down into labor rates and hours). File: 073 - MilMar Century Corp v United States.doc, Paragraph with $: The Entwistle Price Evaluation Report included a comparison of the items that Entwistle listed in its Bill of Material\u8212\'3fthat is, items with an estimated cost of $500 or more\u8212\'3fwith the historical prices of these items and prices culled from market research. AR 1786 (Entwistle PER). Entwistle\rquote s [* * *] was the water tank, which Entwistle planned to purchase from its proposed subcontractor, [* * *], at a cost of $[* * *]. File: 086 - Five Star Airport Alliance Inc v Milwaukee County.doc, Paragraph with $: All public work, including any contract for the construction, repair, remodeling or improvement of any public work, building, or furnishing of supplies or material of any kind where the estimated cost of such work will exceed $25,000 will be let by contract to the lowest responsible bidder.... A contract, the estimated cost of which exceeds $25,000, shall be let and entered into under s. 66.0901, except that the board may by a three-fourths vote of all the members entitled to a seat provide that any class of public work or any part thereof may be done directly by the county without submitting the same for bids. File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: The government estimate for the cost of the contract, including option years, is $506,869,115. File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: For each offeror, there are three dollar figures which summarize the work of the BEP. First, there is the figure representing the offeror\rquote s proposed costs for the contract, which is derived from the offeror\rquote s cost proposal for the base period and all option periods of the contract, including award fees. For CGS this figure is $344,515,427, for Noridian this figure is $345,206,187, and for Palmetto this figure is $392,324,975. AR at 10961, 11220, 11777. The court notes that even without the cost adjustments produced by the BEP, the offerors\rquote price proposals identify CGS as the lowest-cost offeror, closely followed by Noridian, with Palmetto a distinctly more expensive competitor. File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: The second summary figure for each offeror is the total cost realism adjustment to the offeror\rquote s cost proposal produced by the BEP, which summarizes a number of individual adjustments to particular cost elements. This figure reflects, in the view of the BEP, the total amount needed to adjust, upward, an offeror\rquote s proposed costs to more accurately estimate that offeror\rquote s probable costs over the life of the contract. For CGS this adjustment figure is $26,716,738, for Noridian this figure is $27,839,554, and for Palmetto this figure is $15,856,240. AR at 10961, 11220, 11777. File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: ); this total figure represents each offeror\rquote s probable costs over the life of the contract. For CGS this total probable costs figure is $371,232,165, for Noridian this figure is $373,045,741, and for Palmetto this figure is $408,181,215. AR at 10961, 11220, 11777. The court notes that File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: The [Noridian] and CGS proposed costs were competitive, with [Noridian\rquote s] proposed costs being $690,760 higher than CGS proposed cost; and after cost realism adjustments, the [Noridian] costs were $1,813,576 higher than the CGS costs. However based on the [Noridian] consistent historical innovations and its ability to experience contract cost lower than the negotiated cost, I am confident that [Noridian] will bring the same superior performance and commitment to technological advancements and consequent cost savings to the [Jurisdiction E] contract as it has done with its JD and J3 contracts. The anticipated cost savings notwithstanding, technical ability is rated as the most important factor, and the SSA is willing to pay a small cost premium for a clearly superior technical approach. File: 088 - CGS Administrators LLC v United States.doc, Paragraph with $: (\u8220\'3fI can state with certainty that I would nonetheless recommend an award to [Noridian] based on ... past performance and technical approach discriminators\u8221\'3f that outweigh a greater cost premium between CGS\rquote s proposed costs and Noridian\rquote s adjusted costs). Thus, the SSA was willing to pay a price premium of $28,530,314, or 8.3%, to obtain a \u8220\'3fclearly superior technical approach\u8221\'3f from Noridian for the MAC contract for Jurisdiction E. File: 090 - CS McCrossan Const Inc v Minnesota Dept of Transp.doc, Paragraph with $: Such information was to include a list of the DBE subcontractors that had been solicited by the primary contractor to participate in the Project, the expected cost of each subcontractor\rquote s participation, and the type of work to be performed. For example, McCrossan indicated in its proposal that it had committed to accept DBE subcontractor bids for, among other things, rebar installation (approximately $116,000), surveying (approximately $650,000), and erosion supplies (approximately $113,000). (Eastburn Aff. Ex. 5 at 2.) File: 094 - Caddell Construction Co Inc v United States.doc, Paragraph with $: Plaintiff Caddell Construction Co., Inc. (Caddell) filed a post-award bid protest in this court on January 10, 2013, challenging the United States Department of State\rquote s award of a $156 million contract to intervenor Desbuild Incorporated\u8211\'3fREC International Joint Venture (Desbuild\u8211\'3fREC) for the construction of a new annex building at the United States Embassy in Moscow, Russia, pursuant to Solicitation No. SAQMMA\u8211\'3f12\u8211\'3fR\u8211\'3f0117 (the Solicitation). Plaintiff alleges that, but for defendant\rquote s arbitrary and capricious evaluation of the proposals and violation of statutes and regulations in awarding the construction project to Desbuild\u8211\'3fREC, Caddell would have been evaluated as the lowest-priced, technically acceptable offeror. Plaintiff seeks permanent injunctive relief, as well as damages, including bid preparation and proposal costs. The parties have filed, and fully briefed, cross-motions for judgment on the administrative record, and oral argument was held. File: 002 - State of North Carolina Business Enterprises Program v United States.doc, Paragraph with $: For plaintiffs, this creates a dilemma: they believe that the $[REDACTED]-plus figure is far greater than what the contract is likely to cost. Consequently, they contend that this makes their price appear higher than it actually is. Pls.\rquote Mot. at 34\u8211\'3f35. File: 004 - TigerSwan Inc v United States.doc, Paragraph with $: , TigerSwan alleges that the DOD violated federal statutes by cancelling the solicitations under which TigerSwan was awarded its two contracts and in awarding sole-source contracts for the same underlying work to Aegis. With regard to its bid protest claim, the plaintiff seeks bid and proposal costs of $92,697.10 and $28,038.09 for the first and second contracts respectively. File: 004 - TigerSwan Inc v United States.doc, Paragraph with $: TigerSwan also alleges that the cancellation of the solicitations that led to the award of the 6001 and 6005 contracts and the subsequent sole-source awards to Aegis give rise to a claim under this court\rquote s bid protest jurisdiction. \u8220\'3fAs a result of the Agency\rquote s improper sole-source award to Aegis, [TigerSwan] seeks recovery of its bid and proposal costs for the 6001 and 6005 contracts, in the amount of $92,697.10 and $28,038.90, respectively.\u8221\'3f Compl. \u182\'3f 112. TigerSwan makes multiple allegations of the DOD\rquote s failure to follow the Federal Acquisition Regulation (\u8220\'3fFAR\u8221\'3f) and other applicable provisions in File: 004 - TigerSwan Inc v United States.doc, Paragraph with $: On October 21, 2010, TigerSwan submitted a settlement proposal for $92,949.09, reserving its right to bring a contractual claim regarding the 6005 contract termination for convenience. Pl.\rquote s Ex. 11, Memo for Record, Contract Modification, ECF No. 1\u8211\'3f13. TigerSwan subsequently submitted a revised settlement proposal for the 6005 contract adding ten percent for general and administrative costs for a total of $98,111.85. On October 30, 2010, the DOD released a final settlement invoice concluding that TigerSwan\rquote s proposal was reasonable. TigerSwan did not sign the 6005 Settlement Modification until January 14, 2011. TigerSwan reserved its right to appeal, which was acknowledged by the DOD in an email exchange. File: 006 - CW Government Travel Inc v United States.doc, Paragraph with $: With its opposition to defendant\rquote s cross-motion for judgment upon the administrative record, CWT also submitted a declaration from Jim Hotze, the Vice President and Chief Financial Officer of CWT. In his declaration, Mr. Hotze states that he has knowledge of the various costs and expenditures incurred by the protester in developing ETS 1 and ETS2. Hotze Decl. \u182\'3f 5. He states that since March 2003, CWT has incurred costs in excess of $[...] for ETS1 and $[...] for ETS2, and that there is a risk that [...] full-time equivalent employees would lose their jobs if CWT is not awarded a ETS2 contract. File: 019 - Adams and Associates Inc v United States.doc, Paragraph with $: Adams currently operates the Shriver Job Corp Center in Devens, Massachusetts under contract DOLJ08AU00002, which runs from June 1, 2008, until May 31, 2013. AR 68. Shriver is a job training facility with a capacity of 102 residential female students, 170 residential male students, 14 non-residential female students, and 14 non-residential male students. AR 7. The annual cost to run Shriver ranges from $7 to $17 million. AR 72. In addition to operations, the contract includes outreach, admissions, and career transition services. AR 70. The total value of the contract is $47,850,418.00 for two years of services and three option years. AR 68, 70. File: 020 - Nobles Const LLC v Washington Parish.doc, Paragraph with $: Of the five companies, Nobles submitted the lowest bid. Under its proposal, operation of the Landfill would cost $49,860 per month. Landworks\rquote bid was the second lowest, with a price of $69,674 per month. The Review Panel, however, awarded Landworks a higher evaluation score, which was based on ratings the Panel members gave each proposal in eight individual categories. The Review Panel also contacted Creel and requested that he lower Landworks\rquote bid to $62,500 per month, which Creel agreed to do. Based on this revised proposal and the evaluation scores, the Review Panel voted to recommend awarding the contract to Landworks. File: 021 - Dynamic Educational Systems Inc v United States.doc, Paragraph with $: DESI currently operates a Job Corp Center in Montgomery, Alabama under contract DOLJ08AU00020, which runs from October 1, 2008, until September 31, 2013. AR 1. Montgomery is a job training facility with a capacity of 132 residential female students, 132 residential male students, 43 non-residential female students, and 15 non-residential male students. AR 8. The current annual cost to run Montgomery is roughly $7.5 million. AR 6. The contract carries a total value of $37,744,531.00 for two years of services plus three unilateral option years. AR 1, 64. File: 023 - Kellogg Brown And Root Services Inc v United States.doc, Paragraph with $: . at 2\u8211\'3f3. The chart above attributes a percentage of the total available award fee to each of the three factors and nine subfactors. For example, given a total award fee pool of $100, the contractor could earn up to $30 (30 percent) based on technical performance, $40 (40 percent) based on cost performance, and $30 (30 percent) based on management. Of the $30 earnable for technical performance, the contractor could earn up to $9 (30 percent of $30) based on adherence to schedule, $12 (40 percent of $30) based on quality of work, and $9 (30 percent of $30) based on responsiveness. File: 026 - Supreme Foodservice GmbH v United States.doc, Paragraph with $: . The report recommended that DLA refund $56.5 million to the Army, establish cost controls on future SPV contracts, and conduct reviews of all SPV contracts to ensure that costs were charged to the correct fiscal year appropriation. File: 026 - Supreme Foodservice GmbH v United States.doc, Paragraph with $: . The record, however, does not contain any such showing. The worst case scenario for the agency would appear to be that the bridge contract\rquote s POT rates could cost it about $30 million per month\u8212\'3fwhich is some $17 million more per month than it would like to pay Supreme. File: 026 - Supreme Foodservice GmbH v United States.doc, Paragraph with $: . at 716. This roughly translates to payments of $122.2 million per month. The administrative record provides no basis for determining whether the portion of these monthly payments that corresponds to deliveries that are the subject of the POT rates dispute is lower than $13 million or higher than $30 million, or somewhere in-between. The Court notes that even if the bridge contract were to cost $17 million more per month than the new contract for these deliveries, as a percentage of the new contract\rquote s value this is not much different from the cost savings that have found insufficient to support an override in other contexts. File: 033 - One Largo Metro LLC v United States.doc, Paragraph with $: General Services Administration (GSA) regional commissioner\rquote s reference to 2,500 feet reasonable walking distance from proposed office space to metrorail did not deviate from terms of solicitation for office space and thus was reasonable, in determining that disappointed bidder\rquote s offer was rated more highly than contract awardee\rquote s offer with respect to access to metrorail, but that disappointed bidder\rquote s $51 million cost difference compared to awardee\rquote s proposal did not represent best value to government, since solicitation differentiated between proposed buildings that were within 2,500 feet of metrorail and those farther away that required bidders to provide shuttle service, and commissioner complied with solicitation\rquote s requirement of evaluating buildings closer to metrorail more highly. File: 033 - One Largo Metro LLC v United States.doc, Paragraph with $: Amenities sub-factor, which was only worth ten percent of the total. Given Plaintiff\rquote s superiority on the Access to Metrorail and Planning Efficiency and Flexibility sub-factors, One Largo argues, Defendant could not, consistent with the Solicitation\rquote s requirement that price be given \u8220\'3fsignificantly less importance than the combined weight of the technical factors,\u8221\'3f conclude that Fishers Lane\rquote s proposal was more advantageous than Plaintiff\rquote s proposal. Plaintiff alleges, therefore, that Defendant\rquote s August 24, 2011 selection decision was arbitrary and capricious, and but for Defendant\rquote s error, Plaintiff should have been awarded the contract. Plaintiff has moved for judgment on the Administrative Record, and seeks reimbursement of bid and proposal costs in the amount of $4,038,739.00. File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: Aside from the increase in labor rates, the court observes that additional costs had been added to the contract, which had either been much lower in the old contract, or not previously required. For example, under the old contract, over the course of five years, approximately $4000 or $5000 was allocated for the contractor\rquote s travel costs. File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: Although the Notice to Proceed appeared to cap costs for the CMAS sole-source contract at $500,000, File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: at 109. This new labor cost added $124,047 to the sole-source bridge contract. File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: at 185. The six-month extension increased the total cost of the contract to $971,499.50. File: 034 - Innovation Development Enterprises of America Inc v United States.doc, Paragraph with $: AR at 97. The only figures in the administrative record regarding the last option year of Harris\rquote s old contract show that the annual cost of the CMAS contract from October 1, 2008 through September 30, 2009 was $403,338.40. AR at 16. In contrast, the cost of a six to ten month transition to a new contractor was estimated in the J & A to be $1,500,000. File: 044 - P And K Contracting Inc v United States.doc, Paragraph with $: Plaintiff used G & E\rquote s price in preparing its successful bid for the IMC contract, contending, at least in response to defendant\rquote s initial Motion for Summary Judgment (ECF Nos. 21, 27), that it was unaware that G & E\rquote s proposal was for a different design. Thus, when G & E subsequently refused to install the STV design, plaintiff had to obtain a replacement HVAC subcontractor, which it did following the government\rquote s lifting of the limitation to the two previously approved subcontractors, at a cost to plaintiff of $245,525 in excess of G & E\rquote s price. File: 044 - P And K Contracting Inc v United States.doc, Paragraph with $: to be associated with an HVAC system it felt was defective. West Point then removed the requirement that either Caswell or Rangetech provide the HVAC system and plaintiff sought a substitute subcontractor to build per the STV specifications. The lowest bidder was some $245,525.00 more than the original G & E bid, and it is that cost that plaintiff seeks in this litigation in the form of an equitable adjustment. File: 044 - P And K Contracting Inc v United States.doc, Paragraph with $: doctrine defendant cites for its position that plaintiff bore the risk of a non-compliant subcontract, also imposes on West Point an implied warranty that if the contract specifications are followed, the result will be acceptable, a warranty that was breached here plaintiff concludes, contending that the HVAC system as designed and required by the contract was defective; accordingly, plaintiff is entitled to recover costs proximately flowing from the breach, here the additional $245,525.00 cost for a substitute contractor to build per the original STV specifications. File: 045 - Dellew Corporation v United States.doc, Paragraph with $: Government\rquote s decision to in-source work under a contract to provide awards, decorations, and personnel management support services at several Air Force bases did not result in a prejudicial violation of National Defense Authorization Act (NDAA) and was supported by a rational basis; decision was based on a cost comparison demonstrating that in-sourcing would result in a savings of $995,279.00, and to extent that cost comparison contained errors, those errors did not prejudice incumbent contractor, since it still resulted in a considerable cost savings when errors were taken into account. File: 045 - Dellew Corporation v United States.doc, Paragraph with $: Even assuming incumbent contractor succeeded on merits of its claim that government\rquote s decision to in-source work under a contract to provide awards, decorations, and personnel management support services at several Air Force bases violated National Defense Authorization Act (NDAA), granting a preliminary injunction enjoining government\rquote s in-sourcing would not serve public interest, since government\rquote s decision was based on a cost comparison demonstrating that in-sourcing would result in a savings of $995,279.00. File: 045 - Dellew Corporation v United States.doc, Paragraph with $: plaintiff would lack standing, as well, under the NDAA for Fiscal Year 2012, which requires certain in-sourcing decisions to be based upon a cost savings of $10,000,000.00 or 10% of personnel-related costs. It is doubtful whether Congress would have intended such a result. DoD procedures required by the statutory provisions at issue in this case place limits on the ability of DoD to convert from contractor to civilian performance. File: 045 - Dellew Corporation v United States.doc, Paragraph with $: , effective December 31, 2011, which requires the Secretary of Defense to \u8220\'3fensure that the difference in the cost of performing the function by a contractor compared to the cost of performing the function by Department of Defense civilian employees would be equal to or exceed the lesser of ... (I) 10 percent of the personnel-related costs for performance of that function; or (ii) $10,000,000.\u8221\'3f File: 057 - Res-Care Inc v US.doc, Paragraph with $: AR 1, 5. The sources sought notice explained that \u8220\'3fJob Corps is a national residential training and employment program administered ... to address the multiple barriers to employment faced by at-risk youth throughout the United States.\u8221\'3f AR 2, 6. Specifically, the services sought included \u8220\'3feducational and career technical skills training,\u8221\'3f operating the residential facility, providing meals and supervision for 160 residential female students, job placement, health services, and center oversight and management. AR 2, 6. The annual cost to run Blue Ridge is roughly $5 million. AR 54. The proposed contract carries a value of $25 million and would run for two years with three unilateral option years. AR 53\u8211\'3f54. File: 065 - Golden Mfg Co Inc v US.doc, Paragraph with $: , for example, an increase of $100 million dollars caused by a contract modification was an increase to the total estimated cost of the contract of less than 2 percent, and was not judged to be a cardinal change of contract requirements. File: 073 - Tip Top Const Inc v Donahoe.doc, Paragraph with $: The critical issue in the negotiations was whether Tip Top was entitled to recover the costs it incurred in preparing the $28,838.43 estimate that Mr. Diaz submitted to Mr. Morales on October 18, 2009. On April 8, 2010, Mr. Manka sought guidance within the Postal Service on this issue, writing \u8220\'3fIf one of our JOC Contractor firms hires a firm to do their cost estimating for proposals and modifications is the cost ... considered an overhead charge or does it become a direct or indirect billable cost?\u8221\'3f After receiving an answer to his inquiry, Mr. Manka sent an email to Mr. Hollins on April 16, 2010, quoting to Mr. Hollins the advice which he had been given: \u8220\'3fThe cost is an overhead charge and is not a billable cost. We recommend you review contract clause F\u8211\'3f302 titled Work Order subparagraph I, in the associated contract which provides specific discussion on processing work orders.\u8221\'3f Notably, the advice Mr. Manka received and which he passed on to Mr. Hollins only addressed Mr. Manka\rquote s question insofar as it related to cost estimating for work orders. It did not address his question insofar as it related to cost estimating for modifications under the contract\rquote s changes clause. Beginning in April of 2010, counsel advised Mr. Hollins and assisted him in his continuing negotiations with the Postal Service. File: 073 - Tip Top Const Inc v Donahoe.doc, Paragraph with $: the proposal preparation costs were barred by Contract Clause B.309. As noted above, that clause provides that contractor\rquote s costs in connection with work orders are not recoverable. Second, he concluded that it was unreasonable for Tip Top to spend $6,704.66 to prepare a change order valued at only $22,133.77. File: 073 - Tip Top Const Inc v Donahoe.doc, Paragraph with $: The Board continued that it was the changes clause of the contract that governed Tip Top\rquote s claim for an equitable adjustment resulting from the Postal Service\rquote s change order. The Board ruled that Tip Top had met the requirements for recovery under this clause as far as the $2,565 in costs relating to Mr. Diaz\rquote s work prior to October 15, 2009 were concerned. The Board stated that the costs were compensable because they represented \u8220\'3fan increase in [Tip Top\rquote s] direct cost of performance due to the change.\u8221\'3f File: 073 - Tip Top Const Inc v Donahoe.doc, Paragraph with $: The PSBCA also ruled, however, that Tip Top was not entitled to recover the balance of its claim, in the amount of $9,835. This amount consisted of Mr. Diaz\rquote s fees and overhead costs after October 15, 2009, until he left the job in March of 2010. It also consisted of legal fees in the amount of $2,745 for work done during the period April 21 through June 8, 2010. In denying recovery of this part of Tip Top\rquote s claim, the Board stated that the negotiations between Tip Top and the Postal Service after October 15, 2009, relating to recovery of Tip Top\rquote s estimating costs, which resulted in work by Mr. Diaz and outside counsel, \u8220\'3fhad nothing to do with performance of the changed work or genuine contract administration and were solely directed at trying to convince the contracting officer to accept [Tip Top\rquote s] figure for the change and maximizing [Tip Top\rquote s] monetary recovery.\u8221\'3f File: 082 - Navarro Research and Engineering Inc v US.doc, Paragraph with $: Administrative Record (AR) Tab 13. The ECO contract is an indefinite-delivery, indefinite-quantity (IDIQ) contract that entails both cost-plus-fixed-fee (CPFF) and firm-fixed-price (FFP) requirements to be issued as task orders. AR 927. Under the RFP, competition for the contract was to be limited to small businesses. AR 913. The contract was to be for an initial base term of two years, plus four one-year options. AR 913. The contract had a not-to-exceed value of $80 million, and a guaranteed minimum value of $100,000. AR 932. File: 085 - Horsley Co LLC v Milwaukee County.doc, Paragraph with $: All public work, including any contract for the construction, repair, remodeling or improvement of any public work, building, or furnishing of supplies or material of any kind where the estimated cost of such work will exceed $25,000 will be let by contract to the lowest responsible bidder.... A contract, the estimated cost of which exceeds $25,000, shall be let and entered into under s. 66.0901, except that the board may by a three-fourths vote of all the members entitled to a seat provide that any class of public work or any part thereof may be done directly by the county without submitting the same for bids. File: 091 - Watterson Const Co v US.doc, Paragraph with $: awarding contractor $343,490.09 in damages for bid preparation and proposal costs for successfully challenging Army Corps of Engineers\rquote rejection, as untimely, of contractor\rquote s revised bid that was received by Army Corps\rquote e-mail server one minute prior to submission deadline, but did not arrive in contracting officer\rquote s (CO) e-mail inbox until four minutes after deadline. File: 097 - System Planning Corp v US.doc, Paragraph with $: Here, the plain language of the contract can only be read to find that the language relied on by plaintiff was part of the option. CLIN 0011 states that the effort required for its completion was \u8220\'3fas described in Section H.9 of contract,\u8221\'3f and that such effort would cost the government $7,039,870 \u8220\'3f File: 002 - Elmendorf Support Services Joint Venture v US.doc, Paragraph with $: The analysis demonstrated that performance by government civilian employees would be more cost-effective, saving the Air Force $5.4 million or 18 percent over a five-year period. On February 2, 2011, the Air Force notified plaintiff both verbally and in writing of its intent to in-source the contract services at the end of the sixth option year, September 30, 2012, rather than exercise an additional option year. File: 009 - Glenn Defense Marine (Asia) PTE Ltd v US.doc, Paragraph with $: The Primary Contracting Officer/Source Selection Authority emphasized that \u8220\'3fGDM had significant deficiencies in meeting both pricing submission requirements as well as responding in a timely manner to facilitate pricing transparency.\u8221\'3f Moreover, \u8220\'3fGDM\rquote s past performance leads the Contracting Officer to believe the additional contract administration costs would be required if a contract were awarded to GDM rather than MLS.\u8221\'3f The Primary Contracting Officer/Source Selection Authority concluded that \u8220\'3f[t]he perceived benefits and substantially lower risk, although not easily quantifiable, are considered to be worth more than the $989,214 price difference. Therefore, the source selection decision is to award the contract for the South Asia region to File: 010 - Wildflower Intern Ltd v US.doc, Paragraph with $: In late October and early November 2011, Wildflower and the contracting officer exchanged letters regarding the approximately $270,000 in termination costs Wildflower requested. CBP has not yet paid any termination costs to Wildflower. Wildflower has also not received a final decision from the contracting officer. File: 016 - Distributed Solutions Inc v US.doc, Paragraph with $: , the Department of the Air Force in-sourced work previously performed by the protestor. Jurisdiction was well-grounded as the in-sourcing decision was made \u8220\'3fin connection with a procurement\u8221\'3f and the protestor, a likely competitor was an \u8220\'3finterested party\u8221\'3f under the Tucker Act. Following legislation and guidelines requiring greater use of civilian employees, and budgetary realignment that decreased funding for private contracts, the Air Force, in complying, identified work that could be in-sourced, and possible cost savings therefrom, which included work previously performed by the protestor. The protestor filed suit over the in-sourcing plan. The Air Force voluntarily agreed to reevaluate, discovering data and computation errors, but upon reevaluation, came to the same result. On the merits of the protest, it was concluded that the Air Force complied with statutory and regulatory requirements and its expectation of cost savings of $8.8 million by in-sourcing was neither arbitrary nor capricious. Accordingly, the government\rquote s motion for judgment on the administrative record was granted. File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with $: Contractor would suffer irreparable harm in absence of permanent injunction requiring Defense Intelligence Agency (DIA) to consider contractor\rquote s proposal to provide intelligence analysis support for DIA missions as timely submitted, since contractor would be irreparably injured by denial of opportunity to compete for contract with 5\u8211\'3fyear lifespan and up to $5.6 billion in revenue, as recoupment of bid preparation costs while denying contractor chance to compete was not adequate remedy given substantial size of contract and business-expanding opportunity it represented for small business like contractor. File: 033 - Electronic On-Ramp Inc v US.doc, Paragraph with $: The Court finds that the evidence weighs in favor of granting the injunction. The first factor is irreparable harm. As this is a pre-award protest, the extent of EOR\rquote s direct economic harm will be less than in the post-award context because DIA has not yet evaluated the proposals. Moreover, the RFP is for an IDIQ contract, so the exact value of the contract is not known. The Court therefore concludes that a determination of irreparable harm cannot be made on EOR\rquote s economic loss alone. The real harm suffered by EOR is the denial of the opportunity to compete for a contract with a 5\u8211\'3fyear lifespan and up to $5.6 billion in revenue. AR 339. Absent injunctive relief, EOR will never have the opportunity to compete for the award. Given the substantial size of the contract and the business-expanding opportunity it represents for a small business like EOR, recoupment of bid preparation costs while denying EOR the chance to compete, is not an adequate remedy. The Court agrees with other CFC judges that have considered the issue that the denial of the opportunity to compete for a contract can constitute irreparable harm. File: 051 - Triad Logistics Services Corp v US.doc, Paragraph with $: issued a cost study for the contract work Triad was performing, titled \u8220\'3fMemorandum of Intent to In-source a Contracted Activity [Vehicle Operations (Columbus) and FA3022\u8211\'3f07\u8211\'3fC\u8211\'3f0001].\u8221\'3f (brackets in original). The memorandum stated: \u8220\'3fContracted services may be in-sourced if a cost analysis shows that the DoD civilian employees would perform the work more cost effectively than the private sector contractor.\u8221\'3f The cost analysis determined that the total cost of contractor performance under the contract was $8,576,987.00 and that the total cost of agency performance would be $7,707,538.00, for a cost difference of $869,449.00, or a 10.14% reduction in cost to in-source the required services. File: 051 - Triad Logistics Services Corp v US.doc, Paragraph with $: After the court\rquote s dismissal, without prejudice, of plaintiff\rquote s first complaint, the Air Education and Training Command, using DTM\u8211\'3fCOMPARE, issued a revised cost study for the work covered in Triad\rquote s contract, titled \u8220\'3fMemorandum of Intent to In-source a Contracted Activity [Vehicle Operations (Columbus) and FA3022\u8211\'3f07\u8211\'3fC\u8211\'3f0001].\u8221\'3f (brackets in original). The justification memorandum in support of the in-sourcing decision stated: \u8220\'3fContracted services may be in-sourced if a cost analysis shows that DoD civilian employees would perform the work more cost effectively than the private sector contractor.\u8221\'3f The cost analysis determined that the total cost of the contractor performance under the contract was $8,578,569.00, File: 051 - Triad Logistics Services Corp v US.doc, Paragraph with $: The defendant explained that the increase for the total cost of contractor performance from $8,576,987.00 to $8,578,569.00 was because the \u8220\'3fcontract cost projections calculated based upon the updated guidance differ slightly from the projections calculated in the original cost analysis. The impact of the correction is an overall increase of $1,582.00 to the contract cost estimate.\u8221\'3f File: 054 - GTA Containers Inc v US.doc, Paragraph with $: The Marine Corps should have included those items in its termination action of December 15, 2011, because it intended for the termination to encompass all of the awarded contract that did not depend upon a military need for which there is not an alternative contract vehicle. With this additional termination action, the order for critical items includes only the fuel systems: the Tactical Airfield Fuel Dispensing System, the Amphibious Assault Fuel System, and the Expeditionary Refueling System. Those systems cost approximately $9,927,614.00. File: 055 - Furniture by Thurston v US.doc, Paragraph with $: \u182\'3f 10. Enjoining the Marine Corps from installing the furniture would result in the waste of over $[* * *], to say nothing of any additional costs that would be borne by the agency in recompeting the contract. Thurston has raised no harm beyond the loss of potential profit. File: 056 - Diversified Maintenance Systems Inc v US.doc, Paragraph with $: but defendant asserts that it never received that attachment, Def.\rquote s Mot. at 5, and DMS does not attempt to refute that assertion in its response to the motion to dismiss. The letter also states, in a footnote, that \u8220\'3f[a] monetary claim for increased costs of performance by DMS caused by Navy changes, and interference will be tendered separately.\u8221\'3f Def.\rquote s Mot. Ex. A at 3 n. 1. Defendant denies that it received another claim from DMS, and DMS does not attempt to refute that representation. The court may not exercise jurisdiction over DMS\rquote s claim for damages because plaintiff has not submitted a valid claim to the contracting officer demanding such monies. The court further notes that the January 2010 letter was not certified, as required for all claims seeking more than $100,000. File: 058 - GTA Containers Inc v US.doc, Paragraph with $: On January 20, 2012, the Friday preceding the scheduled January 25, 2012 argument, defendant filed Defendant\rquote s Notice of Additional Corrective Action. Defendant represented that the MCSC intended to take further corrective action and once again pare down its order placed on the contract by terminating for convenience revised Delivery Order No. 0001 for a number of the items. Def.\rquote s Notice filed Jan. 20, 2012. By this termination the MCSC would be procuring only fuel system components at a total cost of $9,927,614.00. File: 058 - GTA Containers Inc v US.doc, Paragraph with $: The Marine Corps should have included those items in its termination action of December 15, 2011, because it intended for the termination to encompass all of the awarded contract that did not depend upon a military need for which there is not an alternative contract vehicle. With this additional termination action, the order for critical items includes only the fuel systems: the Tactical Airfield Fuel Dispensing System, the Amphibious Assault Fuel System, and the Expeditionary Refueling System. Those systems cost approximately $9,927,614.00. File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with $: http://www.efl.fhwa.dot. gov/files/contracting/bidtabs/CT_VI\u8211\'3f0A30(035)_C\u8211\'3f3.pdf (cited at Pl. Br. at 3 n. 1) (noting that IRC was the low bidder for Contract No. VI A30 (035) C3). The IFB, however, indicated that the Frenchman Bay Road construction project would likely cost between $5 and $10 million. AR 31. File: 063 - Virgin Islands Paving Inc v US.doc, Paragraph with $: Based on the bids, the FHWA calculated a total evaluated price for each contract that included the price of the bid plus additional FHWA costs of $2,700 per day to administer the contract. AR 491. File: 073 - NASCENT Group JV ex rel Native American Services Corp Inc v US.doc, Paragraph with $: A section of the Army Corps\rquote Project Management Plan entitled \u8220\'3frisks associated with this acquisition strategy,\u8221\'3f states that \u8220\'3f[i]f these projects are solicited separately, market forces may limit contractor interest due to the cost of preparing the RFP proposal for construction projects valued at less than $5,000,000.\u8221\'3f PX 8 at COE 015811. Yet NASCO\rquote s theory is that the Army Corps bundled the Lynden Project, which was valued at less than $5,000,000, with the Blaine Project, valued at File: 074 - Ceradyne Inc v US.doc, Paragraph with $: Later that day, BAE accepted the Army\rquote s offer. AR 1124\u8211\'3f25. The resulting repurchase increased the Army\rquote s costs by $3,670,302.18, which the Army anticipated would be reimbursed by ArmorWorks. AR 1129. On November 2, 2011, the Army issued a bilateral modification to BAE\rquote s contract and increased the total number of side body armor plates by 90,000. AR 1132\u8211\'3f37. BAE is anticipated to complete delivery by February 26, 2012. AR 1136. File: 080 - URS Federal Services Inc v US.doc, Paragraph with $: Sometime in September 2010, VSE Corporation, Inc. (\u8220\'3fVSE\u8221\'3f), the incumbent, received a number of sole source extensions to continue performance of the existing contract TOS\u8211\'3f11\u8211\'3fC\u8211\'3f001, during the extended Solicitation period. AR 91\u8211\'3f92. These sole-source extensions cost Treasury $[redacted] per month or approximately $[redacted] million for the 13 month period. AR 13, 19, 26. The most recent extension, via Modification 007, was issued on September 29, 2011 and afforded Treasury two options: one option to extend the existing contract through October 31, 2011 and another to extend the contract through November 30, 2011. AR 92. Treasury immediately exercised the first option, extending VSE\rquote s performance through October 31,2011 at a cost of $3,038,138.25. AR 92. File: 080 - URS Federal Services Inc v US.doc, Paragraph with $: On October 28, 2011, Treasury awarded VSE Contract No. TEOAF\u8211\'3f12\u8211\'3fD\u8211\'3f001 (\u8220\'3fthe Contract\u8221\'3f). AR 5. Treasury did not opt to exercise the second option under Modification 007 to extend the prior contract with VSE until November 30, 2011. AR 92. The cost of Contract No. TEOAF\u8211\'3f12\u8211\'3fD\u8211\'3f001 appears to be $[redacted] over a 12\u8211\'3fmonth base period, File: 080 - URS Federal Services Inc v US.doc, Paragraph with $: The Government argues that the court should consider cost as a reason to justify the override, even though cost was not discussed in the D & F that was submitted to the HCA for approval. Gov\rquote t Br. at 29\u8211\'3f31. The Government explains this oversight by the CO as \u8220\'3fassumi[ng] a certain level of familiarity in its readers with the background events surrounding the procurement at issue\u8221\'3f and \u8220\'3f[f]or ease of presentation to high-level decisionmakers.\u8221\'3f Gov\rquote t Br. at 15. In fact, Treasury calculated that it would save $[redacted] million per month by having VSE perform under the Contract, rather than under a bridge contract. AR 13, 20. File: 088 - MORI Associates Inc v US.doc, Paragraph with $: Def.\rquote s Cancel\rquote n Br. at 20\u8211\'3f22; Def.\rquote s Cancel\rquote n Reply at 9\u8211\'3f10. But this is not like, for instance, cancelling a solicitation seeking office supplies after stumbling across a forgotten stockpile of these supplies obtained in a previous procurement\u8212\'3fin which case the costs of the stockpile have already been incurred. The costs of IT services to be received in the future have yet to be incurred. And the agency has decided to \u8220\'3fconvert[ ] contract support positions to Federal employees\u8221\'3f not just because employees were available, but because \u8220\'3f[a]n analysis of expenditures showed that NIDDK could realize significant savings\u8221\'3f by doing so. AR at 3 (Rodgers Mem.). This was the reason given by the client agency to the NIH contracting officer, who noted in her approval memorandum that \u8220\'3fan analysis reveals/projects that NIDDK could realize a minimum savings of $860,988.21 annually [i]f it converted at least 11 of its contract support positions to Federal employees.\u8221\'3f AR at 5 (Miller Mem.). The government does not suggest that the IT Services Solicitation would have been cancelled if the agency believed that costs would significantly increase by using federal employees to perform the functions. Such a decision would hardly be rational. The cost savings rationale cannot be divorced from the decision to cancel the procurement. File: 088 - MORI Associates Inc v US.doc, Paragraph with $: These positions are assigned contractor costs, ranging from $[XXX,XXX] to $[XXX,XXX] annually (for 1,880 hours worked). File: 088 - MORI Associates Inc v US.doc, Paragraph with $: . No task order has issued or been proposed, so no private contractor is in a position to suffer costs or damages from this injunction, nor will the government face termination for convenience costs. Accordingly, the proper amount of security in this case is $0.00. File: 089 - Metcalf Const Co Inc v US.doc, Paragraph with $: JX A1 at DEF0498725 (stating that any soils containing chlordane in concentration less than 3.78 parts per million (ppm) could be used by the contractor); JX A1 at DEF0498734 (stating that other residential units, not previously assessed, however, should be tested for chlordane). Metcalf conducted additional tests in August\u8211\'3fNovember 2003, but no detectable levels of chlordane requiring remediation were reported. PX 83, 98. The subsequent discovery of chlordane in the soil stockpiles was not Metcalf\rquote s fault. Although the Navy reimbursed Metcalf for most of the associated costs (PX 312, 326, 330; TR 387 (Lee)), Metcalf was not paid for $502,227 to remediate chlordane found in the soil stockpiles, primarily because of funding issues. JX L4, Art. B at PX967855. Moreover, if Metcalf had known of the chlordane situation in 2003, instead of 2005, it would have had \u8220\'3fmore options\u8221\'3f and \u8220\'3fmore time\u8221\'3f to deal with the \u8220\'3fdisposal,\u8221\'3f \u8220\'3ftreatment,\u8221\'3f and \u8220\'3fmovement\u8221\'3f of the chlordane. Pl. PT. Br. at 1 (citing TR 885 (Chun)). File: 089 - Metcalf Const Co Inc v US.doc, Paragraph with $: According to a July 16, 2004 letter Metcalf wrote to LCDR Lee, the termination \u8220\'3f[met] the [Navy\rquote s] requirements to immediately release the $100,000 retention and to bring [Metcalf] into compliance with the contract.\u8221\'3f PX 185. Contemporaneous internal Metcalf notes and memoranda, however, reflect that Mr. Florez was terminated for \u8220\'3fnon-compliance [with his contract] and inappropriate behavior,\u8221\'3f DX 159 at 4\u8211\'3f8, and that Florez had a \u8220\'3fbad reputation\u8221\'3f and projected an unfavorable \u8220\'3fimage [of] the company ... [t]reated employees and government representatives poorly creating a hostile environment ... [and cost Metcalf] in excess of $500,000[.]\u8221\'3f DX 2675 (undated notes created for Terry Metcalf prior to a meeting with Mr. Florez that occurred after Mr. Florez\rquote s termination). File: 092 - Orion Technology Inc v US.doc, Paragraph with $: b. Your proposal provided substantiation supporting $584,029.86 of other direct costs (ODCs) in compliance with Section L, ... but your proposal failed to allocate any of these ODCs to the individual contract line item numbers (CLINs). Further, the cost/price worksheet\rquote s summing calculations were erroneous and indicated a false total of just $216,799.80. Consequently, your ODCs cannot be evaluated for cost realism IAW Section M .... File: 092 - Orion Technology Inc v US.doc, Paragraph with $: In its motion for judgment on the administrative record, plaintiff does not challenge the Army\rquote s conclusions regarding the ODCs. At oral argument, however, plaintiff contended that it had submitted all of the required information in the worksheet identifying its ODCs. And, in its supplemental brief, plaintiff argues that because the solicitation lacks any requirement that offerors allocate ODCs to individual contract line numbers, the Army\rquote s rejection of plaintiff\rquote s proposal on this basis violates statute and regulation. Plaintiff\rquote s newly raised contentions address a single aspect of the Army\rquote s comments on plaintiff\rquote s ODCs\u8212\'3fthe purported failure to allocate the ODCs to individual contract line item numbers\u8212\'3fand do not counter the Army\rquote s observation that \u8220\'3fthe cost/price worksheet\rquote s summing calculations were erroneous and indicated a false total of just $216,799.80\u8221\'3f of ODCs. AR 1100. The court normally does not consider contentions first raised at oral argument or in a supplemental brief. File: 11 - Metropolitan Van and Storage Inc v US.doc, Paragraph with $: Bid protestor\rquote s cost of living adjustment (COLA) resulting in attorney fee hourly rates of $172.85 and $174.43 for two separate years was reasonable, under Equal Access to Justice Act (EAJA), upon $675.94 reduction for hours claimed during year for which protestor inaccurately calculated COLA, after prevailing on bid protest request to vacate award of contract to provide storage and management of household goods and unaccompanied baggage for Department of Defense. File: 11 - Metropolitan Van and Storage Inc v US.doc, Paragraph with $: Although government asserted without justification that bid protestor achieved only minimal success and amount of attorney hours spent on unsuccessful arguments was excessive, protestor was entitled to full compensation for 1,169.8 hours of attorney time billed for litigating protest, after reduction of 0.9 hours for incorrect cost of living adjustment (COLA), for total award of $201.623.45 in attorney fees, under Equal Access to Justice Act (EAJA), upon prevailing on request to vacate award of contract to provide storage and management of household goods and unaccompanied baggage for Department of Defense, since protestor was successful in achieving ultimate relief sought, and unsuccessful arguments involved common core of facts, were based on related legal theories, were integral to protestor\rquote s litigation strategy, and were not frivolous. File: 11 - Metropolitan Van and Storage Inc v US.doc, Paragraph with $: Bid protestor\rquote s requested costs of $3,285, for prevailing on request to vacate award of contract to provide storage and management of household goods and unaccompanied baggage for Department of Defense, were fully compensable, under Equal Access to Justice Act (EAJA), including $315 for delivery costs, $44 for attorney travel expenses, $679 for legal research services, $250 for filing fee, $1,318 for duplication of papers, and $679 for transcripts. File: 12 - Impresa Construzioni Geom Domenico Garufi v US.doc, Paragraph with $: Bid protestor\rquote s requested attorney fees for prevailing on protest of Navy\rquote s award of contract to provide services at Naval Air Station in Italy warranted cost-of-living adjustment (COLA), under Equal Access to Justice Act (EAJA), resulting in award of $102,649.24 based on COLA-adjusted attorney fee rate of $155.19 per hour for 661.46 hours reasonably expended on protestor\rquote s successful claims and EAJA application; mid-point inflation adjustment method was adopted to calculate COLA, by first calculating mid-point of range that attorney services were provided, and then calculating ratio between mid-point consumer price index (CPI) and baseline CPI. File: 15 - FirstLine Transp Sec Inc v US.doc, Paragraph with $: at 405, 880. The 2006 contract was awarded for one base year plus four option years on a cost plus award fee basis, and had a total anticipated value of $173,120,739. File: 15 - FirstLine Transp Sec Inc v US.doc, Paragraph with $: In this respect, the price evaluation scheme in the RFP ignored the out-of-contract costs of Akal\rquote s proposal, which plaintiff estimates to range from $[ ] to $[ ]. Pl.\rquote s Mot. at 25; Pl.\rquote s Reply at 15. File: 15 - FirstLine Transp Sec Inc v US.doc, Paragraph with $: . There, the agency\rquote s invitation for bids warned non-incumbent offerors that $1,000 would be added to their bids, for price evaluation purposes only, to account for costs related to computer program duplication and the transfer of data to a new contractor. File: 15 - FirstLine Transp Sec Inc v US.doc, Paragraph with $: In addition, FirstLine proposed [ ] labor hours per year for non-screener employees at MCI, which was, according to plaintiff, lower than the number of such hours historically incurred by FirstLine under its current contract. Pl.\rquote s Mot. at 29. The proposed annual cost for FirstLine\rquote s non-screener labor hours was $[ ], resulting in a total cost of $[ ] for non-screener labor hours over the entire life of the contract. File: 22 - RN Expertise Inc v US.doc, Paragraph with $: Second, the Plaintiff appears to claim that the proper way to calculate the price per collection is by allocating the fixed costs across the estimated number of collections. According to the Plaintiff, the IAA listed 23,725 as the estimated number of collections that would take place under the agreement. To reach a price of $93 per collection, the Plaintiff allocates all of the fixed costs across the estimated number of collections. Then, the Plaintiff appears to take the new IAA price and apply it to the quantity specified in the solicitation, which was 47,000 collections. The Plaintiff concludes that the cost of the IAA would have been more expensive than the Plaintiff\rquote s offer. The Court is not persuaded by the Plaintiff\rquote s analysis. By allocating the fixed costs across 23,725 collections and then using the per collection cost to calculate the total cost for 47,000 collections, the Plaintiff essentially counts the fixed costs twice. The IAA does not require payment of additional fixed costs if the DOD orders more collections than are estimated in the contract. File: 24 - CW Government Travel Inc v US.doc, Paragraph with $: Travel management centers provide traditional travel services and are staffed with travel agents. Pl.\rquote s Mot. at 14. An accommodated travel management center \u8220\'3fis a third-party contractor selected by one of the 70 potential customer Federal agencies to serve as the provider of that agency\rquote s travel management center services.\u8221\'3f Pl.\rquote s Mot. at 14. The Solicitation requires that the contractor accommodate any change in an agency\rquote s travel management center, AR 67, and GSA has estimated the cost to the contractor of accommodating such changes to be between $5000 and $50,000. Pl.\rquote s Reply at 15\u8211\'3f16 (citing AR 4290). File: 24 - CW Government Travel Inc v US.doc, Paragraph with $: In conducting market research on the provisions that provide that the contractor must accommodate an agency\rquote s decision to utilize a new travel management center, GSA received quotes on the cost of this transition ranging from $5000 to $50,000, and found that the cost of the transition was not usually charged to the corporate customer. AR 4290; File: 33 - GEO Group Inc v US.doc, Paragraph with $: Balance of hardships did not favor issuance of temporary restraining order (TRO) enjoining government from beginning performance of new procurement contract for operation of Bureau of Prisons (BOP) residential reentry facility; issuance of TRO would result in significant administrative burdens associated with transfer of 145 federal inmates, successful bidder was small, not-for-profit corporation that had incurred nearly $1 million in startup costs to prepare for onset of new contract, and successful bidder would be far less able to weather costs of delaying contract than would aggrieved bidder, which employed over 13,000 individuals and operated 64 other correctional, detention, and special needs facilities. File: 33 - GEO Group Inc v US.doc, Paragraph with $: it appears that whatever harm that plaintiff will encounter if contract performance is not enjoined is outweighed by the harm that will be experienced by defendant and CFS if a restraining order is issued. For one thing, plaintiff\rquote s calculus fails to account for the significant administrative burdens associated with transfer of the 145 Federal inmates in question\u8212\'3fand with reversing those transfer orders at the last instance. Further, plaintiff appears to discount the potential impact of delaying CFS\rquote performance. Unlike GEO, CFS is a small, not-for-profit concern. To prepare for its performance, CFS has incurred significant payroll and rent obligations\u8212\'3fin particular, it appears that CFS has incurred nearly $1 million in startup costs and has recruited, hired and trained thirty-eight individuals to prepare for the onset of the new contract. Logic and experience suggest that because of disparities in size, CFS would be far less able to weather the costs of a delay than GEO. This disparity cannot be ignored in concluding that the balancing of harms does not favor plaintiff here\u8212\'3fparticularly because, again, the \u8220\'3femergency\u8221\'3f presented to the court is one precipitated by plaintiff\rquote s decisions on how to phase its protests of the subject procurement. File: 60 - Tech Systems Inc v US.doc, Paragraph with $: On October 18, 2010, Contract Specialist James J. Dawson submitted to the Contracting Officer a Price Evaluation Report on the three offerors in the competitive range. AR at 640\u8211\'3f42. The KS calculated prices by adding the total price for the basic requirement to the total price for all options, based on fixed unit price for contract line items. AR at 640. This evaluation produced a total price of $2,097,582.00 for CHC; $[XXXXXXX] for Tech Systems; and $[XXXXXXX] for Ben\u8211\'3fMar. AR at 641. Based in part on the Tech Systems\rquote historical costs as the incumbent, Mr. Dawson also calculated the Independent Government Cost Estimate (IGCE) of $3,077,000.00, for use in evaluation of price reasonableness. File: 62 - National RR Passenger Corp v Veolia Transp Services Inc.doc, Paragraph with $: Even if no question of fact existed as to whether Veolia would have been able to submit a winning bid without the three former Amtrak employees, a factual question on lack of causation would still exist if Amtrak can demonstrate that it would have been awarded the contract despite the higher costs of its bid. Admittedly, Veolia has demonstrated that the SFRTA was free to reject all proposals at its discretion, including because it failed to receive a reasonably priced proposal. Defs.\rquote Facts \u182\'3f\u182\'3f 28, 256. Veolia argues that it was not reasonably likely that Amtrak\rquote s bid would have been successful under any circumstances due to the disparity between Amtrak\rquote s bid price of $162,639,724, Defs.\rquote Facts \u182\'3f 198, and the SFRTA\rquote s own estimate of only $81,200,000 to perform the contract, File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: At that point, each of the nine locations that SBAR serves, the eight bases and HQ LSC, conducted cost analyses, using DTM\u8211\'3fCOMPARE, to determine whether the cost of civilian performance would be less expensive than the cost of contractor performance. AR 15, 17428\u8211\'3f29, 18234\u8211\'3f35, 18802\u8211\'3f03, 19382\u8211\'3f83, 20040\u8211\'3f41, 20699\u8211\'3f700, 21457\u8211\'3f60, 21793\u8211\'3f94, 22725\u8211\'3f26. The AFSPC found these analyses showed a cost savings of more than $31 million contract-wide. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: The final cost analyses concluded that, using information that was primarily available in the April to June 2010 time frame, the DoD saves approximately $7.3 million (from 2011 through 2015) by in-sourcing the non-fuels portion of the MWLS contract. AR 8, 13. Using currently available information, the final cost analyses concluded that the in-sourcing saves the DoD approximately $8.8 million for that same period. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: that AFSPC expected \u8220\'3fthe number of FTE requests to exceed the number of civilians allocated to AFSPC; therefore the group will be compelled to make some difficult decisions\u8221\'3f). According to the plaintiff, if the Air Force had performed its cost estimate using the number of the staff requested by the nine locations served by the contract, the correction would increase the Air Force\rquote s costs more than the Air Force\rquote s final cost savings determination of $8.8 million such that continuing to contract out the work would be the least costly alternative. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: AR 11469. According to the plaintiff, the inclusion of a 1.5% overtime impact cost at all nine locations served by the contract would reduce the Air Force\rquote s cost savings determination by approximately $2.5 million. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: Jackson Decl., Exs. 6, 8. While such a correction is not sufficient on its own to tip the balance from the Air Force\rquote s final cost savings determination of approximately $8.8 million, if coupled with other alleged errors, the plaintiff alleges the total error might change the Air Force\rquote s final cost savings determination such that contracting is the least costly alternative and thereby demonstrate prejudice to the plaintiff. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: AR 16042 (When accounting for full costs to the Federal government of civilian personnel, \u8220\'3fcosts that must be taken into account include Department of Treasury contributions to the unfunded portion of the civilian retirement fund and to the annuitant health and life insurance benefits.\u8221\'3f); AR 16049 (estimating these Treasury costs to be 10%). According to the plaintiff, the inclusion of these costs at all nine locations served by the contract would reduce the Air Force\rquote s cost savings determination by approximately $7.9 million. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: Jackson Decl., Ex. 8. While such a correction is not sufficient on its own to tip the balance from the Air Force\rquote s final cost savings determination of approximately $8.8 million, if coupled with other alleged errors, the plaintiff alleges the total error might change the Air Force\rquote s final cost savings determination such that contracting is the least costly alternative and thereby demonstrate prejudice to the plaintiff. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: Jackson Decl., Exs. 5, 8. While such a correction is not sufficient on its own to tip the balance from the Air Force\rquote s final cost savings determination of approximately $8.8 million, if coupled with other alleged errors, the plaintiff alleges the total error might change the Air Force\rquote s final cost savings determination such that contracting is the least costly alternative and thereby demonstrate prejudice to the plaintiff. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: The plaintiff further argues that even if the Air Force reasonably relied upon the DTM\u8211\'3fCOMPARE software in its cost-analysis, it was irrational to determine contract administration costs on a location-by-location basis. According to the plaintiff, performing the DTM\u8211\'3fCOMPARE analysis on a contract-wide basis, rather than a location-by-location basis would reduce the Air Force\rquote s cost savings determination by approximately $3.8 million. File: 64 - Santa Barbara Applied Research Inc v US.doc, Paragraph with $: Jackson Decl., Exs. 7, 8. While, once again, such a correction is not sufficient on its own to tip the balance from the Air Force\rquote s final cost savings determination of approximately $8.8 million, if coupled with other alleged errors, the plaintiff alleges the total error might change the Air Force\rquote s final cost savings determination such that contracting is the least costly alternative and thereby demonstrate prejudice to the plaintiff. The government argues that because SBAR\rquote s MWLS contract is an indefinite quantity contract with separate task orders for each of the nine locations administered at the base level it was rational for the Air Force to account for contract administration costs separately for each of the locations. File: 85 - K-Lak Corp v US.doc, Paragraph with $: The following facts taken from the administrative record are not in dispute. The plaintiff, K\u8211\'3fLAK Corp. (\u8220\'3fK\u8211\'3fLAK\u8221\'3f), was an incumbent contractor providing credit reports at a cost of $3.80 each to the United File: 90 - OK's Cascade Co v US.doc, Paragraph with $: OK\rquote s Cascade submitted a termination for convenience settlement proposal to the Forest Service\rquote s contracting officer on August 18, 2005. In this proposal, OK\rquote s Cascade requested reimbursement of costs totaling $587,531, consisting of the following: (1) $174,724 to modernize mobile kitchen equipment and to comply with the Forest Service\rquote s solicitation requirements; (2) $402,806 in under-absorbed overhead costs from having less work under the EERAs than under the terminated contract; and (3) $10,000 in estimated proposal preparation costs. After the contracting officer\rquote s requests for additional support from OK\rquote s Cascade went unanswered for more than nine months, the contracting officer issued a final decision denying the claim on September 27, 2006. OK\rquote s Cascade received the final decision on October 3, 2006, and filed suit on September 28, 2007. The Court has jurisdiction under the Contract Disputes Act, File: 90 - OK's Cascade Co v US.doc, Paragraph with $: The claim for $402,806 in under-absorbed overhead costs is premised on the idea that OK\rquote s Cascade performed EERAs for three kitchen unit locations, whereas it received an award for four kitchen unit locations under the terminated contract. However, the time period for the staffing of the fourth location in Albuquerque, New Mexico already had expired before the Forest Service awarded the contract to OK\rquote s Cascade on July 7, 2004, and, in any event, OK\rquote s Cascade actually provided services for Albuquerque under a precontract EERA. The factual premise for this claim thus is incorrect. Moreover, the evidence presented to support this portion of the claim was seriously flawed. Plaintiff\rquote s witness, John Reed, should have testified as an expert witness, but Plaintiff\rquote s counsel did File: 90 - OK's Cascade Co v US.doc, Paragraph with $: Nearly one year after the Forest Service terminated the national contracts, on or about August 18, 2005, OK\rquote s Cascade submitted a 19\u8211\'3fpage settlement proposal to the Forest Service for $587,531, consisting of $174,724 for direct costs, $402,806 for under-absorbed overhead, and $10,000 in proposal File: 90 - OK's Cascade Co v US.doc, Paragraph with $: In its post-trial briefs, OK\rquote s Cascade summarized its damages as $166,500 in direct costs, $402,806 in unabsorbed overhead, and $50,397 for proposal preparation costs. In total, OK\rquote s Cascade seeks $619,703 in damages from the United States for termination of the national contract. File: 90 - OK's Cascade Co v US.doc, Paragraph with $: OK\rquote s Cascade seeks $174,724 in direct costs incurred to update and renovate its kitchens to comply with the requirements of the 2004 Solicitation and \u8220\'3fincrease OK\rquote s chances of multiple kitchen site award[s]....\u8221\'3f (Pl.\rquote s Post\u8211\'3fTrial Br. Fact 18.) Direct costs can be recovered if they are \u8220\'3fdirectly attributable to the performance of a specific contract and can be traced specifically to that contract.\u8221\'3f File: 90 - OK's Cascade Co v US.doc, Paragraph with $: OK\rquote s Cascade\rquote s own risk and were not authorized by the Government. Therefore, OK\rquote s Cascade cannot recover its pre-contract costs and its claim for $174,724 in direct costs cannot succeed. File: 90 - OK's Cascade Co v US.doc, Paragraph with $: Finally, OK\rquote s Cascade claims $50,397 in settlement, or proposal preparation, costs. Settlement costs generally are recoverable under FAR \u167\'3f 31.205 and include \u8220\'3f[a]ccounting, legal, clerical, and similar costs reasonably necessary for .... [t]he preparation and presentation, including supporting data, of settlement claims to the contracting officer.\u8221\'3f File: 90 - OK's Cascade Co v US.doc, Paragraph with $: Defendant presents three arguments in support of its position that OK\rquote s Cascade is not entitled to the asserted settlement costs. First, Defendant claims that $33,000 of OK\rquote s Cascade\rquote s costs were incurred after the commencement of this litigation and are not recoverable under the FAR, which provides for reimbursement relating to claims submitted to the contracting officer. Second, the remaining $18,000 in costs are precluded from recovery because there was no factual basis or legal merit to OK\rquote s Cascade\rquote s proposal. Third, OK\rquote s Cascade\rquote s claim fails because the settlement proposal did not provide adequate detail as required by the FAR. File: 90 - OK's Cascade Co v US.doc, Paragraph with $: The Court finds Defendant\rquote s arguments in this regard persuasive. The FAR allows for the reimbursement of reasonable costs that a contractor incurs to prepare and submit a settlement proposal to a contracting officer following a contract termination. In this case, Defendant informed OK\rquote s Cascade that it anticipated a no-cost termination. OK\rquote s Cascade nonetheless submitted a settlement claim for over $587,000 one year after contract termination. (Stip. \u182\'3f 51.) OK\rquote s Cascade\rquote s proposal consisted of nineteen pages and was deemed by the DCAA to be barely adequate for an audit. (Draper, Tr. 636\u8211\'3f37; Stip. \u182\'3f 52.) Such a proposal does not comply with the requirements of File: 98 - Fulcra Worldwide LLC v US.doc, Paragraph with $: CENTCOM\rquote s contracting officer, in his award decision document, also conducted a price analysis. SOSi\rquote s total evaluated price was significantly lower than the Independent Government Estimate (IGE) of $8,250,284.50. AR 618. The contracting officer observed that all the proposed offers were at least [...] percent lower than the IGE. Id. The contracting officer explained that the IGE price was constructed by extrapolating prices from the bridge contract (W91GDW\u8211\'3f10\u8211\'3fC\u8211\'3f0004) and the SCMS IDIQ contract (W91GER\u8211\'3fD6\u8211\'3fD\u8211\'3f0009), also awarded to Fulcra, to estimate mobilization costs. File: 99 - Washington Consulting Group Inc v Raytheon Technical Services Co LLC.doc, Paragraph with $: (finding award of costs and fees inappropriate where removal \u8220\'3fwas not contrary to well-settled law or binding authority\u8221\'3f). Here, defendants\rquote basis for removal was not objectively unreasonable. Although all four of plaintiff\rquote s claims arise under state law, plaintiff\rquote s well-pleaded complaint alleges misconduct by numerous FAA employees, names one former FAA employee as a defendant, involves the award of a $1 billion federal government contract, and expressly cites violations of federal criminal conflict of interest statutes and regulations. Although this Court is unpersuaded that plaintiff\rquote s claims fit within \u8220\'3fthe slim category
"""import os
def print_first_line_of_files(root_dir):
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
file_path = os.path.join(subdir, filename)
if ".doc" in file_path:
try:
with open(file_path, 'r', encoding='utf-8') as file:
first_line = file.readline().strip() # Read the first line
print(subdir, f"File: {filename}, First line: {first_line}")
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
print_first_line_of_files(root_directory)"""
'import os\n\ndef print_first_line_of_files(root_dir):\n # Iterate through all subdirectories of the root directory\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n file_path = os.path.join(subdir, filename)\n if ".doc" in file_path:\n \n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n first_line = file.readline().strip() # Read the first line\n print(subdir, f"File: {filename}, First line: {first_line}")\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nprint_first_line_of_files(root_directory)'
"""import os
def print_paragraphs_with_dollar_sign(root_dir):
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if '$' in paragraph:
print(f"File: {filename}, Paragraph with $: {paragraph}")
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
print_paragraphs_with_dollar_sign(root_directory)"""
'import os\ndef print_paragraphs_with_dollar_sign(root_dir):\n # Iterate through all subdirectories of the root directory\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n file_path = os.path.join(subdir, filename)\n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n content = file.read() # Read the entire file into a single string\n paragraphs = content.split(\'\n\') # Split the content into paragraphs\n for paragraph in paragraphs:\n if \'$\' in paragraph:\n print(f"File: {filename}, Paragraph with $: {paragraph}")\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nprint_paragraphs_with_dollar_sign(root_directory)'
"""import csv
import os
import re
def save_final_clean_text_to_csv(root_dir, csv_filename='final_clean_text.csv'):
not_found_list = [] # Step 1: Create an empty list
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir', 'Filename', 'Final Clean Text'])
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if filename.endswith('.doc'):
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read()
conclusion_match = re.search('conclusion', content, re.IGNORECASE | re.DOTALL)
start_pos = None
if conclusion_match:
start_pos = conclusion_match.end()
else:
alt_endings_match = re.search('conclusion\.|IT IS ORDERED that', content, re.IGNORECASE | re.DOTALL)
if alt_endings_match:
start_pos = alt_endings_match.end()
if start_pos is not None:
text_after_marker = content[start_pos:].strip()
all_citations_position = text_after_marker.find('All Citations')
if all_citations_position != -1:
text_before_all_citations = content[start_pos:start_pos + all_citations_position].strip()
else:
text_before_all_citations = text_after_marker
cleanup_pattern = re.compile(r'(\\par|\\[a-z]+\d*|\{\}|\{|\}|\n|\r|\t|\f|\v|\s{2,})')
clean_text = re.sub(cleanup_pattern, ' ', text_before_all_citations).strip()
if clean_text:
print(f"Exporting: {filename}, Final Clean Text: {clean_text[:100]}...")
csvwriter.writerow([subdir, filename, clean_text])
else:
print(f"No valid clean text for export in {filename}.")
else:
not_found_list.append(file_path) # Step 2: Append to the list
print(f"No 'conclusion', 'conclusion.', or 'IT IS ORDERED that' found in {filename}.")
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Step 3: Loop through the list and print each item
print("\nFiles where 'conclusion' or alternatives were not found:")
for item in not_found_list:
print(item)
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_final_clean_text_to_csv(root_directory)
"""
'import csv\nimport os\nimport re\n\ndef save_final_clean_text_to_csv(root_dir, csv_filename=\'final_clean_text.csv\'):\n not_found_list = [] # Step 1: Create an empty list\n\n with open(csv_filename, \'w\', newline=\'\', encoding=\'utf-8\') as csvfile:\n csvwriter = csv.writer(csvfile)\n csvwriter.writerow([\'Subdir\', \'Filename\', \'Final Clean Text\'])\n\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n if filename.endswith(\'.doc\'):\n file_path = os.path.join(subdir, filename)\n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n content = file.read()\n\n conclusion_match = re.search(\'conclusion\', content, re.IGNORECASE | re.DOTALL)\n start_pos = None\n\n if conclusion_match:\n start_pos = conclusion_match.end()\n else:\n alt_endings_match = re.search(\'conclusion\\.|IT IS ORDERED that\', content, re.IGNORECASE | re.DOTALL)\n if alt_endings_match:\n start_pos = alt_endings_match.end()\n\n if start_pos is not None:\n text_after_marker = content[start_pos:].strip()\n all_citations_position = text_after_marker.find(\'All Citations\')\n\n if all_citations_position != -1:\n text_before_all_citations = content[start_pos:start_pos + all_citations_position].strip()\n else:\n text_before_all_citations = text_after_marker\n\n cleanup_pattern = re.compile(r\'(\\par|\\[a-z]+\\d*|\\{\\}|\\{|\\}|\n|\r|\t|\x0c|\x0b|\\s{2,})\')\n clean_text = re.sub(cleanup_pattern, \' \', text_before_all_citations).strip()\n\n if clean_text:\n print(f"Exporting: {filename}, Final Clean Text: {clean_text[:100]}...")\n csvwriter.writerow([subdir, filename, clean_text])\n else:\n print(f"No valid clean text for export in {filename}.")\n else:\n not_found_list.append(file_path) # Step 2: Append to the list\n print(f"No \'conclusion\', \'conclusion.\', or \'IT IS ORDERED that\' found in {filename}.")\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n # Step 3: Loop through the list and print each item\n print("\nFiles where \'conclusion\' or alternatives were not found:")\n for item in not_found_list:\n print(item)\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nsave_final_clean_text_to_csv(root_directory)\n'
"""#work ok but not perfect
import csv
import os
import re
def save_final_clean_text_to_csv(root_dir, csv_filename='final_clean_text.csv'):
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir', 'Filename', 'Final Clean Text'])
# Adjusted regex pattern to capture text after "conclusion" but stop at "All Citations"
conclusion_to_citations_pattern = re.compile(r'conclusion(.*?)(?=All Citations)', re.IGNORECASE | re.DOTALL)
# Enhanced cleanup pattern to remove RTF control words, formatting characters, braces, and reduce all kinds of whitespace
cleanup_pattern = re.compile(r'(\\par|\\[a-z]+\d*|\{\}|\{|\}|\n|\r|\t|\f|\v|\s{2,})')
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if filename.endswith('.doc'): # Adjust as necessary for your file types
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read()
match = conclusion_to_citations_pattern.search(content)
if match:
text_after_conclusion_before_citations = match.group(1).strip()
# Further cleanup of the text, including reducing excessive whitespace
clean_text = re.sub(cleanup_pattern, ' ', text_after_conclusion_before_citations).strip()
# Additional step to ensure the text is a coherent paragraph
coherent_paragraph = ' '.join(clean_text.split())
print(f"File: {filename}, Final Clean Text: {coherent_paragraph[:100]}...")
csvwriter.writerow([subdir, filename, coherent_paragraph])
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_final_clean_text_to_csv(root_directory)"""
'#work ok but not perfect\nimport csv\nimport os\nimport re\n\ndef save_final_clean_text_to_csv(root_dir, csv_filename=\'final_clean_text.csv\'):\n with open(csv_filename, \'w\', newline=\'\', encoding=\'utf-8\') as csvfile:\n csvwriter = csv.writer(csvfile)\n csvwriter.writerow([\'Subdir\', \'Filename\', \'Final Clean Text\'])\n\n # Adjusted regex pattern to capture text after "conclusion" but stop at "All Citations"\n conclusion_to_citations_pattern = re.compile(r\'conclusion(.*?)(?=All Citations)\', re.IGNORECASE | re.DOTALL)\n\n # Enhanced cleanup pattern to remove RTF control words, formatting characters, braces, and reduce all kinds of whitespace\n cleanup_pattern = re.compile(r\'(\\par|\\[a-z]+\\d*|\\{\\}|\\{|\\}|\n|\r|\t|\x0c|\x0b|\\s{2,})\')\n\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n if filename.endswith(\'.doc\'): # Adjust as necessary for your file types\n file_path = os.path.join(subdir, filename)\n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n content = file.read()\n match = conclusion_to_citations_pattern.search(content)\n if match:\n text_after_conclusion_before_citations = match.group(1).strip()\n # Further cleanup of the text, including reducing excessive whitespace\n clean_text = re.sub(cleanup_pattern, \' \', text_after_conclusion_before_citations).strip()\n # Additional step to ensure the text is a coherent paragraph\n coherent_paragraph = \' \'.join(clean_text.split())\n print(f"File: {filename}, Final Clean Text: {coherent_paragraph[:100]}...")\n csvwriter.writerow([subdir, filename, coherent_paragraph])\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nsave_final_clean_text_to_csv(root_directory)'
"""import csv
import os
def save_paragraphs_with_dollar_sign_to_csv(root_dir, csv_filename='paragraphs_with_dollar.csv'):
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['subdir', 'Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
file_path = os.path.join(subdir, filename)
if ".doc" in filename:
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if 'contract' in paragraph and '$' in paragraph:
print(f"File: {filename}, Paragraph with $: {paragraph}") # Keep printing as requested
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_dollar_sign_to_csv(root_directory)
"""
'import csv\nimport os\n\ndef save_paragraphs_with_dollar_sign_to_csv(root_dir, csv_filename=\'paragraphs_with_dollar.csv\'):\n with open(csv_filename, \'w\', newline=\'\', encoding=\'utf-8\') as csvfile:\n csvwriter = csv.writer(csvfile)\n csvwriter.writerow([\'subdir\', \'Filename\', \'Paragraph\']) # Write the header\n\n # Iterate through all subdirectories of the root directory\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n file_path = os.path.join(subdir, filename)\n if ".doc" in filename:\n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n content = file.read() # Read the entire file into a single string\n paragraphs = content.split(\'\n\') # Split the content into paragraphs\n for paragraph in paragraphs:\n if \'contract\' in paragraph and \'$\' in paragraph:\n print(f"File: {filename}, Paragraph with $: {paragraph}") # Keep printing as requested\n csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nsave_paragraphs_with_dollar_sign_to_csv(root_directory)\n'
# rule of two
"""import csv
import os
import re # Import the regular expression module
def clean_text(text):
# Replace the specific sequences with desired characters or an empty string
text = text.replace('u8220' , "") # Example: replacing with a standard left double quotation mark
text = text.replace('u8221' , "") # Example: replacing with a standard right double quotation mark
text = text.replace('\\\'3f', '') # Removes the sequence \'3f correctly
# Add more replacements as needed
return text
def save_paragraphs_with_regex_to_csv(root_dir, csv_filename='paragraphs_with_regex.csv'):
# Compile the regular expression for efficiency in a loop
pattern = re.compile(r'Rule of Two', re.IGNORECASE) # Case-insensitive search
with open(csv_filename, 'w', newline='', encoding='utf-8') as csvfile:
csvwriter = csv.writer(csvfile)
csvwriter.writerow(['Subdir','Filename', 'Paragraph']) # Write the header
# Iterate through all subdirectories of the root directory
for subdir, dirs, files in os.walk(root_dir):
for filename in files:
if ".doc" in filename:
file_path = os.path.join(subdir, filename)
try:
with open(file_path, 'r', encoding='utf-8') as file:
content = file.read() # Read the entire file into a single string
paragraphs = content.split('\n') # Split the content into paragraphs
for paragraph in paragraphs:
if pattern.search(paragraph): # Use re.search to find the pattern
paragraph = clean_text(paragraph)
print(f"Dir: {subdir}, File: {filename}, Paragraph with 'The Rule of Two': {paragraph}") # Keep printing
csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV
except Exception as e:
print(f"Error reading file {filename}: {e}")
# Define the root directory
root_directory = 'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data'
# Execute the function with the root directory as its argument
save_paragraphs_with_regex_to_csv(root_directory)
"""
'import csv\nimport os\nimport re # Import the regular expression module\n\ndef clean_text(text):\n # Replace the specific sequences with desired characters or an empty string\n text = text.replace(\'u8220\' , "") # Example: replacing with a standard left double quotation mark\n text = text.replace(\'u8221\' , "") # Example: replacing with a standard right double quotation mark\n text = text.replace(\'\\\'3f\', \'\') # Removes the sequence \'3f correctly\n\n # Add more replacements as needed\n return text\n\n \ndef save_paragraphs_with_regex_to_csv(root_dir, csv_filename=\'paragraphs_with_regex.csv\'):\n # Compile the regular expression for efficiency in a loop\n pattern = re.compile(r\'Rule of Two\', re.IGNORECASE) # Case-insensitive search\n\n with open(csv_filename, \'w\', newline=\'\', encoding=\'utf-8\') as csvfile:\n csvwriter = csv.writer(csvfile)\n csvwriter.writerow([\'Subdir\',\'Filename\', \'Paragraph\']) # Write the header\n\n # Iterate through all subdirectories of the root directory\n for subdir, dirs, files in os.walk(root_dir):\n for filename in files:\n if ".doc" in filename:\n file_path = os.path.join(subdir, filename)\n try:\n with open(file_path, \'r\', encoding=\'utf-8\') as file:\n content = file.read() # Read the entire file into a single string\n paragraphs = content.split(\'\n\') # Split the content into paragraphs\n for paragraph in paragraphs:\n if pattern.search(paragraph): # Use re.search to find the pattern\n paragraph = clean_text(paragraph)\n print(f"Dir: {subdir}, File: {filename}, Paragraph with \'The Rule of Two\': {paragraph}") # Keep printing\n csvwriter.writerow([subdir,filename, paragraph]) # Save to CSV\n except Exception as e:\n print(f"Error reading file {filename}: {e}")\n\n# Define the root directory\nroot_directory = \'C:\\Users\\muc574\\Bid Protest\\WestLaw Data\\Data\'\n\n# Execute the function with the root directory as its argument\nsave_paragraphs_with_regex_to_csv(root_directory)\n'